Looking around the law books the other day… OK, I actually hardly ever look at law books at all these days. Just databases… of cases. And when I should be working the search engine for the latest on “equitable estoppel” or “profit-à-prendre” I sometimes slip in a few phrases related to the laws of liquor. And sometimes I find a paragraph or two like these from the ruling of the Ontario Court of Appeal in the case Re The Canada Temperance Act,  O.R. 570:
There can be no doubt that the cause of temperance (and by temperance I mean temperance in its true sense, which is the antithesis of teetotalism and of prohibition) has made great strides since the Canada Temperance Act was first enacted [in 1878.] Open drunkenness which was not considered a disgrace at that time is so considered now. The most grievous blow which temperance ever sustained was the enactment in Canada and the United States of prohibitory laws in force throughout those countries, which brought forth the bootlegger and in his train the racketeer, who by illicit trafficking amassed millions of dollars and became a wealthy, organized and powerful criminal class.
Since the repeal of those laws, much has been done to overcome the evil, but it is yet by no means completely cured. Nevertheless I think no one would have the hardihood to suggest that an emergency, such as that described by Lord Haldane, exists in Canada. At the present time each Province in the Dominion of Canada, with the exception of Prince Edward Island, has legislation regulating and controlling the sale of liquor within the respective provinces, and the validity of this legislation has been affirmed. In all these Provinces the sale of liquor has been made a Government monopoly and the traffic is regulated and controlled by Government Commissions or Boards charged with the duty of controlling the sale. In Prince Edward Island there is a prohibitory law. For these reasons, it seems manifest to me that the emergency, if any existed, has wholly passed away and that the foundation, and the only foundation upon which Russell’s case can be supported, no longer exists.
While the words of Justice Henderson appear in his dissent, they do address the idea that something normally managed under provincial law – like the liquor trade – can be legislated upon at the national federal level under its “peace, order and good government” power if there is a national state of emergency. For Justice Henderson, that emergency had passed by 1939. Blessed control, the state’s temperance tool, had ensured common open drunkenness never returned. For him, prohibition is by contrast the tool of wealthy, organized and powerful criminal class… and, apparently, Prince Edward Island where you couldn’t buy legal liquor until a decade later. So temperance and prohibition are opposites. The majority did not agree however on the facts, holding that there had in fact been no change of circumstances and, as a result, that the national Canada Temperance Act, R.S.C. 1927, ch. 196 remained valid.
If, as some argue, the federal government could now intervene to pass a statute – one to “correct” last week’s Comeau ruling – some sort of national interest would have to be invoked. It could be an interest like, theoretically, a booze related emergency which somehow silently has remained unchanged since the 1870s. That would require arguing, as the lawyers for the churches did in 1939, that “the menace of intemperance is still present.” Not likely now. And probably not really likely in 1939 if we think carefully about Henderson’s dissent. Provincial control boards managing the liquor supply created and still uphold the temperate way we all enjoy in modern society.
So if that national interest is not likely the one that could be relied upon, what other national interest could there possibly be to justify a federal intervention into the local common sense approach administered by each province?