Mr. McMASTER:

Mr. Chairman, it

will not be necessary for me to detain the committee at any length, but I do wish very briefly to emphasize the position taken by the hon. member for Shelburne and Queen's (Mr. Fielding). As regards giving legislative effect in its entirety to the expressed will of the provinces which have declared themselves in favour of prohibition, I for one am prepared to cure any defect if such there be in the present legislation. But there are litigants before the court, and they should not have any lights taken from them which they now have under the law. It is not merely a question of private interests; it is of public importance that people should have confidence in our courts, in the administration of justice, and in the parliamentary institutions of the nation. For Parliament to take away from a litigant a right which he otherwise under the law would possess is to undermine the very basis of our whole constitution. Now, the minister has practically admitted that in clause 3 of the Bill. Under that clause the court can decide concerning costs in such a way that the costs will not fall upon a party who fails by reason of the legislation that we are invited to pass to-night. I want this principle to be followed as regards not only the cost of the litigation, but the litigation itself. I want a proviso put in this Bill that it shall not affect pending litigation. I would not object to the Bill being retroactive inasmuch as it will take rights away from persons in these provinces if they have not asserted those rights before the courts. It is quite reasonable to consider that they did not wish to avail themselves of any rights they might have had, if they had not asserted these rights before the courts; but I would appeal as strongly as I know how to the Minister of Justice (Mr. Doherty) not to commit what I consider the injustice of passing retroactive legislation which will affect the position of litigants who are before the courts of this country. The question is not whether this will hurt the Gold Seal Company or the Dominion Express Company; the private interest involved fades into insignificance in comparison with the public interest, which is that retroactive legislation should be had recourse to only in the most extreme and desperate cases, only when some over-whelmning public interest demands it. There is not such a situation in this case. We wish to shut the doors-and I am quite wjlling that the doors should be shut- against any further litigation after this Bill is passed, but there are certain parties before the court now. Are we to pull the judge off the bench and to say to him: "You can no longer decide this question on one of the principles which have been urged before you. The only decision that you can make upon this point is a question of costs." This is most unwise. Nothing could be more calculated to destroy public confidence in courts and Parliament than to pass retroactive legislation in this manner.

Mr. NESBITT:

I-confess that I do not know very much about law; but after listening to the observations of different members who have spoken on this subject. I certainly do not think that we, as a Parliament, should anticipate the decision of a court once a case has been taken to that court. I do not know what this law intends to cover. If the proclamation is wrong, surely the sentence should cease at the proclamation. Apparently, it goes on and intends to cover anything, on the earth or under the earth or on the sea, that might happen under the Act.

Mr. MACLEAN (Halifax) :

I beg to suggest that we proceed to the consideration of the Bill, clause by clause. Apparently at the present stage there is no opposition to legislation confirming the proceedings referred to in the Act, but there is some opposition, well founded, I think, to cutting out the rights of litigants now before the

Mr. BUREAU:

If we spoke on the principle of the Bill, that was because there was no discussion on the second - reading. Perhaps my hon. friend was not in the House when it was agreed to by the Minister of Justice that the principle and the whole of the Bill could be discussed in committee.

Mr. MACLEAN (Halifax):

I did not hear that.

Mr. MOWAT:

The best way to get over the difficulty here is to discuss the whole Bill at one time. Apparently, the feeling upon both sides of the House is that if we have made a technical error-and this is denied by the law officers-which will destroy the mam Act and the vote of the peoples in Alberta and other provinces, then it will be beneath the dignity of Parliament to allow that.

But the question arises: Shall we, by passing this legislation, interfere with the rights of private litigants? As I understand the matter, the whole case is that of the Gold Seal Liquor Company asking for a mandatory order against the refusal of the express company to carry the goods. That would mean that the only remedy that the Gold Seal Liquor Company would have had would be the costs if they were successful in getting that mandatory injunction. Therefore, the third clause of the Act, which allows the court to award costs in view of this legislation, should put them in exactly the same position as they were before they started their litigation. It is inconceivable to me that with a clause like clause 3 in force, the court, when advised of the passing of such legislation as this would not decree that all costs incurred by the Gold Seal Company, of which they would be deprived by reason of this Act, could not be reimbursed to them. My only trouble in connection with the clause is that it does not say by whom the costs are to be reimbursed. It would not be fair to ask the Dominion Express Company to reimburse the costs which the Gold Seal Liquor Company would obtain by litigation because no fault would lie with the express company. The clause might be re-*

cast by in some way enacting that the costs should be othewise reimbursed. It would not be out of the way to suggest that the Dominion of Canada itself should reimburse any of the litigants for costs incurred in proceedings which are nullified by this legislation. I would suggest to the Minister of Justice (Mr. Doherty) that he should add to the clause something to that effect.

Mr. JACOBS:

What are these proceedings which are now before the courts?

Mr. DOHERTY:

They are proceedings seeking to compel the Dominion Express Company to accept a shipment of liquor from the Gold Seal Liquor Company. In that connection, I might point out just two things; This Legislation does not legislate the Gold Seal Company out of Court. The Gold Seal Company invoked other grounds upon which it bases the action.

Mr. BUREAU:

This is one of them.

Mr. DOHERTY:

Yes, they invoke a number of other grounds.

Mr. McMASTER:

It legislates them out of court on this count.

Mr. DOHERTY:

It makes the question that they raise not open to them to raise. But when statements are made about depriving them of something that they had an acquired right to, when hon. gentlemen say that they have no objection to-that they support-the validation of the proceedings so that the law may have been in force from that date, let me point out that such validation is inconsistent with the preservation of a right to those people to have their goods shipped. If the effect of this validation is to make, that law valid at the time of these things happening-and that is the only thing that we can do, or let it alone-if there be an interest affected, we are in a position where we are called upon as I pointed out, even assuming that there is going to be some injury to a private interest, to determine, which is the preponderant interest that has to be considered.

As regards the question of damages to the party who was seeking to enforce a right that under this now validating proceeding he would not have, the extent to which that man is worse off because, unfortunately, he took this litigation, or to which he is affected by our present action as distinguished from other people who have not brought actions, depends upon whether he has incurred useless costs.

We are providing that the courts shall determine that question of costs just as though this legislation had not been passed. It can hardly be suggested that the court should make the Dominion Express Company, after this has been validated, carry a main's liquor.

Mr. JACOBS:

It seems to me that it is not the function of Parliament to invade the province of the courts. We have the legislative, the executive,'and the administrative functions, and we have always kept these jurisdictions apart and independent of each other as well as we could. It seems to me that Parliament ought not to interfere with the functions of the court. The court is organized for the purpose of determining whether these parties are right or wrong, and for Parliament to interfere and declare by a solemn Act what should or should not be done seems to me, firstly, a somewhat unsportsmanlike thing to do. The court is there for that purpose. The court is there to hold the balance in its hands, and to see that justice is properly administered, regardless of who the parties are. For Parliament to throw the weight of its influence into one side of the scale appears to me to be, to say the least, unmoral.

Mr. TWEEDIE:

I just wish to say a few words in regard to this case, and to put myself on record in regard to the position which the Government have taken in connection with if. I wish, however, before I give expression to my views to state that if this matter came to a vote in the Hjouse, I would not feel at liberty to vote on the question, as it is one in which I am personally interested.

I certainly am opposed to the general principle of the legislation which has been introduced by the Government. The case arises over a dispute between the Gold Seal Liquor Company, which is an incorporated company carrying on the business of wholesale liquor dealers in the western provinces, and the Dominion Express Company. Liquor was tendered by the Gold Seal Company to the Dominion Express Company for the purpose of transportation in the provinces of Alberta, Saskatchewan and Manitoba, but the Dominion Express Company refused to carry the liquor on the ground that it would be in violation of the amendment to the Canada Temperance Act, and that they .would subject themselves to a heavy penalty for so doing.

278i

Mr. CRERAR:

May I ask where the

Gold Seal Liquor Company are located and have their offices?

Mr. TWEEDIE:

They have offices in the city of Vancouver, Calgary, and elsewhere, 1 believe.

Mr. CRERAR:

This would be a shipment from Vancouver to Calgary, I suppose?

Mr. TWEEDIE:

From Vancouver to

Calgary, and from Calgary to other provinces in which the plebiscite had been taken. It was agreed between the parties to the action that a case should be stated and submitted to the courts in the province of Alberta, and that was done. One of the admissions made was the proclamation which had been issued, which was really the foundation of the taking of the vote in that province. Objection was taken to the proclamation, because it did not contain the provisions which were expressly set out by the statute, one of these provisions being that the proclamation should set forth the date upon which prohibition should come into force in the event of the plebiscite being carried in favour of prohibition. When the whole thing was argued it was decided, as the Minister of Justice has said, by the Appeal Court of Alberta that that was not such a serious defect as would invalidate the election which had been held under the proclamation. The matter then came to the Supreme Court of Canada, and in view of the fact that it is being adjudicated upon by the highest tribunal we have in this country, I do not believe that this Government should at this date, or at any other date pending that action, submit any legislation to the House to ratify the proceedings which were taken in connection with it. It has been suggested that this is not a matter of paramount public interest, but that the interests which are affected are really those of private corporations-the Dominion Exf press Company and the Gold Seal Liquor Company. I would submit that that would be true to a very large extent were it not for the fact that the rights of other people in those four provinces which took the plebiscite are very materially affected, because other persons in those four provinces did not vote for the enactment coming into force. Only a very small percentage of the people in those four provinces when the plebiscite was taken voted for the prohibitory law in this country. In the three western provinces, I

suppose there are approximately 1,750,000 people. The number of people who are registered to vote in those provinces is, in Alberta, 195,000, in Saskatchewan, 278.-[DOT]000, and in Manitoba 218,000 odd, but all these people who were registered and had the right to vote did not vote. We find that in the province of Manitoba the number who voted for prohibition was 68,000, in Saskatchewan, 86,000, and in Alberta, 63,000. So there were approximately 200,000 people in these three western provinces, out of a population of 1,750,000, who voted for total prohibition of the importation of liquor into those provinces. It would not be fair to say that all those who were entitled to vote, and did not vote, would have voted for the importation of liquor if they had voted, or that the balance of the 1,750,000 were all entitled tc vote, but we find that a great majority of the people in these three western provinces did not vote on this question at all, and that only about one-eighth or one-ninth of the people cast their vote in favour of prohibition. The people who voted against prohibition in that province have some rights. The people who did not vote at all on the plebiscite have some rights, and the case which is now being determined by the courts of Alberta, and which is now under consideration by the Supreme Court of Canada, affects the rights of every person in the three western provinces and the province of Ontario. Those people who were opposed to prohibition have just as good a standing before the courts of this country as those people who voted for it I submit that when the courts have this question under adjudication, it is not the duty of this Parliament to interfere by means of legislation supporting either one side or the other side of the public, any rhore than we have any right to introduce legislation which would support the rights of either of the private parties to the case that is before the courts.

But I object to this legislation on a much broader ground than the plebiscite which was taken in that province. The nearest analogy that we have to this plebiscite for the introduction of prohibition in the provinces is a proceeding which is very often invoked, the proceeding of acquiring public domain by statutory authority, and there is a general principle of law-and I believe that no person in this House is more familiar with it than the Minister of Justice-which is to the effect that where you are depriving any man of his

rights by statute you shall be held to strict compliance with every letter of the statute if you wish to exercise the statutory authority which you have under if-These proceedings have come before the courts in this country many times in connection with election petitions, and everybody knows that many elections have been set aside, notwithstanding that the verdict in those elections may have reflected the will of the great majority of the people in the' constituencies concerned. Many such elections have been set aside on pure technicalities, and I do not believe that this House or any other legislative body in the country would consider introducing legislation to validate an election to the House of Commons or any other legislative body if it were (discovered that there had been a defect in the election proceedings.