Canadian Journal of Law and Society / La Revue Canadienne Droit et Société
This paper uses the example of the control of medicinal liquor during prohibition in Alberta to explore how the methods of control altered during the eight years of prohibition. This paper argues that the system used to control medicinal liquor changed from a prosecutorial system to a regulatory system. This shift from prosecution to regulation was essential in ensuring that medicinal liquor was actually controlled and allowed medicinal liquor to become an alternative as well as an exception to prohibition. This paper focuses on explaining the success of administrative control rather than the courts' attempts to control administrative action and thus examines administrative law and practice from the ground up. Consequently, this paper uses a broad definition of administrative law which includes the regulations, policies and practices created and used by the provincial state in its attempt to control medicinal liquor.
Cet article examine comment les méthodes de contrôle ont changé au cours des huit années de prohibition en Alberta en prenant l'exemple de l'alcool utilisé à des fins médicinales. L'auteure soutiens que le contrôle de ce type d'alcool est passé d'un système judiciaire à un système réglementaire. Cette évolution vers la réglementation s'est avérée essentielle afin d'assurer que l'alcool utilisé à des fins médicinales soit effectivement contrôlé et de permettre que cette substance devienne une alternative ainsi qu'une exemption dans le contexte de la prohibition. Cet article se penche sur le succès du contrôle administratif et non sur les efforts des tribunaux de contrôler les mesures administratives, examinant ainsi les fondements du droit administratif ainsi que des pratiques connexes. Par conséquent, cet article utilise une définition large du droit administratif qui inclut la réglementation, les politiques ainsi que les pratiques créés et utilisés par le gouvernement provincial dans ses efforts visant à contrôler l'alcool utilisé à des fins médicinales.
1 Liquor Act, SA 1916, c 4.
2 Kottman, Richard N., “Volstead Violated: Prohibition as a Factor in Canadian-American Relations,” Canadian Historical Review 43 (1962), 107.
3 Liquor Act, ss 4, 72.
4 Ajzenstadt, Mimi, “Cycles of Control: Alcohol Regulation and the Constructions of Gender Roles, British Columbia, 1870–1925,” International Journal of Canadian Studies 11 (1995), 101; Heron, Craig, “The Boys and Their Booze: Masculinities and Public Drinking in Working-Class Hamilton, 1890–1946,” Canadian Historical Review 86, 3 (2005), 411; Heron, Craig, Booze: A Distilled History (Toronto: Between the Lines, 2001); Levi, Ron and Valverde, Mariana, “Knowledge on Tap: Police Science and Common Knowledge in the Legal Regulation of Drunkenness,” Law and Social Inquiry 26, 4 (2001), 819; Benidickson, Jamie, “The Canadian Board of Railway Commissioners: Regulation, Policy and Legal Process at the Turn-of-the-Century,” McGilt Law Journal 36 (1990/1991), 1222; Hibbitts, Bernard J., “A Bridle for Leviathan: The Supreme Court and the Board of Commerce,” Ottawa Law Review 21 (1989), 65; Hibbitts, Bernard J., “A Change of Mind: The Supreme Court and the Board of Railway Commissioners, 1903–1929,” University of Toronto Law Journal 41 (1991), 60. This is not an exhaustive list.
5 Benidickson's work suggests that the board he studied listened to input from a wide variety of groups and individuals prior to making a ruling: Benidickson, , “The Canadian Board of Railway Commissioners,” 1227–32, 1269–70.
6 Heron, , Booze, 179–80; Gray, James H., Booze: The Impact of Whisky on the Prairie West (Toronto: Macmillan, 1972), 82–85.
7 Heron, , Booze, 52–64; Okrent, Daniel, Last Call: The Rise and Fall of Prohibition (New York: Scribner, 2010), 9–11.
8 Heron, , Booze, 63–71, 121; Spence, B.H., “Prohibitory Legislation in Canada,” Annals of the American Academy of Political and Social Science 109 (1923), 250; Okrent, , Last Call, 4.
9 Okrent, , Last Call, 17; Heron, , Booze, 131.
10 Canada Temperance Act, SC 1878 (41 Vict), c 16.
11 Heron, , Booze, 162; Review of Liquors, and Liquor Legislation in the Various Provinces of Canada (undated), Provincial Archives of Alberta (PAA), RG83.192, file 399.
12 Heron, , Booze, 151–52.
13 Direct Legislation Act, SA 1913, c 3.
14 Gray, , Booze, 84.
15 Liquor Act, s 4.
16 The private-importation loophole was first closed in 1918 as a war measure, which was extended after the end of the war following provincial plebiscites on the issue: PC 1918-589, CGazl918II Extra 1 (War Measures Act); Canada Temperance Act, RSC 1908, c 152, s 157, as amended by SC 1922, c 11; PC 385 (March 5, 1923); Heron, , Booze, 237; Gray, , Booze, 190–95.
17 Liquor Act, ss 4, 72.
18 Williams, Sarah E., “The Use of Beverage Alcohol as Medicine, 1790–1860,” Journal of Studies on Alcohol 41 (1980), 555.
19 Malleck, Daniel Joseph, Refining Poison, Defining Power: Medical Authority and the Creation of Canadian Drug Prohibition Laws, 1800–1908 (Diss. Queen's University, 1999), 23, 25, 101, 294; Clark, R.J., “Professional Aspirations and the Limits of Occupational Autonomy: The Case of Pharmacy in Nineteenth-Century Ontario,” Canadian Bulletin of Medical History 8 (1991), 43; Clow, Barbara, Negotiating Disease: Power and Cancer Care, 1900–1905 (Montreal: McGill-Queen's University Press, 2001).
20 For a history of the development of professional organizations in Ontario see Gidney, R.D. and Millar, W.P.J., Professional Gentlemen: The Professions in Nineteenth Century Ontario (Toronto: University of Toronto Press, 1994).
21 Carstairs, Catherine, Jailed for Possession: Illegal Drug Use, Regulation, and Power in Canada, 1920–1961 (Toronto: University of Toronto Press, 2006), 116–17.
22 Memo from Deputy Attorney General Browning to Dr Strong (October 31, 1916), PAA RG75.126, file 735b.
23 “The Liquor Act Comes into Force July 1,” Lacombe Guardian (May 26, 1916).
24 Jones, Bartlett C., “A Prohibition Problem: Liquor as Medicine, 1920–1933,” Journal of the History of Medicine 18, 4 (1963), 353.
25 Ibid., 367.
26 The CMA did keep its members informed of the news surrounding medicinal liquor, however: “Congress Interferes with Physicians' Prescriptions,” Canadian Medical Association Journal 14, 9 (1924), 755; Johnson, Arthur Jukes, “Report of the Ontario Medical Council in Relation to the Ontario Temperance Act,” Canadian Medical Association Journal 8, 8 (1918), 746.
27 Finlay, R.E., Letter to the Editor, Red Deer News (August 6, 1919); “Doctors Opposed to Liquor Business,” Red Deer News (September 10, 1919); Letter from John Smith, MD, to Deputy Attorney General A.G. Browning (November 28, 1918); Letter from J.H. Duncan, MD, to Deputy Attorney General A.G. Browning (November 6, 1918); Letter from Dr W. Weston Upton to Deputy Attorney General A.G. Browning (November 7, 1918), PAA, RG75.126, file 739b.
28 Finlay, ibid.; Alberta WCTU: Story of the Years 1913–1963, Glenbow Alberta Institute Archives (GAIA), RG M-1708-2; Ontario Six Years Dry, 1916 to 1922 (September 17, 1922), GAIA, RG M-1708-181.
29 Letter from H.A. Switzer to Attorney General J.E. Brownlee (July 4, 1923), PAA, RG 75.126, file 2824. Concern about undue interference in medical judgement was also seen in Ontario and Nova Scotia: Johnson, “Report of the OMC”; “The Nova Scotia Temperance Act and the Profession,” Canadian Medical Association Journal 16, 9 (1926), 1125.
30 Heron, , Booze, 237–39; Okrent, , Last Call, 194; For the American experience of medicinal liquor see Jones, “Prohibition Problem.”
31 See, e.g., Letter from Deputy Attorney General Johnson of BC to Deputy Attorney General A.G. Browning (July 10, 1919), PAA, RG83.192, file 412.
32 Letter from Deputy Attorney General Browning to Dr Harvey W. Wiley, Washington, DC (29 December 1919), PAA, RG75.126, file 2795.
33 “Four Million for Phone Extension,” Red Deer News (February 11, 1920); Heron, , Booze, 239.
34 “Attorney General Says Liquor Law Strictly Enforced,” Lethbridge Herald (November 11, 1920); Letter from Attorney General Brownlee to W.H. Erant (November 1, 1923), PAA, RG75.126, file 3728.
35 Letter from Browning to Chairman Leech, Saskatchewan Liquor Commission (March 14, 1922), PAA, RG75.126, file 2564b.
36 Liquor Act, s 14.
37 Ibid., ss 17–19; Liquor Act, SA 1916, c 4, as amended by SA 1917, c 22, s 4.
38 Following the Spanish Flu epidemic of 1918, Browning lamented that “if it had not been for the ‘Flu’ epidemic the [liquor] records would have been of great assistance to us. As it is, proceedings against Druggists and others will have to stand until later.” Letter from Deputy Attorney General A.G. Browning to A. Phimester (November 18, 1918), PAA, RG75.126, file 3395.
39 For the railway scandal see Palmer, Howard and Palmer, Tamara, Alberta: A New History (Edmonton: Hurtig, 1990), 14–15; for the agricultural crisis see Jones, David C., Empire of Dust: Settling and Abandoning the Prairie Dry Belt (Calgary: University of Calgary Press, 2002).
40 There is a debate over whether the RNWMP's announcement was coincidental or whether it was sparked by the return of prohibition: Lin, Zhiqiu, Policing the Wild North-West: A Sociological Study of the Provincial Police in Alberta and Saskatchewan, 1905–32 (Calgary: University of Calgary Press, 2007), 31–35Hewitt, Steve, Riding to the Rescue: The Transformation of the RCMP in Alberta and Saskatchewan, 1914–1939 (Toronto: University of Toronto Press, 2006), 17.
41 Lin, , Policing the Wild North-West, 31–35, 42–43.
42 The APP deployed 155 officers where the RNWMP had deployed 312; ibid., 53.
43 Liquor Act, at s 17.
44 Letter from Deputy Attorney General A.G. Browning to Dr F.A. McCord (September 7, 1917), PAA, RG66.166, file 12401.
45 Letter from Deputy Attorney General A.G. Browning to Dr Revell of the Alberta Medical Association (September 7, 1917), PAA, RG66.166, file 12401.
46 Ibid.; “Doctors Accused of Failing to Report Sales of Liquor,” Edmonton Journal (October 30, 1917).
47 Letter from Deputy Attorney General Johnson of BC to Deputy Attorney General A.G. Browning (luly 10, 1919), PAA, RG83.192, file 412; “The Nova Scotia Temperance Act,” 1125; Lin, , Policing the Wild North-West, 124, 137; Carstairs, , Jailed for Possession, 115–21.
48 Letter from the Attorney General to H. Quarterman (April 26, 1920), PAA, RG75.126, file 2795.
49 Letter from the Superintendent of the APP to Deputy Attorney General A.G. Browning (February 11, 1919), PAA RG75.126, file 1173b.
50 Letter from Deputy Attorney General AG Browning to Deputy Attorney General Johnson of BC (July 16, 1919), PAA, RG83.192, file 412.
51 Memo from Chief Inspector Simpson to Deputy Attorney General Browning (November 25, 1921), PAA, RG75.126, file 2799.
52 Letter from Deputy Attorney General A.G. Browning to Mrs Collins (August 12, 1919), PAA, RG75.126, file 3244b; Memo from Deputy Attorney General A.G. Browning to Mr Simpson (October 24, 1921); Memo from Deputy Attorney General Browning to Mr Simpson (October 25, 1921), PAA, RG75.126, file 2799.
53 Many of the early prohibition letters were dealt with by the deputy attorney general, but as prohibition progressed the letters were delegated to departmental solicitors. The increased delegation suggests that the number of responsibilities and the size of the attorney general's department had increased.
54 “Who Wouldn't Be an Alberta Doctor?” Lethbridge Herald (February 2, 1920).
55 Letter from Deputy Attorney General A.G. Browning to Dr J.D. Harrison (October 4, 1918), PAA, RG 75.126, file 3395 (“[i]t may be that such prescriptions were entirely bona fide, and as to this I do not express any opinion, but your attention is being called to the matter in order that there may be no reason for criticism in the future”); Letter from Deputy Attorney General A.G. Browning to Dr Sylvain (June 15, 1920), PAA, RG75.126, file 2795.
56 For examples of such reports see PAA, RG75.126, file 2813.
57 “Ask to Have RNWMP Patrol Restored,” Red Deer News (January 9, 1918); Lin, , Policing the Wild North-West, 140–43.
58 “Verbal Tilt between Magistrate and Lawyer over Liquor Case; Three Leading Doctors Are Fined,” Edmonton Journal (November 21, 1916); Letter from T.A. Burrows to Attorney General Boyle (May 1, 1920), PAA, RG75.126, file 2795.
59 Letter from Inspector Gold to Deputy Attorney General A.G. Browning (May 18, 1917), PAA, RG66.166, file 1240j; Lin, , Policing the Wild North-West, 138.
60 “Four Million for Phone Extension,” Red Deer News (February 11, 1920).
61 Carstairs, , Jailed for Possession, 121–23.
62 Suspected Irregularities re Liquor Prescriptions (April 2, 1924), PAA, RG75.126, file 4574.
63 Letter from Deputy Attorney General Browning to Mr Langfeldt (March 28, 1923), PAA, RG83.192, file 402.
64 Letter from Chief Inspector Fairley to J.B. MacLean of Manitoba's Liquor Commission (November 12, 1920), PAA, RG75.125, file 2795; Memo from Inspector Downey to Mr Bishop (November 3, 1922), PAA, RG75.126, file 3321b.
65 Letter from APP Superintendent to Deputy Attorney General Browning (February 11, 1919), PAA, RG75.126, file 1173b; Letter from APP Superintendent to Attorney General Boyle, (January 3, 1919), PAA, RG 83.192, file 412.
66 Memo from Inspector Downey to Commissioner Bishop (November 3, 1922), PAA, RG75.126, file 3321b; Letter from Chief Inspector Fairley to APP Superintendent W.C. Bryan (29 December 1920), PAA, RG75.126, file 2795.
67 Memo from Acting Deputy Attorney General R.A. Smith to Chief Vendor Douglas (September 1, 1923), PAA, RG75.126, file 3321b.
68 A total of 499 doctors received prescription pads for the month of October 1921; assuming the number of doctors remained stable throughout the year, this would allow a maximum of 598,000 legal liquor prescriptions. Only 242,570 liquor prescriptions were issued for the whole of 1921, however, which works out at about 40 per month per doctor. In reality, some doctors issued far more liquor prescriptions than others. Memo from Chief Inspector Simpson to Deputy Attorney General A.G. Browning (November 15, 1921), PAA, RG75.126, file 2799; Liquor Prescriptions Dispensed by Druggists and Returned to Vendor's Store (undated); Classification of Physicians According to Number of Liquor Prescriptions Issued (June 1923-March 1924); Liquor Prescription Record (undated), PAA, RG69.289, file D1.
69 Ibid. (Memo, Simpson to Browning, November 15, 1921; Liquor Prescriptions Dispensed; Classification of Physicians; Liquor Prescription Record). Heron notes that in 1920, Alberta's doctors issued more than 500,000 liquor prescriptions, but he omits to mention that such a number would be in keeping with the liquor prescription quota and was much lower than the number issued by doctors in other provinces. The greater number of liquor prescriptions in 1920 might also be a response to the recent closing of the private-importation loophole, which left medicinal liquor as the only legal exception open to ordinary Albertans. See Heron, , Booze, 238; Gray, , Booze, 190–95.
70 Campbell, Robert A., Demon Rum or Easy Money: Government Control of Liquor in British Columbia from Prohibition to Privatization (Ottawa: Carleton University Press, 1991), 24; “Picked Up in Passing,” Lethbridge Herald (April 17, 1919); “Chicago Doctor Boasts of Prescription Record,” Lethbridge Herald (September 25, 1920).
71 Levine, Harry Gene, “The Birth of American Alcohol Control: Prohibition, the Power Elite, and the Problem of Lawlessness,” Contemporary Drug Problems 12 (1985), 66–68; Deputy Attorney General Browning to J.W. Smith (January 25, 1917), PAA, RG66.166, file 1240g.
72 Letter from A.G. Browning to the APP Superintendent (February 13, 1919), PAA, RG75.126, file 1173b (“there is considerable complaint throughout the Province of the violation of the Liquor Act. These complaints may or may not be well founded, but the fact remains that they are quite general”); APP Crime Report, Athabasca Detachment (May 19, 1917), PAA, RG66.166, file 1240i.
73 Letter from Deputy Attorney General A.G. Browning to Miss Maude L. Smith, Secretary of Leduc's Women's Institute (April 16, 1921), PAA, RG75.126, file 3252a.
74 Arthurs, H.W., “Without the Law”: Administrative Justice and Legal Pluralism in Nineteenth-Century England (Toronto: University of Toronto Press, 1985), 125, notices a similar phenomenon in his study of nineteenth-century English administrative law.
75 Lin, , Policing the Wild North-West, 123.
76 “Eight Million Dollars Liquor Profit,” Red Deer News (13 December 1922).
77 Campbell, , Demon Rum or Easy Money, 23–33.
78 “Liquor Act Tightened by Heavier Fines; No Plebiscite on Moderation Petitions,” Lethbridge Herald (April 18, 1921).
79 Heron, , Booze, 167, 179–80.
80 “To Consult with Doctors and Druggists of Aha,” Lethbridge Herald (August 15, 1921).
81 Gray, , Booze, 82–83, 192; “Four Million for Phone Extension,” Red Deer News (February 11, 1920).
82 “Legislature to Deal with Prohibition,” Redcliff Review (November 24, 1921).
83 See notes 39–42 and 57–61 above and accompanying text; Lin, , Policing the Wild North-West, 125–29.
84 Louise C. McKinney, address to the Alberta WCTU Seventh Annual Convention (October 1919), GAIA, RG M-1708-28.
85 Government of the Province of Alberta Liquor Branch Supplementary Report (October 31, 1921), PAA, RG69.289, file 120B. Chief Inspector Forster had looked upon the government's liquor activities as a business as early as 1918, but evidently this view was not shared by the government's accountants: Memo from Chief Inspector Forster to Deputy Attorney General A.G. Browning (May 21, 1918), PAA, RG75.126, file 735a.
86 An Act to Amend the Liquor Act, SA 1922, c 5.
87 OC 358-23, AGaz1923I137 (Liquor Act); OC 357-23, AGaz1923I138 (Liquor Act).
88 “Stop Sale of Liquor in Alberta Drug Stores,” Lethbridge Herald (January 21, 1922). The amendments described here made the 1923 orders-in-council possible.
89 “Alberta Needs New Revenue Sources; Budget Is Sure to Show Big Deficit,” Lethbridge Herald (February 14, 1923); Gray, , Booze, 204–5; Campbell, , Demon Rum or Easy Money, 33.
90 Gray, , Booze, 204.
91 “Legislature by Overwhelming Vote Accepts the Beer Petition as Valid,” Lethbridge Herald (March 15, 1923); Marks, A.L., Solicitor for the Social Service Council of Alberta, Letter to the Editor, Irma Times (February 2, 1923).
92 Thompson, Scott and Genosko, Garry, Punched Drunk: Alcohol, Surveillance and the LCBO, 1927–1975 (Halifax: Fernwood Publishing, 2009), 24–29.
93 Heron, , Booze, 273–74.
94 “Liquor Referendum - Notice to Voters,” Lethbridge Herald (October 25, 1923).
95 “Government Urges No Plumping When Casting Ballot on Nov 5 Referendum,” Lethbridge Herald (October 23, 1923).
96 Heron, , Booze, 273–74.
97 The first-choice votes were as follows: Clause A—61,647; Clause B—3,936; Clause C—3,078; Clause D—93,680. 78,268 voters did not rank their preferences. Statement of Votes Polled, November 5, 1923 (undated), PAA, RG76.2.
98 Government Liquor Control Act, SA 1924, c 14, ss 19–26 [Liquor Control Act].
99 Ibid., ss 101–2. The Liquor Control Act revived the interdiction provisions previously seen in Alberta under the Liquor License Ordinance, 1891-1892, No 18 s 92.
100 Liquor Control Act, ss 33–37; ALCB Club an d Hotel Inspection Reports, PAA, RG74.412.
101 Alberta Prohibition Campaign Committee, “The Failure of Government Sale of Alcoholic Liquors” (1923), PAA, RG69.289, file 207.
102 “Good Argument,” Red Deer News (February 19, 1919); “Crime Rampant in World and Indifference of Public to Blame,” Lethbridge Herald (June 30, 1922).
103 Levine, , “The Birth of American Alcohol Control,” 67–68, 71.
104 Ibid., 99; Room, Robin, “Alcohol Monopoly as an Idea and as a Reality: Some Perspectives from History,” Alkolopolitik: Tidskrift nordisk alkoholforskning 2 (1985), 1.
105 Carstairs, , Jailed for Possession, 118–24.
106 In 1949 the provincial government received $11,045,256.85 from the ALCB and $12,906,634.11 from the Department of Mines and Minerals. Alberta, Legislative Assembly, “Public Accounts,” Sessional Papers, No 1 (1949), 231, 253. The previous year the ALCB provided $9,820,587.50 in revenues while the Department of Mines and Minerals provided only $1,464, 057.39. Alberta, Legislative Assembly, “Public Accounts,” Sessional Papers No 1 (1948), 227, 251.
* I would like to thank audiences at the Faculty of Law, University of Alberta, and the 2011 Osgoode Hall Graduate Law Students' Association Conference for helpful feedback on earlier versions of this article. I am indebted to Eric Adams, James Muir, and the two anonymous peer reviewers for their insightful comments and suggestions on an earlier draft. Special thanks are also owed to John Law, Annalise Acorn, and Shelley Gavigan for their encouragement and interest in this topic. The Osgoode Society for Canadian Legal History's Graduate Student Assistance Program funded a research trip to Calgary, and their financial support is gratefully acknowledged. All opinions and mistakes are mine.
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