August 9, 1917

CON

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

Conservative (1867-1942)

Mr. DOHERTY:

He has his four peremptory challenges.

Topic:   P.C. 3060.
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LIB

William Pugsley

Liberal

Mr. PUGSLEY:

My statement was that he must exercise his peremptory challenges first. If he orders jurors to stand by after that, he can only challenge for cause. My hon. friend questioned that, and I should like to refer him to section 928 of the Criminal Code, which I think will convince him I was right. My statement was in accordance with what I always understood the law to be; that was my recollection of the way the law was administered when I happened to be in charge of the administration of the criminal law in my own province. Section 928 says:

If, by challenges and directions to stand by, the panel is exhausted without leaving a sufficient number to form a jury, those who have been directed to stand by shall be again called in the order in which they were drawn, and shall be sworn, unless challenged by the accused, or unless the prosecutor challenges them

and shows cause why they should not be sworn.

So I think it is absolutely clear that the counsel for the Crown, if he desires to exercise the right of peremptory challenge, must do so before he orders the jurors to stand by.

I think that the views which have been presented by my hon. friend from North Perth (Mr. Morphy) are views which ought to have very great weight with the Minister of Justice, and if nothing else will prevail upon him, they ought to have the effect of inducing him to withdraw the Bill from the consideration of the committee. There is no more loyal supporter of the Government in this House than that hon. gentleman. He has had a long experience in legal matters, and I have no doubt much experience in the administration of the criminal law. As a Government supporter, bound as he would be to the Government by just the same ties that bind us on this side of the House to our leader, it would be with great reluctance that he would present a different view. I take it that my hon. friend, disposed as he would be to view favourably government measures, has felt constrained to express his opinion against this Bill and to state that he will vote against it at every stage on which it may be presented for consideration. My hon. friend has presented the view that we may have prosecutions of more than usual importance in this country. That is just possible; I do not know whether it may be so or not. But I do say that every man who wishes to see the criminal law of this country properly administered should take the position of my hon. friend from North Perth and vote against this Bill. It is a Bill which is calculated to weaken and to paralyse the administration of justice in important cases in which public feeling is roused, and I say that from a long experience extending over 35 or 40 years in administering the criminal laws, and in prosecuting for the greater part of that time. 1 know of many, many cases where I have had 75 to 100 jurymen summoned because of the widespread feeling that existed in the community, and if I had been limited in the right to "stand-by" the jurors to 48, as this Bill proposes, leaving 50 jurors whom I would have not right to "stand-by," no right to challenge peremptorily, whom I could only challenge for cause, and if, as is provided by this Bill, I had had to call witnesses or make affidavits showing why I should be allowed to "stand-by" additional

jurors, my efforts in administering the law would, for reasons which any lawyer will understand, have been very much hampered, and, indeed, almost paralysed.

Is it wise to pass a law of this kind at any time? My ihon. friend from North Perth refers to the present time, but at any time, in the interests of society, in the interests of good government, in the interests of the proper administration of the criminal law, is it wise to make an amendment which will weaken the administration of justice, and give greater opportunities for the escape of criminals? Is it wise to do that without the slightest evidence being presented to this committee that any evils have resulted from the present law, or that there has been any dissatisfaction on the part of the public with the way in which the law has been administered?

Reference has been made to our judiciary.

I take pride, as other hon. gentlemen do, in the fact that with few exceptions here and there, this country has reason to be prcud of its judiciary. But I think the same may be said of those from whom the judiciary of this country is constituted; that is, those who are practising at the Bar, and particularly those who have been charged, as (Attorney "Generals, (Solicitor Generals and King's Counsel, with the prosecution of criminals and with discharging the most important functions in connection with the administration of the criminal law. Speaking generally, just as generally as one can speak, with regard to the judiciary of this country, they have performed their duties honestly and well, and I do not think they have ever shown-at .all events, not to my knowledge-any desire but to do what is absolutely fair as between the Crown and those who have been .accused of violating the law. But do not weaken their hands. We know how desperately an accused will fight for his liberty or his life.

We know how desperately his counsel will fight for him, and no blame can be attached to him for doing so. It requires the greatest judgment, the greatest care, and the most minute inquiry with reference to the personnel of a jury to get a fair and impartial jury, prepared honestly to discharge its duty and to do justice as between the Crown and the prisoner at the Bar. The difficulties surrounding the work of Crown counsel are very great. Forty or fifty years ago Parliament passed this law, giving to those who are indicted for murder the right to challenge summarily and peremptorily twenty ot the jurors, and giving them an

unlimited right to challenge for cause; limiting the right of the Crown to challenge peremptorily only four members of the jury, and providing that unless a jury, consisting of twelve members, were unanimous in their verdict, there could be no conviction, and still leaving upon the statute book that right of the Crown counsel to cause the jurors to stand by. I say we should hesitate before we weaken the law as it has stood there all those years, ever since this country has been a confederation, and particularly without any evidence or any suggestion that any evils have existed in connection with the administration of that law.

I appeal to my hon. friend, as one who knows something of the administration of the criminal'law and the difficulties which surround it, and the difficulties which stand in the way of securing convictions, to withdraw this Bill. He is bringing it before the House without any complaint from the Attorneys General of the provinces of Canada, who are charged with the administration of the criminal law, and whose duty it is to see that criminals are punished. Without consulting them or asking their advice, the Minister of Justice, who has nothing to do with the administration of the criminal law except so far as recommending the passage of statutes in this Parliament is1 concerned, is seeking to make this radical change, this change of enormous importance in the constitution of the courts which are to try criminals, and this without seeing that there has ever been the slightest evil or cause for dissatisfaction. I do not think he ought to do it. I do not think he should press this Bill. My view is that he should simply ask that progress be reported, and allow the matter to pass over in that way.

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LIB

David Arthur Lafortune

Liberal

Mr. D. A. LAFORTUNE (Montcalm) (translation):

Mr. Chairman, I have been listening with a great deal of (attention to all that has been said on both sides and I absolutely concur 'in the statement which has been made, namely, that the amendment to the Act, now before you, is a most important one. [DOT]

The administration of justice, in the province of Quebec, where I have had the honour of being the Crown prosecutor for almost twelve years past, has not taken cognizance of any error; nothing, absolutely nothing has happened, nor has been done that might justify the hon. Minister of Justice for introducing this Act.

I have practised at the BaT, before the assizes, several years before I was appointed Crown prosecutor, I have heard the most

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CON

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

Conservative (1867-1942)

Hon. Mr. DOHERTY (translation) :

Will the hon. member allow me a question?

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LIB
CON

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

Conservative (1867-1942)

Hon. Mr. DOHERTY (translation):

Would this objection be met if, in this Bill, we substituted .sixty jurors to forty-eight? This provision would leave the province of Quebec in her present position. The difficulty we are trying to settle is the one offered in eases where there is no limit as to the number of jurors fixed by the law. As I have already stated to the hon. member for Laval (Mr. Wilson), if good reasons can be offered for justifying such a change I will not hesitate and adopt the suggestion to change to sixty the number of forty-eight. I do not know if such a provision would meet the objections of my hon. friend, but, at all events, that number of sixty jurors would leave the province of Quebec in her present condition.

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LIB

David Arthur Lafortune

Liberal

Mr. LAFORTUNE (translation):

In reply to the hon. Minister of Justice, I may tell hiim that the law, such as it is in our statutes, works perfectly, and I have never heard of any complaint, or grievance, in a word, of anything reprehensible against- it. That law ordains that -the sheriff of Montreal shall summon sixty jurors, of whom thirty are English-speaking and thirty French-speaking. We, therefore, summon these sixty jurors, and to anyone of them, as they are being called, the Crown has the right to say: stand aside, stay where yon are, you Will not concur in the formation of the jury, and -that, without giving any reasons. As far as the accused is concerned, the law determines how many jurymen he has the right to challenge; he can even challenge them all for cause; for instance, if he has grievances against them, sufficient reasons to. eliminate them from the jury, such as questions of kinship, of personal interest or others. If the judge decides that the

reasons offered are not sufficient, the accused has the right to recuse only a small number of the jurymen.

I may tell the hon. Minister of Justice that if he knew these matters ias I do and df he wants full justice meted to all, he should put aside the smallest number of jurymen possible. In my long experience at the Bar, we have very seildom put aside more than three or four jurors, when the jury was being formed, for when the accused perceives that the Crown Attorney asks the elimination of a large number of the jurymen, he feels uneasy and believes the Crown is prejudiced against him, that it is ill inclined towards him. If the accused is in such dispositions, he wiill try and entangle the formation of the jury and may prevent full justice being rendered. Now, moreover, in the application of this law, it happens but very seldom that the Crown avails itself of its privilege of putting aside two or three jurors whilst the defence examines the composition of the jury and for reason of rivalries of lawsuits, of disputes or for personal reasons, generally exhausts the right it is granted by the law.

Why fake away from the Crown the power it hais to stand aside the number of jurors it may see tit?

As so well expressed by the hon. member for Laval, as well as 'by the hon. member for Perth (Mr. Morphy), that would likely tend to lessen the Crown's power, and it is desirable that we should have, as representatives of His Majesty, absolute' powers. It is important that we should be given the power to summon the jury to the best of our judgment and knowledge, and also to stand aside, such and such of these jurors for any reason whatever, in order to give full justice to the accused, and here I may remind the hon. Minister of Justice that he must not forget that, as representatives of the Attorney General, we are, so to say, the standing justice and just as interested that justice be meted out as the sitting justice, himself could be, and the Crown prosecutor who would deliberately assume to exhaust the list, to exhaust the panel of jurymen, would not be worthy of his high office.

It seems to me that we should not presume that those who are called upon to assist in the fair administration of justice can take it upon themselves to do unfair acts, acts that would be regrettable or reprovable. That cannot be supposed. Should such a thing haopen, as the hon. Minister of Justice has stated, the Crown Attorneys are human, they imay err, just as jhdges may err, as magistrates may make mistakes; but

there would be something most regrettable were this Bill to become law.

As stated by the hon. member for Laval, when referring to the Bill now before the House:

"Unless the judge presiding at the trial, upon special cause shown, so order."

I doubt whether it would be wise to give the judge presiding at the trial, a discretion which the law does not allow him to-day. As I have just said, Mr. Chairman, Crown attorneys are human, they may err; judges also are human and are also liable to be mistaken. The Crown attorneys are not more interested than the judges themselves. We are not paid to win cases; the Crown attorneys are paid by the State a fixed salary, and we have absolutely no interest to do anything which might not be of a nature to render justice to the accused. It is all to the contrary, and I (believe that the members of the Bar now (before me will do me that justice and render due justice to those who have preceded me: Hon. Justice Laifontaine, Hon. Justice Guerin, Col. Hibbard and a great many others who have filled the office of Crown prosecutor.

I think I am not going too far when I say that these gentlemen were all honourable men about whose conduct we never heard any complaint I say then, that to give discretion to the presiding judge is a dangerous thing from the view point of the administration of justice as well as from the view point of the accused.

I should like to call the attention of the hon. Minister of Justice to the fact that if an investigation were to take place, that would necessarily cause delays, and would not permit of such quick disposal of cases as is essential in the criminal courts. When there are 150 cases on the roll, for a single term, if the Crown has to show cause in each case why more than forty-eight jurors may be asked to stand aside, if we have to investigate, it will require twice as much time to exhaust the pamell.

When all the jurors have been summoned, has not the accused the right to say: " I leave it to the representative of the Crown; I leave it to his righteousness, Ito his honesty, to his responsibility, to his long experience and I am sure that he will do nothing, absolutely nothing to prejudice my case"?

A great deal has been said about things that took place in Manitoba. I will not speak about that, 'because I know nothing of the facts. I have but a very imperfect and incidental knowledge of the case. But in the province of Quebec, ever since I

have been a practising member of .the Bar, I have seen many cases conducted by the most distinguished members of the Montreal Bar and perhaps of the Dominion, and it has never entered the mind of any one that a measure as the one now under discussion could be brought down.

The jurors, Mr. Chairman, are summoned for twdlve days. Sixty jurors are summoned and must stay at the disposal of the Crown during twelve days. If the delay is boo short; if we see that it will not be possible to get through with .all the cases in the twelve days, the .sheriff is instructed to summon a new panel-two and even three if necessary-and sixty jurors are summoned each time-a panel is composed of sixty jurors.

I submit, Mr. Chairman, that the Minister of Justice has given no good reason to justify the .adoption of this Bill and I repeat the sayiing that I once heard in this House: Let well enough alone.

If 'the minister had .stated a case or cases in order to establish the necessity of such a Bill, I would be the first man to. approve of it and to say to my hon. friend: " You

are quite right." If exceptional cases had been reported, if it had been established that some representatives of the Crown had taken undue advantage of their position, I would be the first man to approve of the change, but as the minister does not show cause, since he states no facts, and since he gives no good reason, I say again: " Let

well enough alone."

Bill reported.

On the motion of Sir Bobert Borden, House adjourned at 11.20.

Friday, August 10, 1917.

Topic:   P.C. 3060.
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August 9, 1917