Canadian booze regulation – a chequered history

The state of Canadian liquor laws and regulations is something that occasionally crops up in op-eds across the country, but then quietly fades away only to flare up again periodically.

Although Prohibition in the popular consciousness has a distinctly American flavour, evoking images of Al Capone, speakeasies, and bathtub gin (as an era, it certainly has had legs, with HBO’s Boardwalk Empire and the Ken Burns series Prohibition being recent examples that have drawn from the enduring well of cultural fascination with all things Prohibition), it is often forgotten – or, at least, dimly remembered – that Canada also had Prohibition. While it was typically less stringent (for instance, the manufacture of booze was still allowed – unlike in the US, which was, in fact, an outstanding export market that exemplified the notion of supply and demand), it was also determined on a provincial basis. Quebec was one extreme (less than a year in 1919!) and PEI another (1901 to 1948), Ontario was officially dry for eleven years from 1916 to 1927. The US, by comparison, was dry from 1920 to 1933.

Yet, although Ontarian Prohibition was officially repealed in 1927 with the passage of the Liquor License Act (S.O. 1927 c. 70), dramatic change has been slow to come. It may seem hard to believe now that there are two breweries and a distillery based there (the latter, incidentally, was co-founded by Osgoode alum Jesse Razaqpur), but the Junction in Toronto was dry until 2000. Regardless of what criticisms have been levied at the current system of alcohol distribution in Ontario, the immediate post-prohibition system of alcohol distribution was far more restrictive and, at times, downright bizarre, with change extremely slow to come. For those who might be interested, Osgoode has a fascinating (if arcane) history of the LCBO’s post-prohibition system entitled Punched Drunk: Alcohol, Surveillance and the LCBO 1927-1975. There is also a book that is available both in hard copy (at Scott and Frost) as well as online entitled Try to Control Yourself: The regulation of post-prohibition drinking in Ontario, 1927-1944. For a less scholarly – but more fun – history of drinking in Canada, Cheers!: An Intemperate History of Beer in Canada is well worth a read.

Of course, while much has changed since 1927, booze in Canada is still very much strongly and strictly government-regulated by provincial liquor regulators. Reform is typically resisted on grounds of public health and safety (not to mention being a cash cow). Technically speaking there are limits on the amount of alcohol that can be legally taken over provincial borders (and they are sometimes even enforced!). But is this even a right that the provinces have? The Importation of Intoxicating Liquors Act is the Federal act that provides this right to the provinces, but is this compatible with s. 121 of the Constitution Act, 1867 – which states that:

All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.

In a series of articles in the Advocates’ Quarterly (here and here) and the Dalhousie Law Journal (here), Ian Blue, a lawyer at Gardiner Roberts, suggests that the Importation of Intoxicating Liquors Act runs afoul of the Constitution due to its contravention of s. 121. Which, as any first-year law student can tell you, is a bad thing.

While a constitutional challenge to completely overhaul an entrenched system like the system of alcohol delivery in Canada may seem unlikely, I’m sure many said that about prostitution as well.