May 4, 1908 (10th Parliament, 4th Session)


Sir M@

Smith, in delivering the judgment of the Judicial Committee of the Privy Council, intimated that their Lordships- _ .
Must not be understood as intimating any dissent from the opinion of the Chief Justice of the Supreme Court of Canada and the other judges who held that the Act, as a general regulation of the traffic in intoxicating liquors throughout the Dominion, fell within the class of subjects, 'The regulation of Trade and Commerce ' enumerated in that section and was on that ground a valid exercise of the legislative power of the parliament of Canada.
Our Supreme Court had decided that the federal parliament had power to legislate on that matter because it came within subsection 2 of section 91 of the British North America Act, covering the regulations of trade and commerce. That was the ground upon which the Supreme Court gave its decision, and the Privy Council said that they did not dissent from that opinion. Here, therefore, we have the decision of the highest court in the land that although the provincial legislatures have exclusive power over saloon and other licenses, still this parliament can step in and pass a Temperance Act and, as was argued before the Privy Council, take away the vested rights of liquor dealers. Then the judgment of the Privy Council proceeds :
The judgment of the Privy Council proceeds upon the grounds that the subject was not falling within any of the subsections of section 92 and was therefore within the power of the Dominion parliament as a matter pertaining to the peace, order and good government of Canada.
But if this matter of the regulation of coaling vessels would not come under the head of ' the regulation of trade and commerce ' or ' navigation and shipping,' still it might come under the head of ' peace, order and good government.' Why not? Here is a conflict every day at these collieries between the company and the steamship owners and the sailing vessels, so that this government should have the power to make some kind of regulation that would do justice to the owners of the sailing vessels. The subject is, of course, a difficult one, but all these matters are difficult to deal with. Frequently in such matters we have the Supreme Court of Canada giving one opinion and the Privy Council another, but on the whole I think that our Supreme Court has passed upon them very fairly. If the government have any doubts, I would suggest that a test case be made and sent to the Supreme Court. The matter is one of great concern to a great number of people who have large sums invested in sailing vessels. It is of importance not only to these men, but to every man who consumes coal in Canada. To-day it is agitating the people in the maritime provinces. To-morrow it may become a live question in Saskatchewan or Alberta or British Columbia.
I think, therefore, that the government should take it up at once and deal with it. Let them submit the question to the Supreme Court, if they have doubts of their jurisdiction, and if not satisfied with the decision of the Supreme Court let them appeal it to the Privy Council.

Subtopic:   R. H. MONTGOMERY,
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