Supreme Court Justice talks booze and the constitution

Matt Essert

The Honourable Justice Morris J. Fish delivered the annual F.R. Scott Lecture on Thursday in Chancellor Day Hall, discussing alcohol’s effect on development of the Canadian Constitution.  

Fish received a B.A. from McGill University in 1959 and a B.C.L from the Faculty of Law in 1962. He received an honorary degree from McGill in 2001, as well as the F.R. Scott Award from the McGill Faculty of Law in 2006, and currently sits as a justice on the Supreme Court of Canada.

Before the talk, several of Fish’s colleagues and friends introduced the justice and his history. According to Fish’s longtime friend and colleague Harvey Yarosky, Fish has never failed to dissent in Supreme Court decisions when he disagreed with the majority.

“He has never hesitated when he felt the majority Supreme Court decisions was validating the abuse of authority that he felt should not be validated,” said Yarosky.

Yarosky also noted Fish’s belief that the failure to evoke Constitutional rights is a Constitutional promise that has not been kept. Colleen Cook, the Trenholme Dean of Libraries, similarly commented on Fish’s devotion to honouring the Constitution.

“I understand that Judge Fish’s commitment to freedom of expression likely [came] from being editor-in-chief of the McGill Daily and the Montreal Gazette,” Cook said.

In the lecture, Fish has contended that some of Canada’s fundamental constitutional doctrines found their present shape in cases related to alcohol licensing, particularly those invoking issues of competing  federal and provincial jurisdictions, the Peace Order and Good Government Clause, and matters of trade and commerce.

“I can say with confidence that alcohol served as the trigger for much of our early Constitutional development,” Fish said. “A surprising number of our foundational constitutional cases began as disputes over sale, licensing, and prohibition of alcohol.”

Fish argued that Prohibition raised two constitutional questions. First, which level of government—federal or provincial—had the jurisdiction to regulate alcohol? And second, should there be a distinction should be drawn between regulating the distribution of alcohol as opposed to a more advanced form of regulation? He said that these questions eventually resulted in the scaling back of federal power.

Fish’s lecture mixed social history with constitutional history, arguing argued that two realities of 19th century Canadian life were the centrality of alcohol in people’s daily routines and the social and political backlash widespread drunkenness caused.  

“The challenge was that courts needed to grapple with social and political pressures, while simultaneously consulting foundational questions in constitutional law,” he said.

Fish bolstered his argument by pointing out that a quick list of key constitutional cases from the late 19th and early 20th century read like a liquor board document—”Local Prohibition,” “Manitoba Licence Soldiers,” “Consolidate Distilleries.”

“The reason why so many constitutional cases involved alcohol was that there was a lot of drinking going on in 19th-century Canada, and not much else,” Fish said.

Fish explained how whiskey was considered to be a precaution against colds, and also noted how men would drink while at work, including in the professional classes. Even nursing mothers would regularly drink for fortitude. In Montreal, residents often added brandy to their water to ensure it was safe to drink.

“Because of the role of alcohol in daily life, it was a major social issue,” he said.

Fish explained that temperance advocates relentlessly lobbied governments to enact prohibition, while others were equally passionate and violent in resisting a ban. Thus, a long series of cases ensued based off these two opposing views.

Cases surrounding prohibition eventually resulted in a court ruling that both the provincial and federal governments had concurrent jurisdiction to enact prohibition schemes, followed by another series of liquor cases that affirmed provincial rights.

“The Local Prohibition Reference is one of the earliest jurisdiction decisions granting both federal and provincial power to regions in the same area,” Fish said. “The law took a U-turn.”

First-year law student Vladi Ivanov said it was an honour to hear Fish speak, since he is a major figure in the history of Canadian law.

“I thought his lecture was an interesting way to connect constitutional law, which sometimes can feel a bit disconnected from the real world, with Canadian history,” Ivanov said. 

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