March 26, 1903


Motion agreed to.


PREROGATIVE OF PARDON.

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Mr. T.@

CHASE CASGRAIN (Montmorency) moved for :

Copies of all Orders in Council, documents, papers, correspondence, &c., in relation to the exercise of the prerogative of pardon exercised by His Excellency the Governor General in cases of conviction of offences against federal or provincial law3, since the first day of January, 1902, to the 12th of March, 1903 ; and a statement showing :-

1. The number of the persons in whose favour the prerogative of pardon was so exercised during the said period.

2. Of what offences the said persons had been convicted.

3. The penalties to which the said persons had been condemned.

4. The dates when the convictions were pronounced against the said persons.

5. And what date the prerogative of pardon was exercised in each case.

He said : In this case I have to ask the leave of the House to amend my motion in somewhat the same way as the one that has just been carried. The motion as I gave notice of it, called for ' the names of the persons in whose favour the prerogative of pardon was so exercised.' I ask leave to amend that by substituting ' number ' instead of ' names.'

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The MINISTER OF JUSTICE (Hon. Charles Fitzpatrick).

Perhaps my hon. friend would allow that motion to stand for the present. It is my intention to oppose it on the ground that it is contrary to the well-established usage in England, and also to the practice which lias been adopted in the Justice Department. I make this suggestion because I have not been able to put my hand upon the particular case in which this rule was adopted in the Justice Department when Sir John Thompson was head of that department. I hope to have it within a day or two. I move that the debate be now adjourned.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

Will the Minister of Justice look up the authorities ?

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The MINISTER OF JUSTICE.

Yes.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

Perhaps there would be no objection to furnishing us with a copy of that memorandum in the meantime.

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CON
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The MINISTER OF JUSTICE.

I will have a copy made and send it to the leader of the opposition as soon as I have found the particular case I refer to.

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Motion agreed to, and debate adjourned.


A DIVORCE COURT.

LIB

John Charlton

Liberal

Mr. JOHN CHARLTON (North Norfolk) moved :

That this House is of the opinion that the laws of Canada should clearly and within narrow limits define the causes for which divorces may be granted. But that the present system of granting divorces by legislative enactment is unduly expensive, and often capricious, and unreliable. That if cause for divorce may exist, the means for obtaining a decree should be rendered less expensive than at present. And that as the justification of divorce by virtue of law, defining adequate cause, can only be established by investigation and evidence, the proceedings upon which such decree may be obtained are judicial in their character ; and that consequently divorce proceedings should be taken before, and decree of divorce emanate from a properly constituted divorce court.

He said : I stated last session upon an occasion when a divorce Bill was before this House, and when assigning reasons for my reluctance to act in a judicial capacity upon a matter of which I knew nothing, that I should this session introduce a motion asking for a change in divorce proceedings in the Dominion, at the same time laying stress upon the fact that in my opinion the method of granting divorces in Canada was unique in the respect that the decree emanated from a court not one-third, perhaps, the members of which knew anything of the case upon which they were passing judgment; that divorces were 'often subject to capricious influences, were uncertain in their character, and were in all cases expensive. For that reason I expressed the opinion then which is expressed in the resolution I have the honour to place in your hands now, that the method pursued in this country in divorce proceedings should be changed, and that the proceedings should take place before a judicial tribunal and not before a legislative body. The member of this House, the member of the Senate, on such a case acts in the capacity of a judge, and I have never felt in my thirty years' experience in the Canadian House of Commons that the question of divorce was treated with that degree of solemnity that it is entitled to. There has generally been manifested a spirit of levity, and often indeed influences have been brought to bear in securing a result which had little or nothing to do with the merits of the case. A member of this House in nine cases out of ten, if he has any opinion upon the matter at all, founded upon investigation, takes for granted the evidence that is received in another body, takes for granted the evidence in securing which he had no participation. He knows

nothing of the character of the witnesses, he knows nothing of the circumstances under which their evidence was given, he has had no opportunity to cross-question, which a judge necessarily must have in forming an opinion as to a case ; still he takes the report presented to him by the other branch of this national legislature and is called upon to act on that report as a judge in a judicial capacity. In giving my vote upon a divorce case I have never felt that I was acting in a way in which I was entitled to act. I have always felt that so far as my vote was concerned, I was taking action in the dark without a proper knowledge as to whether my action was justified or not. Now, I have always felt a desire to avoid this responsibility. I have always felt that a divorce was a judicial proceeding, that if a divorce was to be granted at all, the question of granting it was a matter of law and evidence, and was a proper subject for investigation and for action by a judicial tribunal.

There is another element in this question so far as this House is concerned which may sometimes, and perhaps has often prevented the consummation of proceedings that had been initiated and passed in the other House, and that is the fact that a large element in this House is opposed to divorce and do not believe in it under any circumstances whatever ; who are opposed to divorce per se, and who, as a matter of principle, will vote against any decree whatever. Now, if the case were referred to a court, and if the judge upon the bench entertained opinions which debarred him from granting a decree that the law provided for under certain circumstances, of course there could be no justice in the proceedings of that court. The very object of the court might be nullified by the prejudices of the judge, who would allow these prejudices to rise superior to the law and evidence, and to govern his conduct in that matter despite the law and the evidence. That is necessarily the case in this House, because there arc members here who religiously, and conscientiously, believe that divorce should never be granted. It may perhaps be a question whether it should be granted, and if I believed that there was no warrant for granting a divorce, I should never introduce a resolution of this kind, I should never propose the establishment of a divorce court.

But I believe there is Divine warrant for divorce under certain circumstances. I believe that divorce, as the resolution provides, should be confined within the narrowest limits, and that there is only one cause that will justify the granting of a decree of divorce, and that cause is laid down in Holy Writ, laid down by the Saviour in two passages in Matthew, where it is said that divorce, except for the cause of fornication, is not permitted and cannot be granted. But for that single offence, for the offence of infidelity, I think we may say

that we have Divine warrant for granting a divorce. Well, if we assume that is the case, and we do assume it in our proceedings in this House, we do assume it in the laws in force in this Dominion-if, I say, that is the case, then the question arises, in what way that provision of the law should be carried into effect. In what way should this offence be provided for ? What should be the machinery provided ? Should that machinery be of a cumbersome, costly, unworkable character, liable to be set aside by prejudice, or counter influences, or political influence ? Should such be the kind of a court to deal with this question, or should we establish, as has been established in all other civilized countries except Canada, so far as I am aware, a judicial tribunal, a divorce court to deal with this question ?

As I stated a moment ago, a divorce decree under the law is a question of law and evidence. The proceedings are properly and strictly judicial, but the proper conduct of proceedings of this character is not attainable in the parliament of Canada. Strictly judicial proceedings, entirely free from all prejudice, entirely free from all influences that may sway the opinions of the members, or influence the decision of the case, such proceedings, I say, are not attainable in a legislative body such as this, or in any other similar body. You must have judges who will examine the case, hear the evidence, and be governed by the law in arriving at a decision, impartially governed by the law as it exists, which defines what their actions should be on the evidence that is taken, proving to them whether cause for divorce exists.

Now if divorce under the constitution is a legal right on the part of any person who is aggrieved, who is sinned against, when the offence has been committed under the law that makes it proper for him to apply for a decree of divorce, If, I say, that is a legal right, then the great mass of British subjects in Canada should be at liberty to avail themselves of that right under the law. The expense is now onerous, the inconveniences and difficulties that beset the applicant are very great. The times when this case can be tried are very infrequent, they must be tried when this parliament is in session. Witnesses, respondents, applicants all must come, perhaps from very long distances, and they must dance attendance here upon the Senate. These proceedings are surrounded by circumstances that are apt to deter people of fine feelings from attempting to come here at all. Great publicity attends these investigations and all the circumstances attendant upon a trial be-for the Senate, of an application for a divorce are of a repellant character,! are of a non-judicial character and are of a character so antiquated and so full of objections that it is time a change was established in reference to this matter. It would be better, I believe, Mr. Speaker, to abolish the

privilege of divorce entirely, than to continue proceedings as they have been continued and are continued at the present time. It would be better to abolish them altogether or to have a properly constituted divorce court to take cognizance of cases of this kind. I assign briefly, for I shall not detain the House at any great length on this question, the reasons to be urged against the present procedure. The first of all is undue publicity, a degree of publicity that is not beneficial to public morals, a degree of publicity that is not dignified or desirable. I assign, in the second place as a reason for a change in the method of obtaining divorce, the great inconvenience inflicted upon the parties who appeal to this House for the remedy which ought to be placed within their reach in the easiest and most expeditious manner. I assign as another reason the prohibitive cost. As the law now stands the rich man may take his proceedings here and get his redress, but the poor man is absolutely barred out from making an appeal for what he deems to be and what the law says Is an act of justice. Another reason I assign for a change in the procedure is the liability to a miscarriage of justice here as has been the case and as is liable to be the case. As we all know the result depends upon the condition of the House. Those who believe that divorces are permissible under certain circumstances may be in the majority at one time while the elements opposed to divorce under any circumstances may have a majority at another time and thus the case miscarries and the Bill is lost. Whatever may be the circumstances, whatever may be the evidence, whatever may be the reasons that exist for putting that Bill through if it so happens that there is a certain element in the House in the ascendancy for the time being the Bill will be lost. That element of uncertainty exists to such an extent that justice may often miscarry. Another reason I assign is that personal interest may and often does affect the result of the trial of these cases in the parliament of Canada. These are some of the reasons for providing for a change in the mode of procedure in reference to the granting of divorces.

The reasons that I would urge in favour of a divorce court are that the proceedings before such a court are strictly judicial ; no other elements will enter into the case, no uncertainty, or doubt, or political influence being exerted by the element that is opposed to divorce under any circumstances whatever. The proceedings will be strictly judicial and the case will be decided upon the evidence and under the law. Another reason is that there will be an impartial administration of the law. Another reason is that it will minimize the cost and inconvenience, not that I would admit, Sir, that it is a desirable thing to pro-Mr. CHARLTON.

mote divorce by rendering the thing easier, but the law assumes, when it puts upon the statute-book a cause for divorce, that it is a proper thing to apply for, divorce under the provisions of the law. ' It assumes that where a party is sinned against to the extent that he is entitled to apply for a legal remedy he should have his remedy. If the law contemplates that the aggrieved party should have a remedy, then it is the height of injustice to make the securing of that remedy, so difficult, so inconvenient, and so excessive in cost as to neutralize the effect of the law. And so, we have under this proposed arrangement of a divorce court the minimum of cost, the minimum of inconvenience, and an administration of the law that is speedy, impartial and to a certain degree inexpensive. In addition to this we would avoid indefensible delays. Here we have a parliament meeting once a year. Perhaps an attempt may be made to institute divorce proceedings and the case will go over for another year. The delays are intolerable, the expenses prohibitive, while with a divorce court these cases could be tried promptly, tried according to the usages of law and order, and tried and decided in accordance with the evidence. Now, if divorces are to be given at all, there should be some degree of solemnity, some degree of attention to appearances in the proceedings and in the granting of divorce. Do we have that here ? Are there not often scenes of levity, are there not often undignified and uncommendable features in parliament in connection with these proceedings, features that would be disgraceful to a law court if it was called upon to give a decision upon a case of such momentous consequence as that of divorce. We would invest the trial, in case we establish a divorce court and the deliverance of that court, with not only the supposition that there was justice done, but with the unquestionable fact that the decision would be in accordance with justice. We would invest these proceedings with dignity, we would have them conducted impartially in conformity with the law and with the evidence of the case and we would remove a stain from our judicial proceedings that now exists through the operation of our divorce laws the granting of divorce by this House of Commons. It is surprising, Sir, that thirty-five years, after confederation, this crude, objectionable, expensive, cumbersome, ineffectual system should be allowed to continue. It is time that this state of things was brought to an end. It is time that we had conformity in this respect to the usages of other enlightened states. It is time that we had a court established charged with the duty of dealing with these cases in accordance with the provisions of law and in accordance with the testimony placed before that court under which its decisions would be given and which would be of a

character that would command public respect, that would do justice and meet the requirements of the case.

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IND

Jabel Robinson

Independent

Mr. JABEL ROBINSON (West Elgin).

The only divorce court we have in this country is the Senate, and it seems to me that there ought to be some other court.

I am not one of those who would like to see divorce granted as in other places for trifling causes such as incompatibility of temper, but I do not think that the Senate of Canada is the proper place to try these cases. It is deplorable that they should publish the proceedings relating to divorces in the Senate and send the evidence to every member of this House. The most frightful trash I ever read in my life has been put in my hands since I have been a member of parliament. The page boys get hold of this, and all classes of people get hold of it in this city, and I am strongly opposed to this evidence being sent from the Senate and distributed all over the country. It is contaminating-I was going to use a stronger word. I think that the hon. member (Mr. Charlton) has done well in bringing this matter before the House, and if no action is taken on the divorce question itself, I hope something will be done to prevent that filthy evidence being printed' by the Senate.

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The PRIME MINISTER (Rt. Hon. Sir Wilfrid Laurier).

My hon. friend from Norfolk (Mr. Charlton) brought a similar motion to the attention of the House on a former occasion.

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LIB

John Charlton

Liberal

Mr. CHARLTON.

I beg to say that I have never brought in a motion of this kind before. I spoke on the second reading of a divorce Bill, to protest against the existing system, but I have not before brought a motion.

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An hon. MEMBER.

It was Mr. Britton's Bill.

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The PRIME MINISTER.

Yes ; my hon. friend (Mr. Charlton) expressed the same opinion on that occasion as he did to-day. The House at that time did not endorse his views, and so far as I know, nothing has occurred since to induce the House to change the attitude it took on that occasion. My hon. friend (Mr. Charlton) told us that Canada is the only civilized country which has not a divorce court. To a large extent that assertion is perfectly true, but I do not think it is a blot upon the fair name of Canada, that for the thirty-five years since confederation, no pressing want has been found for a divorce court. For my part I think it is always a grave matter to change, even by way of improvement, the institutions of a country. If the people are satisfied with their institutions it is far better to leave them as they are even though in the eyes of some they may be deficient.

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Some hon. MEMBERS

Hear, hear.

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The PRIME MINISTER.

I have no doubt that among many people in this country there is a disposition to believe that Canada, like. some other countries, should have a divorce court. This opinion, however, is far from being unanimous, and so far as public opinion has the right to speak and can speak in this matter, none of those evidences by which public opinion does reach parliament have come to us upon the floor of this House. There have been no petitions inviting Canada to establish such a court; there have been no resolutions passed anywhere in the country, except on some occasions by religious bodies of certain denominations who hold strong views upon the subject. But these resolutions are far from being general and far from representing the whole country. Therefore, so long as more is not heard from the public opinion of the country, so long as no general demand is made in favour of such a court, I think Canada ought to be satisfied to leave things as they are at the present time.

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Some hon. MEMBERS

Hear, hear.

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March 26, 1903