June 2, 1921

LIB

Lawrence Geoffrey Power

Liberal

Mr. POWER:

The Act provides that

the pension of a widowed mother shall not be re'duced on account of earnings of personal employment, etc., so long as she resides in Canada.

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UNION

Hume Cronyn

Unionist

Mr. CRONYN:

That point was not considered by the committee. The only change made with regard to residence outside of Canada was that the bonus of fifty per cent should be the same, whether the pensioner lived in Canada or outside.

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LIB

Section agreed to. Bill reported, read the third time and passed. At Six o'clock the House took recess. After Recess The House resumed at Eight o'clock.


CANADA TEMPERANCE ACT1


On the motion of Hon. Mr. Doherty, Bill No. 219 with regard to certain proceedings under Part IV of the Canada Temperance Act was read the second time and the House went into committee thereon, Mr. Boivin in the Chair. On clause 1-proclamation valid if it states prohibition shall go into force on day and date declared by Order in Council.


UNI L

William Stevens Fielding

Unionist (Liberal)

Mr. FIELDING:

There are two sets- perhaps I should say two classes-of interests which may be affected by this Bill. First, of course, there is the public interest which must be paramount. There is also what I may call the private interest-the interests of parties now in court to which, while they are entirely subordinate, we still must give some consider-

ation. If the public interests are likely to be affected by the existing order of things I quite agree with the minister that he has a right to intervene. If, owing to a mistake made by the Government in drafting the Bill, or by this House in enacting it, or by any official of the Government in administering it, a situation has been created in which there is a probability, or even a possibility, of important public interests being set aside on a mere technicality, I quite agree that would be justification for the minister to intervene. The subject with which this Bill deals is the question of prohibition. The various provinces concerned have spoken in no uncertain manner. They have approved of the principle of prohibition and desire it to be enforced, and I am sure ^obody in this House would desire to interfere with the carrying out of the deliberate voice of the people. Certainly I have no desire to do so, and I quite concur in the view that no mere technicality should be permitted to override the deliberate voice of the people in this respect. But there remains the question of the private interests of persons who are already in court on the subject. In so far as my right hon. friend proposes to legislate that these technicalities shall not prevent effect being given to the deliberate voice of the people in these matters I desire to entirely concur With him; but I would like to receive an assurance from him that the interests of individuals who may be in court at present will not be at all adversely affected by this Bill.

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UNION

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

Unionist

Mr. DOHERTY:

To the extent that

persons are seeking to attain a result which obviously is opposed and injurious to the general public welfare-namely the setting aside of what the hon. gentleman has spoken of as the deliberate voice of the people; to the extent that those interests desire to have prohibition defeated; to the extent that private individuals may be seeking by reason of an alleged defect in form to defeat that voice of the people, they must necessarily be deprived of the opportunity of doing so by this legislation.

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?

Mr FIELDING:

That is not the kind of private interest I mean.

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UNION

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

Unionist

Mr. DOHERTY:

I cannot conceive what substantial interest there is that wishes to destroy the effect of the voice of the people by this technicality. If we say that because somebody might perhaps, if action were deferred-which is all that would come of it if we did not prevent the possible defeat of this law in the manner we

are proposing-lose some money, or be enabled to make some money because of this accidental, and perhaps fatal, omission, then possibly some interest might in that sense be affected and no doubt anybody in that position would be debarred from obtaining an advantage resulting from such omission. I do not know that anybody will be prevented from making money by reason of our curbing that accidental omission, but if there be anybody no doubt he will be affected to that extent. Against that, however, we have the great general public interest. In the first place it is highly important that the desire of the people so emphatically expressed should not be defeated by this merely accidental omission. In the next place there is the great, substantial, material public interest to be protected which consists in the fact that if all that has occurred in the past is declared nugatory, all the expense which has been incurred in connection with these different plebiscites will be wasted money, and the people will only be put in the position to have their voice prevail by the country being put to the same expense all over agin. Noiw, as I pointed out in introducing the Bill, there has already been incurred and actually paid in connection with these different plebiscites a sum exceeding half a million dollars. I am also informed by the Auditor General that so far as regards the expense incurred in connection with the plebiscite in Ontario, he estimates that not more than 20 per cent of that expense has been already paid, so that there remains a very large sum to be added to that half million. If it should happen that it should be found that there has been an omission, and that that omission is fatal to the validity of the proceedings that have taken place, that sum of money will be absolutely wasted in so far as the public of Canada are concerned, and the whole proceeding will have to be commenced all over again. We cannot anticipate that communities who have so emphatically expressed their desire that this law should become operative within the boundaries of their respective territories, will sit back and not make a second endeavour to have their wishes carried out. Now, it seems to me those circumstances make a case where the private interests involved must yield in the face of this paramount public interest. I am not disposed to dispute that as a general principle, legislation having a retroactive effect is not desirable legislation; but I think that if there be a case-and there are numerous

cases-where parliaments have considered the exercise of the power of enacting retroactive legislation as justified we are in the face of the typical case. It is a question of a private interest, because it sees some advantage to itself, seeking to defeat the public will by reason of a mere omission in the procedure enacted by the law.

Now, I desire to refrain from expressing any opinion or making any argument as to whether there does or does not exist under the law as it now stands an omission fatal to these proceedings. That is the question which is actually sub judice, and I do not think it would be proper for us to discuss it. I think it is proper to simply state these two circumstances: That the Court of Appeal of Alberta, composed of three judges, decided, with one judge dissenting, that there is no such fatal omission; and that the law officers of the Crown who are responsible for the preparation of the proclamation, at the time acted advisedly, being of opinion that it conformed to the requirements of the law, and they are still of that opinion.

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L LIB
UNION

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

Unionist

Mr. DOHERTY:

It would affect the

pending case of the Gold Seal Company vs the Dominion Express Company, in which the question to be decided, as I understand, is whether the express company was justified in refusing a shipment from the Gold Seal company because of this law being in force. Nothing is involved directly in that case but that question.

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L LIB
UNION

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

Unionist

Mr. DOHERTY:

There was no adjudication of damages because the proceedings were dismissed. Nobody is entitled to recover damages unless he has been deprived

of some substantial right.

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L LIB
UNION

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

Unionist

Mr. DOHERTY:

Yes, but it has not yet been pronounced upon.

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L LIB

Joseph Arthur Calixte √Čthier

Laurier Liberal

Mr. ETHIER:

Then why not wait for

the judgment of the Supreme Court?

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UNION

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

Unionist

Mr. DOHERTY:

If we had assurance

that judgment would be rendered before this House adjourns we might wait. But the position would not be altered if we did wait. It would become just as much our duty then to modify the law which the court declared a nullity upon this particular

ground. It is furthermore to be pointed out that there is perhaps this advantage in the matter being dealt with before the judgment is rendered. In that particular case this accidental omission is by no means the only, nor the principal, question raised; the whole issue of the constitutionality of the Canada Temperance Act legislation and of the provincial temperance legislation has all been fought out. A judgment that would dispose of the case upon this irregularity would simply leave the constitutional question undecided, and therefore if the will of the people is to be given effect to, you would have to begin all over again the plebiscite proceedings, and after doing that and getting what I think we may assume would be the same result, you would have to begin all over again the proceedings for determination of the constitutionality of the law.

Now, I think we are faced with a position where the intervention of Parliament is not only justified but is called for. We have a preponderant public interest to be protected by this legislation as against what is certainly an unimportant, if indeed there be any real, private interest that may be adversely affected. Principles are of great importance and are to be respected, but, after all, I think there are few principles that call for absolute adherence in the face of conditions and circumstances which make such absolute adherence work out to serious public detriment. If this matter turned upon this particular question, and should be decided in a sense adverse to the validity of the proceedings. I think it would be a case where you would find the most absolute justification for the application of the old adage that succeeding generations of lawyers, even those most profoundly imbued with respect for law, have recognized to be sound, namely, summum jus, summa injuria. Because of difference of opinion as to whether you sufficiently stated the day on which prohibition will come into effect by simply stating that it will be fixed in a proclamation specially provided by the statute, or whether it was essential that you should fix the actual particular date, and the setting aside of these entire proceedings on the ground of an error in that regard, would certainly seem to me to be a case where by the application of summum jus to an unimportant private interest you would produce this summa injuria to the general public interest.

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UNI L

William Stevens Fielding

Unionist (Liberal)

Mr. FIELDING:

If the right hon.

gentleman, an eminent lawyer, feels not

free to express any opinion on the merits of the case now in court, there are a thousand more reasons why no layman should dare do so, and so I have not the slightest thought of expressing any such opinion. Even if there were no question of expense, in view of the expressed will of the people of these various provinces in regard to prohibition, I would be heartily in accord with the right hon. gentlemen that whatever legislation is necessary should be enacted to make it clear that from this time forward, if it was not good law a month or two ago, it is good law now. There is really not very much difference between us. But there is the question f private interest. I do not happen to know anything about this particular case, but there are two parties to it, say Smith and Brown, and the case has been entered in the courts under the existing law. I am quite content that my right hon. friend shall make a correction or cure in the law as respects all future interests, but as respects the particular interest of Smith and Brown who are now in court, I do not think it .s fair that they should be legislated out of court. I draw a distinction between legitimate private interests and the interests of the country. I want the public interests to be protected, but it seems to me that a fair argument can be made that the people who have gone into court under the law as it now standi shall in respect to damages or costs, a>

expenses, not be legislated out of court and I hope my right hon. friend will takt that into consideration. I do not differ from him as to the form of legislation as; far as may be necessary to give effect t* the expressed will of the people in a',1 these things. The only question is whether he has given fair consideration to tins interests of private litigants who are no' -in court.

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L LIB

Jacques Bureau

Laurier Liberal

Mr. BUREAU:

To make my position

clear, Mr. Chairman, I wish to state that I am speaking for myself and not in the name of any other hon. members on my side of the House or of my party.

I was shown some despatches to-day which indicate that there has been an attempt to make political capital out of the fact that I objected to the introduction and first reading of the Bill the other day on the ground that proper notice had not been given. There is before the Supreme Court of Canada to-day a case in which the plaintiffs are proceeding on the ground that the Canada Temperance Act is not in force in the province of Alberta. The

matter was argued before the Supreme Court of Alberta, and as the Minister of Justice has said, two of the judges decided the proceedings were regular and one dissented. On the judgment rendered, Mr. Justice Harvey stated that the point raised with regard to the omission in the proclamation was an important one and that were it not for important considerations of public interest it might have had an effect upon the decision. Now, I want to be thoroughly understood: I strongly object to any legislation having retroactive effect, the more so when it affects a case pending before the courts. There is more involved in this case between the Gold Seal Company and the Dominion Express Company than the simple question of private interests. I admit that the majority must rule, but it must be remembered that there are people in Alberta who did not vote in favour of this temperance Act under Part 4 prohibiting the importation of liquor into that province. By Part 4 it was provided that upon petition from the legislature the Governor in Council might appoint a day by proclamation upon which the vote of the citizens of the province in question should be taken, and that in the proclamation should the vote be favourable the day on which the law would come into force should be mentioned. Well, in this case the Governor in Council is the Minister of Justice because he is

the adviser of the Governor in Council. My hon. friend says that the officers of the Crown who prepared the proclamation are responsible for the omission and that in their view the omission is not fatal. But so far as we in this House are concerned the omission was made by the Minister of Justice, and it is not for him or for us in the House to pass upon the question whether or not the omission is fatal, having regard to the fact that a 3ase involving an interpretation of the Proclamation is pending before the courts. If we exempt pending cases from this legislation I do not see that Ontario, Manitoba or Saskatchewan will be adversely affected, because in those provinces no cases are pending in which the plebiscite is disputed; the only case I know of is that of the Gold Seal Company and the Dominion Express Company. This is, to say the least, restrictive legislation and comes pretty near to being penal legislation. When we restrict the liberty of the individual on account of a wave of feeling in favour of temperance or prohibition we should give him every

opportunity to defend his case and to bring before the courts any point which he may wish to establish as to the legality or otherwise of a proclamation issued under the law. I say that there is a principle involved here; it is an attempt to legislate persons out of court. If I go before a court basing my case on existing iaws and existing conditions and he who is responsible for an error involved in the case seeks to legislate me out of court, I say that such a course is immoral; it is worse than passing legislation and giving it retroactive effect when no cases before the courts bearing upon the matter are pending. If, therefore, we are to pass this legislation we ought to put a proviso in the Bill that it shall not affect pending cases. I do not want to bring about a vote on the question, but I do want to make it perfectly clear that I am absolutely against any legislation having retroactive effect, especially any legislation which will have the effect of putting out of court people who are rightly and legally before it.

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June 2, 1921