Supreme Court Justice Morris Fish delivers spirited edition of annual F.R. Scott Lecture
By Pascal Zamprelli
When Supreme Court Justice Morris J. Fish began his elocution of the F.R. Scott Lecture last Wednesday, he explained that some 50 years ago he had written a paper for the legendary constitutional scholar (and poet) for whom the annual lecture is named.
He has since misplaced the essay, but his Montreal Star article on the same topic began as follows: “Liquor has exerted a staggering influence on Canada’s Constitution – more staggering in fact than on the constitution of Canada’s first prime minster. Yet while 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.”
Indeed, Fish went on to examine how a surprising number of Canada’s foundational constitutional cases, which before the days of the Charter usually revolved around federal-provincial jurisdictional conflicts, began as disputes over the sale, licensing and prohibition of alcohol.
Legislating temperance
“The most obvious reason why so many constitutional cases involved alcohol is that there was a lot of drinking going on in 19th-century Canada,” he said. “And not much else.”
The centrality of alcohol to daily life in the late 19th and early 20th centuries made it one of the most divisive social issues of the day. When temperance groups found their educational efforts were largely unsuccessful in curbing the consumption of alcohol, they turned their focus to legislative efforts. Given that Canada was a young nation at the time, the issues raised by these laws represented uncharted ground with respect to constitutional interpretation by the courts.
Two important constitutional questions needed to be answered, said Fish – which level had jurisdiction to regulate the sale, consumption, and production of alcohol, and whether any distinction should be drawn between the power to regulate alcohol and the power to prohibit its consumption entirely.
“These questions would need to be answered despite an complete lack of precedent,” added Fish.
The “constitutional legacy” of these early liquor cases includes important doctrines such as paramountcy (federal law prevails when in conflict with provincial law), the double aspect doctrine (laws may be created by both provincial and federal governments in relation to the same subject matter), as well as a broad interpretation of the federal government’s power to make laws for “peace, order, and good government.” They are also early examples of courts struggling to deal with politically and socially charged issues that enflamed passions and exposed pronounced regional differences in attitudes.
Alcohol as a trigger…
“The challenge was that courts needed to grapple with these social and political pressures while addressing foundational concerns and questions in constitutional law,” Fish concluded. “Would our constitutional law have developed differently if it had been some other less socially divisive issue that had prompted early interpretation of our constitution? I’m uncertain of the answer, but I can say with confidence that alcohol served as the trigger for much of our early constitutional development.”