Ontario (AG) v Canada Temperance Federation explained

Ontario (AG) v Canada Temperance Federation
Court:	Judicial Committee of the Privy Council
Date Decided:	21 January 1946
Citations:	[1946] UKPC 2, [1946] AC 193
Judges:	Viscount Simon, Lord Thankerton, Lord Roche, Lord Greene, Lord Goddard
Number Of Judges:	5
Decision By:	Viscount Simon
Appealed From:	Court of Appeal of Ontario

Ontario (AG) v Canada Temperance Federation^[1] was a famous Canadian constitutional decision of the Judicial Committee of the Privy Council and was among the first cases to examine the peace, order, and good government power of the Constitution Act, 1867. It was the first decision to bring back the "national concerns" branch of peace, order and good government since it was first suggested in the Local Prohibitions case.

Background

In June 1939, the Ontario government posed the following reference question to the Court of Appeal of Ontario:

In presenting its case, Ontario argued:

While the Act had been declared valid in Russell v. The Queen, Viscount Haldane had commented in the later case of Toronto Electric Commissioners v. Snider that Russell could be supported now only on the ground that it was dealing with a matter that was "a menace to the national life of Canada" at that time (an emergency).
When the revised Act was enacted in 1927, having been originally enacted in 1878 and revised in 1886, there were no circumstances that enabled the Parliament of Canada to legislate anew.

Court of Appeal of Ontario

In September 1939, the majority of the Court of Appeal (Riddell, Fisher, McTague and Gillanders JJA) gave the following answer:

Ontario appealed the ruling to the Privy Council.

Privy Council

The ruling was upheld by the Board. As to the arguments raised by Ontario,

While the Board was not bound by its previous decisions, it noted that nowhere in the British North America Act is it mentioned that the peace, order and good government power can be invoked only in cases of emergency. It also noted that Snider did not explicitly state that Russell was wrongly decided, and Haldane's explanation was "too narrowly expressed." In addition, Russell had become a significant foundation for subsequent jurisprudence not only at the Board but also in the House of Lords.
Once it was decided that the 1878 Act was valid, any subsequent Act replacing it through consolidating subsequent amending Acts must be equally valid.

Viscount Simon for the Council also suggested that the federal power relating to peace, order and good government could be invoked for matters of "national concern:"

This became the foundation of the "national dimensions" test.

Impact

Many decisions to follow struggled to reconcile the case with that of Russell and seem to give contradictory interpretations of the nature of "peace, order and good government." Though not expressly stated by Simon, the decision effectively overturned Russell.

The "national concern" test was subsequently applied and elaborated on in Johannesson v. West St. Paul, Munro v. National Capital Commission, and R. v. Crown Zellerbach.

External links

Full text of JCPC decision at BAILII and CanLII

Notes and References

The Attorney-General of Ontario and others v The Canada Temperance Federation. UKPC. 1946. 2. [1946] A.C. 193. 21 January 1946. P.C.. Ontario. 1.