Hodge v. The Queen
Encyclopedia
Hodge v. The Queen 9 App Cas 117 is a famous Privy Council
decision on interpreting the Constitution of Canada
. This was the first time the doctrine of double aspect
was applied to division of powers
analysis.
The province of Ontario delegated the authority to the Board of Commissioners to enact a regulation that prohibited the use of billiard tables during any time when the sale of alcohol was prohibited under the Liquor Licence Act (known as the "Crooks Act" after Adam Crooks).
Lord Fitzgerald
, for the Council, held that the province had the authority to delegate any of its residual powers under section 92(16).
Fitzgerald examined the pith and substance
of the law that delegated the power to the commission. They noted that,
The Act, however, also touched on powers that were exclusively in the authority of the federal government, as had been recently determined in Russell v. The Queen
. Fitzgerald distinguished this fact with what is now the doctrine of double aspect, stating that “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”. Consequently, when a law has some overlapping characteristics between the two heads of power it may still be valid.
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
decision on interpreting the Constitution of Canada
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
. This was the first time the doctrine of double aspect
Double aspect
Double aspect is a legal doctrine in Canadian constitutional law that allows for laws to be created by both provincial and federal governments in relation to the same subject matter. Typically, the federalist system assigns subject matters of legislation to a single head of power...
was applied to division of powers
Canadian federalism
Canada is a federation with two distinct jurisdictions of political authority: the country-wide federal government and the ten regionally-based provincial governments. It also has three territorial governments in the far north, though these are subject to the federal government...
analysis.
The province of Ontario delegated the authority to the Board of Commissioners to enact a regulation that prohibited the use of billiard tables during any time when the sale of alcohol was prohibited under the Liquor Licence Act (known as the "Crooks Act" after Adam Crooks).
Lord Fitzgerald
John FitzGerald, Baron FitzGerald
John David FitzGerald, Baron FitzGerald PC, PC was an Irish judge and Liberal politician.-Background:...
, for the Council, held that the province had the authority to delegate any of its residual powers under section 92(16).
Fitzgerald examined the pith and substance
Pith and substance
Pith and substance is a legal doctrine in Canadian constitutional interpretation used to determine under which head of power a given piece of legislation falls...
of the law that delegated the power to the commission. They noted that,
- the powers intended to be conferred by the Act in question, when properly understood, are to make regulations in the nature of police or municipal regulations of a merely local character for the good government of taverns ... and such as are calculated to preserve, in the municipality, peace and public decency, and repress drunkenness and disorderly and riotous conduct.
The Act, however, also touched on powers that were exclusively in the authority of the federal government, as had been recently determined in Russell v. The Queen
Russell v. The Queen
Russell v. The Queen is a landmark Privy Council decision regarding the interpretation of the Canadian Constitution Act, 1867, and was one of the first cases explaining the interpretation of peace, order and good government....
. Fitzgerald distinguished this fact with what is now the doctrine of double aspect, stating that “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”. Consequently, when a law has some overlapping characteristics between the two heads of power it may still be valid.