House in committee on Bill (No. 31) to prevent the payment or acceptance of illicit or secret commissions or other like practices.-Mr. Aylesworth.
On section 3,
Hon. A. B.@
AYLESWORTH (Minister of Justice.) When this Bill was in committee, a week ago, its various provisions were considered, and the question now remains of the preamble. Since then I have had the opportunity of giving some consideration to the views that were expressed by various members, and I must say that my ideas with regard to the procedure under this Bill, should it become law in its present shape, are entirely in accord with those expressed by my hon. friend from North Mr. E. L. BORDEN
Cape Breton (Mr. McKenzie). I think that the provisions of our Criminal Code, as regards the procedure of all criminal cases, would apply to the procedure under this measure, without any necessity for special mention; but there can be no objection to that being made abundantly clear if, in the opinion of the committee, or of any hon. member, that is desirable. That can be accomplished by adding to the Bill a section providing that this Act shall be read as if its provisions formed part of the Criminal Code.
With regard to the responsibility which the Bill casts upon a single magistrate in case a prosecution for an infraction of it were to be disposed of summarily, my hon. friend from West Elgin (Mr. Crothers) seemed to think it would be an anomaly to give power to a single magistrate, on summary conviction, to sentence for even six months. But if reference is had to our Criminal Code, it will be seen that there are many offences, specifically mentioned in that Code, as it has stood now for nearly seventeen years, of at least equal importance to minor offences under this Bill; and some of the offences that I have in mind in the Code are of even greater importance than perhaps a serious infraction of this measure would be, with respect to which the same provision is made as to the method of trial, namely, either upon indictment or upon summary conviction. Let me refer to one or two, and there are at least a dozen, as showing what important matters have been dealt with and what serious punishments have been, in some instances, imposed under these provisions, without, so far as I am aware, any one considering that any danger has been incurred. Under section 409 of the Criminal Code, any one who is guilty of personation at an examination for the Civil Service is liable, either on indictment or summary conviction, to one year's imprisonment or a fine of $100. There you have power given to a single magistrate anywhere in Canada, on summary conviction, to sentence an offender to one year's imprisonment. My hon. friend from West Elgin (Mr. Crothers) was under the impression that in no case had a single magistrate the power to inflict imprisonment for a longer term than six months, but I have cited one instance in which he may, in his discretion, impose imprisonment for twice six months. Then there are several instances in the Criminal Code in which offences, such as in this Bill may be punished on summary conviction, may be tried before one magistrate only. For instance, section 208, prohibits the production upon the stage of immoral performances, and every one guilty of such an offence is liable to punishment on indictment or summary conviction; and if convicted on indictment is liable to one year's imprisonment, with or without hard
labour, or a fine of $500 or both; and if on summary conviction, to six months' imprisonment or a fine of $50 or both. That is an offence against public morals at least as serious as a minor offence would be under this Bill. Section 440 is another instance of several in which the punishment is prescribed, in the same language as in this Bill, upon indictment or conviction, and where one magistrate may try the case and has power to impose six months' imprisonment- with or without hard labour. That is the section which makes it an offence to buy or deal in seaman's property, where the danger, I suppose, is that it may not be the property pf the seaman himself, so that these are at all events, two instances in which for years past we have had legislation in identical words with those in this Bill, and with regard to which I have not heard any complaint or suggestion of amendment. 1 would think therefore that we could adopt this Bill as drawn, but I am not wedded to the exact language used; and if in the opinion of hon. gentlemen it would be better that we should not allow a summary conviction under this measure to be proceeded with before a single magistrate, it is easy, by inserting two or three words, to secure that there shall always be two magistrates sitting on a prosecution under this Bill.
I have no objection to that being done n it is preferred. But with regard to the difficulties which were felt by my hon friend from Carleton, New Brunswick (Mr! Carvell), I must say that I do not see how we could properly upon the face of any legislation undertake to discriminate between magistrates. The fear that my hon. friend expressed was that a prosecution under this statute might be brought before some magistrate who was not really qualified, who ought not to have been appointed and that the interests of the person charged might therefore suffer. Well, I am afraid that that might be the case with any other charge levelled against a man under the Code as we have it. It is not the function of the central government to appoint magistrates throughout the Dominion, and we must, I think, give credit to the local authorities that they will only appoint as magistrates men who are qualified for the discharge of their important duties. As I said a week ago, a judge is a judge, and a magistrate is a magistrate; and if he has been placed upon His Majesty's commission of the peace, and has qualified himself to act in accordance with the requirements of the local laws, I do not see how it is nos-sible for us to discriminate between individuals or to place upon the statute-book of the Dominion any legislation which would seem to imply that there may be magistrates acting in the country who are not properly qualified by education or by common sense to discharge the important
duties of their office. If we require that a prosecution under this statute be heard before two justices of the peace, we have at least the additional guaranty that two would give, and the chance that one of them at least may not labour under the disqualification which my hon. friend from Carleton is afraid of.
I would like to inquire from the hon. minister whether he has considered the suggestion made to him of amending this Bill in such a way as to give the accused the right to select the form of his trial-whether before a justice of the peace, or upon an indictment before a jury?
I expressed my views as to that when the Bill was last in Committee. I would not think it desirable that the accused person should have any greater right of election as to the manner of trial upon a charge under this Act than he would have under the general law. Under the general law he has certain rights, and, if he prefers to go before a jury, he would have identically the same rights under this statute.
When this matter was before us last week, some of us had not looked carefully into it, and amongst that number seems to have been the Minister of Justice himself. I was speaking at that time from memory, and I think now that the sections to which my hon. friend has reference, to illustrate cases that could be tried by a single justice of the peace, are modified by other sections in the Act. Perhaps my hon. friend has not looked at section 707, which provides:
Every complaint and information should he heard, tried, determined and adjudged by one justice or two or more justices as directed by the Act or law upon which the complaint or information is framed or by any other Act or law in that behalf.
So that if this Bill were left as first presented to us, one justice of the peace under that section would have jurisdiction to determine the question. However, if my hon. friend is right, that under these other sections one justice of the peace could dispose of the matter, I submit that we should not extend such cases. I do not approve at all of giving an ordinary justice of the peace the right to determine a matter of so much importance as this, involving a sentence of six months' imprisonment. If the committee will allow me, I would like to say a word or two on the general principles of the Bill. I understood my hon. friend the Minister of Justice to say the other day that this Bill was not at all necessary for the protection of the government; and I think he was quite right in that. As long ago as the year 1891, very extensive provisions were made in the Criminal Code for the protection of the government in such transactions. Then, is the Bill neces-
sary in any transaction? I do not suppose my hon. friend would claim that this section ought to be applied in a case where a vendor of goods induced an agent of a purchaser to purchase from him at regular prices and of as good quality as he could get from any one else, the bread, say, that he might need for a year, and gave him a present of five or ten dollars at the end of the year. That would not be corruptly done, I fancy, because the employer would not in any way be defrauded or lose anything. The only case that occurs to me in which this Bill might be applied in private transactions would be where the agent entered into an arrangement with the vendor to pay him say a cent a pound more for bread or meat or any other articles than he could buy it for elsewhere, agreeing to pay him a certain sum of money if he would carry the arrangement out. But this Bill is not necessary at all in a case of that kind, because that would be a conspiracy between the agent and the vendor, for which there are ample provisions in the Criminal Code today. So that, as this Bill is not at all necessary for the protection of the government, and as it meets no case between private individuals which is not already met by the provisions of the Code, this Bill is absolutely unnecessary.
Of course, whatever effect section 707 of the Code has upon other sections of the Code, exactly the same and the like effect it would have upon the provisions of this Bill, because this Bill is to be read as a part of the criminal law. The subsection of section 707 to which the hon. gentleman has referred is simply a provision that if there is no special direction in any Act requiring a complaint to be heard before more than one justice, then it shall be heard before one justice. That is what I have been pointing out. I am quite content, if my hon. friend from Elgin thinks it would better this legislation, to insert in the Bill a provision that a summary prosecution under the Act shall be heard only before two justices. That can be secured at once by inserting the words ' before two justices ' after the word * conviction,' in the fourth line of section 3. All one has to do is to add the words ' before two justices ' and he accomplishes that purpose. Otherwise, certainly one justice would have juris, diction. I do not see any danger myself in allowing one justice of the peace to try an information under this Bill, but I am quite content that it should be limited to two.
As to the necessity for this legislation, I had thought that every one in the House and out of it was well agreed, and I suppose the fact that it has passed its second Mr. CROTHERS.
reading is a very clear intimation that this House considered the principle of the Bill unobjectionable, if not necessary.
I might say to my hon. friend, since the question has been raised, that I have had,
I think, at least half a dozen applications from wholesale manufacturers and wholesale firms of long standing in the business community of this country, since the Bill was under discussion here a week ago, asking for copies of the Bill, and expressing in every instance their strong approbation of the principle of the measure, and their hope that its language might be made wide enough to extend to cases of commercial immorality or dishonesty which, in their view, tended to lower the standard of ethics, if that word is not inappropriate, in the trade of the wholesale dealer or manufacturer. I think there is every necessity for legislation of this character, and that the insidious effects of secret commissions are permeating every business and every trade and calling in this country. I can only say to my hon. friend that even the honourable profession to which he and I have the pride to belong, is not entirely free from the effects of just this sort of thing. I have in memory at the present time a case where a man to whom a little advertising had been given for a client, in the course of the legal business with which I had been for a good many years connected, came to the office with two bills for his advertisement, one substantially larger than the other, and offered to take payment of the smaller, producing the other as the one that should be shown to the client and charged up against him. I think any man guilty of that sort of thing was simply offering a bribe, and that the man who would be willing to accept such an offer to the disadvantage of his client, ought to be punishable under the criminal law.
My hon. friend refers to a section making it an indictible offence to conspire to defraud. I think my hon. friend's experience will agree with mine that a charge of conspiracy is a flexible kind of charge which sometimes it may be convenient enough to bring, but which, generally speaking, is difficult enough to establish. I would not be willing to leave to a prosecution under a general section relating to conspiracy to defraud, the kind of thing I have just been referring to.
I commend the object of this Bill in every particular. But I would like to draw to the attention of the hon. Minister of Justice the fact that in 1892 the criminal law of this country was consolidated and codified. Under the present administration in 1906 all the amendments to the criminal law of this country were revised and brought down to date. This is
only as it should be, in order that the whole criminal law of the country may be found in one volume. I would like to ask the Minister of Justice if he could not find it convenient, instead of introducing a Bill such as he has here, and in regard to the operation of which some members of the committee anticipate some difficulty as to whether a case should be tried before one justice of the peace or two-could not the minister, instead of introducing this Bill, attain his object by adding one single section, namely, section 3 of this Bill ? If that were done, the Criminal Code would be complete with regard to the machinery for administering the law, and there could be little uncertainty with regard to it which would be a preferable course to taking one section, and putting it in the statutes apart from the Code, where magistrates and justices of the peace whose duty it would be to administer this law, might have some difficulty in finding it. For instance, if the Minister of Justice will look at section 158 of the Code, under part 4 'offences against the administration of law and justice ' subsections (e) and (f) of that section provide for the punishment of this identical offence where it is committed against the government of the country. Now, if the Minister of Justice would add this section 3 to that section, or would put it in as section 158a of the Code, then it would serve the purpose while still preserving the consolidation of the criminal law, and we would have the machinery in that identical volume for its administration. There is another aspect of the matter. It seems to me that there is an element of uncertainty in regard to the enforcement of this Act as it is now proposed. Section 3 says :
Every one is guilty of an offence and liable, upon conviction on indictment, to two years' imprisonment.
It does not say that the offence is an in-dictible offence, but is an offence, and the person is liable. Further on it says ' and on summary conviction.' Now if the minister will look at section 707 which was read by the hon. member for Elgin, where power is vested in one justice of the peace to try under summary conviction, and if he will then look at part 16 of the Code which is entitled ' Summary trial of indictable offences,' there may be some difficulty for a justice to determine whether he should proceed under part 15 pf the Code or under part 16, whether the summary conviction referred to in section 3 of this Act would have reference to summary conviction under part 15 or to summary conviction under part 16. I submit that a conviction made under either one of these conditions would be a summary conviction-one a summary conviction, of that which would not be an indictable offence, and the other a summary conviction of what would be an indictable offence. Under section 16 of
the Code the jurisdiction is vested in the court absolutely in certain cases which are outlined there. This may be made one of those cases so that the accused would not have the privilege of electing as he has the privilege of electing under that section if, in the opinion of the Minister of Justice, the prisoner should not have the right of electing. Unless such a provision were made he could, under section 778, have the right to elect if they were proceeding against him by indictment.
I submit, Mr. Chairman, that it would be wisdom on the part of this committee to add a section to the Criminal Code instead of having a small Bill of this kind stuck into the statutes of 1909, and which will not find its way into the Criminal Code until the next revision. It will mean that every time a prosecution is brought under this Act every justice of the peace will be obliged to have a copy of the statutes of 1909. As the matter stands now, when amendments are made to the Code, notice of the amendments is sent to justices of the peace and stipendiary magistrates in different parts of Canada. If this were put in as an amendment to the Code it would preserve the consolidation and solidarity of the criminal law and it would be incorporated in one volume so that the tribunal which had the administering of it would know where to put its finger upon it when the occasion arose. With regard to the objects of the Bill, I think, with the Minister of Justice, it is wise that the provisions of it should go through. Section 444, as quoted by the hon. member for West Elgin (Mr. Crothers), would not cover the case outlined by the Minister of Justice, because there would have to be two persons charged with the offence in order to convict of a conspiracy and unless both were convicted you could not convict either. I think that is a matter of law that is well recognized.
I have no doubt that if this legislation had been a part of our law at the time of the revision of the statutes it would have been placed by the revisers in the Criminal Code as an additional subsection to section 158. When considering the shape which it would seem best to give to this legislation before introducing the Bill that view presented itself and was one of the things to be taken into account. There would have been no harm certainly, and I think identically the same legal effect would have been accomplished, if this Bill had been introduced as an amendment to the Criminal Code by inserting in it the provisions of section 3 immediately after the present section 158. But, in my own mind, I thought the course which I have adopted was the better. This was a measure which was passed in England a few years ago after long discussion and after attracting a great deal of public attention. It was considered there
so important as not only to be the subject of a special or a separate Act but also to receive rather extended notice in the speech from the Throne. I thought it certainly would do no harm to follow the same course in this country and that it would have at least this good effect that it would attract more general public attention to the legislation than possibly it would have received had it been introduced amongst a number of other amendments to the Criminal Code. If the Bill is to be read as part of the Code, as I think should be the case, and as I am proposing now as a special enactment, the legal effect will be precisely the same as if it had been introduced by way of amendment, and when the law comes next to be revised this Act will no doubt be incorporated in the Code by those who are revising it. '
I understand that even with the additional clause providing that this Act is to be read as forming part of the Criminal Code, and that all the provisions of the Criminal Code as to the trial shall apply, still there would be nothing in the provisions of the Criminal Code that would operate to give to the accused any option under any circumstances as to the tribunal which would try him. He may be proceeded against under the provisions here by summary conviction. I understand that he may be tried undeT part XV of the Criminal Code by one magistrate. It would be only in the event of the magistrates determining to treat the matter as an indictable offence that it would then possibly come under the operation of part XVI of the Code and, if I understand it rightly, the only effect of that would be that if the magistrate were proceeding to treat it as an indictable offence the accused would be entitled to the option of being tried before the magistrate by his own consent. I am speaking subject to correction, of course, not claiming to have carefully examined the whole Criminal Code, but it appears to me that if this Bill passes in its present form there will be no option given to the accused by which he may avoid trial by the magistrate or a justice of the peace, or by two justices of the peace, if the Bill be amended to make two justices of the peace to be necessary. I might say that I do not feel that there is any great improvement in providing for a trial by two justices of the peace, because if the state of mind of this House is that one justice of the peace is not a person to be trusted to conduct this trial I do not think there is very much more guarantee in getting two gentlemen neither of whom is to be trusted to try the offence. But even assuming that to be an improvement, it does not seem to me that you are getting a situation where the accused will ever have any option by which he will secure a trial before a superior court of criminal juris-Mr. AYLESWORTH.
diction, but that the matter will rest with the magistrate or justices of the peace and with them only. While I understand that the hon. Minister of Justice (Mr. Ayles-worth) says that the passing of the second reading of the Bill implies the approval of the principle of it, it does seem to me that there are some considerations bearing directly on the desirability of the legislation, which should move us to be particularly careful in securing to the person charged under this novel legislation the advantages of a trial by a superior court. It is to be pointed out that the effect of this legislation is to make a criminal offence something which, in itself, is a violation of a contractual obligation, and therefore something which in its nature is a proper matter to be dealt with by a civil court.
I do not want to be understood as saying that there are never cases in which the violation of contractual obligations may take such form or be accompanied by such circumstances as to make them proper to be constituted criminal offences by legislation. But what I desire to point out is that when we take this thing which in itself is only a violation of a contractual obligation and consequently in its nature proper to be dealt with under civil legislation and by civil courts, and make it a criminal offence, we should at least be particularly careful to see that we entrust the trial of it to a tribunal which we can be absolutely satisfied will be competent to deal with the questions which may arise. I do not know that I need justify my proposition that the act itself, dealt with by this Bill is a violation of a civil obligation. If so, it were only necessary to point out that the reason the taking of the commission under the circumstances provided by this Act is objectionable at ail, is because there exists between the person taking the commission and the person for whom he is acting the contractual relation of principal and agent. If that relation does not exist there is no offence under this Act. Therefore, as a first essential of this being a criminal offence there must exist a contractual obligation between the person taking the commission and the person in connection with whose business he takes the commission. Now, whether or not such a relation does in reality exist may become in any trial of this kind a very doubtful question. Those of us who have had occasion to know something of the litigation in civil courts, know that very frequently it is an exceedingly delicate question to decide whether or not the relation of agent and principal does or does not exist between two persons. Whatever the court that may be called upon to try an offence under this Act, it will have as a first question to decide whether or not the relation of agent and principal existed between the accused and the person in con-
nection with whose business the accused received the commission. I do not at all dispute that in the great majority of cases that may be a very simple question, but cases may arise in which it may become a very delicate matter to decide, and in view of that we should take particular pains to make sure that if the accused and his advisers should feel that justice will not be done unless they are enabled to have that question passed upon by a court of superior jurisdiction, it should be within the power of the accused to secure that right. Personally I feel so very strongly impressed with the idea that such things should more properly be dealt with by civil law and by civil courts, that I am inclined to very seriously doubt the desirability of transferring them to the criminal courts at all. It seems to me that even though there may be a considerable evil existing in this connection, the providing of an adequate remedy might very well be left to the provincial legislatures which are charged with legislation on civil matters. Under the civil law the agent who takes a commission of this sort is already liable to his principal for the amount he receives, and I would think you would find an adequate remedy for this abuse by a provision of the civil law that would make the person giving the commission jointly and severally liable with the agent of the principal. Nor do I think you would be going beyond the scope of the civil law if you provided that as a penalty, or as a species of liquidated damages he should be made liable for a larger sum than the amount of the commission, say the double. If the civil legislation can find an adequate remedy it would seem to me that it is much more desirable that the matter should be left to be so dealt with. As a general principle it is not desirable to create or to invent new crimes. No doubt practices which up to a certain date have not been looked upon as criminal may very properly be made the object of criminal legislation when they become more prevalent and when they constitute a danger to society. I am not disputing that proposition, and I am ready to assume that the Minister of Justice has information which justifies him in considering that this particular offence may have reached that stage. But admitting that to be the case, when we come to create this new crime and when there are involved questions of the contractual relations of the parties towards each other, then I think that when we are transferring offences of this class over to the Criminal Code we should at least be careful to see that the persons accused under this legislation shall have an opportunity of having the matter passed upon by a tribunal which this parliament feels confident would be competent to deal with the very complicated questions which may arise.
I certainly entertain the .most, sincere respect for any opinion, especially upon a legal question, which the hon. gentleman from St. Anns (Mr. Doherty) would express. But I cannot agree with his view that the civil remedy which now exists, and which I suppose has always existed, would be adequate for an offence such as is struck at by this Bill. If my agent for the purpose of negotiating any business arrangement with another man receives from that other man a secret bribe, it is the law now, and I suppose it always was the law, that on my discovering that fact I would have by civil proceeding the right to compel my agent to hand over to me the amount he had so received as a bribe. Tt was always an illegal thing on the part of the agent to do such an act at the expense of his principal. But surely it cannot be seriously contended that recovery by the principal of the amount which his agent may have received as a bribe is any adequate punishment upon the faithless agent, or any adequate redress to the man whose agent has been bought and whose interests may have been sacrificed by that agent to many times the amount of the bribe. The whole purpose and intent certainly of this legislation is to make such conduct on the part of both briber and bribed a criminal offence. It seems to mo very necessary that that should be done, and I can only say that I have assumed the House had unanimously concurred in that necessity in affirming the principle of the Bill by the passing of the motion for its second reading.
Bill reported, read the third time, and agreed to.