Hodge v. The Queen
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Hodge v. The Queen (1883) 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 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 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. 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.
