April 6, 1915

CON

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Conservative (1867-1942)

Mr. DOHERTY:

There might still be a fairly wide field of operation. There is no doubt that it is intended that the action shall set forth the causes upon which it rests.

Mr. GERMAN': And the court is supposed to stop at that?

Topic:   QUESTIONS.
Subtopic:   DOMINION CONTROVERTED ELECTIONS ACT AMENDMENT.
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CON

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Conservative (1867-1942)

Mr. DOHERTY:

I do not think it is the habit of courts to allow amendments for the purpose of setting forth distinct new causes of action. In order that there shall be an "amendment" there must be something '"amended." It does not "amend" a cause of action, to bring in a new cause of action. And you have to remember that we have here a law-and personally I do not think it is an objectionable law- which provides that these proceedings

*

must be instituted within forty days. I hardly think that any court would conceive it to be within its rights or within its power of amendment to allow a party to come in and allege some absolutely new cause of action, any right of action based upon which is actually extinguished by prescription. I cannot conceive that a court would say to a petitioner: I am

going to allow you to come in a year after the election and make your petition all over again, basing it on a new cause of action, though the law says that your petition should have been brought within forty days. I quite conceive that the courts may exercise much latitude with regard to amending things that are alleged, but I do not apprehend that they would allow the petition to be entirely remade or an entirely new cause to be alleged. I think that, at the very least, we can wait until the apprehensions of the hon. member in that regard have been justified by the results of the operation of this Act.

Topic:   QUESTIONS.
Subtopic:   DOMINION CONTROVERTED ELECTIONS ACT AMENDMENT.
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LIB

William Manley German

Liberal

Mr. GERMAN:

There would not be many petitions filed under the Controverted Elections Act if this were decided by the law.

Topic:   QUESTIONS.
Subtopic:   DOMINION CONTROVERTED ELECTIONS ACT AMENDMENT.
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CON

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Conservative (1867-1942)

Mr. DOHERTY:

I think it would be better to have fewer petitions and more judgments. I think one may fairly say-let the blame be generally shared-that the large number of petitions, when we have contrasted with the number of judgments, when we do have any judgments at all, is in the nature of a public scandal, and is the best justification for trying to bring the law into a condition where a man will only be enabled to make a petition when he has distinct and concrete grounds for doing so.

Topic:   QUESTIONS.
Subtopic:   DOMINION CONTROVERTED ELECTIONS ACT AMENDMENT.
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CON

George William Fowler

Conservative (1867-1942)

Mr. FOWLER:

Why should the hon.

minister assume that the * large number of persons charged with these election offences are guilty?

Topic:   QUESTIONS.
Subtopic:   DOMINION CONTROVERTED ELECTIONS ACT AMENDMENT.
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CON

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Conservative (1867-1942)

Mr. DOHERTY:

I did not say the number of convictions; I said the number of judgments or decisions, favourable or unfavourable. What I point out as being the scandal is not that the persons against whom petitions are made are necessarily guilty, hut that when we do have a large number of petitions we do have almost no decisions, in one sense or the other. When a petition is made it should imply that the man who makes it has some grounds for doing so. When the petition and the grounds upon which it is made are put forth, we should provide, as we endeavour to provide by the following sections, that

a trial shall be brought on, and that if the parties will not bring on a trial, that shall be the end of the petition.

Topic:   QUESTIONS.
Subtopic:   DOMINION CONTROVERTED ELECTIONS ACT AMENDMENT.
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LIB

Edmond Proulx

Liberal

Mr. PROULX:

Suppose that at the trial the respondent objects that the particulars given by the petitioner are insufficient, will the court have power to adjourn the hearing of the petition in order to enable the petitioner to give fuller particulars?

Topic:   QUESTIONS.
Subtopic:   DOMINION CONTROVERTED ELECTIONS ACT AMENDMENT.
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CON

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Conservative (1867-1942)

Mr. DOHERTY:

That brings up a very

large and very wide question. We are proposing now to make a law, and that law will, of course, have to be applied by the courts in accordance with the general rule that governs the power of the courts to allow an amendment of the petition or to allow an adjournment. The only answer that I can give is that the court would determine, according to the circumstances put before it, whether the justice of the case required that that should be done. The hon. gentleman has really asked me to place myself in the position of the court and to give one judgment to be applied to all possible cases; that I would not venture to do. It seems to me that the court would, in each particular case, have to determine whether the justice of the case required that the court should permit the adjournment, or permit, possibly, an amendment within the limits which I have just endeavoured to indicate to the hon. member for Welland. There would be cases, I presume, in which the court would think that while it would be a fair thing to give the defendant a more clear definition of what was to he anticipated, at the same time it could not pro-erly be said the defendant was absolutely taken by surprise and that a fair trial was prevented by reason of the vagueness of the allegations of the petition. The necessity for determination of the result of this provision would arise accordingly as a petitioner offered evidence of particular acts on which he based his petition. The respondent would naturally, I suppose, if he saw any ground for it, urge that what was sought to be proved was not sufficiently particularized to lead him to expect evidence of facts of that kind.

Topic:   QUESTIONS.
Subtopic:   DOMINION CONTROVERTED ELECTIONS ACT AMENDMENT.
Permalink
LIB

Frederick Forsyth Pardee

Liberal

Mr. PARDEE:

Let us suppose that in the petition, bribery, impersonation, treating, and so on, are alleged. Was it the opinion of the committee that it would be sufficient for the petition to state that one or more of these things had been illegally committed by the candidate or his agent, or would it be necessary to say that the candidate or his agent treated John Brown or

bribed William Smith, and so on? Would it be sufficient to make the general charge, as was formerly done in election petitions?

Topic:   QUESTIONS.
Subtopic:   DOMINION CONTROVERTED ELECTIONS ACT AMENDMENT.
Permalink
CON

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Conservative (1867-1942)

Mr. DOHERTY:

In my judgment, the

general charge of bribery would certainly not be sufficient. How far you would have to go in the matter of giving particulars would depend largely on the circumstances of each case. I do not think that you could lay it down as a general rule that because I am required by law sufficiently to particularize in order to prevent surprise, that necessarily means that I must name each particular voter to whom I allege that bribes were offered.

Topic:   QUESTIONS.
Subtopic:   DOMINION CONTROVERTED ELECTIONS ACT AMENDMENT.
Permalink
LIB

Frederick Forsyth Pardee

Liberal

Mr. PARDEE:

Why this change?

Topic:   QUESTIONS.
Subtopic:   DOMINION CONTROVERTED ELECTIONS ACT AMENDMENT.
Permalink
CON

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Conservative (1867-1942)

Mr. DOHERTY:

This change is to pro-[DOT] vide that when I allege bribery, I shall give such circumstances surrounding it as in the judgment of the judge will prepare the respondent fairly to meet evidence of the facts as that evidence is offered to the court.

Topic:   QUESTIONS.
Subtopic:   DOMINION CONTROVERTED ELECTIONS ACT AMENDMENT.
Permalink
LIB

Frederick Forsyth Pardee

Liberal

Mr. PARDEE:

Only of specific facts under the petition.

Topic:   QUESTIONS.
Subtopic:   DOMINION CONTROVERTED ELECTIONS ACT AMENDMENT.
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CON

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Conservative (1867-1942)

Mr. DOHERTY:

Yes.

Topic:   QUESTIONS.
Subtopic:   DOMINION CONTROVERTED ELECTIONS ACT AMENDMENT.
Permalink
LIB

Frederick Forsyth Pardee

Liberal

Mr. PARDEE:

No others could go in.

Topic:   QUESTIONS.
Subtopic:   DOMINION CONTROVERTED ELECTIONS ACT AMENDMENT.
Permalink
CON

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Conservative (1867-1942)

Mr. DOHERTY:

No others could go in, certainly. It is the ordinary rule; as I understand it, of every legal proceeding, that you are entitled to prove what you have alleged, and what you have alleged with sufficient particularity to enable your defendant, the man against whom you make your allegations, to go to the court called upon to expect proof of matters of that kind. But it certainly does not imply that in every case you must give the name of the man bribed.

Topic:   QUESTIONS.
Subtopic:   DOMINION CONTROVERTED ELECTIONS ACT AMENDMENT.
Permalink
LIB

Alexander Kenneth Maclean

Liberal

Mr. A. K. MACLEAN:

Or the man who gave the bribe.

Topic:   QUESTIONS.
Subtopic:   DOMINION CONTROVERTED ELECTIONS ACT AMENDMENT.
Permalink
CON

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Conservative (1867-1942)

Mr. DOHERTY:

Or the man who gave the bribe. To ask any man to stand up here and lay down a general rule saying what are sufficient particulars to enable a man not to be taken by surprise and to have a fair trial, is asking the impossible. But I may say that foT a great number of years, day after day, I have heard men determining that question in particular cases and determining it, as it seemed to me, *reasortably and fairly to both parties. I have heard instances where it was considered that names of people were necessary and others where it was not. In my own province we have worked out a perfectly rational method of dealing with these questions, still comply-

ing -with the elementary rule that a man must state the grounds of hi-s complaint with sufficient particularity to enable another man to have a fair trial upon it.

Topic:   QUESTIONS.
Subtopic:   DOMINION CONTROVERTED ELECTIONS ACT AMENDMENT.
Permalink
LIB

Alexander Kenneth Maclean

Liberal

Mr. A. K. MACLEAN:

It might be wise, however, to go back to the old section, inasmuch as we have provided for facilitating the trial, that is in connection with the present provisions of the Act. Perhaps there would not be any great objection to restoring the old clause.

Topic:   QUESTIONS.
Subtopic:   DOMINION CONTROVERTED ELECTIONS ACT AMENDMENT.
Permalink
CON

Richard Bedford Bennett

Conservative (1867-1942)

Mr. R. B. BENNETT:

You cannot do that if you stick to the first clause, that there is conclusive evidence.

At one o'clock, the committee took recess.

The committee resumed at three o'clock, Mr. Sevigny in the chair.

On section 4-form of petition:

Topic:   QUESTIONS.
Subtopic:   DOMINION CONTROVERTED ELECTIONS ACT AMENDMENT.
Permalink

April 6, 1915