August 9, 1917

CON

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

Conservative (1867-1942)

Mr. DOHERTY:

As I was making a law of general application, I was trying to take a number that might be-not right up to the maximum or right down to the minimum-but that might fairly be. considered a general number. As I have already stated, it is the principle that seems to me important, and if it be thought that there would be an advantage in saying sixty rather than forty-eight, I would be open to consider the suggestion. The hon. member for Laval has stated that I should take the matter up with the Attorneys General, and suggest to them that they should-in the case of Manitoba, at all events, and any other provinces which may have at any time fixed a number by statute-revert to that number. I would not have any particular objection to doing that, but if I did it I would be undertaking to intervene with the province with regard to the sort of legislation they should enact concerning a matter which they would most strenuously claim to be within their own jurisdiction, and which I am prepared to admit for all practical purposes in regard to this present measure, is their constitutional prerogative.

I had ventured to communicate with the Attorney General for Manitoba, and, whatever we may think about our own respective languages, his reply was not of a kind to indicate that he welcomed or was delighted with my intervention.

Mr. PUG'SLEY: He did not like the bluff.

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CON

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

Conservative (1867-1942)

Mr. DOHERTY:

That was his interpretation possibly. At all events, he did not like my intervention. I think we may all agree that he did not like my intervention, and then we will get peace. There may be a perfectly good reason for the provincial authorities claiming that I should not interfere with the right to say what number of jurors should be summoned. But on one thing, with all respect for the opinions that have been expressed, I think we all agree, and it is that this Parliament has responsibility, whatever action it ought to take, for the criminal procedure. If my view is sound, that there should toe an amendment in our criminal. procedure, it is merely because the action of the provinces in the exercise of their right and ifor their own legitimate purposes, has created a situation-which I do not suppose they had any desire or intention to create-in which, by reason of this unlimited provision of the Criminal Code, abuse to the detriment of the liberty of the subject may become possible.

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LIB
CON

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

Conservative (1867-1942)

Mr. DOHERTY:

The hon. gentleman has made that argument before.

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LIB
CON

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

Conservative (1867-1942)

Mr. DOHERTY:

I have tried to meet that argument, and I think I have driven it absolutely home.

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LIB
CON

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

Conservative (1867-1942)

Mr. DOHERTY:

I am not finding fault with the hon. gentleman if he thinks it useful. I dare say that one is obliged to repeat what he has already said, tout may I point out that I got on my feet because I was asked to do it. I was not endeavouring to make any undue repetition. My own conception was that possibly we should get as good a result and possibly save some time if, after I had heard the observations that hon. gentlemen were prepared to make, I should try to deal with them all in one speech. But it was considered better that I should reply after my hon. friend from Perth (Mr. Morphy) had spoken, and I was quite willing to acquiesce in that view. But I do not want to claim for myself exemption from having repeated, nor do I intend toy my suggestion to find fault with my hon. friend (Mr. Pugsley) for insisting on his argument. I only want to say that if .my observations do not carry conviction, yet, in so far as I am able to give a satisfactory answer, I have given that answer.

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LIB

William Pugsley

Liberal

Mr. PUGSLEY:

These things may impress other members of the committee. What the committee, will do does not depend entirely on what the minister says.

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CON

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

Conservative (1867-1942)

Mr. DOHERTY:

The remark was addressed to me. I do not wish to curtail the hon. gentleman's privilege of reiterating any argument that he may think proper. I was trying to complete what I thought ought to be said in answer to my hon. friend from Laval (Mr. C.

10 p.m. A. Wilson). I do frankly think, if the provinces see it that way, that the best way would be for them to fix a unmber for their panels. I quite recognize that there may be conditions in a province of which I know nothing that might make a larger panel desirable from their point of view. The hon. member for

Laval apparently thought that it was desirable that there should be a limited number of challenges. The best way to get the result desired is to deal with the matter by the Criminal Code.

In regard to my hon. friend from North Perth, one thing which struck me very forcibly was his suggestion that this was an unfortunate time, by reasons of conditions that may exist throughout the country, to weaken the powers of the Crown. I submit with deference to those who may not agree with me that it was not in my conception that in doing what I was doing I was weakening the powers of the Crown, because I have not suggested that there should be an absolute limitation on the rights of any one. The Crown has always this recourse open to it. The judge who is sitting there will determine whether there shall be an extension or not, whether the conditions which my hon. friend from Perth pointed out exist in such a way as make it desirable, for the maintenance of order and the enforcement of law, that there should be a wider exercise of the right of " stand by." I should think that the hon. member would agree with me that we may safely trust to the courts to recognize those conditions. The proposed legislation does not end the right to " stand by," it simply lays down a rule for ordinary application open to variation under those circumstances and conditions in which a particular case presents itself affording good reason for an extension. I should be very sorry to think that it would be in anybody's mind that I was actuated in the introduction of this legislation by any motive of weakening the powers of the Crown to enforce the law at the present time. That was very far from my conception when I introduced the Bill. In some respects I think the hon. member will agree with me that some of the conditions that he has in vtiew, if they existed at all at the time of the introduction of this Bill, have perhaps been brought still more closely* to our attention since then. Frankly, I should not apprehend that a provision of this kind would in any way endanger the powers of the Crown with re, gard to the enforcement of the law; my confidence in the judiciary is quite too great for that. I would like to repeat one thing which I said this afternoon and which I think meets a great many of the objections that have been made.

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LIB

William Pugsley

Liberal

Mr. PUGSLEY:

The judiciary have lately not always given evidence that they are all worthy of confidence.

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CON

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

Conservative (1867-1942)

Mr. DOHERTY:

I do not know why lately more than any other time. We have had evidence of the existence of a difference of opinion between judges from time immemorial, and which will continue, to the advantage of the profession to which my hon. friend and myself belong. We have both had to congratulate ourselves upon the fact that judges came to different conclusions on the same evidence and on the same arguments. I was going to say that what seems to me to have been a conclusive answer to the objections that were lodged is that the same authority which under the provincial law controls the determination of the number of the jury panel, under this law which gives the Crown forty-eight challenges without the intervention of the judge, also controls how much further the Crown should be allowed to go in the exercise of the right of "stand by."

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LIB

Charles Avila Wilson

Liberal

Mr. C. A. WILSON:

I understand that

the " stand aside " number would be 48, and more if the presiding judge at the trial, upon special cause shown, so ordered. Those words, " upon special cause shown ", perplex me. When the Crown says, "stand aside", I would not dare, as an attorney for the defence, ask the Crown prosecutor what his reasons for that request were. 'That would not be proper. What reason would be given by the judge? He will have to give the reasons in public why he gives the Crown prosecutor the power and privilege to order a larger number than 48 to stand by. Would he give those reasons? No. The Crown prosecutor may represent to the court that about 50 of the 100 of the new jurors that are called are Liberals, and this is a Liberal case, and the judge may permit the Crown to extend the "stand asides" to 56 or 58. Or, take the reverse case and suppose they are Conservatives, how can

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CON

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

Conservative (1867-1942)

Mr. DOHERTY:

I pointed out this afternoon what I understood would be the position in that regard. I do not understand that it is a question of whether one individual is going to be told to stand by. As the matter stands at the present time, my hon. friend, the member for Montcalm sits in His Majesty's court, where he prosecutes criminals.

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LIB
CON

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

Conservative (1867-1942)

*Mr. DOHERTY:

And my hon. friend

from Laval sits at the desk and defends the accused, and he likewise shines. Now, my hon. friend from Montcalm has "stood by " forty-eight. He proceeds to ask another man to stand by. The hon. gentleman from Laval, if this law passes, will object. The hon. gentleman from Montcalm says, " I want to show to the court that there are special reasons for my going further." I do not think the hon. gentleman from Montcalm would dream of suggesting that the next dozen jurors were Liberal or that they were Conservative, or that he would give any reason of that sort. But there may be perfectly good reason. I think you might find the existence of certain conditions in the public mind which might constitute a reason. The hon. gentleman no douibt has had occasion to move for a change of venue.

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LIB
CON

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

Conservative (1867-1942)

Mr. DOHERTY:

It is not identical, but the same causes might justify the extension of the right to "stand by." The law. moreover, does not lay down any rule for the judges, but leaves the matter in his discretion to say-upon special cause shown to him, which he thinks makes it desirable for the good administration of justice-that the right of "stand by" should be extended. Very cognent arguments have been put forward here, and instances given of cases where the "stand bys" should go beyond 48. These same arguments would be put before the court, and the conditions outlined in suggested cases might possibly exist, and the court would determine, in the exercise of its judgment and discretion, whether that was sufficient cause for the extension of the right to "stand by." I do not quite grasp why the hon. gentleman apprehends difficulty in that regard. There are many similar matters of procedure, where the judge is left a discretion as to the application of an absolute rule or its extension, and I do not think we need apprehend that any judge would look upon reasons such as have been suggested as applicable in any case I can conceive.

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LIB

Daniel Duncan McKenzie

Liberal

Mr. McKENZIE:

I regret very much that the Minister of Justice should suppose we had no purpose in discussing this Bill but to find personal fault with himself. I am sure nothing could be further from my own mind than to give direct personal offence to the Minister of Justice. But the hon. gentleman knows that one's conduct and

[Mr. C. A. Wilson. 1

acts can well be criticised without any personal offence being intended. I may be promoting a certain line of religious belief that would be absolutely objectionable to the hon. Minister of Justice, and which he could abuse and tear to tatters and characterise as absolute heresy, and at the same time have no intention of saying anything against me. In like manner, it is quite open to us, I think, to criticise this Bill, and criticise it particularly because of its genesis, and the conditions of the country, and particularly the conditions in Manitoba, where this trouble originated. In this House it is well, perhaps, that we should be keen on the scent of anything that may savour of trouble, or savour of any undue exercise of the power of the minister or of the Government, particularly in the administration of justice; and it is better that we should err by going too keenly after matters of that kind than that we should sleep at the switch and allow matters to go on which would tend to abuses and lead people to believe that in the administration of justice, as well as other things, there was* pull, and that the man who got clear was the man who had the big pull while the poor man, who had few friends at court, had no chance to escape. It would he a deplorable condition of things if that idea got abroad, and it is perhaps better that fault should be found with the Minister of Justice when he does not deserve it than that too * much latitude should be given, in the other direction. I have in my hand copies of a series of telegrams proven in court, and I think when the Minister of Justice hears them he will be perfectly satisfied that we, on this side of the House, have reason to believe that influences were being exercised from Manitoba from the very inception of this matter out of which these troubles arose, which were not proper and should not have been exercised. I have here a copy of a telegram which was proven in court, which I am satisfied is a correct copy, dated Winnipeg, 1st April, 1915, addressed to my hon. friend's colleague, hon. Robert Rogers, at Ottawa, fn which it is said:

Governor Cameron in collusion with Grits here. Has under his authority directed Government to appoint Royal Commission to inquire into Kelly contracts. Important that he should accept Government's nominee for the Commission. There is danger that he may refuse. If he should, it will precipitate crisis. Your interest in Dominion election at stake. Better protect your position and see that Cameron follows advice of Government. He is broke, as you know. I think this is very important and should he attended to at once.

No charge has been made against minister personally. He should have ignored the position it he wanted. Hisi actions are very suspicious.

R. M. Simpson.

Mr. Simpson is a man who stood close to the minister. I wish to call the minister's attention to very extraordinary language in thi6 telegram, which, I think, is enough to arouse suspicion anywhere. The Minister of Public Works is told that the Governor is broke. What is meant by that? That means that he is poor; that he has no money; that he can be approached with a bribe. It means: Bring money with you, and we can fix the whole thing. That is what the word means; I have nevieT heard it used in any other connection. There is another telegram here to Hon. Robert Rogers, bearing the same date, and eent by Mr. G. R. Coldwell, Minister of the Manitoba Government of that day. It is as follows:

The Governor is evidently moving under instructions from the Grits. He is attempting to force our hand. You know his position. This thing means more to you than appears on the surface. Would advise you to take measures to protect. His removal promptly should be considered.

A Manitoba minister advises a minister of the Crown in the Government of my right hon. friend to take steps to remove this Governor and get him out of the way. There is another telegram from Mr. Rogers, replying to Dr. R. M. Simpson. It is marked confidential, and' is a6 follows:

Thanks for message. Am acting strongly in the matter.

Strongly, I suppose, to get the Governor removed.

Governor has absolutely no right to take matter into his own hands. His plain duty is to follow the advice of his advisers.

R. Rogers.

Here is another telegram from Sir Rod-mond Roblin to Hon. Robert Rogers, dated April 7, and marked confidential:

Governor wrote me officially this morning saying after fuller consideration that work should be stopped. Commission should be appointed to-day before my leaving and that Mather, Galt and Macdonald be commission. Saw him immediately; after long interview he had agreed that I could go east but that must return and appoint commission not later than Wednesday noon, fourteenth. He strongly objects to Haggart. Leaving to-night for Toronto.

As I understand it, Haggard is a judge of the Supreme Court, and it was in connection with his election that these moneys w-ere used. Fault is found with the Governor because he does not appoint Haggart as one of the commissioners to try charges against his own election fund.

There is another telegram to Hon. Robert Rogers, dated April 9 and marked confidential. It is as follows:

Ministers here inform me that Governor acting in unfair and partisan manner respecting nominees for commission and its appointment by next Wednesday. Coldwell believes that unless matters are arranged satisfactorily the ultimate result will have far-reaching effects in Dominion election and thinks you should be here before Wednesday.

This is signed by R. C. A. Manning, whose name figured in some real estate matters.

There is another telegram dated at Winnipeg, April 13, 1915. It is sent by ex-Premier Sir Rodmoind Roblin to Hon. Robert Rogers, and is as follows:

Conditions here demand your immediate presence if you are to accomplish what is desired. Imperative you leave to-night. Answer.

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Mr. CHAIRMAN@

Order. Are these telegrams relevant to the subject under discussion?

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August 9, 1917