August 9, 1917

LIB
CON

Joseph Hormisdas Rainville (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Conservative (1867-1942)

The CHAIRMAN (Mr. Rainville):

I

would like the hon. gentleman to address the Chair.

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LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL:

I will do so. We have the whole night to thresh these things out, and if the hon. gentleman is getting a little plain talk he has only himself to thank for it, and he will find he will get all the talk he wants-*

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?

Some hon. MEMBERS:

Oh, oh.

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LIB
LIB
LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL:

Oh yes he doe3.

He knows that by the Criminal Code, by the legislation of every province of Canada, and by the legislation of Manitoba to which he objects, they could only summon the number of jurors that the judge ordered and thought fit and proper. There, again, I say my hon. friend must assume unfairness on the part of the presiding judge, he must assume crookedness on the part of everybody, in order to justify his position. If he has fault to find, and feels he has been unjustly attacked, he has himself to blame for it.

If be comes in with sectional legislation, designed for the protection of certain persons, and tries to force this thing through Parliament and is hauled over he coals for it, it is his own fault. There is no use pleading for sympathy, or lecturing gentlemen on this side of the House, or making any threats. I hope the hon. gentleman will take a little lesson from what I am telling him, and change his attitude, and that during the rest of the debate we shall not be treated to any more such exhibitions -as we had just before six o'clock and for three-quarters of an hour afterwards.

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LIB

Edward Mortimer Macdonald

Liberal

Mr. MACDONALD:

My hon. friend, in defending a proposal to introduce this measure, gave a dissertation upon the law of juries from the time of Charles I, through

various intervening periods down to the year 1907. All this dissertation of my hon. friend upon this abstract question of law has no more relevancy to the Bill which we are discussing than any academic problem with reference to the constitutional history of Great Britain. After this historical dissertation upon this irrelevant subject, he endeavoured to indicate to this committee that the fact that this legislation was introduced when it had been, and the fact that he wrote the Attorney General of Manitoba and passed Orders in Council dealing with the legislation enacted by the Legis- [DOT] lature of Manitoba, were accidental circumstances. The Minister of Justice's soul was burning over this anomaly which he discovered in the statutes of Manitoba, under which every province in this Dominion has been staggering along, without anybody ever making any complaint about the administration of justice, ever since Confederation. The sudden interest of the minister in this question of jury legislation in Manitoba synchronized-to use that happy phrase which the Minister of Finance (Sir Thomas White) introduced into this House, when he had been engaged in a somewhat similar occupation to that of my hon. friend the Minister of Justice- with certain political events in the Parliament of Manitoba. That there was a synchronism there is no manner of doubt, and the Minister of Justice admits -that he knew that his political friends were about to be tried in Manitoba, but he did not allow that fact to affect him any. Well, we are bound to accept his word, only again we have this anomalous and very peculiar synchronism, which is, to say the least of it, very singular. My hon. friend resents the idea that anybody should suggest any particular motive in regard to this matter, but here are the facts-the House will have to draw its own conclusions, and so will the country. What does my hon. friend say in his Order in Council which he issued in December, 1916, after the first trial of Sir Rodmond Roblin, Mr. Coldwell and Mr. Howdan had taken place, and while they were approaching the period when the second trial was to be held? My hon. friend's knowledge and zeal about the cause of criminal administration in this country became keen, and prompted him to pass an Order in Council on December 9, in which appears this very peculiar statement:

Criminal trials are proceeding in the province of Manitoba; the Parliament is not in session and it will in the ordinary course of things be several months before a suitable

amendment can be obtained to regulate, in a manner compatible with Justice, the right of the prosecution to require jurors to stand by.

According to this Order in Council, criminal trials were likely to take place. What does my hon. friend say to the Government of Manitoba with respect ito these criminal trials? The Order in Council continues :

With a view to the application of the law in accordance with what the minister conceives to be its reasonable purpose, he would be disposed to consider the propriety of disallowance unless the Lieutenant Governor of Manitoba be advised to give an assurance that his Government will see that, pending the consideration by Parliament of the provisions of the Criminal Code to which the undersigned has referred, the prosecuting attorney shall not exercise any right to require jurors to stand aside at criminal cases in excess of that which would have been permissible if section 46a as enacted by the recent Act of Manitoba had not been passed.

That provision of the Order in Couneil is most anomalous. The right to disallow legislation passed by a provincial legislature can be exercised iby the Minister of Justice and the Government in a proper ,case. But here is the synchronism: Sir Rodmond Roblin, Mr. Coldwell and Mr. Howden were to be tried in January. The Minister of Justice says to the Attorney General of Manitoba: I will disallow your legislation unless you undertake not to enforce the provisions of your law with regard to the right to stand by. My hon. friend need not complain about hon. gentlemen on this side making statements or suggesting theories. Here is a statement which I find in the Manitoba Free Press, which gives in detail the subsequent events. The Manitoba Free Press and my hon. friend have not been so far apart within the last week or two. This is what that newspaper says:

It is not in the interests of justice that the Dominion Government threatened to reduce the jury panel to forty-eight. The necessity for such a restriction had never appeared to any minister of justice till the second trial of the 'ex-minister loomed in view. It is not in the *interests of justice that the law which prevails In England and in nearly every Canadian province was to be violated by the Dominion Government. It was to embarrass or prevent the due trial of the three ex-ministers.

No bon. gentleman on this side bas suggested that. But the Manitoba Free Press, a great organ of public opinion, a few months ago thus arraigned the Minister of Justice, charging him with threatening Manitoba by his Order in 'Council in the interests of the ex-ministers. The article goes on:

Why the haste in wiring to the provincial government for its answer? The Dominion Order in Council was dated December 11 and received here-

That is, in Winnipeg.

-about the 16th. The Dominion Government wired for the answer on January 5.

Note the peculiar synchronism. The memorandum from the Minister of Justice reached Winnipeg on December 16, and he was in so much haste for a reply, in view of the fact that these criminal trials were coming on, that he sent a telegram on January 5 asking foT a reply. That action is entirely without precedent in the 'history of my hon. friend's department. The Manitoba Free Press goes on:

Sir Rodmond's illness had not then arrived.

What occurred then? Sir Rodmond Rob-lin became ill, so ill that application was made to the judges for postponement of the trial. The application was granted. The Manitoba Free Press proceeds to say:

When the trial was postponed on account of Sir Rodmond Roblin's illness, the Dominion Government's anxiety immediately abated and five weeks after receiving the Manitoba Government's answer the Minister of Justice "is disposed to think that it is not necessary to recommend any further action with respect to this particular statute."

Sir Rodmond Roblin's trial was coming on in January. My hon. .friend makes out his Order in Council dated December 11, posts it to Winnipeg immediately, and it reaches there on December 16. Not receiving an answer, he wires on January 5: Why havie you not answered? Sir Rodmond Rob-lin becomes ill; the trial is postponed-and my hon. friend's interest in the matter suddenly ceases. Subsequently he receives an answer from the Attorney General of Manitoba. Instead of displaying a continued interest in the matter, he does nothing to prevent the operation of the law; he sends no telegram, he writes not even a letter. But five weeks afterwards he replies that it is not necessary to recommend any further change in that particular statute. And now we have this wonderful piece of legislation in the interests of jurisprudence which my hon. friend dilated upon for two hours this afternoon, and which, according to his view, is so essential in this time of war and stress. The Manitoba Free Press says:

But to save his face he repeats that he proposes, therefore, to introduce into Parliament a measure intended to give effect to his newly and precipitately acquired views of the month of December and to overturn a law of many years' standing.

My hon. friend may complain of the Manitoba Free Press in making these statements several months ago, but neither he nor his colleagues can get away from the synchronism of all these events. The Manitoba Free Press says further:

The threat of disallowance is a barefaced attempt to prostitute the constitutional prerogatives of the Dominion to serve political and personal ends of Robert Rogers and Arthur Meighen-to subvert justice to save personal and political friends-to make the constitution the handmaid and protector of graft and crime. It is a fitting display of the debauchery of the present Government, that it is ready to become the tool of Mr. Rogers in undermining the administration of justice.

That is the statement of the Manitoba Free Press, made some months ago when the events were fresh in the minds of the people of that province. The minister this afternoon did not meet that charge made by the Free Press.

Note the category of events in regard to this matter: The coming on of certain criminal trials, the hastily passed. Order in Council, the .sending of a telegram, the postponement of the trial, the minister's sudden cessation of interest in the. matter, and his holding the Attorney General's answer five weeks before replying. Then, .as the Manitoba Free Press says, to save his face, he introduces this legislation. Is it any wonder that we on this side asked the House this afternoon to divide on the question whether this legislation should be put on the statute book?

Is it any wonder that we call the attention of this House and of the country to the fact that, at this time and under the serious circumstances, this Minister of Justice in this Government turns aside to delay the progress of Parliament in order to pass legislation which had its emanation purely in political conceptions and which would never have been heard of if there had not been criminal trials in Manitoba to be looked after?

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CON

Hugh Boulton Morphy

Conservative (1867-1942)

Mr. MORPHY:

I had an opportunity of saying a word or two on this Bill this afternoon and had I been present in the House when the division was taken, I would have voted against the Bill. I made the statement to-day that I would vote against the Bill unless the minister would satisfy me that it was in the public interest that the Bill should be on the statute-book. I have listened carefully to-night, since eight o'clock, to what the Minister of Justice has had to say, and nothing he has said has satisfied me. The minister said that criticism levelled in this House this afternoon

appeared to be more at himself than at the Bill. Personally, I resent that. I do not think it is fair for a minister to make a matter of that kind personal. When an bon. member, as is his right in this House, rises to speak his mind, I do not look upon that as a .personal matter, nor do I believe that the criticism was so much levelled at the minister as at the contents of the Bill he is putting forward. I see by section 933 of the Criminal Code that this law proposed to be amended has been upon the statute-book for about forty-seven years. I have been patiently waiting to hear something .from the lips of the minister that would justify his tampering with this law. I have heard the criticism of hon. gentlemen opposite and the motives they have imputed. I do not know that they are right; I cannot say that they are wrong. I have not gone into the subject deeply, and I have read nothing about it. But the view I take is entirely different from the view they take; my mind is directed along totally different channels. The minister has gone at great length into what I might term ancient English history to show the origin of the law relating to the powers of the Crown to stand aside in criminal indictments. I did not think that was relevant at all, and I thought it was a bit of a red herring that the minister was drawing across the scent. The point that strikes me is that, assuming that hon. gentlemen opposite are correct in their theory that this law was intended to help political friends in Manitoba, it is quite clearly shown to-day that the need for such a law does not exist, and if that were the motive, the Minister of Justice might reasonably drop his Bill. Since he hangs on with such pertinacity to the pushing through of this Bill, one must seek for another motive, and the motive that I would impute to the Minister of Justice-an Irishman might.be entitled to use the phrase, an unconscious motive-would probably be this. I do not believe that the minister realizes to-night the effect of this Bill. I do not believe he has this Bill in his mind's eye, having relation to the situation that this country presents to-day. With sedition and rebellion threatening us in various quarters of this Dominion, the Minister of Justice brings in a Bill which tends to weaken the power of the Crown to deal with offenders. If there ever was a time in the history of Canada when the power of the Crown should be strengthened, that time is now. I have watched very carefully to find any concrete case of abuse 274J

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given, and I find the minister has absolutely failed to give any set condition which has arisen throughout the length and breadth of Canada which authorizes him to bring forward this Bill. On the eve of a possible crisis in this country, with numerous acts of sedition being committed today, as will be found reported in the Montreal Gazette of this morning, with numerous acts of rebellion threatening to break out, at a time when the power of the Crown should be made supreme, I do not conceive it possible that the Minister of Justice in this Parliament will seriously promote a Bill which intends to sap, enervate, and weaken the powers of the Crown in this country, powers that, as he admits himself, have always been administered fairly. The Crown prosecutors throughout the country have been fair; the judges have-had the weal of the country at heart; they have administered the law impartially, with absolute fairness and rectitude. And, after forty-seven years under the law as it stands giving the Crown the right to compel any number of jurors to stand by, or as we in Ontario say, to stand aside, we find that this Bill is curtailing the power of the Crown by limiting the number of jurors it can stand aside to a maximum of forty-eight. I cannot for the life of me see why the Bill is asked for, by whom it is asked for, or what evil it is intended to cure. If it were the Manitoba situation, that is out of the way. I ask the minister-now that we are in committee, when he can speak as much as he likes, when he is not limited as he. was this afternoon when- we were in the House-to tell me, as a member of this House, what case he wanted to meet, what concrete case gave rise to this Bill and who asked for it. The minister in answer to an hon. gentleman opposite today said: No attorney general of any province of the Dominion asked for this legislation. I waited in vain to hear the minister tell this House of one case which had arisen which constituted an abuse of the statute as it exists. As a professional man I have gloried in the Criminal Code as laid down through the professional genius of the late Sir John Thompson. It has been a model document, a model code of laws, and for myself I feel that the code will exist in strength in proportion to the fewness of the attacks that are made upon it. It is a pity to tamper with the Criminal Code unless good cause is shown. The minister has not shown good cause, and I purpose voting against this Bill at every stage unless I can get some light.

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CON

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Conservative (1867-1942)

Mr. DOHERTY:

With regard to the

observations of the hon. member for Carle-ton (Mr. Carvell) and the 'hon. memlbeT for Pietou (Mr. Macdonald) I feel I have already .sufficiently dealt with what they have said. With regard to what has been said by the hon. member for North Perth (Mr. Morphy), I regret that I have not 'been able to carry conviction to him that there is good reason for the introduction and passing of this Bill. I notice that the hon. gentleman said that he heard my remarks after eight o'clock. 1 do not assume that if he had heard what I said before six 1 would have convinced him. Let me point out that this is not a modification of the law as it existed throughout Canada. It is not at all difficult for the hon. gentleman to .apprehend the question when he looks into it, 'but I must confess that it is a little difficult for me to make quite clear how it is that the difficulty which I think should .be met is brought about. That difficulty does not result from the disposition of the Criminal Code standing by itself. That disposition of the Criminal Code was enacted, I have no doulbt, in view of an existing condition of affairs whereby in four at least out of the five provinces thebe was an absolutely fixed number 'beyond which the panel could not go. I have understood also, in view of the practice at common law, and which had prevailed, if I .am correctly informed-and hon. gentlemen from other provinces rather bore that out this afternoon-that the panel summoned is not more than 48. The situation that this amendr raent is intended to meet is this: under the Manitoba legislation, and under the legislation of four of the other provinces, while in some there is a number for the panel mentioned, and in others there is no number mentioned, in all those provinces the judge may extend the number of the panel. I have been criticised for saying [DOT]an "indefinite " number. I do not mean to convey by the word " indefinite " more than that the judge might summon any number that in 'his judgment he thought desirable. I was at pains to point out that I had no fault to find with that power being conferred upon the judge, -and that there might in many instances be very substantial reasons which would not only justify but absolutely call for the summoning of a veTy large number of jurors. I think I mentioned one case which came to my knowledge of the holding of a court where 150 jurors were summoned. While I find no fault with that possibility, being, as it is, under the control of the judge, what struck me was that out of that

possibility, combined with the provisions of the Criminal Code as it stands, might grow this situation. In the provinces where a fixed number had been created, the Crown was limited in its " stand by " to the full number of the panel. In Manitoba, for instance, that would be 48. But in Manitoba, since the amended legislation, the Crown came to have the right to extend the number ot "stand by" to the full extent of the number of jurors that the court might consider advisable to have summoned. The result, as it works out without this amendment, is that in a particular case the Crown would have the right to " stand by " the entire number of jurors who had been summoned, and properly summoned under those circumstances, instead of only 48. Where there was a limited number to a panel the standby was necessarily limited to that number.

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LIB

William Pugsley

Liberal

Mr. PUGSLEY:

Is it not quite proper to assume that a judge, in making an order for increasing the panel, would always do so with a knowledge that the right of standing aside the jurors existed in the prosecuting officer?

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CON

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Conservative (1867-1942)

Mr. DOHERTY:

The judgp would do so with a ifu'll knowledge of that, but at the same time there might be reasons quite independent of the existence of that right which might make it desirable or necessary to have a very large number of jurors.

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LIB

Charles Avila Wilson

Liberal

Mr. C. A. WILSON:

The number of cases to be tried in a district has nothing to do with the number of jurors. In a rural district, for instance, a panel of 40 will be summoned, and in Montreal and Quebec a panel of 60. By a provision in the law, if the cases are numerous, another panel can .be summoned, and we sometimes see as many .as three or four panels in the same district.

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CON

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Conservative (1867-1942)

Mr. DOHERTY:

Certainly. -The hon. gentleman always speaks from his familiarity with the excellent system-I say it with .all respect-that grows out of the legislation of those provinces with a fixed panel. If your first panel is not sufficient in number, you have the remedy by summoning additional panels. But in a trial before the first panel the Crown may stand aside until it comes to the end of the panel, and then it will have to go back and begin over again, and unless it has reasons to give against any man that it then wants to reject it must challenge. Now, if you proceed on a system where there is a fixed number to the panel, the abuse which ap-

pears to me to be possible is protected against, and you would not need this legislation. But it is because in certain of the provinces a panel might be of a very large number that the legislation is needed.

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LIB

Charles Avila Wilson

Liberal

Mr. C. A. WILSON:

Would my hon. friend allow me to make a suggestion? I agree with the remarks made by the hon. member for North Perth (Mr. Morphy), who has convinced me more than any one in this House, without referring to the Manitoba question at all, that we are dealing with a more serious amendment to the Criminal Code than people imagine. I cannot foresee the extent of the effect of this new legislation. The minister says that, as far as the provinces where a limited number of jurors composing a panel is fixed, His Majesty's justice is protected, and the subject is also protected. That being so, it is very easy to infer that there are some provinces which have an unlimited number of jurors. The suggestion I make is that the Minister of Justice should enter into a conference with, or communicate with, the Attorneys General of those provinces which have not improved their law, and ask their opinion, or suggest that they should enact at the first sitting of their legislature an Act to restrict the number of jurors, in order to have uniform legislation, so far as numbers is concerned. The number may vary according to the population or the needs of the centres where those jurors may be called upon to sit. Then, if there is any complaint, a general measure of this kind may be passed.

While I am on my feet, I would like to draw the attention of the minister to one part of the Bill, and ask him how it will work out. Take, for instance, the last words "upon special cause shown." My experience before the criminal courts is this: My hon. friend from Montcalm (Mr. Lafortune) is Crown prosecutor in Montreal. He may simply say to Juror No. 1 in case, "Stand aside," and may go through the whole panel in the same way. If he oversteps the number of forty-and this cannot happen unless we are in a rural district after talesmen have been called-if he "stands aside" the forty on the panel, he will not have exhausted the privilege he has under the law.

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CON

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Conservative (1867-1942)

Mr. DOHERTY:

This legislation does not say that he shall in all cases have the right to forty-eight, even if the panel is not forty-eight. It limits him as an absolute right to forty-eight. In the case where there are only forty, if the jury is not exhausted by challenge or otherwise, after you have

stood aside the forty then you come back and go over them until you finally get a jury, or challenges have prevented you from getting one. That is when the jury panel is exhausted, and you resort to talesmen. This amendment deals with the right to "stand by" with regard to the panel, and it limits to forty-eight. Of course it does not mean or at least it was -not intended to mean, that where the panel is less than forty-eight the Crown will still have the right to "stand by" forty-eight. Where the panel is only forty, the Crown is restricted to forty "stand bys."

Mr. PUGSLEY. In what districts is the panel sixty?

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CON

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Conservative (1867-1942)

Mr. DOHERTY:

In the districts of Montreal and Quebec.

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LIB

William Pugsley

Liberal

Mr. PUGSLEY:

The minister is speaking of the great advantage of a limited panel. Why does he try to- pass a law by which in the province of Quebec, where there is an admirable limited panel, counsel representing the Crown can only cause forty-eight to stand by, leaving twelve over whom he is absolutely powerless unless he can challenge for cause?

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CON

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Conservative (1867-1942)

Mr. DOHERTY:

I had not quite concluded what I had to say in answer to my hon. friend from Laval (Mr. C. A. Wilson).

I am not wedded to the particular number, forty-eight. When I was making the limitation I had in mind that it should be of general application, and forty-eight was the number which has become law by practice.

I am not suggesting that there was at common law any restricted fixed number, but in practice forty-eight was the usual number. In Manitoba, whose legislation we were dealing with, that was the maximum number in any district. In the districts outside of Winnipeg it was thirty-six, I believe. Taking the two districts I have mentioned in Quebec, I was depriving them of twelve. On the other hand, I was taking a number which I thought was a fair average of the provinces which have fixed numbers. It may be that it would be wiser to keep this restriction down to what is the maximum number in any province having a fixed number, and I would have no objection to considering that suggestion.

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LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL:

That simply shows the danger and difficulty of tampering with a well-recognized law. If you apply that proposition you will get the fixed number down to twenty-one in New Brunswick, which would be ridiculous.

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August 9, 1917