1882 RUSSELL V. The offence was proved. No evidence was called for the defence. The only defence offered was an objection to the jurisdiction of the magistrate on the sole ground THE QUEEN. that the law under which the proceedings were had, namely, the Canada Temperance Act, 1878, is ultra vires. This objection was overruled by the magistrate. Thereupon a rule nisi was obtained to remove the conviction by certiorari into the Supreme Court to be quashed. The only objection to the conviction raised before the Supreme Court was, that the said Act was ultra vires, the matter being entirely within the powers of the Local Legislature under the 92nd section of the B. N. A. Act. After argument the Supreme Court discharged the rule, considering themselves bound by the decision of the Supreme Court of Canada, reversing the decision of the Supreme Court of New Brunswick in the case of Reg. v. The Mayor of Fredericton, and holding that the Canada Temperance Act, 1878, is not ultra vires. In the last mentioned case the Supreme Court of New Brunswick held (Palmer, J. diss.) that the said Act was ultra vires. The judgment of the Supreme Court of Canada reversing that decision (Henry, J. diss.) is reported in 3 Can. S.C.R. 505; post, p. 27. The appellant thereupon petitioned Her Majesty in Council for special leave to appeal, and, by Order in Council, dated the 18th day of May, 1881, leave was given accordingly. Mr. Benjamin, Q.C., and Mr. R. Brown for the appel iant. Mr. J. J. Maclaren, Q. C. (of the Canadian Bar), and Mr. Fullarton for the respondent. The arguments appear sufficiently from the judgment of their Lordships. STATEMENT. 1882 RUSSELL 2. THE QUEEN. JUDGMENT. At the conclusion of the arguments their Lordships took time to consider their judgments. June 23rd. Their Lordships gave judgment as follows : This is an appeal from an order of the Supreme Court of the Province of New Brunswick, discharging a rule nisi which had been granted on the application of the appellant for a certiorari to remove a conviction made by the police magistrate of the city of Fredericton against him, for unlawfully selling intoxicating liquors, contrary to the provisions of the Canada Temperance Act, 1878 (41 Vict. c. 16, Canada). No question has been raised as to the sufficiency of the conviction, supposing the above-mentioned statute is a valid legislative Act of the Parliament of Canada. The only objection made to the conviction in the Supreme Court of New Brunswick, and in the appeal to Her Majesty in Council, is that, having regard to the provisions of the B. N. A. Act, 1867, relating to the distribution of legislative powers, it was not competent for the Parliament of Canada to pass the Act in question. The Supreme Court of New Brunswick made the order now appealed from in deference to a judgment of the Supreme Court of Canada in the case of The City of Fredericton v. The Queen. In that case the question of the validity of the Canada Temperance Act, 1878, though in another shape, directly arose, and the Supreme Court of New Brunswick, consisting of six judges, then decided, Mr. Justice Palmer dissenting, that the Act was beyond the competency of the Dominion Parliament (1). On the appeal of the city of Fredericton, this judgment was reversed by the Supreme Court of Canada, which held, Mr. Justice Henry dissenting, that the Act was valid (2). (1) 3 Pug. & B. 139. (2) 3 Sup. C. R. 505; post, p. 27. The present appeal to Her Majesty is brought, in effect, to review the last-mentioned decision. 1882 ނ RUSSELL The preamble of the Act in question states that "it is THE QUEEN very desirable to promote temperance in the Dominion, JUDGMENT, and that there should be uniform legislation in all the provinces respecting the traffic in intoxicating liquors.' The Act is divided into three parts. The first relates to proceedings for bringing the second part of this Act into force;" the second, to "prohibition of traffic in intoxicating liquors ;" and the third, to "penalties and prosecutions for offences against the second part." The mode of bringing the second part of the Act into force, stating it succinctly, is as follows:-On a petition to the Governor in Council, signed by no less than onefourth in number of the electors of any county or city in the Dominion, qualified to vote at the election of a member of the House of Commons, praying that the second part of the Act should be in force and take effect in such county or city, and that the votes of all the electors be taken for or against the adoption of the petition, the GovernorGeneral, after certain prescribed notices and evidence, may issue a proclamation, embodying such petition, with a view to a poll of the electors being taken for or against its adoption. When any petition has been adopted by the electors of the county or city named in it, the Governor-General in Council may, after the expiration of sixty days from the day on which the petition was adopted, by Order in Council published in the Gazette, declare that the second part of the Act shall be in force and take effect in such county or city, and the same is then to become of force and take effect accordingly. Such Order in Council is not to be revoked for three years, and only on like petition and procedure. The most important of the prohibitory enactments contained in the second part of the Act is section 99, 1882 RUSSELL 2'. THE QUEEN. which enacts that "from the day on which this part of this Act comes into force and takes effect in any county or city, and for so long thereafter as the same continues in force therein, no person, unless it be for exclusively sacramental or medicinal purposes, or for bona fide use in some art, trade, or manufacture, under the regulation contained in the fourth sub-section of this section, or as, hereinafter authorized by one of the four next sub-sections of this section, shall, within such county or city, by himself, his clerk, servant, or agent, expose or keep for sale, or directly or indirectly, on any pretence or upon any device, sell or barter, or in consideration of the purchase of any other property give, to any other person, any spirituous or other intoxicating liquors, or any mixed liquor, capable of being used as a beverage, and part of which is spirituous or otherwise intoxicating." Sub-section 2 provides that "neither any license issued to any distiller or brewer" (and after enumerating other licenses), "nor yet any other description of license whatever, shall in any wise avail to render legal any act done in violation of this section." Sub-section 3 provides for the sale of wine for sacramental purposes, and sub-section 4 for the sale of intoxicating liquors for medicinal and manufacturing purposes, these sales being made subject to prescribed conditions. Other sub-sections provide that producers of cider, and distillers and brewers, may sell liquors of their own manufacture in certain quantities, which may be termed wholesale quantities, or for export, subject to prescribed conditions, and there are provisions of a like nature with respect to vine-growing companies and manufacturers of native wines. The third part of the Act enacts (section 100) that whoever exposes for sale, or sells intoxicating liquors, in violation of the second part of the Act, should be liable, on summary conviction, to a penalty of not less than fifty dollars for the first offence, and not less than one hundred dollars for the second offence, and to be imprisoned for a term not exceeding two months for the third and every subsequent offence: all intoxicating liquors in respect to which any such offence has been committed, to be forfeited. 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 cases, and to make sales of liquors in violation of the prohibibition and regulations contained in the Act criminal offences, punishable by fine, and for the third or subsequent offence by imprisonment. It was in the first place contended, though not very strongly relied on, by the appellant's counsel, that assuming the Parliament of Canada had authority to pass a law for prohibiting and regulating the sale of intoxicating liquors, it could not delegate its powers, and that it had done so by delegating the power to bring into force the prohibitory and penal provisions of the Act to a majority of the electors of counties and cities. The short answer to this objection is, that the Act does not delegate any legislative powers whatever. It contains within itself the whole legislation on the matters with which it deals. The provision that certain parts of the Act shall come into operation only on the petition of a majority of electors does not confer on these persons power to legislate. Parliament itself enacts the condition, and everything which is to follow upon the condition being fulfilled. Conditional legislation of this kind is in many cases convenient, and is certainly not unusual, and 1882 RUSSELL v. THE QUEEN. JUDGMENT. |