June 2, 1921 (13th Parliament, 5th Session)


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



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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