How we got into the mess we're in, sort of.

There are many points along the winding paths that have brought Canada to the pickle it is in these days, (I am not speaking of the current pandemic, but just the governmental mess we have in general) but few are more odd or far reaching than the case of Hodge v, Regina. What's that? You've never heard of it? Well then, listen up, because this is history worth knowing. Also, did I mention it was odd?

In a sense, there are two main influences in the Canadian constitution. One was positive, namely, British law, in that our constitution was to be founded in and to resemble British law, and one was negative, namely, the U.S., which we were most definitely not to be like.

The reason for avoiding the American situation is more than British Pique at the American rejection of Britain approximately 90 years prior to the foundation of Canada. At the time Canadian Confederation was coming together, the American federation had nearly shattered in their Civil War. Many of the framers of the Canadian constitution believed the problem lay in the American division of power between the states and the federal government. When the American founding Fathers had constructed the blueprint for their republic, they envisioned a rather small and contained federal government, with the States being powerful in their own right. This was enshrined in the 10th Amendment in their bill of rights, which stipulated that the powers out the federal government were restricted to those outlined in the constitution, and that any powers not outlined or mentioned in the constitution (what are referred to as 'residual powers' elsewhere) will fall to the States. In short, the 10th Amendment forbade the federal government from voting itself any new powers.

The framers of the Canadian constitution believed that one of the prime causes of the civil war lay in the States being too powerful and the federal government being too weak. Seeking to avoid that, they consciously went in the opposite direction of the Americans, and sought to create a more powerful Federal government with relatively weak provincial governments. .Therefore, in the original Canadian Constitution, the British North America (BNA) Act, the residual powers went to the federal government, and it was the provinces who were restricted and forbidden from creating new powers for themselves.

It is in this background that the Hodge V. R. takes place. In 1881, It began with the Legislative Assembly of Ontario delegating some of their authority to the Toronto License Commissioners so they could pass a resolution banning the use of pool tables in taverns during any time when alcohol was being served. Shortly thereafter, Tavern owner Archibald Hodge was convicted of breaching that law. He appealed. on the grounds, inter alia, that the liquor licencing was a provincial power, and not a municipal one, and therefore the municipality had no authority to pass such a resolution,. The Court of Appeal agreed, and quashed the conviction.

Now, this may seem a small matter- a pool table in a bar, but the appeals court had just ruled on nature and limits of government power. The government appealed and had the conviction re-instated. Hodge Appealed his conviction, which meant that the Privy Council of the British Empire was now going to rule on a point of law that began, it is to be remembered, with a pool table in a bar.

The decision of the Privy Council was to uphold the conviction. It was this case that established, for the first time, the doctrine of Double Aspect as related to the division of powers in Canada. The argument was that the municipality could make regulations that support good order and suppress public drunkenness even licencing was a provincial power. But the formula of the decision also touched upon federal and provincial powers, even though the federal government was not involved in this case. To whit, "subjects which in one aspect and for one purpose fall within sect. 92, may in another aspect and for another purpose fall within sect. 91.

To give a practical example, highways and their policing are a provincial responsibility, but actions occurring there can also be a criminal offence under the Canadian Criminal Code.

So it was here that the strict division of powers between the governments died, and both federal and provincial governments became capable of intruding more and more into each other's rights, and it all began with a pool table in a bar.