Canada Temperance Act

Canada Temperance Act
Parliament of Canada
Long title An Act respecting the Traffic in Intoxicating Liquors
Citation	S.C. 1878, c. 16
Royal assent	10 May 1878
Keywords
Temperance
Status: Repealed

The Canada Temperance Act^[1] (French: Loi de tempérance du Canada),^[a] also known as the Scott Act,^[b] was an Act of the Parliament of Canada passed in 1878, which provided for a national framework for municipalities to opt in by plebiscite to a scheme of prohibition. It was repealed in 1984.

Pre-Confederation colonial legislation

Temperance legislation of general application had been enacted by the various colonies as early as 1855, when New Brunswick implemented total prohibition to mixed success.^[2] Others, beginning with the Province of Canada on the passage of the Dunkin Act in 1864, named after its sponsor Christopher Dunkin, opted to allow local municipalities to implement temperance upon an approval by plebiscite.^[3]

The Act proved to be problematic in its operation following the division of the Province into Ontario and Quebec. In Ex parte O'Neill, RJQ 24 SC 304,^[4] it was held that the Legislative Assembly of Quebec could not repeal the Dunkin Act, but it could pass a concurrent statute for regulating liquor traffic within the province.^[5] It was also later held that the Parliament of Canada could not repeal that Act with respect only to Ontario.^[6]

Post-Confederation

The provinces continued to enact temperance legislation after the establishment of Canadian Confederation in 1867. Ontario passed the Crooks Act^[c] in 1876 to provide for the limiting of licences granted by municipal councils in areas not otherwise subject to the Dunkin Act.^[7] The Parliament of Canada shortly followed afterwards with the passage of the Scott Act, which offered local option within a national scheme,^[8] followed in 1883 by the McCarthy Act, named after its sponsor, Dalton McCarthy, and its national licensing system.^[8][d]

In 1917, provision was made to suspend the operation of the Act if provincial temperance legislation was determined to be as restrictive in application.^[11]

Application

The Act was brought into effect in 17 municipalities:

Implementation of Canada Temperance Act^[12]

Province	Year	Area
New Brunswick	1879	Albert County
		Carleton County
		Kings County
		Queens County
		York County
	1880	Northumberland County
		Westmorland County
Manitoba	1880	Electoral District of Marquette
	1881	Electoral District of Lisgar
Nova Scotia	1881	Digby
	1884	Yarmouth
	1885	Guysborough
Quebec	1913	Thetford Mines
Ontario	1913	District of Manitoulin
	1914	Huron County
		Perth County (excluding Stratford)[13]
	1915	Peel County

Legal controversy

The Act was the subject of several constitutional challenges, many of which were of major importance in developing the jurisprudence underlying Canadian federalism:

• Severn v The Queen^[14] (holding that an Ontario Act requiring the licensing of liquor wholesalers and manufacturers was unconstitutional for infringing on the federal jurisdiction over trade and commerce)^[15]
• City of Fredericton v The Queen^[16] (the Supreme Court of Canada held that the Canada Temperance Act was a valid exercise of the trade and commerce power),^[17] later overturned by the Judicial Committee of the Privy Council in Russell v. The Queen^[18] (which declared that the Act fell under the power relating to peace, order and good government)^[19]
• Hodge v The Queen^[20] (which introduced the double aspect doctrine and declared that the provinces' jurisdiction under Section 92 was plenary in nature)^[21]
• the Local Prohibition Case^[22] (which held that prohibition fell under both federal and provincial jurisdiction and clarified the nature of both federal and provincial powers)^[23]

When prohibition in Ontario was relaxed in 1927, a reference question to the Supreme Court of Canada resulted in the 1935 finding that the Act still applied in the counties of Perth, Huron and Peel.^[24] A subsequent reference question by the Province of Ontario to the Ontario Court of Appeal resulted in a declaration that the Canada Temperance Act was constitutional,^[12] which was subsequently affirmed by the Judicial Committee of the Privy Council in 1946 in Ontario v. Canada Temperance Federation.^[25] Manitoulin and Peel would later hold plebiscites that revoked the application of the Act in December 1951,^[26] and Huron and Perth, the last jurisdictions in which the Act applied in Canada, would not do so until November 1959.^[27][28]

Repeal

The Act remained on the statute books until its repeal in 1984.^[29]

See also

• Prohibition in Canada
• 1894 Ontario prohibition plebiscite
• 1898 Canadian prohibition plebiscite
• 1902 Ontario prohibition referendum
• 1919 Quebec prohibition referendum
• 1919 Ontario prohibition referendum
• 1920 Canadian liquor plebiscite
• 1921 Ontario prohibition referendum
• 1924 Ontario prohibition referendum
• Ontario Temperance Act 1916

Further reading

• Brock, Kathy Lenore (1982). Sacred Boundaries: Local Option Laws in Ontario (PDF) (M.A.). McMaster University.
• Fish, Morris J. (2011). "The Effect of Alcohol on the Canadian Constitution ... Seriously" (PDF). McGill Law Journal. 57 (1): 189–209. doi:10.7202/1006421ar. ISSN 1920-6356. Archived from the original (PDF) on 2016-03-05. Retrieved 2019-01-17.

Notes and references

Notes

1. originally enacted as Acte de tempérance du Canada
2. named after its sponsor Sir Richard William Scott
3. named after its sponsor Adam Crooks
4. The Liquor License Act, 1883, S.C. 1883, c. 30 , subsequently declared unconstitutional in the McCarthy Act Reference.^[9][10]

References

1. The Canada Temperance Act, 1878, S.C. 1878, c. 16
2. Fish 2011, p. 197.
3. The Temperance Act of 1864, S.Prov.C. 1864, c. 18
4. Lefroy, Augustus Henry Frazer (1918). A short treatise on Canadian constitutional law. Toronto: The Carswell Company. p. 189.
5. Lefroy, Augustus Henry Frazer (1913). Canada's Federal System. Toronto: The Carswell Company. pp. 162–163.
6. The Attorney General for Ontario v The Attorney General for the Dominion of Canada, and the Distillers and Brewers' Association of Ontario (The "Local Prohibition Case") [1896] UKPC 20, [1896] AC 348 (9 May 1896), P.C. (on appeal from Canada)
7. An Act to amend the Law respecting the sale of Fermented and Spirituous Liquors, S.O. 1875-76, c. 26
8. Fish 2011, p. 198.
9. Fish 2011, p. 203.
10. Risk, R.C.B. (1990). "Canadian Courts under the Influence". University of Toronto Law Journal. 40 (4): 687–737. doi:10.2307/825682. JSTOR 825682. at 715-721
11. An Act to amend an Act in aid of Provincial Legislation prohibiting or restricting the sale or use of Intoxicating Liquors, S.C. 1917, c. 30, s. 2
12. Re Canada Temperance Act, 1939 CanLII 58, [1939] OR 570; [1939] 4 DLR 14; 72 CCC 145 (26 September 1939), Court of Appeal (Ontario, Canada)
13. Brock 1982, p. 34.
14. Severn v The Queen, 1878 CanLII 29, [1878] 2 SCR 70, 1 Cart 414 (28 January 1878)
15. Fish 2011, p. 200.
16. City of Fredericton v The Queen, 1880 CanLII 28, [1880] 3 SCR 505, 2 Cart 27 (13 April 1880)
17. Fish 2011, p. 201.
18. Charles Russell v The Queen [1882] UKPC 33, [1882] 7 App Cas 829, 8 CRAC 502 (23 June 1882), P.C. (on appeal from New Brunswick)
19. Fish 2011, pp. 201–202.
20. Hodge v The Queen [1883] UKPC 59, [1883] 9 AC 117 (15 December 1883), P.C. (on appeal from Ontario)
21. Fish 2011, pp. 202–203.
22. The Attorney General for Ontario v The Attorney General for the Dominion of Canada, and the Distillers and Brewers’ Association of Ontario [1896] UKPC 20, [1896] AC 348 (9 May 1896), P.C. (on appeal from Canada)
23. Fish 2011, pp. 203–204.
24. Reference re Canada Temperance Act, 1935 CanLII 38, [1935] SCR 494 (28 June 1935)
25. The Attorney-General of Ontario and others v The Canada Temperance Federation [1946] UKPC 2, [1946] A.C. 193 (21 January 1946), P.C. (on appeal from Ontario)
26. "A Wet Win?". The Acton Free Press. Acton, Ontario. 6 December 1951. p. 2.
27. French-Gibson, Elizabeth (2017). "Prohibition in Huron County: What Life was like in the 'Dry' Years" (PDF). Huron-Perth Boomers. Vol. 2, no. 2. Goderich, Ontario. pp. 12–14.
28. "Pieces of the Past: The Arlington Hotel in Listowel". The Listowel Banner. Listowel, Ontario. January 31, 2018. Archived from the original on January 17, 2019. Retrieved January 17, 2019.
29. Miscellaneous Statute Law Amendment Act, 1984, S.C. 1984, c. 40, s. 69