March 24, 1904

LIB

Charles Fitzpatrick (Minister of Justice and Attorney General of Canada)

Liberal

Mr. FITZPATRICK.

Topic:   QUESTIONS.
Subtopic:   RAILWAY ACT, 1903, AMENDMENT.
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CON

Edward Arthur Lancaster

Conservative (1867-1942)

Mr. LANCASTER.

it

Why should !gSio* necessary to go to the Railway Com ^ v

for a watchman ? If my Bill Pa , ct

way Commission.

Topic:   QUESTIONS.
Subtopic:   RAILWAY ACT, 1903, AMENDMENT.
Permalink
LIB

Charles Fitzpatrick (Minister of Justice and Attorney General of Canada)

Liberal

Mr. FITZPATRICK.

Topic:   QUESTIONS.
Subtopic:   RAILWAY ACT, 1903, AMENDMENT.
Permalink

Motion agreed to, and Bill read the second time. Mr. FITZPATRICK moved that Bill (No. 2) to amend the Railway Act. 1903, be referred to the Select Standing Committee on Railways, Canals and Telegraph Lines.


CON

Edward Arthur Lancaster

Conservative (1867-1942)

Mr. LANCASTER.

Before that resolution is carried, I desire'to say a word or two about it. YVo bftve had a good deal of experience in the last two years, in the way of referring tlie matters of general law to the Committee on Railways, and I am bound to say-perhaps it would be better if some one else said it-that I think that what 1 said three years ago was well founded, and that no progress is made by referring Bills of this general character to that committee. I have never known progressive legislation to be passed in this House except in Committee of the Whole. We do not find that the Minister of Agriculture, when he introduces a Bill relating to some agricultural question referring it to the Committee on Agriculture. And, when we undertook to consolidate the Railway Law last session, a work that occupied the Committee of the Whole for seven or eight weeks, nobody suggested that it should be referred to the Committee on Railways. My hon. friend from St. John and Iberville (Mr. Demers) several sessions ago, introduced a" Bill which I thought a most proper piece of legislation, dealing with fires started by railway locomotives. That Bill was referred to the Railway Committee in two sessions, blit no result was gained by following that course. But when it was proposed last session, to deal with this matter in Committee of the Whole and to.incorporate the provisions suggested by the hon. member for St. John and Iberville in the general Railway' Act, the provision became law. In the same way, my hon. friend from South Essex (Mr. Cowan), introduced a Bill which I myself strongly favoured, to enable farmers to drain their property across railway lands. It was referred to that Railway Committee on two different occasions, but, as in the other case, nothing came of it. Tlie Bill was smothered, or chloroformed, or died a natural death in tlie Railway Committee. But when we were in Committee of Hie Whole on the General

Railway Act, this reform also was embodied in the statute. And last, but. I think, not least, there was the cattle-guard legislation. I introduced a Bill and it went through the same formalities, went to the same cul de sac, went into that opening which leads nowhere, and at last it had to come back to the Committee of the Whole House as the only channel through which it could reach a place in the statute-book. For every Bill referred to the Railway Committee must come back to us. It is not with these public measures as it is with private Bills. If a private Bill is reported adversely by the Railway Committee, it ceases to have existence. But the most that the Railway Committee could do with a public Bill of this nature, would be to send it back to this House with an unfavourable report-and that report would not be unanimous in this case, because I am a member of the Railway Committee myself. To refer such a measure to the Railway Committee is merely to give us unnecessary work and waste our time. When these matters come up in the Railway Committee we argue and discuss, but the party that is outvoted is not satisfied. I know I shall certainly not be satisfied if some reasonable measure of protection-some ' adequate protection '-is not granted to the people in regard to this matter. I do not wish to discuss again the merits of the Bill, but I would remind the House that this is a Bill that affects the whole community and not a matter requiring some special technical knowledge for its discussion. It is a matter that must be discussed on the floor of the House in any case. And so I ask the House not to agree to the proposal of the Minister of Justice. That hon. gentleman and I are the best of friends, but it seems clear to me that it is unreasonable to go to the Railway Committee with a law of this kind when, in any case, it must be dealt with on the floor of this House.

Topic:   QUESTIONS.
Subtopic:   RAILWAY ACT, 1903, AMENDMENT.
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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

There might be some advantage in having this measure discussed in Committee of the Whole ; and yet, perhaps there are interests involved that should be heard in some way before the amendment passes.

Topic:   QUESTIONS.
Subtopic:   RAILWAY ACT, 1903, AMENDMENT.
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LIB

Charles Fitzpatrick (Minister of Justice and Attorney General of Canada)

Liberal

Mr. FITZPATRICK.

There are municipal interests and corporate interests affected by the Bill, which, I think should be heard.

Topic:   QUESTIONS.
Subtopic:   RAILWAY ACT, 1903, AMENDMENT.
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?

Mr. I@

I appreciate that. I was going to make a suggestion to the Minister of Justice and to my hon. friend from Lincoln and Niagara. I would like to discuss this Bill in Committee of the Whole to see what its scope is and whether it would not be possible, with due regard to the interests of the railway companies, to amend the statute so as to provide greater security for life. Would it not be possible to go into Committee of the Whole on the Bill in any case ? The Minister of Justice would have the right at any time to move Mr. LANCASTER.

to discharge the order and not send the Bill to the Committee on Railways-Thus we should have the opportunity of discussing it more freely than we can with Mr-Speaker in the chair, and, later on, we would have'the advantage, if thought desirable, of sending it to a committee where those who are interested could be heard. Would that ^ course be acceptable to my hon. friend from Lincoln and Niagara.

Topic:   QUESTIONS.
Subtopic:   RAILWAY ACT, 1903, AMENDMENT.
Permalink
CON
?

Mr. I@

Topic:   QUESTIONS.
Subtopic:   RAILWAY ACT, 1903, AMENDMENT.
Permalink
LIB

Motion agreed to.


CRIMINAL CODE AMENDMENT.


E. A. LANCASTER (Lincoln and rv;|gaora) moved the second reading of Bill 3) to amend the Criminal Code, 1892. o^WiLFMD LAURIER. What is the °^ect of this Bill ? LANCASTER. It is to protect the itii-H people, of this country to a still the fl1' extent than it was sought to do in be .^bate of yesterday, with all deference R said to the supporters of that motion. FITZPATRICK. I lost the bene-Senti nearly Falf the remarks the hon. bec„ emau made on his previous Bill he . e I was unable to hear him. Will *°me down a little closer V Take him over on hughes. It is only a question Treasury benches. °fJtimeITZPATRI0K' leader. U-tlN'CASTER. Won't you take my is t0r with me ? The object of this Bill yorujoP1'°vide protection to young men and ta-efej. women, or boys and girls as you may With n .call them, when they are charged t° airipn^lruiual °ffence- The section I wish hate illd is ^at which requires the magis-harticf certain cases which I need not lie elect*' to ask tke defendant whether °r by +1 to l,e tried by a judge and jury 4o bv ?.e. maSistrate. Now what I seek to l'ePresenr i HtH, in case the child is not fUarm,.lteii by counsel, is to allow his 1 am \ ®r bis parents to elect for him. hs Ac'ot dealing with the Juvenile Offend-!l PersArT am dealing with any crime Which charge(1 1 RRder 21 years of age can be sauit ' . Wlth, be it a case of theft or as-great ^thing else. 1 ai't Ip „ many such Ple of the as We have had of ii [DOT]' i3Ul;u cases in my are i country where young peo-[DOT] bov« c"arged with offences, such rustic El cnurged with assault or do-!av'e ijp v ailts with theft, and where they convicted and are now servin havf ,lmPrisonment &> * b~""



and they would , - m onvicted if they had been ry. l -nperlor or county court, or by a (her.,. ^ a question of nnimna fnronrli 0„. 'llstimr,?- '! .'luestion of animus furandl, P1 n>e, aim "king between a tort and a dons, „ e Question arises, where the Wio'mt ®°mething wrong but does not Si,, the whether the act was done Pk,? Ih or,i,. <!'<1 Intention which is neces- Pr ,°Pose of 21 Of r/se that' Jn make tho !'ct a crime. I tbo „,.lt when a a person appears to be liRC6. shall "n i ' ye*™ <>r under, the magia-Ooii^Sht to * . (;a'1 that person to waive 1, but ,|1 J before a jury or a higher I41 ' ''dl first call upon Ills guardian or parent to advise him, in case he is not represented by counsel, of course if he is represented by counsel, my amendment would not apply. I propose to amend the section by which the defendant is called upon to elect whether he shall be tried by a magistrate, and if convicted, whether he shall be sentenced by a magistrate, or whether he shall waive what, since King John's time we have all got, the right to trial by jury. My Bill has only one section and it reads as follows : Section 786 of the Criminal Code, 1892, is amended by adding thereto the following subsection :- ' 2. Whenever the person charged appears to be about the age of twenty-one years or an infant under that age, and is not represented by counsel present at the time, the magistrate shall not proceed under this section without first asking the person charged what his age is ; and if such person then states his age as being less than twenty-one years, the magistrate shall defer any further action, and shall at once cause notice to he given to the parents, living in the province (or if none, then to the guardian or householder with whom the person charged resided at the time of the alleged commission of the offence), of such person having been so charged, and of the time and place when such person will be called on to make his election as to whether he will be tried by the said magistrate,-which notice shall allow reasonable time for the said parents, guardian or householder to be present and advise the said person charged before he is called on to so elect.' Now speaking as an active practitioner in these matters, the most important thing to decide with regard to any jmung person who is charged with an offence, is what should be done with him if convicted. If there be a doubt, by all means give him the benefit of the doubt; but if convicted see that you do not dishearten him by compelling him to herd with criminals worse than himself, or by placing a stigma upon him that will shut him out from good society afterwards. Therefore I say the most important thing is the choice of the tribunal which shall try him. Sometimes there is more harm done in the sentence than in the conviction. It does not do so much harm sometimes to Convict with a suspended sentence, although it brands the young person perhaps improperly as a criminal, and compels him to associate with other people worse than himself. If the young person is allowed to go under suspended sentence with a warning from the magistrate, he keeps that warning in mind and may grow up correctly enough afterwards. In our part of the province, and I am told it is the same in many other parts, we have a good deal of fault to find because the magistrates are not restrained by statute. They think their first duty, when a child i.s brought before them, is to make them elect by what court he shall be tried. Complaints of (his kind come from St. Catharines, from Grimsby, from



Smithville, Welland and other places. Whenever a young person is brought in the magistrate says : ' I suppose you want me to try you,' or, ' Do you want me to try you ' ; The child says that he does not know, or it does not make any difference. He has no counsel, or parent or guardian, lint it does make all the difference in the world. These are cases where the offender should be represented by some one. As the horn. Minister of Justice knows, nearly all of the offences which are apt to be committed in early life can be tried by a magistrate, and directly the young man or young woman charged with one of these offences is brought into court the magistrate asks the accused : Do you want me to try you V Then, he is called upon to elect. If he says that he wants the magistrate to try him "the magistrate tries him, and lie disposes of the law and of the sentence. In a great many of these cases no lawyer would decide them in the way in which the magistrate decides them. In many cases the magistrates are laymen. If we were appointing magistrates, I could suggest a way of getting over this difficulty outside of this proposed amendment, but the provincial authorities appoint magistrates, and I am sorry, not because I am a lawyer, that they are not professional-men. I think they ought to be. because they would then understand where the mischief is done in these cases. A lawyer or a judge would take cane that a child brought before him bad the advice of some one competent to advise him before he would ask him to elect. We do not in any province-at least, I know we do not in the province of Ontario-allow a child's property to be dealt with until lie is twenty-one years of age ; yet, the young man or young woman of sixteen or eighteen years of age is called upon to make an election affecting his or her liberty and whole reputation without advice from anybody. Because such people cannot afford habeas corpus proceedings they go down. There are in the reformatory at Penietanguishene hoys that I am satisfied would never have been sent there if any lawyer lmd been called upon to deal with the case. There are those who have been condemned who have been guilty of nothing but a tort, and no crime at ail. They were charged with stealing when they were simply guilty of a conversion of property, believing that they were entitled to use it for tlie time being. I know of a case where a gun was said to have been stolen, when, as a matter of fact, it lind been borrowed and returned, but because the man wanted to lie smart, lie wont on with tlie case and sent the child who was accused of stealing Hie gun down to Peiietanguisheiie for three years. lie was a boy just out of the high school who had borrowed a gun to take with him when ho went out with some other boys hunting squirrels. I have had to deal with cases where servant girls were charged with theft, when, as a matter of fact, they took [DOT]Mr. LANCASTER. the articles alleged to have been stolen believing them to be theirs. No judge would have believed that there was any intention on their part to do wrong. No jury would have convicted them of any intention ot committing a crime. These people are convicted because they elect to be tried without proper advice, they become branded as criminals, and it is a bad thing in this country to lightly brand young men or young women as criminals. We might better giye them a chance until they are twenty-one years of age, when they are better able to judge for themselves the course which they should pursue. Living near the border, * know dozens of instances of young men and women who formerly- lived in the neighbourhood of my county who are now earn ing their living in the United States, because they prefer to live in a counti'J where there is no record against then1; They are not Canadian citizens, and the)' would be good Canadian citizens had the! not become disgusted with their country because they were harshly treated wh®f they were young. This proposed aniendj ment can do no harm. This probably '"'1 commend itself more strongly to my hob-friend the Minister of Justice than my Pr® posed amendment which we have just he^{ discussing to protect the lives of people [DOT]. railway crossings, because lie might say t*5 by its adoption the railways would hurt by having to pay a little. * e body is hurt by this amendment. J t0 prosecutor cannot be hurt; he may have wait a week before lie is able to have; ;l child convicted, hut if the child is guile ' conviction can then be secured. In the time the child can remain in custody, bja. nobody can possibly be hurt by ibis le*j> aj> tion, while, on tlie other hand, we will do^r act of justice to the young people ot country who are now labouring lliw; jus-great injustice. If the hon. Minister of ^ tice can propose any other remedy, 1 ^y ready to accept any suggestion he > make in that respect. My object is * amend the law as to provide that \e( young people, when they appear to be l^ejr twenty-one years of age, shall be asked ^ age, and if they are under twenty-one J so of age, a reasonable time shall lie of as to allow their parents, or guard'® 1 the householder with whom they resi the time the offence was said to have , fl(j. committed, to come and give them th to vice before they are asked to elect -(g-whether they shall be tried by the ' vo 11 (rate and thus waive their right to m ..y. trial by a superior court judge and „i>0lJ I propose that they shall not be 01,1 ,.,<ce 0 to waive that right without the cd e no their parents or guardians, if they {e-counsel present. I (rust the matter ^oboe ive the careful consideration jlh1' Minister of Justice. I believe the * Apt®^ later of Justice is Just as anxious t< 1 j Ve the children of tin* country as l 111 [DOT] 42 G l6ye that we can do no harm, but that we can accomplish much good in this matter. Nobody, as I have said, can be hurt by it. cannot cause any trouble to any one. fhere may be a little expense incurred by paving a policeman deliver a notice at the ho°r. if pon. Minister of Justice wants [DOT]especial form of notice to be appended to Bill, I have no objection, I would be .filing to leave it to the magistrate to UP that notice, but if the lion. Minis-a r °f Justice thinks that to make it clear id complete we had better give the form of e notice, I see no objection to that.


LIB

Charles Fitzpatrick (Minister of Justice and Attorney General of Canada)

Liberal

Mr. CHAS. FITZPATRICK (Minister of justice).

Topic:   QUESTIONS.
Subtopic:   CRIMINAL CODE AMENDMENT.
Permalink
CON

Edward Arthur Lancaster

Conservative (1867-1942)

Mr. LANCASTER.

That protection only deals with theft.

Topic:   QUESTIONS.
Subtopic:   CRIMINAL CODE AMENDMENT.
Permalink
LIB

Charles Fitzpatrick (Minister of Justice and Attorney General of Canada)

Liberal

Mr. FITZPATRICK.

Yes, in connection with theft the age is fixed at sixteen. If the hon. gentleman would adopt a suggestion as to the age of sixteen, it might be possible to clo something to come to the relief of those to whom he has referred, but the section would be required to be drawn in a different form than in the Bill.

Topic:   QUESTIONS.
Subtopic:   CRIMINAL CODE AMENDMENT.
Permalink
CON

Edward Arthur Lancaster

Conservative (1867-1942)

Mr. LANCASTER.

I cannot see why we should draw the line at sixteen years. I think, with all due deference to the minister. that we have no expert criminals in this country under the age of 21, whereas there are a very large proportion of youths between sixteen and twenty-one about whom we should be very careful to see that they get fair-play. Magistrates have told me that they have a perfect right to ask a man to elect, that there was nothing to prevent them, and that once having elected the prisoner could not elect a second time.

Topic:   QUESTIONS.
Subtopic:   CRIMINAL CODE AMENDMENT.
Permalink

March 24, 1904