February 1, 1939 (18th Parliament, 4th Session)


Ernest Lapointe (Minister of Justice and Attorney General of Canada)


Right Hon. ERNEST LAPOINTE (Minister of Justice):

The hon. gentleman kindly
gave me notice of his question and I have prepared the following answer:
The provisions of the Canada Temperance Act, since its first enactment in 1878, have never been enforced by the dominion. On the contrary they have been enforced by provincial or local authorities until the present instance involving Manitoulin Island. Of course, it is not desirable that the dominion should intrude upon a field occupied by the province.
The Canada Temperance Act is not distinguishable from other public statutes of Canada, such as the criminal code, the Lord's Day Act and the Juvenile Delinquents Act, the enforcement of which is carried out by provincial or local authorities in virtue of section 92(14) of the British North America Act-administration of justice in the province.
Mr. Justice Street of the Queen's Bench division of the Supreme Court of Ontario stated in Regina v. Bush, 15 Ontario Reports, 398, at pages 403 and 404, in effect, that subject to certain limitations upon its scope section 92(14) has effect to confer upon the provincial legislatures the right to, regulate and to provide for the whole machinery connected with the administration of justice in the provinces including the appointment, except judges, of all officers requisite for the proper administration of justice in its widest sense, reserving only the procedure in criminal matters.
Further, I do not think it can be denied that public order locally is, generally, maintained by provincial or local authorities.
With regard to the question as to whether or not the Canada Temperance Act is part of the criminal code, I think it is obvious that the said act is not part of the criminal code, but the prohibitions therein contained do, however, constitute criminal offences as indicated by Sir Montague E. Smith in delivering the judgment of the privy council in Russell v. The Queen, 7 Appeal Cases, 829. At page 835 he said:
The effect of the act when brought into force in any county or town within the dominion is describing it generally, to prohibit the sale of intoxicating liquors, except in wholesale quantities, or for certain specified purposes, to regulate the traffic in the excepted eases, and to make sales of liquors in violation of the prohibition and regulations contained in the act criminal offences, punishable by fine, and for the third or subsequent offence by imprisonment.
["Mr. Farquliar.]
In view of the above, my answer to the question submitted is that the responsibility for the enforcement of the Canada Temperance Act on Manitoulin Island does not rest upon the dominion.
I earnestly hope that ways will be found through cooperation within the limit of existing constitutional jurisdictions to cope with the situation described by the hon. member.

Full View