July 13, 1908

CON

Robert Nelson Walsh

Conservative (1867-1942)

Mr. R. N. WALSH.

In this case men who are buying did not wish the test. In South Africa they have more disease in a square mile than we have the country over. Tiie test of the cattle was insisted on here.

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LIB
LIB

William Stevens Fielding (Minister of Finance and Receiver General)

Liberal

Mr. FIELDING.

I would call the attention of the committee to the civil government items, beginning on the first page, and I propose to take these up in their order so far as the ministers are present.

Civil government-Privy Council office-to increase the salary of F. K. Bennetts, assistant clerk of the Privy Council, from April 1, 1908, $400. '

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LIB

William Stevens Fielding (Minister of Finance and Receiver General)

Liberal

Mr. FIELDING.

I am informed by the Prime Minister that that may be struck out. Arrangements will be made under the law which will meet the case of this gentleman. I move that that be struck out.

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Motion agreed to.


CON

Henry Alfred Ward

Conservative (1867-1942)

Mr. WARD.

As it is understood that on any of these items any matter could be discussed, I desire to bring up a matter-

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CON

George Taylor (Whip of the Conservative Party (1867-1942))

Conservative (1867-1942)

Mr. TAYLOR.

There is another item of the Justice Department further on, is there not?

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CON

Henry Alfred Ward

Conservative (1867-1942)

Mr. WARD.

I do not want delay. I regret very much at this early hour of the morning, and this late stage of the session, that I should feel obliged to discuss any matter of importance, but as the question I wish to discuss relates to the imprisonment of a man who, in the opinion of a great many of his friends, has been unjustly deprived of his liberty, I think it is of sufficient importance to devote a few moments to the consideration of it. Frederick Blunden, who lived in the neighbourhood of Fort Macleod, was tried there on November 22nd, 1904, and convicted of stealing two steers, and has been imprisoned at Macleod and Edmonton for three years and a half. Ever since his incarceration he has been appealing to the Department of Justice for a new trial. He objected to appeal for executive clemency, because he insisted that he was entirely innocent of the charge upon which he was convicted, and it would not answer his ends to fe pardoned or allowed out on ticket-of-leave. These appeals have come, as the papers have shown, at intervals ever since his incarceration. The oue answer has been sent to him-that nothing could be done. Now, it would be necessary to enter shortly into the evidence given at that trial in order to show why I differ, in some sense, from the Minister of Justice (Mr. Aylesworth) and ' his predecessor. I do so with a great deal

of diffidence, because, with my limited experience, it hardly becomes me to differ with gentlemen who have had so much experience in these matters. The trial took place before Mr. Justice Harvey at Fort Macleod. The only evidence that was given against Blunden was that of Richard Train, who was caught by the Northwest Mounted Police killing these two cattle. Train's explanation of the matter at the time the mounted police came down upon him was that he had purchased the cattle two months before from a man he did not know. He repeated that on two occasions to -the two sergeants of police, and he also said that if he had made a mistake he was quite willing to pay for the steers. Train was put in jail at Fort Macleod and lay there twenty-eight days before he made any charge against Blunden. Then, according to the evidence which is under my hand, he stated -that he made this charge to save himself and by the advice of his ' agent '- I suppose he means his solicitor. This evidence of Train was contradicted in one very important particular by one of his own hired men. I might go back for a moment to explain that the story told by Train at the trial was that on Sunday evening, four days before he killed the cattle, Blunden took tea with him in the presence of his two hired men. During the course of the meal Blunden said he had one steer to sell. After eating tea, Train says, they went out together behind the barn, and Blunden pointed out in the bunch of cattle, from 100 to 200-Train said he would not swear there were not 200-these two steers. Train admits that he was not within fifty yards of the cattle, and says that Blunden rode down on his horse and pointed out two cattle in the bunch as cattle which he was willing to sell. Train admitted that it was dusk and almost dark. It seemed absurd to think that a man could distinguish a couple of cattle in a bunch of 200 when he was fifty yards away. The contradictioin to this statement is in the evidence of Lewis Albert Carr. His evidence showed clearly that he was trying to screen Train. His evidence, as given at page 75, showed that he was at Train's on the 11th September, the day this is said to have taken place. Then, at page 70 :

Q. After supper what did he (Blunden) do? -A. He got up and went out.

Q. Did you see him after that?-A. I saw him leave the house; -then I went out and went into the tent and did not see any more of him.

Q. You mean Blunden went out before you did or after?-A. Before I did.

Cross-examined by Mr. Nolan:

A. He turned his horse in the direction of his own house and I went into the tent and saw no more of him.

Q. As a matter of fact Blunden got on his horse and -rode home, come now, tell the

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CON

Henry Alfred Ward

Conservative (1867-1942)

Mr. WARD.

trial Train again accused Blunden of having sold him the said two cattle and at the trial of Blunden it was made sufficiently clear that Train had falsely accused the said Blunden to the court, that the said Train was there convicted.

5. And whereas the said A. F. Blunden is a young man who has always held the respect and confidence of all who knew him, and your petitioners could not believe him guilty until so found on the evidence as given.

6. That your petitioners know the said R. N. Train and believe that he accused the said Blunden in order to save himself, and we are of the opinion that a great wrong and injury is being done to the said Blunden, and furthermore we 'believe that the said Train was about and in a measure did accuse one James Smith of near the said town of Macleod, farmer, of having sold the said two beef steers, but on account of action -being taken by an advocate on behalf of Smith in reference to business relations between Train and Smith, Train withdrew the accusation and laid an information against Blunden -which led to his arrest and conviction as aforesaid.

7. It is submitted that Blunden should not have been convicted as Train's evidence was all the proof against Blunden and that Train was no doubt actuated by the motive of selfprotection.

Now, therefore, your petitioners humbr pray that the royal mercy be extended to the said A. P. Blunden, and that the sentence upon him be remitted.

I did not mention that Train was convicted before Judge Scott of stealing two other cattle and sentenced to five years imprisonment, whereas Judge Harvey sen-sentenced this man against whom, as I con' tend, there was no proof, to double that term. Although I have failed so far with my hon. friend the Minister of Justice to get any reconsideration of the case, I trust that he will be able to take a different view of the matter and to grant the prayer of the petition and of the man who has written to him so often upon this subject.

In regard to the conduct of Blunden in prison, I might mention that the reports of his conduct have been from the first satisfactory and that in the last two reports he is recommended strongly as a proper subject for the consideration of the department. I would ask the minister to consider whether this is not a proper case for intervention. This man, although he has been invited, as the correspondence will show, to apply for executive clemency, states that he wants a new trial in order to establish his innocence and to go out a free man instead of a man with a stigma upon him. Surely it is some evidence of the innocence of this man that he refuses to apply for executive clemency, states that he wants a new trial in order to establish his innocence and to go out a free man instead of a man with a stigma upon him. Surely it is some evidence of the innocence of this man that he refuses to apply for executive clemency. It is some evidence of his innocence that he Mr. WARD.

desires, in view of the new evidence which has come to light, that he shall be given an opportunity of showing that he was not guilty in the first place. In that connection I have an affidavit here from a man named Samuel Nelson, of Granum, dated February 13 last, which states that on or before September 14, he met Richard N, Train, with his boy driving a bunch of cattle between Round lake and Rocky coulee. My hon. friend from Alberta (Mr. Herron) can give you information as to where that is. They were going in the direction of Train's home, Rocky coulee. This was on the day before Train was discovered killing these cattle and the evidence shows clearly, in fact, Train says, that these cattle were driven in by his boy and his girl. It is stated in one of the letters to the minister that this boy and girl of Train's would swear, if they had an opportunity, that these cattle that they drove in were cattle that Blunden never had anything to do with. In the face of all the evidence that has been presented, I would simply ask the minister to reconsider his decision not to grant a new trial and if that cannot be done, why, I suppose the only thing for Blunden to do is to apply for executive clemency. The man, is far gone in consumption and it will be a blot upon the administration of the department if he should die during his term of imprisonment.

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L-C

John Herron

Liberal-Conservative

Mr. HERRON.

I wish to say a word in reference to the matter. As the case has been so fully dealt with by my hon. friend from Durham (Mr. Ward) I shall not at this late hour attempt to cover the ground again. The hon. gentleman has dealt with certain circumstances which led up to the conviction of Blunden so fully that the committee will thoroughly understand the situation. I would like to say a word further in connection with what led up to the severity of the judge in this case. I am not going to complain of the action of the judge in any way. For about ten or twenty years cattle stealing had been going on practically all the time all over the country and it seemed impossible to convict any one of this offence. It assumed such proportions that the whole country was up in arms against it, all the [DOT] respectable people of that country, the officers of the law and even the judges, but they did not like to undertake to prosecute men on the ordinary evidence as compared with evidence that might be used in similar cases in other parts of the country. For the last ten years this cattle stealing has been going on to such an extent that the judges have almost reversed the transaction and now they are in many eases over severe. They are ready to convict men who have been accused of cattle and horse stealing on very slight evidence, and sometimes for the sake of getting a conviction they will accept evidence that they would not ac-

cept under ordinary circumstances. That is what has led up to this. I have no doubt that while judges have leaned towards leniency they have on occasions gone to extremes the other way. There is no fault of course to be found with the judge in this case. I hope the Minister of Justice will give this matter his serious consideration and if he gives this man a new trial he will be acting in accordance with the opinion of 95 per cent of the respectable people in that country. A great many people believe that Blunden is an innocent man. From the evidence it will be seen that it is quite possible that the man Train endeavoured to save himself by giving false evidence against Blunden. I believe Blunden is an innocent man and I hope the minister will give him a new trial and an opportunity to establish his innocence.

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LIB

Allen Bristol Aylesworth (Minister of Justice and Attorney General of Canada)

Liberal

Mr. AYLESWORTH.

When the hon. member for Durham (Mr. Ward) moved some months ago for the papers in this matter I urged that in the interests of the prisoner himself the motion should not be pressed. I am still very strongly of opinion that cases of prisoners who are universally making application for clemency or reconsideration of their trials should not be made the subject of discussion in parliament. The file in this case consists of some 300 or 400 pages and my hon. friend (Mr. Ward) has examined it and is familiar with it. I have read it some time ago and I am somewhat familiar with the circumstances, but other members of the committee are necessarily not acquainted with the facts. I do not propose to discuss them because they certainly cannot be intelligently discussed within a few minutes. Each of these two men had his trial, before a different judge, and each judge came to a like conclusion with regard to the guilt of each man. Neither was tried with a jury but two different judges upon different occasions and upon facts that to some extent differed, was distinctly of opinion that each man was guilty of the offence charged. My hon. friend has seen the confidential report of the judge before whom Blunden was tried and the judge says that he was convinced the man was guilty upon his own cross-examination. I can only say that after considering and reading the testimony so far from being convinced of the prisoner's innocence I have arrived at an opposite conclusion. Of course it is impossible for one who simply reads the evidence, to come to any conclusion at all as satisfactory upon a pure question of fact as the judge can who sees and hears the witnesses. I can see no reason why the conclusion of an experienced judge upon such a question of fact ought not to be deemed as valuable as the conclusion of a jury, or ought to be interferred with any more lightly. With one breath it is said that this prisoner insists upon his innocence and does not ask clemency while with another it is urged that it is a case in which clemency ought to be exercised. The prisoner himself is not by any means as unbending as my hon. friend from Durham puts it, because he has distinctly asked for clemency.

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CON
LIB

Allen Bristol Aylesworth (Minister of Justice and Attorney General of Canada)

Liberal

Mr. AYLESWORTH.

It is true he maintains his innocence, but he urges his release upon the ground that he has served a long imprisonment already and ought to be the subject of a pardon or of conditional release upon ticket of leave. That is something in regard to which discretion has to be exercised, and I express no other opinion than to say that in view of the circumstances of the case it has seemed to me up to this time at any rate that it would be premature to interfere, and I have been unable to see my way to recommend it. On the question of a new trial I want to say merely a word. I do not understand the law to be that there is resting upon the Minister of Justice any duty or any right to order a new trial because the man convicted asks for it. I think the statute does not mean anything of the sort. We are here with the British system of administering criminal justice under which we have absolutely no provision whatever for the giving of a new trial by the courts in criminal eases, on a question of fact. If there is a mistake in law it is a different thing; if there is a mistake on the part of the learned judge in laying down the law to the jury or if there is legal miscarriage there is provision for a new trial. Can it be that the same parliament which so deliberately declined to intrust to any court in the country the power to order a new trial in criminal cases on a question of fact, would vest that very power in the uncontrolled discretion of a Minister of Justice.

I think it would be extraordinary if that were the law. Now, if we look at the section in the Criminal Code which is relied on, I think it plainly does not mean anything of the sort. It says : If (not upon

the application of the prisoner) but if, upon an application for the clemency of the Crown in favour of some person convicted of a crime the Minister of Justice feels doubt whether this person ought to have been found guilty, he may, instead of recommending His Majesty to pardon or commute the sentence, after such inquiry as he thinks fit, order in writing that a new trial be had, at such time and before such court as he thinks right. It is not upon an application which the prisoner makes as a matter of right or as a matter of indulgence that a new trial may be given to him, but it is upon an application for clemency. It never could have been intended that any man, by the device of asking for clemency, could in an indirect way ask for a new trial. It is something of the minister's own

motion which is contemplated by the statute. If the minister, in considering an application for clemency, feels so much doubt about the matter that he does not know what to do. then of his own accord he may take this course as a solution of the difficulty. What would you have if it were otherwise ? This is a provision not limited to capital cases or to important cases of any kind, or to cases involving long imprisonment, but extending to every criminal prosecution, every petty squabble before a magistrate ; and if the Minister of Justice has power to grant a new trial in all criminal cases upon being asked to do so, it means that one man is appointed in Ottawa to sit in review over the hundreds and thousands of criminal cases which are tried every day of the week and in all parts of this country from the Atlantic to the Pacific. I think the simple stating of the thing demonstrates that it never was intended by parliament. No court may do it in any province, but one man is to sit in Ottawa and do that work for the whole Dominion. It is an impossible thing on the face of it, because when you once started doing it, you would have an application after every conviction. But apart from that there is no machinery for it. Suppose the prosecutor refused to attend ; there is no means of bringing him before this august tribunal *which is to sit on his cause. And how is the minister to proceed ? No Indication is given in the statute. I can only say that having given, not this particular case, but various capital cases, the most anxious consideration, my mind is unalterably convinced that parliament never intended to vest such jurisdiction in the Minister of Justice. In capital cases it has come to be almost universal that the prisoner's counsel applies for a new trial under this section, insisting that there has been something wrong done by the jury, that there was some evidence which was not correct, that there is something 'new discovered; and the counsel thinks it is a dreadful thing for the Minister of Justice to tell him, what I am saying to-night, that he does not believe that parliament ever intended to vest any such, power in the Minister of Justice. I think it would be disastrous to the administration of criminal justice in this country if it were so. I may say that ever since this section has been on the statute-book, in only one instance has it been acted upon, and that was one in which there was a lamentable miscarriage of justice. How could it be otherwise ? Suppose that a prisoner was convicted and condemned after a long trial by a jury, and then on an application the Minister of Justice sets aside the verdict and orders a new trial. Every juryman at the new trial would know it. There would be the argument almost irresistible that this great potentate had felt that the verdict against the prisoner was so unjust that he would not allow it to stand, and or-Mr. AYLESWORTH.

dered a new trial. It is tantamount to an instruction to the new jury to acquit. In the case mentioned it was so taken ; there was an acquittal in spite of clear evidence. With regard to the case of this prisoner, I can only say that it is plain that although the other man may afterwards have been convicted of a like offence, it does not establish the innocence of the man against whom he testified. On the contrary, as the judge in Train's case pointed out, it might well be on all the testimony that both men were guilty, and indeed that was his opinion. The Minister of Justice must treat these cases when they come before him as applications for clemency, as cases in which the prisoner was properly convicted. He looks about for extenuating circumstances, inquires into all the facts of the case, the man's previous character, and taking into account all these considerations he advises whether or not it is a case in which the sentence, though it is a proper one, can properly be interfered with ; and it is upon that view and upon that only that his recommendations to His Excellency must proceed.

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L-C

John Herron

Liberal-Conservative

Mr. HERRON.

I wish to draw the attention of the minister to one statement he made which I think is not correct, that is with reference to the judge being one of experience or of long standing. The judge was just newly appointed to the bench, and this was one of his first trials. I do not reflect on the judge or on the sentence at all for that reason. I have never heard any complaint against the judge in regard to tile way he conducted the court or in regard to the sentence he administered at the time ; but I have heard since allegations of innocence on behalf of the prisoner.

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CON

Henry Alfred Ward

Conservative (1867-1942)

Mr. WARD.

I want to refer to one statements made by the Minister of Justice, that is, with reference to Justice Harvey's report. I did not feel at liberty to mention that report at all, because my hon. friend showed it to me in confidence ; but as he has referred to it and has spoken of Justice Harvey having stated that he believed Blunden to be guilty, I desire to say that what Justice Harvey did state in regard to that was that Blunden's attempt to prove an alibi convinced him of his guilt. Now, he made no attempt whatever to prove an alibi at the trial. He did bring three witnesses to the preliminary examination before the magistrate, but not before Justice Harvey at all. It is quite true that he made the attempt there ; but he states in his evidence that he got liis brother to write to the clergyman who had performed the christening upon which they based the alibi that he was at home on the day the christening was held. And he got his brother to write to this clergyman to find out if that christening did actually take place on the 4th. When he found from the clergyman's letter that it took place on the 11th, the day he

was said to be at Blunden's bouse, he withdrew the alibi at the trial and there was nothing before the justice at all. How the attempt to prove an alibi, under the circumstances, was evidence of his guilt is beyond me to understand.

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CON

Joseph Gédéon Horace Bergeron

Conservative (1867-1942)

Mr. BERGERON.

All those names mentioned have increases of salary, and I imagine these are all the increases that the employees at Ottawa will get. Does that mean there are to be no increases for the permanent employees at Ottawa?

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LIB

William Stevens Fielding (Minister of Finance and Receiver General)

Liberal

Mr. FIELDING.

There is no provision for a general increase except under the operation of the Act. Quite a number will get increases though not immediately. The suggestion was first made in the report of the Civil Service Commission, and afterwards in the House, that an increase of 10 per cent would be given, but if we did that for the service at Ottawa and not outside, there would be widespread discontent. It would cost a good deal to do it, and we thought we could not adopt that suggestion at present.

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CON

Joseph Gédéon Horace Bergeron

Conservative (1867-1942)

Mr. BERGERON.

Then, as a matter of fact, there will be no increase?

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LIB
CON

George William Fowler

Conservative (1867-1942)

Mr. FOWLER.

I notice there has been a general increase along the line so far as the deputy ministers are concerned, and that certain officials are regarded now as deputy ministers and receive the increase, such as the clerk of the House and the librarians of parliament. With this I have no fault to find, but there is one officer who has not received an increase, and that is the gentleman who occupies the distinguished position of Speaker. He receives the same salary to-day as did the Speaker thirty or forty years ago. Whoever may be the incumbent of that position receives the salary of $4,000 in addition to his sessional indemnity. He not Only performs the duties of Speaker, but is supposed to entertain members of parliament and to be in a position to entertain distinguished strangers who visit this Washington of the North, and I think it simply disgraceful that he should not have a considerable addition made to his salary. Take the Clerk of the House, a very interesting gentleman, as we all know, and one whom we are proud to reward by giving him a respectable salary, but the Speaker occupies a more prominent position. He Is called on to perform duties in the way of entertaining which are expensive, and there is no special allowance made to him in that connection. I think that his salary should be at least equal to that of a minister of the crown. I would commend these remarks to the careful consideration of the ministry, 410

and hope they will make up their minds to do him justice. The office is the highest in the gift of parliament and one to which consequently should be attached a respectable indemnity, more particularly when we know that the gentlemen who have occupied that position have been, almost without exception, men worthy of it.

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July 13, 1908