T-1738-84
Parkdale Hotel Limited (Plaintiff)
v.
Attorney General of Canada and Chief Electoral
Officer of Canada (Defendants)
INDEXED AS: PARKDALE HOTEL LTD. V. CANADA (ATTORNEY
GENERAL)
Trial Division, Joyal J.—Toronto, March 20,
1985; Ottawa, January 30, 1986.
Constitutional law — Distribution of powers — Parliament
having jurisdiction to adopt s. 67 of Canada Elections Act —
Long history of federal competency to enact liquor control and
temperance measures under peace, order and good government
clause — Parliament competent to legislate in every respect
electoral process and to assure peace and good order on
polling day — Isolated provisions, otherwise proper domain of
provincial legislation, not beyond federal competency while
part of Canada election code — Constitution Act, 1867, 30 &
31 Vict., c. 3 (U.K.) (R.S.C. 1970, Appendix II, No. 5] (as am.
by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the
Constitution Act, 1982, Item 1), ss. 91, 92(9),(13),(16) —
Canada Elections Act, R.S.C. 1970 (1st Supp.), c. 14, s. 67 —
An Act respecting Elections of Members of the Legislature,
C.S.C., 1859, c. 6, s. 81 — The Dominion Elections Act, 1874,
S.C. 1874, c. 9, s. 91 — The Dominion Elections Act, 1900,
S.C. 1900, c. 12, s. 107 — The Canada Temperance Act, 1878,
S.C. 1878, c. 16.
Constitutional law — Charter of Rights — Mobility rights
— S. 67 of Canada Elections Act not depriving personal
plaintiff of right to pursue gaining of livelihood in any prov
ince — S. 6(1) and (2) applying to freedom of movement within
Canada and gaining of livelihood in any province — Corporate
plaintiff not having status under s. 6 as protection limited to
physical persons — Canadian Charter of Rights and Free
doms, being Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.), s. 6 — Canada Elections
Act, R.S.C. 1970 (1st Supp.), c. 14, s. 67.
Constitutional law — Charter of Rights — We, liberty and
security — Plaintiffs unable to use s. 7 of Charter to strike
down s. 67 of Canada Elections Act — Right to liberty
restricted to physical liberty of person as opposed to exercise
of commercial activity — Ss. 8 to 14 of Charter guidelines
respecting prohibited restraints on liberty — Closing require
ment not "deprivation" — Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.), s. 7 — Canada
Elections Act, R.S.C. 1970 (1st Supp.), c. 14, s. 67.
Constitutional law — Charter of Rights — Equality rights
— S. 15 applying only to physical persons — Retrospectivity
of s. 15 not in question as issue validity of statutory prohibi
tion, not process initiated prior to April 17, 1985 — Although
personal plaintiff having status, no discrimination or inequal
ity under Charter s. 15 — S. 67 imposed limited restraint on
every person — Ejusdem generis rule not limiting "other
public place" to hotel, tavern or shop — Canadian Charter of
Rights and Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 7
Canada Elections Act, R.S.C. 1970 (1st Supp.), c. 14, s. 67.
Bill of Rights — S. 67 of Canada Elections Act not depriv
ing plaintiff of equality before law contrary to s. I of Canadian
Bill of Rights — Prohibition applying equally to giving,
offering or providing of liquor at taverns, shops or other public
places — Ban against liquor applying to everyone — That
hotels affected more than others not affecting universal
application of rule — No arbitrariness, capriciousness or '
ulterior motives in enactment to raise doubts as to whether in
pursuance of valid federal objective — Corporate plaintiff not
protected by statute, as referring to "individual", meaning
physical persons — Canadian Bill of Rights, R.S.C. 1970,
Appendix III, s. 1 — Canada Elections Act, R.S.C. 1970 (1st
Supp,), c. 14, s. 67.
Elections — Statutory prohibition against liquor dispensa
tion during polling hours on election day — Whether within
legislative competence of Parliament — Whether offending
Charter or Canadian Bill of Rights — History of legislation
— Social context — Whether s. 67 anachronism, no longer
serving useful purpose — Whether still necessary to ensure
honest, peaceful elections — Chief Electoral Officer having
recommended repeal but no action by Parliament — No liquor
ban on advance polling days — Court to consider "extrinsic"
data in Charter cases — Court not to usurp function of
legislature — If constitutionally valid, whether obsolete
irrelevant — Parliament's competency to legislate electoral
process not subject to challenge on jurisdictional grounds —
Canada Elections Act, R.S.C. 1970 (1st Supp.), c. 14, s. 67.
•
Practice — Parties — Standing — Owner of plaintiff com
pany dying before hearing — Motion to add widow as party-
plaintiff allowed — Individual's status to challenge statutory
provisions under Canadian Bill of Rights dependent upon
"community" interest — Status where challenge to statute
under Charter not decided — Addition of personal plaintiff
enabling all issues to be canvassed and facilitates advancement
of case — Federal Court Rules, C.R.C., c. 663, R. 2(2).
The plaintiffs attack section 67 of the Canada Elections Act
as: 1) an intrusion in the exclusive legislative field of compe
tence enjoyed by the provinces pursuant to section 92 of the
Constitution Act, 1867; 2) depriving the plaintiffs of equality
before the law contrary to section 1 of the Canadian Bill of
Rights; 3) contrary to paragraph 6(2)(b) of the Canadian
Charter of Rights and Freedoms, and depriving the plaintiffs
of their liberty not in accordance with the principles of funda
mental justice contrary to section 7 of the Charter. Section 67
makes it an offence to dispense liquor at any hotel, tavern, shop
or other public place during polling hours on election day. The
Chief Electoral Officer in his reports to Parliament has recom
mended the repeal of section 67, but Parliament has not yet
taken any action.
A preliminary motion was made to add the widow of the
plaintiff company's owner as a party-plaintiff.
Held, the action should be dismissed.
The motion to add the party-plaintiff should be allowed. It
enables all the issues to be considered without becoming bogged
down by questions of status. The defendants are not, however,
barred from raising the issue of status at any time. Adding her
as a plaintiff will facilitate, rather than delay, the normal
advancement of this case, pursuant to paragraph 2(2) of the
Federal Court Rules. An individual has status to challenge a
statutory provision under the Canadian Bill of Rights where
there is a "community" interest. The issue of status where there
is a challenge under the Charter has not been decided.
The courts have long upheld federal competence to enact
liquor control and temperance measures under the peace, order
and good government clause of the Constitution Act, 1867.
Parliament is competent to legislate in every respect the elec
toral process and to assure peace and good order on polling day.
The argument that any particular provision of the statute might
be obsolete, or that public or private opinion does not consider
any such provision necessary, is not the key to its validity. The
statute contains various provisions which, viewed in isolation,
would otherwise be the proper domain for provincial legislation
and even municipal by-laws. So long as they are part of a
Canada elections code, they are not beyond federal competen
cy. Also, if Parliament can set up liquor control and temper
ance measures at large, it can certainly control for purposes of
its own elections the dispensation of liquor on election day. The
jurisdiction of the federal Parliament to adopt a provision in the
nature of section 67 is well established.
The plaintiffs submit that section 67 discriminates against
suppliers of liquor in commercial establishments as against
other retail establishments. It was held in MacKay v. The
Queen, [1980] 2 S.C.R. 370 that legislation does not offend the
principle of equality before the law, guaranteed by the Canadi-
an Bill of Rights, if passed in pursuance of a valid federal
objective. Since the Ontario Court of Appeal ruled that the ban
on partisan broadcasting in section 28 of the Broadcasting Act
was not discriminatory, notwithstanding that the print media
were not affected, section 67 which extends far beyond the
selling of liquor by hotel owners and enjoins everyone, must
also not be discriminatory. For there to be arbitrariness, capri
ciousness or ulterior motives, section 67 would have to impose
such oppression to such a discriminate degree as to invite
judicial interference. A statutory provision affecting the nation
one day every three of four years is not oppressive. The
Canadian Bill of Rights does not protect the corporate plain
tiff, as it speaks of individuals and individual rights.
Paragraph 6(2)(b) does not apply to the personal plaintiff as
subsections 6(1) and (2) limit their application to freedom of
movement within Canada and the gaining of a livelihood in any
province. The "mobility rights" provided for in the Charter are
subject to laws of general application which do not discriminate
primarily on the basis of provincial residency. Corporations do
not come within the ambit of section 6. Prima facie the
protection is limited to physical persons. This is supported by
the French version of paragraph 6(2)(b).
The plaintiffs cannot find relief under section 7 of the
Charter. Sections 8 to 14 aid in the formulation of guidelines
respecting section 7. Those sections concern detention, impris
onment, and search and seizure. The right to liberty in section 7
is a legal right restricted to the physical liberty of the person as
opposed to an economic right to a free exercise of commercial
activity.
The corporate plaintiff does not have standing under section
15 of the Charter. That section refers to "every individual". In
R. v. Colgate Palmolive Ltd. (1971), 8 C.C.C. (2d) 40 (Ont.
Cty. Ct.), it was held that "individual" in the Canadian Bill of
Rights does not include corporations. In Smith, Kline & French
Laboratories Limited v. Attorney General of Canada, [1986] 1
F.C. 274 (T.D.), Strayer J. held that a corporation could not
seek the protection of Charter section 15. The equality rights
set out in section 15 would not assist a person who claims She
protection of the section against a process which was initiated
prior to April 17, 1985. In that sense, the section would not be
retrospective. The issue here, however, is whether a particular
legislative provision is valid.
There is a similarity between the status of the personal
plaintiff in her capacity as shareholder and director and that of
inventors under subsection 41(4) of the Patent Act. In the
Smith, Kline case it was held that the individual inventors of a
patented drug, who had no further interest in the drug, had a
sufficient interest to invoke section 15 to challenge subsection
41(4). The personal plaintiff here has status to invoke section
15. However there is no inequality under section 15. Section 67
involves limited restraint which is imposed on every person. The
ejusdem generis rule does not limit the concept ascribable to
"other public place" so as to narrow the field to places similar
to a hotel, tavern or shop. The prohibition in section 67 does not
discriminate between the plaintiffs and other members of the
community.
CASES JUDICIALLY CONSIDERED
APPLIED:
Russell v. Reg. (1882), 7 App. Cas. 829 (P.C.); Attor-
ney-General for Ontario v. Attorney-General for the
Dominion, [1896] A.C. 348 (P.C.); Attorney-General for
Ontario v. Canada Temperance Federation, [1946] A.C.
193 (P.C.); Re C.F.R.B. Ltd. and Attorney-General of
Canada et al. (No. 2) (1973), 38 D.L.R. (3d) 335 (Ont.
C.A.); affg. (1972), 30 D.L.R. (3d) 279 (Ont. H.C.);
MacKay v. The Queen, [1980] 2 S.C.R. 370; R. v.
Colgate Palmolive Ltd. (1971), 8 C.C.C. (2d) 40 (Ont.
Cty. Ct.); Law Society of Upper Canada v. Skapinker,
[1984] 1 S.C.R. 357; 8 C.R.R. 193; Re R. and Video-
flicks Ltd. (1984), 9 C.R.R. 193 (Ont. C.A.); Smith,
Kline & French Laboratories Limited v. Attorney Gener
al of Canada, [1986] I F.C. 274; (1985), 7 C.P.R. (3d)
145 (T.D.); R. v. Kane, [1965] 1 All E.R. 705 (Stafford
Assizes); Anderson v. Anderson, [1895] 1 Q.B. 749
(C.A.).
CONSIDERED:
Re Balderston et al. and The Queen (1982), 143 D.L.R.
(3d) 671 (Man. Q.B.); Re Jones and The Queen (1985),
20 C.C.C. (3d) 91 (B.C.S.C.).
REFERRED To:
Thorson v. Attorney General of Canada et al., [1975] 1
S.C.R. 138; Minister of Justice of Canada et al. v.
Borowski, [1981] 2 S.C.R. 575.
COUNSEL:
Mendel M. Green, Q.C. for plaintiffs.
Michael W. Duffy for defendants.
SOLICITORS:
Green & Spiegel, Toronto, for plaintiffs.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
JOYAL J.: This action is to test the validity of
section 67 of the Canada Elections Act, R.S.C.
1970 (1st Supp.), c. 14, which prohibits the dis
pensation of liquor during polling hours on election
day. The plaintiff seeks a declaration that:
1. Section 67 of the Canada Elections Act is of no
force and effect in that the federal Parliament has
exceeded its legislative power with respect to the
passage of the said section 67.
2. The sale and provision of fermented or spiritu
ous liquor at the hotel operated by the plaintiff in
the City of Toronto is solely within the ambit of
the subject-matter of exclusive provincial legisla
tion as is provided by section 92 class 9 of the
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.)
[R.S.C. 1970, Appendix II, No. 5] (as am. by
Canada Act 1982, 1982, c. 11 (U.K.), Schedule to
the Constitution Act, 1982, Item 1) and amend
ments thereto.
3. The sale and provision of fermented or spiri
tuous liquor at the hotel operated by the plaintiff
in the City of Toronto is solely within the ambit of
the subject-matter of exclusive provincial legisla
tion as is provided by section 92 class 13 of the
Constitution Act, 1867.
4. The sale and provision of fermented or spiri
tuous liquor at the hotel operated by the plaintiff
in the City of Toronto is solely within the ambit of
the subject-matter of exclusive provincial legisla
tion as is provided by section 92 class 16 of the
Constitution Act, 1867.
5. Section 67 of the Canada Elections Act is
contrary to paragraph 6(2)(b) of the Canadian
Charter of Rights and Freedoms, being Part I of
the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.). The Canadian
Charter of Rights and Freedoms comprises sec
tions 1 to 34.
6. Section 67 of the Canada Elections Act deprives
the plaintiff of its liberty in accordance with the
principles of fundamental justice and is contrary to
section 7 of the Canadian Charter of Rights and
Freedoms.
7. The plaintiff has been deprived of its equality
before the law and the protection of the law con
trary to section 1 of the Canadian Bill of Rights,
R.S.C. 1970, Appendix III.
BACKGROUND:
At the trial, the Court was informed that the
action instituted by the plaintiff company was the
result of a long-standing grievance of the compa-
ny's owner who had publicly expressed his strong
disapproval with section 67 of the Canada Elec
tions Act. Section 67 reads as follows:
67. Every one is guilty of an offence against this Act who at
any time during the hours that the polls are open on the
ordinary polling day sells, gives, offers or provides any ferment
ed or spirituous liquor at any hotel, tavern, shop or other public
place within an electoral district where a poll is being held.
The company's owner, in pursuing his grievance,
had finally instituted action before this Court for
declaratory relief. It is unfortunate .that by reason
of his untimely demise in December of 1984, the
owner was unable to have his day in court when
the trial date was reached. Nevertheless, his sur
viving widow, Marjorie Frimeth, took up her late
husband's cudgels. As the beneficiary of her hus
band's estate and as a director and shareholder of
the plaintiff company, she instructed her counsel
to continue with the action. Such is, in my view, a
commendable decision.
PRELIMINARY RULING:
At the opening of the trial of the action, counsel
for the plaintiff filed a motion to have Marjorie
Frimeth added as a party-plaintiff and to have the
pleadings amended accordingly. I should grant the
motion. It enables all the issues to be traversed
without being bogged down by questions of status
under either the Canadian Bill of Rights or the
Canadian Charter of Rights and Freedoms.
Status, in my view, has two elements. One deals
with the interest of any particular person, corpo
rate or physical, in the statutory provision
impugned. The other, equally important, is wheth
er a corporate person, as against a physical person,
is entitled to the protection of some or any of the
rights secured under the Canadian Bill of Rights
or the Canadian Charter of Rights and Freedoms.
The status of an individual to challenge any
statutory provision under the Canadian Bill of
Rights has been the subject of determination by
the Supreme Court in Thorson v. Attorney Gener
al of Canada et al., [1975] 1 S.C.R. 138 and
Minister of Justice of Canada et al. v. Borowski,
[1981] 2 S.C.R. 575. It seems to me that the gist
of these decisions is that a "community" interest
as against a more personal or "individual" interest
in a particular legislative enactment is sufficient to
grant status. With respect to a challenge under the
Canadian Charter of Rights and Freedoms, how
ever, the issue of status both as to interest and as
to protection has yet to be firmly defined.
In conclusion, adding the personal plaintiff,
Mrs. Frimeth, as a party to the action opens the
door to an inquiry into these issues and, of course,
limits the number of questions which would other
wise go begging. Adding her as plaintiff is also "to
facilitate rather than to delay or to end premature
ly the normal advancement of cases" as these
words are found in Rule 2(2) of the Federal Court
Rules [C.R.C., c. 663]. Granting the motion, how
ever, is no bar to the defendants' raising the issue
of status at any particular stage of the trial or
argument. Depending on the context, I shall here
after refer to the corporate or to the personal
plaintiff or to both.
HISTORY OF THE LEGISLATION:
In the course of the trial, counsel for the parties
furnished the Court with a history of the Canada
Elections Act with special reference to the prohibi
tion against the dispensation of liquor on polling
day.
The liquor ban is found in the original statute of
1859 [An Act respecting Elections of Members of
the Legislature] (see C.S.C., 1859, c. 6, s. 81). Its
provisions were repeated in section 91 of The
Dominion Elections Act, 1874 (see S.C. 1874, c. 9,
s. 91) and again in the statute of 1900 [The
Dominion Elections Act, 1900] (see S.C. 1900, c.
12, s. 107). Its legitimacy having been obliquely
endorsed by the adoption of The Canada Temper
ance Act, 1878 [S.C. 1878, c. 16] in 1878 (since
repealed), it remained part of our electoral
restraints in the numerous revisions of the statute
to the present day. It appears therefore that for
several generations when social values were both
unquestioned and unquestionable, the statutory
ban on the dispensing of liquor on polling days was
as mandatory as the wearing of hats by ladies at
Sunday Service.
The ban on liquor was nevertheless toned down
or liberalized over the years. In 1859, section 81 of
the statute provided that:
81. Every hotel, tavern, and shop in which spirituous or
fermented liquors or drinks are ordinarily sold, shall be closed
during the two days appointed for polling in the wards or
municipalities in which the polls are held, in the same manner
as it should be on Sunday during Divine Service, and no
spirituous or fermented liquors or drinks shall be sold or given
during the said period ... [My emphasis.]
In 1874, the prohibition was made to apply to
any hotel, tavern or shop or other place and the
ban, presumably for purposes of clarity, now
extended to spirituous or fermented liquors or
strong drinks. The prohibition applied, however,
only during the whole of the polling day (section
91 of the The Dominion Elections Act, 1874).
In 1970, the ban was restricted to the hours that
the polls were open on polling day and the prohibi
tion limited to any hotel, tavern, shop or other
public place (section 67 of the Canada Elections
Act). This is the section with which we are now
dealing. It will be observed that by this time, the
liquor ban no longer singles out hotels, taverns and
shops by requiring them to close. The prohibition
is a more general one directed to anyone providing
liquor under any guise in any hotel, tavern, shop or
other public place.
HISTORICAL AND SOCIAL CONTEXT OF THE
LEGISLATION:
In his able argument, counsel for the plaintiffs
reminded the Court that although the prohibition
against liquor sales had been repeated in succes
sive federal elections statutes since 1859, consider
able evolution had taken place in social values
since that time. In earlier years, counsel conceded,
it might have been assumed that access to liquor
on polling day was dangerous to the integrity of
the voting system. Liquor was regarded by many
righteous people at that time as a matter of great
national concern. The trafficking of whiskey in the
fur trade industry had produced what later gener-
tions called unsocial and debilitating results. The
insidious influence which liquor created on
individual and collective behaviour tended to dis
rupt the peace, order and good government of the
community. People spoke of gin and "demon rum"
in a way that contemporary society speaks of
cigarettes and drugs.
Especially in the earlier years when the ballot
was more open than secret, the pattern of undue
influence on the casual voter by the dispensation of
liquor had been evident. The perception in those
days of the sacred, democratic right to vote freely
and the concurrent responsibilities this right
imposed were not widely dispersed among many
segments of the population. Elections were tough
and unruly and they were not often the subject of
discourse when polite society was enjoying a crown
of lamb. Voting was open and voting support was
openly bought and sold. The coin used was often in
the guise of distilled spirits. As recently as 1865, a
Member of Parliament in England could respond
to a petition from his constituents objecting to a
policy he favoured by reminding them that "I
bought you and if you should persist in your
childish obstruction, I am determined to sell you
out!" (Anon.) Even at the turn of the century, in
the days of the Laurier administration, one of his
ministers, Israel Tarte, known for his free-wheel
ing methods at election time, could make the wry
comment: "On ne gagne pas des élections avec des
prières."
It was not until 1874 that the secret ballot was
instituted. This inhibited somewhat voting
manipulations. Yet, it took several generations
before Canadians as a whole could approach a
polling booth conscious of their privilege and hold
ing dear their right to a free and unfettered ballot.
The earlier period of universal suffrage was also
a period of religious, political and social reform.
The accepted ways were to an increasing propor
tion of the people no longer acceptable. Religious
and political reformists were in vogue and the
rough and rambunctious habits of the earlier colo
nists were now measured against more moderate
and more bourgeois standards of later generations.
It is no wonder that in this reformist mode of
the mid-nineteenth century, a ban on the dispensa
tion of liquor on polling days should have been
adopted. There was full justification for it. To
assure the integrity of the voting system, it was
desirable to put into the voting procedures all
manners of prohibitions. The liquor ban was but
one of them.
It is fair to conclude from counsel's observations
that the country slowly and inexorably changed its
attitude toward the control, sale and consumption
of liquor. Forty years ago, no public bar could be
found west of the Lakehead. The Northwest Terri
tories and Yukon had bars but these were under
federal jurisdiction. Today, liquor is everywhere
readily, if not freely, available in controlled shops
and outlets. Ever-increasing numbers of lounges,
bars, hotels and restaurants dispense an ever-
increasing volume of alcoholic beverages. From the
six-pack carted off to picnics to quenching drafts
available at sporting events, the consumption of
alcohol on a continuing basis by the public gener
ally is as much part of the Canadian lifestyle as
quilting bees were a few generations ago.
With the liberalization of liquor laws there has
been a total evolution with respect to public per
ception of drinking. Drinking is no longer regarded
as a source of rowdiness and mischief but as part
and parcel of the good life. Drinking is
fashionable.
It is understandable, as alleged by counsel, that
the plaintiffs should have looked at section 67 of
the Canada Elections Act as an anachronism. The
prohibition no longer serves a useful purpose. It is
no longer necessary to assure peaceful elections or
to assure honest election practices.
CURRENT SITUATION:
Counsel submitted that no greater support for
this anachronism could be found than in Canada's
own Chief Electoral Officer. In his annual reports
to Parliament, the Chief Electoral Officer has
been recommending the repeal of section 67 of the
Canada Elections Act. In his 1984 Report, he
stated:
67—SALE OF LIQUOR PROHIBITED DURING POLLING HOURS
I discussed this subject in my 1979 Statutory Report and
again drew it to the attention of the House of Commons in my
1980 Report. Since it is a continuing problem which caused
additional difficulties at all subsequent by-elections and
because of changes which have occurred in some provinces
since my 1979 Report, I believe it would be useful to update the
information previously provided.
The prohibition against the selling of liquor was originally
introduced shortly after Confederation and later was amended
by Parliament to shorten the period of prohibition from the day
before polling day and polling day itself, to only the hours
during which the polls were open on polling day. Since this
amendment was made, the Province of Ontario and, subse
quently, the Province of British Columbia, removed from their
legislation all provisions prohibiting or limiting the sale and
distribution of liquor on polling day at any election. In addition,
Quebec now permits the sale of liquor during by-elections. I
would also mention that there is no prohibition in the Canada
Elections Act against the sale of liquor on the three days of
advance polls which are now increasingly being used by the
public.
The present variations in provincial and federal legislation
concerning prohibitions regarding the sale of liquor cause con
fusion among the public and owners of liquor outlets. This is
further aggravated by the prohibition against the sale of al
coholic beverages at by-elections, where an establishment locat-
ed on one side of the street that is within the electoral district
where the by-election is held, is not allowed to dispense alcohol
ic beverages during the polling hours, while another outlet
located on the opposite side of the same street but situated
outside the electoral district can legally sell alcoholic beverages
on the same day. In order to resolve this increasingly difficult
problem, I strongly suggest that consideration be given to
amending the present provisions on the legislation.
RECOMMENDATION—That the provisions of section 67 pro
hibiting the sale of liquor during polling hours be repealed.
ROLE OF THE COURT:
Parliament has yet to take action on the Chief
Electoral Officer's recommendation. This is what
admittedly provoked the plaintiffs to attempt to
achieve the same purpose by an action before this
Court, pleading that the provision of section 67 of
the Canada Elections Act was unconstitutional
and should be struck down.
The proposition at first blush appears attractive.
The Chief Electoral Officer's recommendation and
the reasons advanced for it carry some weight. As
a servant of Parliament, he would not wish to
make any such recommendation unless he were
reasonably satisfied that section 67 no longer
serves a useful purpose. He concluded that free-
swinging tavern doors under some provincial elec
tion laws had not increased the incidence of cor
rupt practices or had not demeaned the sanctity of
the polling station. Furthermore, as he pointed out
in his Report, there is no liquor ban on advance
polling days. Finally, he reasoned that the ban was
singularly ineffective in the conduct of by-elections
in urban ridings. Crossing a downtown street to
reach or to return from an unpadlocked bar, in an
adjoining riding, requires little effort.
The plaintiffs' attack on section 67 of the
Canada Elections Act appears as a reasonable
attempt to discard what might now be termed an
unreasonable and unnecessary measure. That
measure must be interpreted in a historical and
social context. Its constitutionality cannot be
tested in the abstract. Especially in a test when the
Canadian Charter of Rights and Freedoms is
invoked, "courts must be more willing than they
are in the case of ordinary legislative interpreta
tion, to examine extrinsic data concerning such
matters as the history of the legislation or constitu
tional provision in question, the social, political
and economic impact of a given interpretation"
(Tarnopolsky and Beaudoin, The Canadian
Charter of Rights and Freedoms: Commentary,
Toronto: The Carswell Company Limited, 1982, at
page 29).
The plaintiffs invite the Court to do this, and
this the Court has done. The plaintiffs hope the
Court may reasonably conclude that if liquor
prohibition on polling day had justification in the
earlier days of our Confederation, its current
legitimacy is no longer established. If earlier fears
touched upon liquor, more current fears are more
objectively expressed in bans on television advertis
ing and in bans on election news prior to polls
closing in our successive time zones.
If a court were a legislature, it would be easy,
and perhaps popular, to analyze section 67 on the
basis of its common-sense usefulness. The court
would be asked to determine if any particular
legislative provision has any justification, in terms
of undue restriction on a citizen's freedom, or in
terms of its constitutionality under sections 91 and
92 of the Constitution Act, 1867. Whether its
legality might be found wanting under one part or
the other of our new Constitution, it would save
Parliament a great deal of labour. A judge's fiat
would be as effective in endorsing the Chief Elec
toral Officer's recommendation as a statute
amendment requiring three Readings in the House
of Commons plus Senate approval.
I venture to say, however, that care must be
taken to avoid a court usurping the function of a
legislature. The grounds advanced by the Chief
Electoral Officer to have section 67 repealed merit
a great deal of attention and a great deal of
respect. It does not follow, however, that Parlia
ment's servant is automatically expressing the will
of Parliament. It might make eminent sense to
repeal section 67 but such is a legislative function
which Parliament cannot delegate and which Par
liament alone has the supreme and exclusive dis
cretion to decide.
It follows logically from this that a Court's
scrutiny on the legality of section 67 cannot be a
debate as to whether or not the repeal of section 67
makes common sense. It must a priori raise the
issue as one of Parliament's competency or juris
diction to enact section 67. Should there be consti
tutional validity, it would not matter whether the
section at issue is or is not obsolete. Should there
be incompetency, it matters not if the rule is or is
not arguably justified and proper.
THE PLAINTIFFS' CASE:
To summarize the various prayers for relief
expressed in the pleadings, the plaintiffs' attack on
section 67 of the Canada Elections Act is on three
grounds:
(1) Section 67 is an intrusion in the exclusive
legislative field of competence enjoyed by the prov
inces pursuant to section 92 of the Constitution
Act, 1867 and is beyond the competency of
Parliament.
(2) Section 67 deprives the plaintiffs of their
equality before the law contrary to section 1 of the
Canadian Bill of Rights.
(3) Section 67 is contrary to paragraph 6(2)(b) of
the Canadian Charter of Rights and Freedoms
and deprives the plaintiffs of their liberty not in
accordance with the principles of fundamental jus
tice contrary to section 7 of the Charter.
(1) COMPETENCY IN THE LIGHT OF SECTIONS 91
AND 92:
Parliament's competency to deal with liquor has
been challenged many times. An earlier challenge
is the celebrated case of Russell v. Reg. (1882), 7
App. Cas. 829. The Privy Council found the
Canada Temperance Act to be a valid exercise of
federal legislative competency. The statute was
meant, the Privy Council stated, to promote tem
perance by means of a uniform law throughout the
Dominion. The statute did not fall within a provin
cial class of subjects enunciated in section 92 class
9 respecting the raising of revenues or in section 92
class 13 respecting property and civil rights or in
section 92 class 16 respecting matters of a purely
local nature. The Privy Council found the statute
to be a valid exercise of the Dominion's overriding
jurisdiction to enact laws for the peace, order and
good government of the country as expressed in
the opening words of section 91.
Some fourteen years later, the Judicial Commit
tee of the Privy Council subjected both federal and
provincial legislation in the field of temperance
and liquor control to scrutiny. Cited as Attorney-
General for Ontario v. Attorney-General for the
Dominion, [1896] A.C. 348, the Privy Council
again ruled the Canada Temperance Act as a valid
federal enactment relating to the peace, order and
good government of Canada.
In 1946, in the case of Attorney-General for
Ontario v. Canada Temperance Federation,
[1946] A.C. 193, the Canada Temperance Act as
re-enacted in 1927 was again the subject of consti
tutional comment. Here, the Privy Council
articulated the pith and substance doctrine. The
true test, it said, to determine if a matter is of
provincial or federal concern must be found in the
real subject-matter of the legislation. If the matter
goes beyond provincial interests and is, from its
inherent nature the concern of the Dominion as a
whole, then it will fall into the peace, order and
good government provision of the Constitution. In
such case, it does not matter if under another
aspect it touches on matters specifically reserved
to the legislature of the provinces. Their Lordships
reconfirmed the Russell case, finding it to be
firmly imbedded in Canadian constitutional doc
trine. Further, it was said, federal competency in
respect of The Canada Temperance Act, 1878
could not be affected or defeated by a statute
replacing or consolidating it.
Their Lordships further noted that federal
competency under the peace, order and good gov
ernment clause need not necessarily meet the
emergency test. Their Lordships said at page 207:
To legislate for prevention appears to be on the same basis as
legislation for cure. A pestilence has been given as an example
of a subject so affecting, or which might so affect, the whole
Dominion that it would justify legislation by the Parliament of
Canada as a matter concerning the order and good government
of the Dominion. It would seem to follow that if the Parliament
could legislate when there was an actual epidemic it could do so
to prevent one occurring and also to prevent it happening again.
It seems to me, therefore, that whatever the
particular merits of some particular provisions of
the Canada Elections Act, the whole statute
cannot be attacked on constitutional grounds. The
election of members of Parliament requires exten
sive and, in some cases, intensive rules for the
proper conduct of the election process. The
Canada Elections Act contains some 119 sections,
a schedule of some 75 forms, a schedule of some
90 special voting rules and a further schedule of
some 15 Canadian prisoners of war voting rules.
The list of prohibitions and statutory offences in
the statute is lengthy, the dispensation of liquor
under section 67 being only one of them. Parlia
ment's competency to legislate in every respect the
electoral process and to assure peace and good
order on polling day cannot be seriously chal
lenged on jurisdictional grounds. The argument
that any particular provision of the statute might
be obsolete, or that public or private opinion does
not consider any such provision necessary, is not
the key to its validity.
Furthermore, the statute contains various provi
sions which, viewed in isolation, would otherwise
be the proper domain for provincial legislation and
even municipal by-laws. So long as they are part of
a Canada elections code, however, they cannot be
individually singled out as being beyond federal
competency.
To the foregoing could be added the long history
of federal competency on liquor control and tem
perance measures. If it should be open to Parlia
ment to set up a scheme for prohibitions or con
trols at large, it can certainly prohibit or control
for purposes of its own elections the dispensation
of liquor on election day.
I must therefore find that as against provincial
competency, the jurisdiction of the federal Parlia
ment to adopt a provision in the nature of section
67 of the Canada Elections Act is well established.
(2) THE CANADIAN BILL OF RIGHTS:
The plaintiffs also plead section 1 of the
Canadian Bill of Rights (supra) which reads as
follows:
1. It is hereby recognized and declared that in Canada there
have existed and shall continue to exist without discrimination
by reason of race, national origin, colour, religion or sex, the
following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the
person and enjoyment of property, and the right not to be
deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and
the protection of the law;
(e) freedom of religion;
(d) freedom of speech;
(e) freedom of assembly and association; and
(J) freedom of the press.
The question is to determine whether the plain
tiffs have been deprived of their respective equality
before the law or the protection of the law con
trary to section 1 of the Canadian Bill of Rights.
As I understand counsel's submission, section 67 of
the Canada Elections Act discriminates against
purveyors of liquor in commercial establishments
as against other retail establishments. It discrimi
nates against one class of commodities, namely
alcoholic beverages, from all other classes. Purvey
ors of all other commodities may carry on the
business of selling their wares unrestricted by the
advent of polling day in their riding. The prohibi
tion against the selling of liquor runs counter to
the owner's right to equality before the law and
the enjoyment, if not of his property, at least of the
proceeds thereof.
To that extent, there is logic to counsel's argu
ment. This kind of logic, however, was tested with
reference to section 28 of the Broadcasting Act,
R.S.C. 1970, c. B-11, which prohibits programs of
a partisan nature on the day of or immediately
preceding an election. In Re C.F.R.B. Ltd. and
Attorney-General of Canada et al. (No. 2)
(1972), 30..D.L.R. (3d) 279 (Ont. H.C.), counsel
argued that section 28 contravened the right to
equality before the law and freedom of speech
under paragraphs 1 (b) and (d) and section 2 of the
Canadian Bill of Rights. It discriminated against
broadcasters as no such restriction was imposed on
newspapers and periodicals. Grant J. affirmed at
page 283 that these "broadcasts are in a different
category to newspaper or other news media. There
is no discrimination against broadcasters of the
type set forth in s. 1 of the Bill of Rights".
In confirming the judgment below, the Ontario
Court of Appeal ((1973), 38 D.L.R. (3d) 335)
dismissed out of hand the proposition that section
28 of the Broadcasting Act is discriminatory and
contrary to the Canadian Bill of Rights. Kelly
J.A., on behalf of the Court stated at page 343:
"The prohibition applies without distinction to
every broadcaster and every licensee of a broad
casting receiving undertaking."
If there is discrimination in section 67 of the
Canada Elections Act, it is not in the sense con
templated by the Canadian Bill of Rights. The
test, as articulated by McIntyre J. in MacKay v.
The Queen, [1980] 2 S.C.R. 370, seems to be that
legislation passed by Parliament does not offend
against the principle of equality before the law if
passed in pursuance of a valid federal objective.
Absent arbitrariness or capriciousness or ulterior
motives, such legislation, rationally enacted, might
be considered a necessary departure from the
general principle of universal application of the
law.
If the Ontario Court of Appeal in the C.F.R.B.
Ltd. case could rule that the ban on partisan
broadcasting was not discriminatory in spite of the
fact that the print media were not affected, all the
more should I find section 67 of the Canada
Elections Act unassailable under the Canadian
Bill of Rights. The prohibition in this section
extends far beyond the selling of liquor by hotel
owners. The prohibition applies equally to the
giving, the offering or the providing of liquor at
taverns, shops or other public places. It also
applies to beer stores, provincial liquor stores and
wine shops. This invites one to conclude that the
ban is against liquor and it is a ban which enjoins
everyone. The fact that hotels, taverns or shops
which are in the business of selling liquor might be
more affected than others by the ban would not, in
my view, change or alter the universal application
of the rule.
Nor can I find an element of "arbitrariness" or
"capriciousness" or "ulterior motives" in the
enactment in order to raise doubts as to whether or
not it is in pursuance of a "valid federal objective".
To ascribe these characteristics to section 67 might
be good rhetoric but for these labels to stick, the
section would have to impose such oppression to
such a discriminate degree as to invite judicial
interference. I cannot find that a statutory prohibi
tion which affects the nation one day out of every
three or four years is oppressive.
I should add another comment respecting the
Canadian Bill of Rights. It was argued by counsel
for the Crown that the corporate plaintiff was not
entitled to the protection of the statute. The stat
ute speaks of individuals and individual rights. A
corporation would not be included. Such was the
finding of Doyle J., in R. v. Colgate Palmolive
Ltd. (1971), 8 C.C.C. (2d) 40 (Ont. Cty. Ct.).
Although section 28 of the Interpretation Act,
R.S.C. 1970, c. I-23, states: " `person' or any word
or expression descriptive of a person, includes a
corporation", the term used in section 1 of the
Canadian Bill of Rights is "individual", a particu
lar term which in the context of the statute, must
be limited to physical persons.
(3) THE CANADIAN CHARTER OF RIGHTS AND
FREEDOMS:
Another weapon in the plaintiffs' arsenal is the
Canadian Charter of Rights and Freedoms. Sub
sections 6(1),(2) and (3) of the Charter read as
follows:
6. (1) Every citizen of Canada has the right to enter, remain
in and leave Canada.
(2) Every citizen of Canada and every person who has the
status of a permanent resident of Canada has the right
(a) to move to and take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.
(3) The rights specified in subsection (2) are subject to
(a) any laws or practices of general application in force in a
province other than those that discriminate among persons
primarily on the basis of province of present or previous
residence; and
(b) any laws providing for reasonable residency requirements
as a qualification for the receipt of publicly provided social
services.
Only paragraph 6(2)(b) of the Charter was
invoked in the argument. It was contended that
section 67 of the Canada Elections Act deprived
the personal plaintiff of the right to pursue the
gaining of her livelihood in any province. I do not
believe that the duress presumably imposed on the
plaintiff can bring her within the protection of this
Charter provision. The context of the whole of
subsections (1) and (2) of section 6 of the Charter
seems to limit their application to freedom of
movement within Canada and the gaining of a
livelihood in any province within Canada. As was
stated by Estey J. in the Supreme Court of
Canada decision Law Society of Upper Canada v.
Skapinker, [1984] 1 S.C.R. 357, at page 380; 8
C.R.R. 193, at pages 211-212:
The concluding words of s. 6(3)(a), just cited, buttress the
conclusion that s. 6(2)(b) is directed towards "mobility rights",
and was not intended to establish a free standing right to work.
Reading s. 6(2)(b) in light of the exceptions set out in s.
6(3)(a) also explains why the words "in any province" are used:
citizens and permanent residents have the right, under s.
6(2)(b), to earn a living in any province subject to the laws and
practices of "general application" in that province which do not
discriminate primarily on the basis of provincial residency.
Even if I should assume that the personal plain
tiff who is a shareholder and director of the corpo
rate plaintiff, is deemed to be a citizen whose
rights under section 6 of the Charter have been
affected by the Canada Elections Act prohibition,
I can find no grounds to rule in her favour.
The wording of section 6 makes it clear to me
that corporations do not come within the ambit of
its protection and consequently, the corporate
plaintiff would have no status. Subsection 6(2)
provides that:
6....
(2) Every citizen of Canada and every person who has the
status of a permanent resident of Canada has the right
(a) to move to and take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.
Prima facie, the protection is limited to physical
persons. Furthermore, the "livelihood" provision in
paragraph 6(2)(b) is expressed in the French ver
sion of the Charter as the right "de gagner leur vie
dans toute province" (my emphasis). This text
adds to the interpretation of the section and, in my
view, the door is closed to corporations.
The plaintiffs further plead section 7 of the
Canadian Charter of Rights and Freedoms. Sec
tion 7 provides that
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
This plea invites an analysis of the several con
cepts incorporated in section 7. Such an analysis
would be far from complete: the law can seldom be
interpreted in a vacuum and judicial comments on
its interpretation based on particular facts have
been relatively few. Yet, it seems to me that
sections 8 to 14 aid in the formulation of good
guidelines respecting section 7. As was stated by
Patrice Garant at page 263 of Tarnopolsky and
Beaudoin, The Canadian Charter of Rights and
Freedoms: Commentary, (Toronto: The Carswell
Company Limited, 1982):
The right to liberty of the physical person signifies the
absence of constraints or external interference of a nature such
as are enumerated in ss. 8 to 14. Those sections concern
detention, imprisonment, and search and seizure.
I do not see where any plaintiff, with respect to the
prohibition of section 67 of the Canada Elections
Act, could find relief under section 7 of the
Charter.
In the case of Re R. and Videoflicks Ltd.
(1984), 9 C.R.R. 193, the Ontario Court of
Appeal found itself dealing with Sunday closing
laws, i.e. the kind of prohibition found in section
67 of the Canada Elections Act. Tarnopolsky J.A.
stated, at page 229:
As concluded earlier with respect to s. 2(b) of the Charter, I do
not see differences by way of mere regulation of time and place
as having such adverse impact as to constitute discrimination.
Even if such adverse impact were proved, it would be more
appropriate to consider the matter in the context of s. 15 of the
Charter. The concept of life, liberty and security of the person
would appear to relate to one's physical or mental integrity and
one's control over these, rather than some right to work when
ever one wishes. Moreover, the second half of s. 7 refers to "the
right not to be deprived thereof except according to principles
of fundamental justice". Being required to close at certain
times is not a "deprivation".
I must conclude that the right to liberty in
section 7 of the Charter is a restricted legal right
to the physical liberty of the person as opposed to
an economic right to a free exercise of commercial
activity. I do not see where the plaintiffs, either
corporate or personal, can avail themselves of sec
tion 7 to strike down section 67 of the Canada
Elections Act. The status of either of them, how
ever, is not in issue.
SECTION 15 OF THE CANADIAN CHARTER OF
RIGHTS AND FREEDOMS:
The provisions of section 15 of the Canadian
Charter of Rights and Freedoms came into force
shortly after the trial of this action. I was of three
minds as to whether I should not deal with its
possible impact on section 67 of the Canada Elec
tions Act and thereby leave the issue to another
debate at another time, or whether I should engage
in loose obiter dicta on it, or finally, whether I
should invite counsel for the parties to submit
further argument and dispose of it. I decided on
the third option and counsel for both the plaintiffs
and the defendants have since provided me with
written submissions on the possible effect of that
section of the Charter on the validity of section 67
of the Canada Elections Act. I need to mention
that these briefs were of considerable assistance to
me.
Subsection 15(1) of the Canadian Charter of
Rights and Freedoms reads as follows:
15. (1) Every individual is equal before and under the law
and has the right to the equal protection and equal benefit of
the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
What first must be considered is whether the
corporate plaintiff would have standing to claim
protection under section 15 of the Charter. The
section refers to "every individual" not "everyone"
as in other sections of the Charter. It is clear from
the decision in Re Balderstone et al. and The
Queen (1982), 143 D.L.R. (3d) 671 (Man. Q.B.),
that the word "everyone" as it appears in section 7
of the Charter includes a corporation. The defini
tion of "individual" was discussed in the decision
of R. v. Colgate Palmolive, supra, wherein it was
decided that the term "individual" as it appears in
section 1 of the Canadian Bill of Rights does not
include corporations.
Upon reviewing the minutes of the meetings
held by the Special Joint Committee of Parliament
on the Constitution, there appears to be no refer
ence to the reason for changing the clause from
15. (1) Everyone has the right to equality before the law and
to the equal protection ....
as the section existed in the Proposed Constitution
al Resolution of October 1980, to its present form.
A background paper prepared by the Library of
Parliament for the Special Joint Committee refers
to seven options presented to the Committee by
various interest groups. Only one of the options
used the phrase "every individual".
Counsel for the plaintiffs submitted that both
the corporation and its director and shareholder
are not treated equally before and under the
Canada Elections Act. The corporation is prohib
ited during the hours the polls are open on polling
days to sell, give, offer and provide liquor in its
hotel which is the mainstay of its business. The
personal plaintiff, to whom the corporation's
income eventually flows is also subject to the same
discriminatory treament.
Further, counsel alleged, the grounds of dis
crimination set out in subsection 15(1) of the
Charter are not exhaustive. While the subsection
lists specific grounds of race, national or ethnic
origin, colour, religion, etc., the subsection is broad
enough to cover all forms of discrimination,
including of course the singularly discriminatory
prohibition against the sale of liquor where no
other commercial establishment or commodity is
affected.
Counsel for the Crown submits that not only
does the corporate plaintiff lack status but section
15 of the Charter is not retrospective in its opera
tion and therefore can have no application to the
facts of the case before me. I will concede that on
the authority of Re Jones and The Queen (1985),
20 C.C.C. (3d) 91 (B.C.S.C.), the equality rights
set out in section 15 would not assist a person who
claims the protection of the section against a pro
cess which was initiated prior to April 17, 1985. In
that sense, the section would not be retrospective.
In the case before me, however, the issue is not
whether a person may retrospectively invoke the
protection of a particular provision of the Charter.
The issue is whether or not a particular legislative
provision is valid or invalid. The plaintiffs are
certainly not bringing up section 15 as a defence to
a prosecution for breach of section 67 of the
Canada Elections Act committed prior to April
17, 1985. The plaintiffs are, by way of an action
seeking declaratory relief, simply challenging the
validity of the statutory prohibition.
I will further concede that if subsequent to a
trial where all the relevant facts have been agreed
upon, the applicability of a new statutory provision
triggers off an enquiry into new facts, then of
course, any party may successfully object to a
judicial determination without an adjournment or
indeed a new trial being granted. If these new facts
are in issue, they must of course be brought before
the court in the usual way. Such, however, is not
the case here.
It appears clear from the wording of section 15
that its protective umbrella only extends to physi
cal persons and that a corporation or other "per-
sonne morale" is left out in the rain as it were. The
term "individual" as it appears in section 1 of the
Canadian Bill of Rights has been the subject of
judicial determination in the R. v. Colgate Pal-
molive case which I have previously cited and
Doyle J. in that case ruled that the term did not
include a corporation. In a more recent case, the
term "individual" as found in section 15 of the
Charter was the subject of inquiry. In Smith,
Kline & French Laboratories Limited v. Attorney
General of Canada, [1986] 1 F.C. 274; (1985), 7
C.P.R. (3d) 145 (T.D.), Strayer J. in his meticu
lous reasons for judgment does not seem to have
had to spend much soul-searching in reaching the
conclusion of section 15 of the Charter.
Of perhaps greater interest to me in the judg
ment of Mr. Justice Strayer is the issue of the
status of the personal plaintiff. This issue was
raised by defendants' counsel in the case before me
when he stated that section 67 of the Canada
Elections Act does not infringe any equality rights
enjoyed by the personal plaintiff in her capacity as
a shareholder and director of the corporate plain
tiff. Section 67, counsel said, is concerned with the
distribution or sale of fermented or spirituous
liquor and not with any rights Marjorie Frimeth
may enjoy as shareholder or director of the plain
tiff, Parkdale Hotel Limited.
In the challenge before Strayer J. on the consti
tutionality of the compulsory drug licensing
scheme under subsection 41(4) of the Patent Act
[R.S.C. 1970, c. P-4], three individuals joined as
plaintiffs with Smith, Kline & French Laborato
ries Limited. These three individuals were the
inventors of the prescription drug concerned and it
was alleged that although none of them had an
interest in the patented drug anymore, they were
still potential inventors and the value of their
services, past and future, was still affected by the
scheme. Strayer J., with respect to this status had
this to say [at page 316 F.C.; 192 C.P.R.]:
For reasons also noted before, however, I believe that the
individual plaintiffs, as inventors of Cimetidine, have a suffi
cient interest to invoke section 15 and to challenge subsection
41(4) of the Patent Act on the basis that, as applied to them
now or in the future, and as applied to other inventors, it is in
conflict with section 15 of the Charter.
The jugment goes on to say [at page 316 F.C.; 192
C.P.R.] :
The judicial policy which militates against unlimited standing
to raise constitutional issues is based in part on concerns as to
potential burdens on the courts of officious litigation by persons
having no real direct grievance, and in part on concerns about
lack of a specific factual context where the would-be plaintiff is
not actually in a position to complain of a specific denial of his
rights.
I find a marked similarity between the situation
facing the inventors under subsection 41(4) of the
Patent Act with the situation facing the personal
plaintiff before me under section 67 of the Canada
Elections Act. I should have no hesitation in grant
ing her status.
Granting the personal plaintiff status does not,
however, resolve her plight. I would not see a case
for discrimination or inequality under section 15 of
the Canadian Charter of Rights and Freedoms.
The statutory prohibition before me, as stated
earlier, involves limited restraint on her and such
limited restraint is effectively imposed on every
person. The sale of liquor is prohibited, but so is
the giving, offering or providing of it "in any hotel,
tavern, shop or other public place".
The ejusdem generis rule would not, in my view,
limit the concept ascribable to the expression "oth-
er public place" so as to narrow the field to places
in the category of or similar to a hotel, tavern or
shop. Taverns, hotels and shops. are public places
but so too are community halls, arenas, school
basements and perhaps party candidates' riding
offices.
In R. v. Kane, [1965] 1 All E.R. 705 (Stafford
Assizes), a public place is defined as a place to
which the public can and does have access and it
does not matter whether they come at the invita
tion of the occupier or merely with his permission.
It seems to me that Parliament in prohibiting the
dispensation of liquor in hotels, taverns and shops,
intended the prohibition to apply to other public
places which are not necessarily public houses. To
decide otherwise would push the ejusdem generis
rule too far. As was stated in Anderson v. Ander-
son, [1895] 1 Q.B. 749 (C.A.) and quoted in S. G.
G. Edgar, Craies on Statute Law (7th ed. London:
Sweet & Maxwell, 1971), at page 181, the rule is
a mere presumption in the absence of other indica
tions of legislative intention.
I would therefore conclude that the prohibition
set out in section 67 of the Canada Elections Act
does not discriminate between the personal plain
tiff and other members of the community and that
it is not in breach of section 15 of the Canadian
Charter of Rights and Freedoms.
CONCLUSION:
Counsel before me have both contributed to an
interesting and stimulating debate. The plaintiffs,
in spite of a valiant and indeed spirited attempt
have not succeeded before this Court in knocking
down section 67 of the Canada Elections Act.
Notwithstanding what appears to them and to
many others as an obsolete statutory provision, I
have been unable to find any judicial grounds on
which to interfere.
Perhaps section 67 is deadwood. I should ven
ture to suggest, however, that it is neither the duty
nor the privilege of courts to remove deadwood
from Canadian statutes. The limits to judicial
review are to enquire into the constitutional validi
ty of legislative enactments pursuant to constitu
tional restraints set out in the Canadian Constitu
tion. If any enactment should successfully resist
any challenges under the Constitution, it is to the
legislature, and not to the courts, that the commu
nity should look for relief.
The action is dismissed with costs if demanded.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.