August 9, 1917

LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL:

I protest against .this interruption by the hon. member for North Simeoe (Mr. Currie).

Topic:   CRIMINAL CODE AMENDMENT.
Subtopic:   NUMBER OF JURORS IN PANEL.
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CON

John Allister Currie

Conservative (1867-1942)

Mr. CURRIE:

The hon. gentleman is out of order.

Mr.UARVELL: Order. Is the hon. gentleman rising to a point of order?

Topic:   CRIMINAL CODE AMENDMENT.
Subtopic:   NUMBER OF JURORS IN PANEL.
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CON

John Allister Currie

Conservative (1867-1942)

Mr. CURRIE:

Yes. My hon. friend does not usually recognize points of order.

Topic:   CRIMINAL CODE AMENDMENT.
Subtopic:   NUMBER OF JURORS IN PANEL.
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LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL:

Not very often when they come from my hon. friend.

Topic:   CRIMINAL CODE AMENDMENT.
Subtopic:   NUMBER OF JURORS IN PANEL.
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CON

John Allister Currie

Conservative (1867-1942)

Mr. CURRIE:

I want to point out to you, Sir, that the Minister of Justice had begun the final speech in reply when he was interrupted by the hon. member for Carleton (Mr. Carvell), .and for that reason the hon. member for Carleton has no right to indulge in a speech now.

Topic:   CRIMINAL CODE AMENDMENT.
Subtopic:   NUMBER OF JURORS IN PANEL.
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CON

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

Conservative (1867-1942)

Mr. DEPUTY SPEAKER:

I should have asked if any other hon. member desired to speak. I did not do so. The hon. member for Carleton has the floor.

Topic:   CRIMINAL CODE AMENDMENT.
Subtopic:   NUMBER OF JURORS IN PANEL.
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LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL:

I was trying to point out to the Minister of Justice the position in which he finds himself. This poor gentleman has been on the bench of this country lor many years; he has been in Parliament for nine or ten years; he has been Minister of Justice for six years, and yet he informs us that he has had no opportunity of explaining this remarkable piece of legislation, and he thinks we should not criticise it, but should allow the Bill to go into committee, and then we can discuss the details. The details and the principle of the Bill are one and the same thing, and when we have discussed, upon- the second reading, the principle of the Bill, we shall not have much to say about the details in committee. There may have been eases in which possibly we do not require as much standing aside as has taken place in Canada upon certain trials, but the remarkable condition under which this Bill is introduced calls for protest from every hon. member in this House, no matter what his pclitics may be, As I did not know that this matter was coming up so early, I have not all the facts at my command; but, generally speaking, a criminal trial was neld in Manitoba, and before the trial took place an amendment to the Jury Act of Manitoba had been passed by the provincial legislature giving the presiding justice the right, on ithe application of the law officers of the Crown, to order an additional panel or an extension of the panel. I am speaking generally now, but I am sure I am practically expressing the purport of that legislation. The Minister of Justice was called upon to disallow that legislation, and some correspondence took place between the minister and the Attorney General of Manitoba. Orders in Council were passed by both Governments and forwarded the one to the other. Finally, the Minister of Justice now asks the Parliament of Canada, in view of this correspondence and those Orders in .Council, to amend the criminal law of Canada for the purpose of meeting one specific case which happened to arise

in Manitoba and in which his political friends were interested. That is the whole question. It is not a question of whether this is necessary legislation or not. This is purely political legislation in accordance with the exigencies of the political party of which the minister finds himself a member. I am sorry for the minister, because I think he is a member of this Government who has tried properly to carry out the duties of his office as Minister of Justice, and I can quite understand my hon. friend did not have the face to stand before Parliament to-day and explain this Bill. That is the reason for his silence, rather than his lack of knowledge of the rules of procedure of the House of Commons.

Topic:   CRIMINAL CODE AMENDMENT.
Subtopic:   NUMBER OF JURORS IN PANEL.
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CON

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

Conservative (1867-1942)

Mr. DOHERTY:

I am gradually acquiring courage.

Topic:   CRIMINAL CODE AMENDMENT.
Subtopic:   NUMBER OF JURORS IN PANEL.
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LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL:

To prove my statement, I will read to the minister the concluding paragraph of his report to Council of the 9th of December, 1916:

The Provincial Government is responsible for the administration of criminal justice in the province, and may therefore enunciate its intention in the application of the amendment in question. Your Excellency's Government is likewise responsible for Its policy in the promotion of such amendments to the Criminal Code as will tend to avoid injustice in the application of its provisions to existing conditions. The undersigned upon careful consideration of the situation introduced by the recent amendment to the local laws, deems it his duty to advise that the right of the prosecution to select jurors for criminal cases cannot, compatibly with the ends of justice, be enlarged in such a manner as might result from the application of section 46a to the project of securing a panel of petit jurors subject to the rule enunciated in section 933 of the Criminal Code ; and therefore for the avoidance of doubt, and with a view to the application of the law in accordance with what he conceives to be the 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 authority shall not exercise any right to require jurors to stand aside at criminal trials in excess of that which would have been permissible if section 46a as enacted by the recent Act of Manitoba had not been passed.

The undersigned accordingly recommends that a copy of this report, if approved, be transmitted to the Lieutenant Governor of Manitoba, for the information of his Government, with a request for an early answer to the inquiry herein suggested.

Humbly submitted,

(Sgd.) Chas. Doherty, Minister of Justice.

I do not believe that you can find in the annals of legislation or jurisprudence in

Canada such a document as I have read here, which I put forward as a copy of the memorandum submitted to the Privy Council of Canada, in which the minister says in effect to the Government of Manitoba: Important criminal trials are coming up, and unless you assure me that you will not apply the law as it stands to-day, I will disallow your legislation. That would have been bad enough if the necessity for this legislation existed to-day, because then the minister might have some reason for bringing it up. The necessity, however, has passed. We all know that the Attorney General of Manitoba has entered a nolle prosequi against the minister's friends. We know that they are not going to be tried. Therefore, this is no reason in the world why the law should be changed, and this legislation is brought in simply to save the faces of the Minister of Justice and of his political friends. It is a disgrace to the jurisprudence of Canada, and it is tampering with the dignity of Parliament, that we should be called upon to pass political class legislation of this kind. Let the matter stand for a year or two, and if there is any miscarriage of justice, let Parliament deal with it when there can be no imputation of political bias or political reasons.

Topic:   CRIMINAL CODE AMENDMENT.
Subtopic:   NUMBER OF JURORS IN PANEL.
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LIB

Wilfrid Laurier (Leader of the Official Opposition)

Liberal

Sir WILFRID LAURIER:

What miscarriage can there be?

Topic:   CRIMINAL CODE AMENDMENT.
Subtopic:   NUMBER OF JURORS IN PANEL.
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LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL:

My right hon. friend asks what miscarriage there can be? I cannot conceive of any. What harm can there be if the Crown does stand aside a number of jurors? In a few days an important trial will come on in my province, which has been tried twice already and in which the juries have disagreed. I understand that the Attorney General has decided to try the case a third time. The matter is not of very great importance, but it is one which has aroused a great deal of prejudice in the city of St. John, and it will be a very hard matter to get a juror selected who is not prejudiced on one side or the other.

Suppose the Crown were limited as this Bill provides, and bould only stand aside 48 jurors. I do not believe that the trial could go on. I do not know anything about the merits of the case; I have no idea whether the defendants are guilty or not; I have no opinion to offer on that at all. I do know, however, that it has taken up two weeks of the time of the circuit court of St. John, and it is a matter of so much publio importance that the Attorney General and the presiding judge have decided to try the case a third time during the present term of the court. Suppose that

Topic:   CRIMINAL CODE AMENDMENT.
Subtopic:   NUMBER OF JURORS IN PANEL.
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LIB

Edmond Proulx

Liberal

Mr. PROULX:

I asked the Minister of Justice whether he had received any requests from the Attorney Generals of this country for this legislation and he answered in the negative. We are discussing a question of procedure. This Parliament has passed a substantive law, and the provinces fix the number of jurors to be summoned. In all the districts of Ontario the number of petit jurors summoned for each sitting of the General Sessions of the Peace is 48. I think there are very few instances in which it is necessary to have recourse to a larger number. I have never seen such a case in my district. If there are such instances, the attorneys general of the different provinces would know, and would be the proper persons to ask for this legislation. The Crown prosecutors make rep >rt' to the respective attorneys general, and if there were any necessity for this law surely the proper authorities would ask for it. The Minister of Justice has told us there have been no requests from attorneys general, and I submit there is no necessity for the adoption of this law.

Topic:   CRIMINAL CODE AMENDMENT.
Subtopic:   NUMBER OF JURORS IN PANEL.
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?

Peter H. McKenzie

Mr. McKBNZIE:

I did not intend to say very much on this subject. It has been very well threshed out by the hon. member for St. John (Mr. Pugsley), the hon. member for Pictou (Mr. Macdonald), and the hon. member for Carleton (Mr. Carvell). I knew the Bill was on the Order Paper, and that it was liable to come up at any time, but I did not expect it would come up to-day. A constitutional question has been touched here as to whether this Parliament has a right to say anything about the number of jurors who may be appointed to sit in a case. The British North America Act contains something on the

subject, in enumerating the exclusive powers of this Parliament, among which I find subsection 27 of section 91.

The criminal law, except the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters.

That is, we have nothing to say about the constitution, of the court, but we have power over procedure in criminal matters.

I am.^very doubtful whether the number of jurors is a matter of procedure. My opinion would be that it is not. To lawyers procedure is the issuing of a writ, the numbeT of days that must elapse between its issue and its service, the number of days for appearing, and so on. The manner in which proceedings are instituted in the criminal courts, and the notices that must be served on the parties accused, and how they are to be dealt with, constitute, to my mind, the procedure in the criminal court. I may be wrong, but as far as I am capable of judging I do not think the number of jurors that will sit in a court is a matter of procedure. It is a matter of substantive law.

Topic:   CRIMINAL CODE AMENDMENT.
Subtopic:   NUMBER OF JURORS IN PANEL.
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CON

William Folger Nickle

Conservative (1867-1942)

Mr. NICKLE:

The Bill does not touch the number of jurors.

Topic:   CRIMINAL CODE AMENDMENT.
Subtopic:   NUMBER OF JURORS IN PANEL.
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CON

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

Conservative (1867-1942)

Air. DOHERTY:

It only deals with the number of challenges.

Topic:   CRIMINAL CODE AMENDMENT.
Subtopic:   NUMBER OF JURORS IN PANEL.
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LIB

Daniel Duncan McKenzie

Liberal

Mr. McKENZIE:

I understand the effect of this to be that the number of jurors permitted to be examined or rejected is limited by this legislation. The Minister of Justice shakes his head, but according to the old story, perhaps he ought to know there is nothing in it without shaking it.

Topic:   CRIMINAL CODE AMENDMENT.
Subtopic:   NUMBER OF JURORS IN PANEL.
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CON

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

Conservative (1867-1942)

Mr. DOHERTY:

It is wonderful how many things we ought to know, but do not.

Topic:   CRIMINAL CODE AMENDMENT.
Subtopic:   NUMBER OF JURORS IN PANEL.
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LIB

Daniel Duncan McKenzie

Liberal

Mr. McKENZIE:

The view I take is that the limiting of the number of jurors' is interfering with the constitution of the court, and as far as I can bring any judgment of my own to bear upon it, it is a matter for the local legislature entirely, and not a matter for this Parliament. I would suppose that a gentleman of the experience and wisdom of the Minister of Justice would have taken some warning from the difficulties in which he found himself either directly or indirectly some years ago, since he became Minister of Justice, in connection with being a little too lax about the bars of the penitentiaries in political cases. We had a famous instance before the House some four years ago, where a gentleman appointed by the Government of my right hon. friend (Sir

Robert Borden) who when he was to receive the seals of office and to be appointed, was found to be in jail. Rather an embarrassing position, for which something had to be done. The office had to lapse or go to somebody else, or the bars of this gentleman's imprisonment had to be removed. Appeal was made to the gentle heart of the Minister of Justice, or to those who were acting for him at the time, and, of course, between the two things-the lapsing of a political appointment, or the defeating of the ends of justice-the ends of justice had to be defeated, and the creaking door of the jail or penitentiary was thrown open, and out came this man. At the door awaiting him was his office from the Government of my right hon. friend. There was a great deal of trouble about this, and there was some very severe comment made upon it. The Minister of Justice manfully accepted .responsibility, but gave us to understand that it was not himself hut somebody else, a member of the Government, who was acting for him, who was responsible for allowing this man out. However, it was such a condition of things as should be a warning to the minister that he would not any more willingly interfere in matters political. Now, not satisfied with interfering with the jail, he began to tamper with the jury. This to my mind is most extraordinary, and I hope he will draw the line here, or the next thing we will find is some provision by which he can tamper with the evidence, and with the judges. It has been said by the hon. member for North Perth (Mr. Morphy), I believe, that we are exceedingly proud of our judges, and of the administration of justice in this country. I am getting to be somewhat of an old lawyer now, and I have had a good deal to do with criminal law. I never heard, in my province at all events, anybody complaining that representatives of the Crown, either the Attorney General or his representative, ever did anything but what was highly in the best interests of the very best administration of justice. I would suppose that laws of this character would be provided when some case arose calling for the interference of Parliament, and if the Minister of Justice can show there has been some case where there was a miscarriage of justice by reason of the condition of the law in Manitoba, or in any other province, I may change my mind absolutely. So far, however, I have not heard of any, and so far I will be quite willing to adopt the good old Tory doctrine of "leave well

enough alone." The law has been going along first rate as it was, and I think it is dangerous to be tampering with it, particularly when there is no necessity. It would be a sad reflection to believe for a moment that the Minister of Justice is trying to trim the wind to suit the shorn lambs in Manitoba.

Topic:   CRIMINAL CODE AMENDMENT.
Subtopic:   NUMBER OF JURORS IN PANEL.
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CON

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

Conservative (1867-1942)

Mr. DOHERTY:

It would be difficult work to trim the wind.

Topic:   CRIMINAL CODE AMENDMENT.
Subtopic:   NUMBER OF JURORS IN PANEL.
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LIB

Daniel Duncan McKenzie

Liberal

Mr. McKENZIE:

It would be sad indeed, but when the lambs have escaped, I think the tempering of the wind could cease with their escape. It does seem, in the air, that there may be more lambs to be shorn. Perhaps the wind is being provided for them. I hope not. I hope the minister will maintain the high position a Minister of Justice should occupy in this country, and show that the balance in his hand shall be even, and that, as far as the administration of (justice is concerned, he is blind to everything but the proper functions of his office.

Topic:   CRIMINAL CODE AMENDMENT.
Subtopic:   NUMBER OF JURORS IN PANEL.
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August 9, 1917