July 28, 1903

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The MINISTER OF JUSTICE.

There is this difference : The section we are dealing with now authorizes a search of gaming houses and betting houses. Under the law as we have it now, to issue a warrant for the purpose of making a search in, a gaming or betting house, it is necessary that the warrant should issue either by a judge of the high court, by a county court judge, or by a magistrate having the jurisdiction of two justices of the peace. The amendment is the for the purpose of extending that provision so that any justice may issue such warrant.

Topic:   CRIMINAL CODE, 1892.
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Section agreed to. On section 683, Section 683 as heretofore amended.-By adding at the end of subsection one thereof the following paragraph :- (b.) Whenever in like manner it is made to appear to the satisfaction of any such judge that any person residing or being in Canada, but at a great distance from the place of prosecution, is able to give material information relating to such an offence, or relating to any person accused of such an offence, and such judge is of opinion that the evidence of such person may without detriment to the interests of justice be taken under commission, such judge may in like manner appoint a commissioner or commissioners to take the evidence upon oath of such person.


LIB

Louis Philippe Demers

Liberal

Mr. L. P. DEMERS (St. John and Iberville).

(Translation.) I wish to amend section 584, by adding, after the words ' County Court,' in the fifth line, the following : ' Or any magistrate mentioned in section 541.'

Montreal magistrates complain of the insufficiency of the provisions of this section, when they have to summon witnesses residing, for instance, in the neighbouring province of Ontario. In that case, they have to apply to a judge of the Superior Court, who, in the district of Montreal, does not sit in criminal cases. It seems to me it would be preferable to give to the magistrate who has charge of the preliminary inquiry the right to summon witnesses. Section 584 provides that parties shall apply to a judge of a Superior Court. It reads :

If there is reason to believe that any person residing anywhere in Canada out of the province, and not being within the province, is likely to give material evidence either for the prosecution or for the accused, any judge of a Superior or a County Court, on application therefor by the informant or complainant, or the Attorney General, or by the accused person, or his solicitor, or some person authorized by the accused, may cause a writ of subpoena to be issued under the seal of the court of which he is a judge, requiring such person to appear before the justice before whom the inquiry is being held or is intended to be held at a time and place mentioned therein to give evidence respecting the charge and to bring with him any documents in his possession or within his control relating thereto.

That is to say the parties have to apply to a judge of the Superior Court, or in other words, to a person wiho is not in charge of the preliminary inquiry, to obtain permission to issue a subpoena. Would it not be better to amend that section so as to give to the magistrate who has charge of the preliminary inquiry the right to summon witnesses ? That is why I move to amend that section by adding, after the words ' County Court,' in the fifth line, the following : ' Or any magistrate mentioned in section 541.'

Section 541 provides :

The judge of the sessions of the peace for the city of Quebec, the judge of the sessions of the peace for the city of Montreal, and every recorder, police magistrate, district magistrate or stipendiary magistrate appointed for any territorial division, and every magistrate authorized by the law of the province in which he acts to perform acts usually required to he done by two or more justices of the peace, may do alone whatever is authorized by this Act to be done by any two or more justices of the peace.

As the committee will see, these magistrates are qualified officers for deciding as to the desirability of summoning outside witnesses.

Topic:   CRIMINAL CODE, 1892.
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The MINISTER OF JUSTICE.

I think it is going a little far perhaps to allow a police magistrate or a justice of the peace, who is appointed by the local authorities to issue a summons to a witness to attend from beyond the limits of his own province. It is true that in some cases the magistrates do issue such warrants, but their execution is restricted. I should like to consider this, amendment before adopting it.

Topic:   CRIMINAL CODE, 1892.
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CON

Frederick Debartzch Monk

Conservative (1867-1942)

Mr. MONK.

It seems to me that the magistrate who is conducting the preliminary inquiry, if I understand properly the motion of my hon. friend from Iberville

(Mr. Demers), is better qualified to judge of tlie necessity of bringing a witness from another province than a judge of the superior court to whom application is made for that purpose. It seems to me to be imposing a useless labour upon a judge of the superior court. The procedure in regard to administering the criminal law is the same throughout the country, and it seems to me that the amendment of the hon. gentleman would simplify it.

Topic:   CRIMINAL CODE, 1892.
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LIB

Duncan Cameron Fraser

Liberal

Mr. FRASER.

Such a provision as this might be subjected to very grave abuse. A magistrate in one province might issue a summons to a witness in another province, and he might be obliged to come under the same conditions as a witness in the province where the magistrate lives. Suppose a magistrate in the province of Nova Scotia issues a summons for a witness in British Columbia.

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LIB
LIB

Duncan Cameron Fraser

Liberal

Mr. FRASER.

Then it is worthless. The provision would not only be worthless, but we would be lending ourselves to the adoption of the very worst kind of legislation. We would be assuming to give a power that would be ineffective.

Topic:   CRIMINAL CODE, 1892.
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CON

Frederick Debartzch Monk

Conservative (1867-1942)

Mr. MONK.

How would it be worthless under this amendment ?

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LIB

Duncan Cameron Fraser

Liberal

Mr. FRASER.

If it would not be worthless. then it is worse still. If it would be worthless we would, by adopting it, be making ourselves ridiculous, but if it would be effective, and if a justice of the peace in Nova Scotia were authorized to issue a subpoena to a man in the province of British Columbia compelling him to attend in the province of Nova Scotia, not knowing whether he would be paid a dollar for going or not, I think it would be a gross abuse of power. If it is worthless, then we should not pass it, but if it can be made effective, it is giving too much power to the magistrate, and in any case I think the matter should be very carefully considered by the hon. Minister of Justice before being adopted.

Topic:   CRIMINAL CODE, 1892.
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LIB

William Manley German

Liberal

Mr. GERMAN.

It would certainly be going farther in legislation than we have ever gone before, and it would be giving a power to a magistrate which the courts do not have. There is no writ issued in the province of Ontario that can be made effective in the province of Quebec, and there is no writ issued in the province of Quebec that can be made effective in any other province. If served upon a person in another province, that person would be entitled to disregard it. This does seem to me to be passing legislation which is, in its effect, wider than we have had hitherto, and it is giving a power greater than that possessed by any of our courts. It seems Mr. MONK.

to me that this is an amendment that should be very carefully considered.

Topic:   CRIMINAL CODE, 1892.
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LIB

Louis Philippe Demers

Liberal

Mr. DEMERS (St. Johns and Iberville).

This is not a new law which we are asking to have adopted. This power is given to a judge of the superior court who, as I said a moment ago, is the very judge who does, not know anything about the case. A magistrate who has the power of two justices of the peace, and who is conducting the preliminary investigation, is the one who knows better than any judge of the superior court whether it is necessary to bring a witness from another province or riot. Section 541 of the Criminal Code says :

The judge of the sessions of the peace for the city of Quebec, the judge of the sessions of the peace for the city of Montreal, and every recorder, police magistrate, district magistrate or stipendiary magistrate appointed for any territorial division, and every magistrate authorized by the law of the province in which he acts to perform acts usually required to be done by two or more justices of the peace, may do alone whatever is authorized by this Act to be done by any two or more justices of the peace.

These officers are always well qualified officers, and surely they are the ones who are in a position to know whether a witness is required or not. It is not the judge of the superior court. In the district of Montreal a judge of the superior court is not authorized to sit in criminal matters ; yet the judge who has not the right to follow up a criminal investigation is authorized to decide whether a witness is required or not.

Topic:   CRIMINAL CODE, 1892.
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LIB

Napoléon Antoine Belcourt

Liberal

Mr. BEI.COURT.

I am not prepared to say that I am ready to adopt the suggestion of the hon. member for Iberville (Mr. Demers), but perhaps the provision which is applicable to warrants may be made applicable to subpoenas. In a criminal matter a warrant issued in one county or one province can be executed in another county or in another province if it is backed by the justice of the county in which it is to be executed. If power were given to a magistrate to issue a subpoena to be served in another province, it might be coupled with the provision that if the subpoena is backed by a justice of the peace or some other officer in the county in which it is to be served, then it might be made effective.

Topic:   CRIMINAL CODE, 1892.
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The MINISTER OF JUSTICE.

At the present moment the magistrate is under the restraining influence of the judge of the superior court. Before he can Issue his warrant, or make it effective in an adjoining province, he must go before the judge of the superior court, who, it is true, does not know as well as the magistrate whether a witness ought to be summoned or not, but the superior court judge hears the magistrate's representations as to the necessity of the production of this witness, and

determines whether the representations are sufficient and whether it is a case in which a witness should be brought from a distant province. If this provision were to go through in its present shape, as the hou. member for Guysborough (Mr. Fraser) says, a man residing in British Columbia might be obliged to attend on the summons of a magistrate in the province of Nova Scotia. How shall we proceed in case a man should not attend ? We require to look into this legislation. We ought to see before adopting it whether it is necessary to make such a wide departure from the principles of law as we have had them heretofore; and in the next place, how, if we decide to adopt such a provision, it can be made effective.

Topic:   CRIMINAL CODE, 1892.
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LIB

Louis Philippe Demers

Liberal

Mr. DEMERS (St. .John and Iberville).

The law requires that a warrant shall be backed.

Topic:   CRIMINAL CODE, 1892.
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CON

Frederick Debartzch Monk

Conservative (1867-1942)

Mr. MONK.

I do not think the backing of a warrant is the same thing. In order to guard against anything unjust, it is necessary to have a warrant backed when it goes to a distant province to be executed, but it is not the same case as a subpoena.

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The MINISTER OF JUSTICE.

We have magistrates appointed over whom we have no control.

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CON

Frederick Debartzch Monk

Conservative (1867-1942)

Mr. MONK.

I understand that the hon. minister wishes to inquire into this matter, but in this case the writ of subpoena issues under the authority of a civil judge, whereas in the district of Montreal a civil judge has no jurisdiction in criminal matters at all.

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The MINISTER OF JUSTICE.

Judges of the superior court have concurrent jurisdiction in criminal matters with judges of the court of King's bench. It is merely a matter of convenience that in the district of Quebec and in the district of Montreal judges of the King's bench have taken the criminal assizes.

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CON

Frederick Debartzch Monk

Conservative (1867-1942)

Mr. MONK.

My hon. friend is right in that, but the superior court judges do not hold criminal assizes. My hon. friend is aware of the additional power which, by this motion, it is sought to confer upon a judge of sessions of the peace in the district of Quebec and the district of Montreal, who are, as my hon. friend knows, men more competent really to appreciate the necessity of bringing witnesses from a distance than a judge of the superior court, before whom application is made at the present time. I think it is only subjecting proceedings in criminal matters to an unnecessary formality to oblige the prosecuting party to go before a judge of the superior court to get a writ of subpoena.

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July 28, 1903