July 28, 1903

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The MINISTER OF JUSTICE.

I can understand the necessity for this amendment

in respect to the district of Montreal and Quebec and in places where we have magistrates who have necessarily been members of the bar for a certain time before being appointed. In Ontario and other provinces where there are magistrates having jurisdiction of two justices of the peace who would be entitled to issue the summons indicated in this amendment, they may not be lawyers at all, never studied law, mere laymen who have actually no experience in legal matters ; and the effect of this amendment would be to give these gentleman jurisdiction over the whole of Canada.

Section allowed to stand.

On section 687,

If upon the trial of an accused person such facts are proved upon the oath or affirmation of any credible witness that it can be reasonably inferred therefrom that any person whose deposition has been theretofore taken in the investigation of the charge against such person is dead, or so ill as not to be able to travel, or is absent from Canada, and if it is proved that such deposition was taken in the presence of the person accused, and that he, his counsel, or solicitor had a full opportunity of cross-examining the witness, then if the deposition purports to be signed by the judge or justice before whom the same purports to have been taken, it shall be read as evidence in the prosecution without further proof thereof, unless it is proved that such deposition was not in fact signed by the judge or justice purporting to have signed the same.

2. In this section ithe word * deposition ' includes the evidence of a witness given at any former trial upon the same charge.

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

Formerly when a witness was ill or resided out of . the country the evidence might be taken by commission, and this provides that in the event of a witness residing at a distance a commission may issue for the purpose of taking his evidence. It practically extends the provisions of the Criminal Code in this respect.

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LIB

William Manley German

Liberal

Mr. GERMAN.

There is one portion of this section I would call the attention of the Minister of Justice to, because I know from experience that it works seriously to the disadvantage of the person who is on his trial. It says :

If it is proved that such deposition was as taken in the presence of the accused, and that he. his counsel, or solicitor had a full opportunity of cross-examining the witness, then it may be used.

Our British system of jurisprudence sup-' poses that a person is innocent until he is proven guilty, and because a person is arrested and brought before a magistrate, it is not prima facie evidence that he is guilty.

It often happens that a prisoner who is not represented by counsel or solicitor before the magistrate attempts to cross-examine the witness himself, and as usually happens he rather makes a mess of it. Then on the trial the evidence of that witness who had

been improperly cross-examined by the prisoner himself is read in court, simply because the witness may happen to be across the line, and that evidence has often a very different effect from what it would have if there was a proper cross examination before the magistrate. Without unduly pressing for consideration the claims of a person arrested, I think the clause should provide that the witness in the police court must be cross-examined by counsel or solicitor before the deposition can be read. This Bill provides for the examination of witnesses by commission and the Crown can always examine the witnesses, even though they have been examined before the* magistrate, no matter where these witnesses may be at the time of the trial.

The( MINISTER OF JUSTICE. What if the witness is dead '!

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LIB

William Manley German

Liberal

Mr. GERMAN.

He could not be cross-examined then I presume ; not immediately at any rate. However, the prisoner has to take the chance of his witnesses dying, just as tbfe Crown has to take the chances of their witnesses dying. The prisoner has opportunity on all occasions to cross-examine the witness, but often he does not do it. Perhaps he is not able to employ counsel in the police court, and when he comes for trial the higher court appoints counsel to look after his interest. The prisoner in the court below may not crossexamine the witness at all, but he has had the opportunity of doing so and under the Act the deposition of that witness can be read if he is out of the country or if he is dead. There would not be perhaps the same concern about a guilty person as about an innocent person who has been arrested, but even a guilty person is entitled to a fair trial, and I know from experience that it has worked harshly to allow the depositions taken before the magistrate to be read even though the prisoner himself might have an opportunity of cross-examining the witness. I think the minister should amend the section so as to provide that the prisoner by his counsel or solicitor shall have a fuil opportunity of cross-examining the witness before the deposition is allowed to be read in the higher court.

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

Has my tion. friend considered that the effect of that amendment would be to make it in-applieaule to prisoners who are undefended ?

Topic:   CRIMINAL CODE, 1892.
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LIB

William Manley German

Liberal

Mr. GERMAN.

It would make it inapplicable to persons who are undefended before the magistrate. It does not make it inapplicable to prisoners who are undefended by counsel before the magistrate, if they elect to be tried by a magistrate. It does not make it inapplicable to prisoners who are undefended on the trial before the superior court, because the Crown can always bring the witness there and the Crown invariably Mr. GERMAN.

subpoenas the same witnesses as were examined before the magistrate. I cannot see that it possibly can work any hardship on the Crown. Formerly the law was that the deposition of witnesses taken before the magistrate could not be read in court even though they were absent or dead, and even though they had been properly cross-examined before the police magistrate. That was found to be a hardship, and the law was so amended that the depositions could be read if there was any opportunity at all for the prisoner or his counsel or solicitor to cross-examine the witness before the magistrate. If there is no opportunity, the witness has to be called ; but the section says that if the prisoner has an opportunity, he is to cross-examine the witness ; and then the deposition may be read at the trial before the superior court if the witness cannot be produced. What I say is that if the prisoner has an opportunity to crossexamine the witness by counsel at the preliminary investigation, and if he does not employ counsel, the witness will be called at the trial.

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

That would be a convenient way to prevent evidence.

Topic:   CRIMINAL CODE, 1892.
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LIB

William Manley German

Liberal

Mr. GERMAN.

Not at all. The evidence is adduced before the police magistrate; but if the prisoner has not counsel there, then the witnesses have to be called at the trial. As far as that is concerned, it places the law where it was before this amendment was passed at all.

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The MINISTER OF JUSTICE.

Let us see how this would work out. A man commits an offence. The only important witness to his defence, before the trial comes on, falls ill, perhaps so ill that he is about to die. The Crown wishes to get the benefit of his evidence before the accused. The accused has merely to abstain from calling counsel, and this witness is to be allowed to die, and the Crown to be deprived of the benefit of his evidence, and there the matter ends.

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LIB
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The MINISTER OF JUSTICE.

It would be very convenient for the accused. I am afraid we cannot acquiesce in that.

Mr. DEMERS (St. Jolins and Iberville.) (Translation.) I take exception to that section. According to its phraseology, it would be sufficient that the court assumed that the witness was sick or absent. I think a more satisfactory proof should toe required. The effect of that provision would be to deprive the accused of the presence of witnesses, and the jury would go without hearing the testimony of witnesses whose evidence might be essential. Now. it is fair that the prosecution should toe held to prove that if

witnesses are brought once more before the jury, it is because they are dead, or sick, or unable to appear. It seems to me it would be an easy enough matter to prove those facts.

If we were dealing with civil cases, the proposition would be a reasonable one. But in a criminal case, the accused should not be deprived of the benefit of the presence of witnesses who may cause his conviction, without a positive proof of the decease or illness of these witnesses.

I am not ready to agree to the phraseology of this amendment.

Topic:   CRIMINAL CODE, 1892.
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Amendment agreed to.


LIB

Louis Napoléon Champagne

Liberal

Mr. CHAMPAGNE.

I desire, with the permission of the hon. Minister of Justice, to offer an amendment to sections 664 and 665, of the Criminal Code. I may say that this amendment has been suggested to me by the battonier of the district of Ottawa, Mr. Foran, who is a distinguished criminalis of the province of Quebec. The amendment will be section 665a, and is to this effect:

Whenever in any province .any prisoner who is arraigned, and who is entitled to demand a jury composed for the one-half at least of persons skilled in the language of the defence, neglects or refuses to make such demand, the court of its own motion may direct that the jury shall be composed of persons skilled in one language.

According to sections 664 and 665, in the province of Quebec, and in the province of Manitoba, the right of any prisoner is to have six jurors out of twelve, speaking his own language. Of course, the amendment I now suggest does not in the least tend to deprive the prisoner of that right. But in many cases, the accused does not take advantage of the privilege given to him by these sections, and does not make the application which they authorize him to make. As a consequence, in many cases where nil the witnesses, and the counsel for the defence speak either the French language, or the English language, the Crown prosecutor uses his right of having a jury composed of perhaps seven or eight people speaking one language, and the balance speaking tbe other language. It is to avoid the very great inconvenience resulting from such a condition of affairs, to save costs to the prisoner, and to save the time of witnesses and judges, that I have the honour to propose this amendment. It may be said that the jury can he composed of jurors speaking only one language, but, as I stated a moment ago, this right is exercised solely by the Crown prosecutor. The judge has no right to direct the Crown prosecutor to select jurors speaking only one language, either Engish or French. The Crown prosecutor has an absolute right, when a juror is called, to say, ' stand by,' and to form the jury so that it will be a mixed jury, and then to require the services of a translator. I submit the amendment, in the hope that it

will receive the favourable consideration of the hon. Minister of Justice and the committee.

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The MINISTER OF JUSTICE.

I am inclined to accept the amendment, because I think it will have the effect of shortening trials in our province and making them much less expensive. But I would like to amend to some extent the words used by my hon. friend, so as to give the discretion to the judge only to appoint a jury skilled in the language of the defence. I do not want to leave the judge with the discretion to choose a jury speaking French in tbe case of an English prisoner, nor vice versa, to choose an English jury in the case of a prisoner speaking French. I want the option, if it should be exercised by the judge, to he limited to a jury skilled in the language of the defence.

Amendment allowed to stand.

On section 785,

By repealing subsection 2 of that section, as enacted by chapter 46 of the statutes of 1900, and substituting tbe following subsection :-

2. This section shall .apply also to district magistrates in the province of Quebec, and to police and stipendiary magistrates of cities and incorporated towns in any .province other than Ontario, having a population of not less than 2.500 according to the last decennial or other census taken under the authority of any Act of the parliament of Canada, and to the recorder of any such city or town if he exercises Judicial functions ;

And by adding at the end of the section the following additional subsection :-

4. Where an offence charged is punishable with imprisonment for a period exceeding five years the Attorney General may require that the charge be tried by .a jury, and may so require notwithstanding that the person charged has consented to be tried by a magistrate under this section, and thereupon no such magistrate as aforesaid shall have jurisdiction to try or sentence such person under this section.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

What is the object of that clause?

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Tbe MINISTER OF JUSTICE.

By tbe amendment of 1900 there was rather extensive jurisdiction given to police and stipendiary magistrates of cities and incorporated towns generally. Tbe intention is to make a distinction, as some of the incorporated towns are mere villages. Subsection 4 makes it necessary that in serious cases the Attorney General should be consulted. Then the amendment is intended to extend the jurisdiction given in 1000 to district magistrates in the province of Quebec. In our province no district magistrate can be appointed unless he is a practising barrister of five years' standing.

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CON
CON

John Graham Haggart

Conservative (1867-1942)

Hon. Mr. HAGGART.

I think the limit ought to be increased, because in our section there are parties appointed as stipen-' diary magistrates who, as the minister has

said, are not lawyers, have never studied law and are not equipped for their positions.

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The MINISTER OF JUSTICE.

I want to limit it as far as I can.

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CON

John Graham Haggart

Conservative (1867-1942)

Hon. Mr. HAGGART.

But the limitation which the hon. minister proposes is not enough.

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July 28, 1903