May 29, 2015

Until earlier this month, Nova Scotia had a statute on the books called the Inebriates’ Guardianship Act, R.S.N.S. 1989, c. 227 which allowed for the court to appoint a guardian over a “habitual drunkard”. While Nova Scotia has other statutes which allow the Court to appoint a guardian for a person found to be incapable, a judge of the Trial Division of the Nova Scotia Supreme Court also had the authority under the Inebriates’ Guardianship Act to make a declaration of incapacity (known as an “interdiction”) and appoint a guardian over any habitual drunkard who, “by reason of such drunkenness”:

(a) squanders or mismanages his property;

(b) places his family in trouble or distress;

(c) transacts his business prejudicially to the interests of his family; or

(d) uses intoxicating liquor to such an extent that he thereby incurs the danger of ruining his health and shortening his life.

And what is a “habitual drunkard”? The Inebriates’ Guardianship Act defines this (somewhat circuitously) as “any person who in the neighbourhood in which he resides has the reputation of being a drunkard.” Any relative or friend of the habitual drunkard could apply for an interdiction though the statute is careful to note that they must serve the habitual drunkard when he is sober. An interdicted person must prove “he has been of sober habits for one year” in order to have the guardianship discharged.

The Inebriates’ Guardianship Act also created a provincial offence for anyone who supplied an interdicted person with intoxicating liquor, punishable by a $50 penalty for each such offence. Unlike most fines, which are payable to the state, the habitual drunkard’s guardian may recover these payments for the use of the interdicted person’s family. It would be a good idea for anyone so convicted to pay the $50 and “the costs of suit”, as the alternative is imprisonment for the term of 3 months (unless the penalty, costs, the costs of imprisonment and the costs “of the conveyance of such person to the jail” are paid).

The last case that applied this statute is from over 35 years ago. In Re M. (M.E.), 1979 CarswellNS 374 (S.C.T.D.), Justice McLellan concluded that despite the use of the male pronoun in the Inebriates’ Guardianship Act, it nevertheless also applied to the female respondent. While Justice McLellan accepted that the respondent had a “great deal of difficulty with alcohol”, his Honour did not find that there was enough evidence to conclude that she was a habitual drunkard, especially as there was no evidence of the “reputation in the neighbourhood in which the Respondent resides.” Justice McLellan also commented that the Inebriates’ Guardianship Act was “seldom resorted to” and that his Honour had “some difficulty in trying to determine the thrust of the Legislation.”

While alcohol abuse is a certainly a serious societal problem, the antiquated wording of the Inebriates’ Guardianship Act did not provide an appropriate solution for the friends and family of a person suffering from alcoholism.

Thankfully, the Nova Scotia House of Assembly repealed the Inebriates’ Guardianship Act as of May 11, 2015 via the Statute Law Repeal (2015) Act. This law was the inaugural bill of Nova Scotia’s new Department of Business. The Hon. Mark Furey, Minister of Business, stated that the purpose of this law was to repeal statutes which were “outdated, obsolete, or no longer used” that reflected “ideas and values from a different era.”