February 16, 1909

CON

Edward Guss Porter

Conservative (1867-1942)

Mr. PORTER.

When we can guard against that why should we not do so? It seems to me that the amount involved in a transaction of this kind ought not to determine the question of jurisdiction. A man who fraudulently cheats a widow out of $2 is just as much a criminal as the man who cheats the government out of $2,000, and the magistrate might think he would try the widow's case but not the other. It seems to me it would be wise to define it now.

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LIB

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

Liberal

Mr. AYLESWORTH.

The imperial statute is precisely in the same shape as this. The proceedings there are either upon indictment or upon summary prosecution with a slight difference in the amount of punishment. I have not heard of any practical difficulty that has been met with, and it did not occur to me that there was any occasion to differentiate this legislation from our general laws on the subject.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

Have there been any cases tried under the imperial statute which would throw any light upon this?

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LIB

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

Liberal

Mr. AYLESWORTH.

There have not been many, but some. A very interesting article appeared on the subject in the'Times' newspaper in which reference is made to the number of cases. I cannot exactly say how many prosecutions there have been under the imperial statute, but in the two years during which it has been in force I do not think there have been altogether as many as a dozen.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

Is the minister aware of what special interpretation or significance has been given to the word ' corruptly ' in these cases? Has the meaning of that word been brought into question at'all? The statute provides against any person who corruptly accepts any gift or consideration, &c., and the use of that word coupled with the possibility that a very important case might be tried before a magistrate (and perhaps brought before that magistrate having regard to the imminence of proceedings of another character), would seem to indicate that some little care should be taken in the consideration of the language which we should employ. It might be quite possible that more attention should be given to the exact language of the statute in this country than in Great Britain. I am not sure that would be the case, but possibly it might, having regard to the qualifications of persons who might be called upon to adjudicate in such matters.

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LIB

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

Liberal

Mr. AYLESWORTH.

A great part of the debate on this Bill in the imperial parliament was on the absence or presence of the word ' corruptly.' After very full discussion

and consideration it was thought better to retain it in the clauses, and I have retained it in the Bill now under consideration. As I understand the significance of the word from a legal point of view, it can perhaps be best paraphrased by the expression ' intending to do that which the Act means to forbid.' It carries with it the idea certainly of an evil intent as opposed to an innocent transaction, and requires, to satisfy this meaning, that there shall have been conduct by the person accused which proceeded from a wicked intention, an evil mind, an intention to do the thing which the law forbids. I do not know that I could state in better language what I understand the meaning of the word to be. It is a word of very general use in similar legislation. All our election legislation against bribery is accompanied by the use of the word, and in that connection it has been much discussed by judges, both in the old country and in Canada. I think it would be preferable to retain the word; no harm can be done by retaining it; because if there could be an infraction of this legislation which does not proceed from evil intent, it ought not to be punishable.

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LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL.

It seems to me that the objection urged by the hon. gentleman opposite is well taken. I have no fault to find with the principle of this Bill. I think it is good. Unfortunately, the justices of the peace all over Canada are not appointed as they are in England. We have in the different provinces a large number who are appointed for political reasons, and we have many whom I do not think the Minister of Justice would want to sit in judgment over him or over any person in whom he had any interest. I am glad to say that we have very many excellent justices of the peace all over Canada. Now, you could easily imagine that an unfair justice of the peace might take upon himself jurisdiction to try a very serious offence, and impose a very slight punishment for it; or, on the other hand, a very trilling offence might be treated by him as a very serious one, and he might send the accused up for trial. In my opinion, there should be some election provided for the accused, because he must be considered innocent until he is proven guilty. Therefore, I think we should follow to some extent the idea laid down in the Criminal Code of Canada regarding assaults of a serious nature, that is, that the accused shall have the right to elect whether he shall be tried summarily by the magistrate, or go. before the grand jury. I am not sure whether or not the right of appeal would be allowed the accused in case the magistrate tried him summarily. But it seems to me that we are giving too much power to an unscrupulous justice of the peace in leaving the section as it is. I am not saying this for the purpose of finding Mr. AYLESWORTH. ,

fault with the Bill, but only with the view of making it perfect. If the Bill passes as it stands, I think a great deal of injustice may be done in working it out.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

I can understand that the word ' corruptly ' has been left in the English statute without any definition, perhaps for very much the same reason that courts of equity have always refused to undertake an exhaustive definition fraud. But there is a difference, as the hon. member for Carleton (Mr. Carvell) has just pointed out, when a word of such wide interpretation must be construed by a justice of the peace, very often without very much legal or technical knowledge. I entirely agree that a great many of the justices of the peace are very capable of dealing with these matters, but you occasionally find those who are not. I remember in my own province some years ago of a justice of the peace undertaking to administer the criminal law of Canada, and the only information he had at his command was that contained in an obsolete volume of the Revised Statutes of Nova Scotia of about 1857; but he was quite confident in his power to administer the criminal law of Canada under the forms and instructions contained in that volume. Then, there is another consideration, the converse of that mentioned by the hon. member for Carle-ton. Suppose that a very serious offence had been committed against the provisions of this statute, and that proceedings (were imminent to indict the person accused. Suppose that person, through the intervention of some friend, had proceedings instituted before a magistrate, who might not be bound by any very definite authorities as to the manner in which he would construe the word ' corruptly.' It seems to me quite possible that by means of that kind a person who really had been guilty of a very serious offence against the law, might escape with either no punishment or a very light punishment. I do not understand from the Minister of Justice that there is any especial duty cast upon the magistrate to declare that the offence is of so serious a character that he shall not proceed. In fact, I am not sufficiently familiar with the present procedure to know whether it is possible for him, after information has once been laid before him for the purpose, to decline to proceed. I think there is a good deal in these considerations which requires the attention of the Minister of Justice and of the committee before we pass the measure in exactly the form in which it is now presented.

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LIB

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

Liberal

Mr. AYLESWORTH.

Of course, this legislation is along the line of the criminal law. It might, without any impropriety, have been introduced by way of amendment to the Criminal Code. The intention was

always that the general provisions of the Criminal Code, as to procedure and as to every point which would have application, should govern under this statute, and there is no objection to a clause being introduced providing that the general provisions of the Code shall apply, or that this Act shall be read as a part of the Criminal Code. So far as the retention of the word ' corruptly ' is concerned, I certainly would attach a great deal of importance to it. This legislation would prevent, for instance, any secret present which might be given by a tradesman or a customer to any person in the employment of another with whom he was dealing. It is a common enough thing, I suppose, for customers of the Bell Telephone Company to send a pair of gloves or some other trifle by way of a present at Christmas to the operator who receives their messages in the central office. If that is done secretly, with the corrupt intention of securing favours thereby at the expense of the company or at the expense of other customers, it is an improper thing. But if that is done openly and above board, there is no impropriety in it. Perhaps the best idea can be conveyed by an illustration, of the meaning to be attached to the word 'corruptly' in the statutes. If the butcher wants to make a present to the cook of one of his customers, and the customer is aware of it, there is not the slightest impropriety; but if he does that secretly and for the purpose of securing custom, then it .becomes a transaction of an entirely different nature. With regard to the gravity of different transactions, let me refer to the article to which I have already alluded in the London 'Times', which gives some instances of prosecutions under the imperial statutes. A fine of one pound was imposed upon a warehouse clerk for having given money to a carter to carry parcels. Of course I am giving a mere statement of the case, as I have not the details, but that was the case of a very trifling offence punished by a fine of one pound. A butcher for sending meals to a cook was fined two pounds. A traveller, for offering a bribe to a hotel keeper for the names of visitors, was fined five pounds -and so on, in increasing severity, according to the gravity of the offence. After all, in the administration of all statutes, a good deal must depend on the good judgment of the official who determines the case, whether he be a justice of the high court or a justice of the peace. It may very possibly happen that justices of the peace are not always men of the soundest judgment, but, when all is said and done, a judge is a judge, and a justice of the peace, no matter how illiterate, may be called upon to pronounce an Act of this parliament ultra vires. We have to take things as we find them, and it would seem impossible to guard beforehand, by any

device of legislation, against the possibility of some one who lacks sound sense and judgment being called on to act under this statute. I may say further that, so far as public officials are concerned, this is no new legislation. We have already, in part four of the Criminal Code, general provisions against bribing or attempting to bribe officials of the government or municipal councils by any form of transaction. Those offences are similar in character, whether committed against the public interest or merely against private individuals. The object of this legislation is not to declare transactions of the character of those struck at illegal. They were always illegal. They were illicit and improper and contrary to the law, but the purpose is to make them punishable as criminal offences in cases between individuals as well as in transactions in which public officials are concerned.

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CON

Thomas Wilson Crothers

Conservative (1867-1942)

Mr. CROTHERS.

Speaking from memory

and without having the Criminal Code before me, I do not think there are any provisions in it which give a single justice of the peace acting alone, jurisdiction to impose punishment to the extent of six months in prison. There are several provisions in the Criminal Code providing for jurisdiction in such cases by two justices of the peace or a police magistrate, but I cannot think of any which gives such power to a single justice of the peace. I would suggest, as a proper safeguard, that some few words should be added after the words 'summary convictions' which would limit the jurisdiction to a police magistrate or two justices of the peace or a judge of a higher court. We know that there are several sections in the Criminal Code which provide for the jurisdiction being in the hands of two justices of the peace or a police magistrate, and some such provision should be inserted here. I also quite agree with my hon. friend for Carleton, N.B., (Mr. Carvell) who spoke in favour of their being some provision for bringing the case before a jury instead of leaving it within the power of a justice of the peace, acting singly, to send a man to prison for six months.

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LIB

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

Liberal

Mr. AYLESWORTH.

To the suggestion that these cases should come before two justices of the peace I make no'objection. There would certainly be some security in that if it be thought that this legislation is so much more drastic than ordinary legislation that it requires to be safeguarded by exceptional provisions. I think that today one justice of the peace, in many cases, tries just as important charges as some might be under this legislation; and it has always to be borne in mind that this is peculiarly the kind of prosecution in which it is quite possible charges may be made out of some vindictive feeling and where

113]

*the public interest is not the motive actuating the accuser.

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LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL.

Notwithstanding the concession made by the Minister of Justice, it does not seem to me to go far enough. No doubt, in his very distinguished career, the Minister of Justice has had the good fortune, to a greater extent than many of us, of dealing with judges rather than justices of the peace. I make no distinction between a j ustice of the peace and a police magistrate, although I know there is a distinction in the statute. I have in my mind police magistrates appointed to certain courts, who are not half as well qualified as^ some justices of the peace. A police magistrate is appointed under exactly the same influence as an ordinary justice of the peace, and we will be going a long way towards jeopardizing the liberty of the public if we place the trial of so important a matter either in the hands of a justice of the peace or a police magistrate. I submit further that the accused should have the right to elect whether he shall be tried before a police magistrate or a jury. From my experience as a lawyer, if you get a case before a jury of twelve men, who must agree on a conviction, you are pretty sure to have a common sense decision, for there is a good deal of common sense in average humanity. If a prisoner has the right to elect for trial by jury, he can have no fault to find if he be found guilty, and he is not likely to be convicted unless the finding is justifiable. I hope that the minister will consent to have some safeguard thrown around the accused and not leave him simply to the tender mercies of even a police, magistrate.

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CON

Herbert Brown Ames

Conservative (1867-1942)

Mr. AMES.

If that phase of the question is exhausted, here is another question I would like to ask, and that is whether this Act would cover the case of a government employee who undertook to solicit subscriptions, let us say, for campaign purposes from persons who are either selling supplies to the government or have contracts with the government, and to whom these officials represent that a lively sense of favours to come or recognition of favours passed, should be sufficient reason to cause them to give subscriptions. Even supposing these subscriptions were used for proper purposes, would they still, under this Act, be a crime?

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LIB

James Conmee

Liberal

Mr. CONMEE.

Will the hon. gentleman not include the agents of the opposition who would write to certain persons that if they wanted appointments or favours or certain measures passed, they could only gain their object by taking a certain course. Perhaps the hon. gentleman will include such agents in his motion.

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LIB

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

Liberal

Mr. AYLESWORTH.

I would think that any such transaction as the hon. member Mr. AYLESWORTH.

for St. Antoine (Mr. Ames) has referred to would be very thoroughly covered by our present legislation without reference to whether or not it would be covered by the Bill now under consideration. In the Bill under consideration the presence of the .word ' corruptly ' might relieve that man from the punishment of this particular statute if the benefit which he was offering was not to go to the person who received it but to some other person and was for perfectly legitimate purposes. But under the existing law, section 158 of the Code, the word ' corruptly ' is not used and any man who

Makes any offer, proposal, gift, loan or promise, or gives or offers any compensation or consideration, directly or indirectly, to any official or person in the employment of the government, or to any member of his family, or to any person under his control or for his benefit, with intent to obtain the assistance or influence of such official or person to promote either the procuring of any contract with the government for the performance of any work, the doing of anything, or the furnishing of any goods, effects, food or materials, the execution of any such contract, or the payment of the price or consideration stipulated therein, or any part thereof, or of any aid or subsidy payable in respect thereof;

Is guilty of an indictable offence and liable to a fine of not less than one hundred dollars, and not exceeding one thousand dollars, and to imprisonment for a term not exceeding one year and not less than one month and in default of payment of such fine to imprisonment for a further time not exceeding six months.

That definition it seems to me would cover entirely the case the hon. gentleman puts. It would not be any the less on offence, for instance, to give money to a government official in order to procure favours from him because it was a stipulation that the receiver of that money should use it not for his own purposes but for some other purpose. If it is given for the purpose of securing a favour which that official is in a position to bestow it is in itself an offence against the provision of the code I have read.

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CON

Herbert Brown Ames

Conservative (1867-1942)

Mr. AMES.

The minister has not dealt with the case I had in mind. He has taken an instance where the contractor approaches an official to induce the official not to do his duty, for a consideration. The point I had was where the official approaches the contractor in order to secure from the contractor a contribution which he will not use for himself but will pass on to other parties but which those men who subscribed understand is a subscription given because they have been faithful in the past or will be in the future.

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LIB

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

Liberal

Mr. AYLESWORTH.

I possibly misunderstood the hon. gentleman's question but under the statute not only is the giver but the recipient liable to the punishment I have mentioned. The statute goes on in a

separate subsection to provide that any one is liable who

Being an official or person in the employment of the government, directly or indirectly, accepts or agrees to accept, or allows to he accepted by any person under his control or for his benefit, any such offer, proposal, gift, loan, promise, compensation or consideration.

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LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL.

This latter discussion only emphasizes the point I have been trying to make. The minister takes it for granted that somebody must decide whether or not this is a corrupt act. In that I agree, the difficulty that I see is leaving the decision in the hands of an illiterate country magistrate to make that distinction. If the country magistrate makes up his mind that he is going to try such a case summarily, and as I read the Bill he has the power to do this, he may send the accused to jail for six months. There is no appeal, and according to the practice in that portion of Canada from which I come his only recourse would be by certiorari and as a rule certiorari only goes to jurisdiction and if the justices of the peace have jurisdiction as they have under this section the defendant certiorari is of no use to him and he goes to jail and stays there six months. If the defendant has the right to full election and he goes before the jury he may be convicted by that jury but you have a judge who charges the jury and must state the law and if he misstates the law there is an appeal to the higher court. So the discussion here about the meaning of the word ' corrupt ' &c., emphasizes the

necessity of giving the defendant the right to say whether the matter shall be tried summarily or whether he will go to the grand jury. I hope the minister will at least consider this before asking to have the legislation passed.

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LIB

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

Liberal

Mr. AYLESWORTH.

I think it would be very dangerous to give to the accused an absolute right of election which would ensure his being tried perhaps before a friendly magistrate. The effect of such a provision would seem to me to be that if there were magistrates who were willing to lend themselves to the purposes of the accused, care would always be taken to have a prosecution of that sort arranged and disposed of before any other charge could be laid. After all, while the danger of trial before a man who may not be qualified undoubtedly exists, as my hon. friend points out, is that danger any greater in the case of an offence struck at by this measure than under the existing law? In that part of the code which deals with summary trials by magistrates we have all manner of minor offences covered and there are already every day in the week all over Canada cases being disposed of by magistrates which are of very great practical consequence to the individuals concerned. I suggest to my

hon. friend whether if these clauses appeared in the code or if the proposition to legislate here were in the shape of a proposed amendment to the code to insert this clause, it would occur to him that there was any greater danger in regard to prosecutions affected by this legislation than with regard to transactions covered by existing legislation.

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LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL.

I do not think there would be any greater danger. I think there is too much danger already and if this parliament has in the past enacted legislation which has perhaps been ill-advised and ill-considered, that is no reason to continue that condition of affairs; if it can be pointed out that this is a case that should be treated differently, around which greater protection should be thrown, I think it is the duty of this parliament to throw protection around the accused in this case. I would not think for a moment that the accused should have the right to say that he shall be tried either summarily or as on an indictable offence, because I would leave some discretion in the hands of the magistrate. But I would go so far as to say that if the accused says he wants this matter to be tried as an indictable affair, then he should have the right to have it tried in that way. But if he says, I want it tried summarily, and the magistrate says, no, it is too grave a matter, of course the magistrate should have the power to send him up for trial. But when I use the word 'election' I mean that he cannot be forced to take his trial at the hands of an illiterate magistrate, perhaps, but he ought to have the right to appeal to a higher court where he can get justice.

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February 16, 1909