April 10, 1905

LIB

William Mulock (Minister of Labour; Postmaster General)

Liberal

Sir WILLIAM MULOCK.

I would ask the hon. gentleman if he has consulted the Attorney General for Ontario on this point ?

Topic:   CRIMINAL CODE, 1892-AMENDMENT.
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CON

Edward Guss Porter

Conservative (1867-1942)

Mr. PORTER.

I have not personally consulted the Attorney General, but I understand from one of the judges that he had a discussion on the matter with him, and he approved generally of the principle of the Bill.

Topic:   CRIMINAL CODE, 1892-AMENDMENT.
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LIB

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

Liberal

Mr. FITZPATRICK.

The other clauses, with the exception of the first, are necessary to give effect to the law we have in force in Ontario, and are applicable exclusively to Ontario. I think the principle is a good one myself, that of saying that tne money should be tendered to a witness in a civil case as well as in a criminal case. Every one who has practised law knows that in a civil case you cannot compel the presence of a witness unless you have tendered him money. In respect to a criminal case I do unt undertand why men who travel a great distance to attend court without having received any consideration whatever in the way of* fees, should be subject to arrest if they do not come. I understand what is said about New Brunswick and Nova Scotia, they appear to have some system that I cannot understand by which a man is not paid for five or six months after he has attended court. If that is the law in New Brunswick it might operate to the injury of the administration of justice.

Topic:   CRIMINAL CODE, 1892-AMENDMENT.
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LIB

William Mulock (Minister of Labour; Postmaster General)

Liberal

Sir WILLIAM MULOCK.

I would ask the hon. member for West Hastings (Mr. i orter) if he would have any objection to submitting the matter to the Attorney General of Ontario to get his opinion on this point ?-he thinks he has his opinion in a roundabout way through some judge who spoke to the Attorney General.

Topic:   CRIMINAL CODE, 1892-AMENDMENT.
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CON

Edward Guss Porter

Conservative (1867-1942)

Mr. PORTER.

The matter having been submitted to the Minister of Justice and

having met with his approval, I am willing to abide by his judgment. I do not see any good in delaying the passage of the measure. It is not a matter within the jurisdiction of the Attorney General.

Topic:   CRIMINAL CODE, 1892-AMENDMENT.
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CON

Samuel Barker

Conservative (1867-1942)

Mr. BARKER.

I should think the better way would be to pass the Bill here, as the Minister of Justice approves of it, and then he will submit it to the Attorney General of Ontario if he thinks well to do so. We ought to act on the advice of the Minister of Jus-tic.e

Topic:   CRIMINAL CODE, 1892-AMENDMENT.
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LIB

William Mulock (Minister of Labour; Postmaster General)

Liberal

Sir WILLIAM MTJLOCK.

I do not quite agree with that. I think the member for West Hastings would be consulting his own wishes and perhaps further the object he has in view, if he were to act on my suggestion. The Attorney General for the pro' vince is really the person responsible for the administration of justice, he is the one who speaks for the province. I do not know that it is the duty of the Minister of Justice to communicate with every Attorney General in the Dominion. It may be and it may not be. It is not proposed to have it apply to New Brunswick or Nova Scotia, and exception has been taken to its application in Quebec. For my part I have not the experience that would enable me to express an opinion. Much may be said in support of my hon. friend's contention, but those who have to do with the administration of criminal justice are the ones to advise us. I would again suggest to my hon. friend that he should communicate with the Attorney General of Ontario and get his opinion before proceeding with this clause. I would not wish to vote affirmatively on the measure without knowing the views of the Attorney General.

Topic:   CRIMINAL CODE, 1892-AMENDMENT.
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CON

Edward Guss Porter

Conservative (1867-1942)

Mr. PORTER.

It appears rather extraordinary that in a matter that is within the jurisdiction of this parliament we should consult the Attorney General as to what his wish may be. We have full jurisdiction here, and if the members of this House believe that the law in its present shape works an injustice to the people of the province of Ontario, I think they should have no hesitation in passing this measure into law. I cannot see why the Postmaster General should insist upon delay. I doubt very much if this parliament consulted the Attorney General when they passed the original clause relating to Ontario, providing that a witness might be arrested if he did not obey the summons served on him in the first instance. I do not know that the Attorney General of Ontario was consulted when we passed that law, and this is merely an amendment of that law, showing that we have full jurisdiction. I would not fear the result in applying to the Attorney General, but I do not see the need of it, and it would delay an act of justice due to the people of Ontario.

Topic:   CRIMINAL CODE, 1892-AMENDMENT.
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CON
LIB

William Mulock (Minister of Labour; Postmaster General)

Liberal

Sir WILLIAM MULOCK.

I am sorry my hon. friend does not fall in with my suggestion. I should think the hon. member would have come here armed with the opinion of the Attorney General. He says the members of this committee are satisfied to pass this Bill. Perhaps they are, they may be informed as to its merits, but I am an exception. I have no hostility against the measure, I have no opinion on either side at present ; but I think the proper course is to have the advice of the law officer who is responsible for the administration of justice in that province and who has charge of the administration of the criminal law. If the hon. .gentleman himself does not care to communicate with the Attorney General, I am sure the Minister of Justice would be pleased to do so. Until he has done so and the Attorney General's opinion is obtained, 1 must be excused for not supporting the Bill.

Topic:   CRIMINAL CODE, 1892-AMENDMENT.
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LIB

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

Liberal

Mr. FITZPATRICK.

I think the better course with respect to section 1 would be to allow it to remain in abeyance until we get the opinion of those who are responsible for the administration of criminal justice in each province. I state unhesitatingly, so far as I am personally concerned, after having had twenty years experience in criminal matters, and during a great part of the time as Crown prosecutor for the district and province of Quebec, that it is a hardship that ought to be remedied. For that opinion I cm personally responsible.

Topic:   CRIMINAL CODE, 1892-AMENDMENT.
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CON

Edward Guss Porter

Conservative (1867-1942)

Mr. PORTER.

If the Minister of Justice thinks it would be wise to get the opinion of the Attorney General I am not going to insist, and am willing to let that clause of the Bill stand.

Topic:   CRIMINAL CODE, 1892-AMENDMENT.
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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

May I ask what the question is before the chair ?

Topic:   CRIMINAL CODE, 1892-AMENDMENT.
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LIB

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

Liberal

Mr. FITZPATRICK.

I may say for the benefit of the leader of the opposition who was not present, that this section relates to the payment of conduct money to a witness attending at a preliminary investigation and trial before a magistrate. The hon. gentleman is aware that in a civil case the tendering of conduct money is a condition precedent to the witness being compelled to attend and give evidence. Under the Criminal Code, even if conduct money is tendered, no matter how poor a man may be or how far he has to go, if he does not attend court he is liable to be imprisoned. This Bill is for the purpose of putting a man who is obliged to attend in a criminal case on the same footing as a man who is obliged to attend in a civil case. The difficulty arises out of the fact that in New Brunswick and Nova Scotia witnesses' fees are paid by the county, as I understand it; it appears that the county is responsible for witnesses' fees, these fees are certified by the magistrate, and they may not be paid for several months after the man has attended court.

Topic:   CRIMINAL CODE, 1892-AMENDMENT.
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CON

John Graham Haggart

Conservative (1867-1942)

Mr. HAGGART.

If, in a preliminary investigation it was found that the evidence did not justify the charge, and the money is paid out to the witness-what then ?

Topic:   CRIMINAL CODE, 1892-AMENDMENT.
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LIB

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

Liberal

Mr. FITZPATRICK.

The rule is that the magistrate has control of that. A man lays a complaint before a magistrate. If the magistrate is satisfied that the complaint is of a sufficiently serious character to justify the public assuming the burden of the expenditure that is assumed by the public, but if he decides that it is not of a sufficiently serious character to justify the expenditure being assumed by the public, then the individual has to do it, in which case of course the individual is responsible for file fee.

Topic:   CRIMINAL CODE, 1892-AMENDMENT.
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LIB

Henry Robert Emmerson (Minister of Railways and Canals)

Liberal

Mr. EMMERSON.

In New Brunswick, as far as I am familiar with it and I have had quite a number of years' experience, the practice was that at a preliminary investigation witnesses were brought and perhaps the party accused being held for trial in a higher court the witnesses were bound over under bail under a recognizance to appear at the next sitting. They would appear at the higher court and their witness fees would be paid, but the fees incident to the attendance at the preliminary investigation depended entirely on the will and caprice of the county council, and I have seen so many cases of hardship that It appears to me that even if there should be no conduct moneys some steps should be taken whereby men should have some guarantee that their expenses at least would be forthcoming. Now it may be eight or ten months or not five months before the county council meets, and when they do meet if the councillors happen to be in a very happy mood possibly they may pay the bill. It does not depend on the certificate of the magistrate, as the member for Carleton,

N.B. (Mr. Carvell), says. That does not move the council in any way. It is simply a matter of grace on their part. I have a good deal of sympathy with the provision ii' the first clause of this Bill. Perhaps it would be a little drastic to say that the money should be first tendered, but there should be some means of securing the payment on a proper certificate very shortly after the examination. Many cases of hardship have come under my own observation.

Topic:   CRIMINAL CODE, 1892-AMENDMENT.
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CON

Edward Guss Porter

Conservative (1867-1942)

Mr. PORTER.

This amendment I am ''satisfied will remove the hardship in Ontario. Of course I cannot speak for the other provinces, but I will concur in the suggestion of the Minister of Justice that this Bill be held over until I obtain the opinion of the Attorney General in regard to the matter. I have no objection to that being done with the understanding that I will have the opportunity of bringing up the Bill again. I think the Bill is of such importance that it should be passed at this session if it is to be passed at all.

Topic:   CRIMINAL CODE, 1892-AMENDMENT.
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LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL.

I notice on referring back to section 580 that the summons refers to the securing of witnesses both on behalf of the prosecution and on the part of the accused. I think this is a branch of the case which requires some consideration. The accused in probably a majority of cases is a poor man and is unable to furnish very many witnesses. It seems to me that if this amendment is passed we will be absolutely placing the accused where he could not get witnesses because if he has not money to tender the conduct money even before the examination, although he might feel that he wished to make a defence at the preliminary investigation, especially if he were innocent-he would say : Why should I go to the higher court and incur twice or three times or four times the expense. I can defend myself before a magistrate. if this Bill became law the defendant would be absolutely debarred from going into his defence unless he happened to have the money necessary to tender the conduct money to the witnesses to bring them before the magistrate. I think that of itself should be sufficient to kill this section of the Bill.

Topic:   CRIMINAL CODE, 1892-AMENDMENT.
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LIB

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

Liberal

Mr. FITZPATRICK.

Is there not a proceeding in forma pauperis?

Topic:   CRIMINAL CODE, 1892-AMENDMENT.
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April 10, 1905