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


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



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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