The effect of alcohol on the Canadian Constitution ... seriously.

• Author: Fish, Morris J.
• Position: F.R. Scott Lecture/Conference F.R. Scott

--F. R. SCOTT LECTURE--

Alcohol has exerted a staggering influence on the Canadian constitution. It was a prominent feature of daily life in the young Dominion, much to both the delight and chagrin of many. The temperance movement exerted its own influence on both the federal and provincial legislatures. Without "alcohol" as a head of power, the legislatures claimed control over this seeming, social evil sometimes under "Peace, Order and Good Government", "criminal law", or "Trade and Commerce"; at other times under "Property and Civil Rights", "Local Matters", and so forth. Court challenges abounded; the result was, in part, the judiciary's failure to walk a straight line toward a clear division of powers between the federal and provincial governments. But the result was also many of the doctrines of division of powers that still form part of Canadian constitutional law. Beyond its impact on the division of powers, alcohol was also at the root of Canada's most important decision on the rule of law: Roncarelli--a decision argued and won by the late F. R. Scott.

L'alcool a exerce une grande influence sur la constitution canadienne. Ce fut un element marquant de la vie quotidienne au sein du jeune Dominion, etant source de plaisir ou de depit pour plusieurs. Le mouvement pour la temperance influenca les autorites legislatives federales et provinciales. Sans l'

Introduction I. Liquor: A Constitutional Succour? A. The People B. The Legislation C. The Courts II. One of F. R. Scott's Legacies: Roncarelli Conclusion Introduction

It is a pleasure to return to McGill. And it is an honour to give the F. R. Scott Lecture. It is an honour for many reasons, personal and professional. To have had F. R. Scott as a professor is to be blessed with the lifetime gift only a great academic can bestow. To have known the poet and to have read his poetry is to have savoured "the expression of a man who is living intensely and sensitively on all levels, spiritual, intellectual, political and sensual." (1) To have enjoyed the friendship of Frank and Marian Scott, as my wife Judy and I did for 25 years, is itself a cause of celebration. I am so honoured to have been invited today to honour Frank Scott's memory in this way, and to recall Marian as well, with affection and admiration.

I remember vividly my first lecture in Professor Scott's constitutional law class. Professor Scott, a tall and charismatic man, entered the classroom with his notes in one hand and the class list in the other. In those days, class attendance was both mandatory and recorded. Scott called out the names on his list: "Angus?"; "present". "Brown?"; "present". "Cohen?"; no answer. "Cohen?"; again no answer. Scott looked up, a puzzled expression on his face. "Has this man no friends?", he asked.

I remember as well a phone call I received at my law office from Professor Scott in 1967. He sounded distraught. Could I please come up to see him as soon as possible? I rushed to the Law Faculty. No sooner had I entered his office than he removed a summons from his top drawer and placed it in my hand. I immediately understood the ominous legal and political consequences that had brought me to Frank Scott's office. This Canadian legal legend of the political left stood charged with having turned right ... on a red light! I could see the headlines: > I had no choice but to save the man, perhaps an entire political movement. And even without the benefit of the Charter, I managed to do just that.

Scott insisted on an account. I sent him one. It read essentially as follows: "For professional services, including research, preparation, meetings, attendances at court, and disbursements: In all, one poem." Instead, I received the following note: "Dear Morris, How can one repay the gift of freedom? Eternal gratitude is the least one can offer. As for a poem, it comes when it comes. Veremos, as the Spaniards say. Love, joy, peace. Frank Scott."

Over the years, Frank Scott sent me copies of his essays, books, poetry, and anthologies. He inscribed one of them as follows: "To Morris Fish: One man's meat is another man's Poisson!"

In that light, I turn now from the Poisson to the meat of my lecture. I begin with a word about its venerable origins. My third-year essay at the law faculty, written for Professor Scott a half-century ago, was on a matter of pressing legal, sociological, and political importance: "The effect of alcohol on the Canadian Constitution." Professor Scott liked the paper and graded it accordingly. But no one has to my knowledge read it since. When I was invited to give this lecture, I thought this would be a particularly appropriate opportunity to read my paper to you, all 120 pages of it ... including the footnotes. Alas, I was unable to locate it. I did, however, find an editorial page article that I wrote for The Montreal Star several years later. It was derived from my third-year essay and began as follows:

Liquor has exerted a staggering influence on Canada's constitution. More staggering, in fact, than the influence it exerted on the constitution of Canada's first prime minister. Yet, while many historians ... have commented on the drinking habits of [Sir John A MacDonald], few seem to have noticed that alcohol has played so important a role in our national legal development. (2) In honour of my old professor and friend, F. R. Scott, I'd like to return to this understudied topic of interest to us both: The effect of intoxicating beverages on our national constitution. I could hardly have chosen a more auspicious occasion or a more appropriate audience. Your attendance here in such large numbers testifies to your own fascination with the subject.

Historian Will Ferguson has written, in reference to Confederation and to the drinking habits of our first prime minister, that "Canada, like many a child, was conceived under the influence of alcohol." (3) Ferguson could equally have been writing about the development of the Canadian constitution. A surprising number of our foundational constitutional judgments began as disputes over the sale, licensing, and prohibition of alcohol. A survey by Professor R. C. B. Risk found that 30 of the first 125 cases addressing the division of powers between the federal and provincial governments involved liquor disputes. (4)

A quick list of key constitutional cases from the late 19th and early 20th century reads like a liquor board document: Local Prohibition; (5) Manitoba License Holders; (6) Canada Temperance Federation; (7) Nat Bell Liquors; (8) Consolidated Distilleries; (9) Canadian Pacific Wine; (10) Brewers and Maltsters. (11) I could go on.

It is in these early liquor cases that we see the first discussions of the double aspect doctrine; paramountcy; peace, order and good government; and the legal significance, if any, of the original understandings of the British North America Act. (12)

Comment expliquer l'abondance de causes ayant trait a l'alcool ? La reglementation de l'alcool a constitue l'une des grandes questions juridiques, politiques et morales de la fin du 19e siecle et du debut du 20e-precisement au moment ou les tribunaux etaient saisis pour la premiere fois d'importantes questions constitutionnelles. Il s'agissait d'une question juridique epineuse, en raison de l'incertitude entourant la competence en matiere d'alcool. Les pouvoirs d'interdiction ou de reglementation de la vente d'alcool semblaient se situer a l'intersection de plusieurs dispositions de L'acte d'Amerique du Nord britannique. Il s'agissait d'un probleme moral epineux, parce que le pays etait divise entre des ouvriers dont la vie sociale etait axee sur l'alcool, et des avocats de la temperance qui voyaient dans l'alcool un des maux de la vie moderne. Et il s'agissait d'un probleme politique epineux, parce que les hommes politiques des trois paliers de gouvernement--federal, provincial et municipal-souhaitaient avoir competence en matiere de reglementation de l'alcool afin de pouvoir tirer parti des occasions de favoritisme et des revenus associes aux permis d'alcool.

Today, I shall first share with you the story of how alcohol has nurtured our constitutional development from its earliest days. And, later, how liquor licensing enabled Frank Scott to make a pivotal and lasting contribution to the rule of law in Canada.

1. Liquor: A Constitutional Succour?

   1. The People

      It is useful to begin with a discussion of two realities of 19th century Canadian life: the centrality of drinking to daily routines, and the social and political backlash that widespread drunkenness cause&

      The most obvious reason why so many constitutional cases involved alcohol is that there was a lot drinking going on in 19th century Canada-and not much else. In her history of the prohibition movement in Canada, Jan Noel describes alcohol as the caffeine of daily life. (13) Many families, children included, would begin the day with a stiff shot of whiskey. As one chronicler reported: "Whiskey was served to each member of the household in the morning. It was considered to be a precaution against colds and to enable one to do hardy work." (14) Even nursing mothers would regularly drink for fortitude. In Montreal, residents would add brandy to their water to make sure it was safe to drink. (15) Some, it seems, still consider this a sensible precaution.

      Following breakfast, men would drink throughout the day--even, and especially, while at work. As Noel recounts, labourers would pass buckets of whiskey in the fields and factories, and carters and cabmen expected a drink as a tip for their services. (16) The professional classes were no different than their labouring counterparts. Lawyers and judges would imbibe, on the job, to "keep up their eloquence". (17) My own eloquence, such as it is, just comes naturally.

      Following a day at work, men would head to the taverns to drink and socialize. Taverns were known as "public houses" because they were the centres of social...