May 23, 1921

UNION

John Alexander Stewart

Unionist

Mr. STEWART (Lanark):

No; but the point is we had the right to hear it. As I understand, the question now is whether this Bill should be sent back to the committee on Miscellaneous Private Bills for that purpose. My opinion is that not only has the House the right to send the Bill back, but that the committee has the right to hear any further evidence affecting the issue if the Bill is sent back to them.

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L LIB

Edmond Proulx

Laurier Liberal

Mr. PROULX:

Being a member of the Private Bills committee, I have recollection of a few cases years ago where we heard further evidence. So it is not only the right but the custom, and I endorse what my hon. friend from Lanark (Mr. Stewart) has said.

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UNION

Robert Laird Borden

Unionist

Sir ROBERT BORDEN:

As I understand, evidence taken before the Senate committee is translated to the House of Commons for use by the committee on Miscellaneous Private Bills, but there is nothing in the rules of the practice which would prevent the committee hearing evidence to any extent it might desire. Therefore I think it is perfectly competent for this House -to send the Bill back in order that further evidence may be heard by the committee.

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L LIB

Charles Murphy

Laurier Liberal

Mr. MURPHY:

I was just about to point out to the hon. member for Calgary (Mr. Tweedie), in support of the position taken by the hon. member for Lanark, that Sir Allen Aylesworth, when Minister of Justice, took the position which has just been taken by the hight hon. member for King's (Sir Robert Borden), and in fact submitted evidence to the House that had not been before the Senate committee or before the Private Bills committee, and the House concurred in the view then presented by Sir Allen Aylesworth.

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UNION

John Allister Currie

Unionist

Mr. CURRIE:

There is no question at all about the right of the House to hear evidence before its Private Bills Committee, but since Confederation it has been the unwritten law that we leave this matter to be dealt with entirely by the Senate. It is true that several years ago one or two cases were brought before the

Private Bills Committee and some evidence heard. But we have been in the habit of leaving this matter entirely to the Senate in order to reduce the expense in connection with the granting of divorces. The Senate has a committee which hears the case, tries it and decides it and I think it is inadvisable for this House, whether or not it has the right to do so, to go beyond what has been the custom in this regard. It we do, it will make it necessary for people who are asking for divorces to keep their lawyers sitting around Ottawa for weeks and months. They would go first before the Senate Divorce Committee, where their case is heard; then they would have to wait several weeks until the case came before a committee of this House, where they would have to appear-in the meantime counsel fees and other expenses are piling up in such a way as to make the whole thing ridiculous. To my mind the House should revert to the old practice and let the Senate settle these things. I do not think, therefore, that we should refer the Bill back, and I hope the House will not refer back any more Bills of this kind. If we are going to have three or four trials, we shall simply be piling up expenses for those who petition Parliament for divorces. It is true that we have an absolute right to hear the case, to form a committee to hear new evidence and all that sort of thing, but it is a question of expediency, and to my .mind the old method of carrying on is far more satisfactory. I do not think it is fair for us to try this case in the House. The hon. gentleman refers to the 1912 ease. He will notice that the evidence in the Senate points out that from 1912 until 1919 this woman had been living with another man.

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L LIB

Joseph Arthur Calixte Éthier

Laurier Liberal

Mr. ETHIER:

I understand, Mr. Chairman, that the discussion is on a point of order. My hon. friend is discussing the merits of the case.

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L LIB

Georges Henri Boivin (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Laurier Liberal

The CHAIRMAN:

Does any hon. member desire to speak to the point of order?

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L LIB

Joseph Arthur Calixte Éthier

Laurier Liberal

Mr. ETHIER:

I do not concur in the remarks of my hon. friend from Simcoe (Mr. Currie) : I rather agree with those of the ex-Prime Minister (Sir Robert Borden). It is true, as the member for Calgary (Mr. Tweedie) has said, that the Senate has jurisdiction in matters of divorce. But what is the use of the Private Bills Committee of this House, then, so far as divorce Bills are concerned? The Private Bills Committee of this House sits,

in a matter of this kind, like a court of review. There is nothing in the rules or practice of the House to prevent the Private Bills Committee of the House from making a further enquete if the facts proved before the Senate _ Committee do not seem satisfactory. That is why we are now asking that this Bill be referred back to the Private Bills Committee-in order that the enquete may be reopeden, the decision of the Senate Committee appearing to be inconsistent with the facts. The Senate has not an exclusive jurisdiction; if such were the case, there would be no use in having a Private Bills Committee of the House to deal with these matters. If the' reports and recommendations of the Senate Divorce Committee were submitted direct to the House, it would be a different matter. But the Private Bills Committee has refused to reopen the enquete and to take communication of new facts which might have been proved but were not proved before the court. One of my hon. friends put a question to the member for Cbarlevoix-Montmorency a few minutes ago, asking why the woman did not appear before the Senate Committee. The hon. member gave the answer, but I may supplement it. As a matter of fact, this woman was aware-and this was brought out before the Private Bills Committee here, if I am not mistaken-of the Bill going through the Senate, after its third reading. When she heard it was coming before the House she asked through her lawyer that the enquete be reopened in order that she might be allowed to bring before the committee the evidence which she intended to submit.

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L LIB

Georges Henri Boivin (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Laurier Liberal

The CHAIRMAN:

I must point out that my hon. friend is not now discussing the point of order.

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L LIB

Joseph Arthur Calixte Éthier

Laurier Liberal

Mr. ETHIER:

I am sorry, Mr. Chairman; I fell into the same error as that .of imy hon. friend from North Simcoe (Mr. Currie). But I repeat that this House has jurisdiction to refer the Bill back to the Private Bills Committee with instructions to reopen the enquete. I say also that the Private Bills Committee of the House has full jurisdiction to reopen the' enquete, to ignore the finding made by the Senate Committee, and, if necessary, to return the Bill to the Senate.

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L LIB

Daniel Duncan McKenzie

Laurier Liberal

Mr. McKENZIE:

As I understand the

point of order, it is whether or not evidence taken in another cause, before a court in Montreal, can be read as evidence before this committee.

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UNION

Robert Laird Borden

Unionist

Sir ROBERT BORDEN:

I think the

point of order was whether or not a committee of this House to which the Bill was referred can itself take evidence, in addition to the Senate evidence.

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L LIB

Daniel Duncan McKenzie

Laurier Liberal

Mr. McKENZIE :

That is not the way I understand it. Perhaps the hon. member for Calgary will put his point clearly.

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UNION

Thomas Mitchell March Tweedie

Unionist

Mr. TWEEDIE:

The hon. member for Cape Breton North and Victoria (Mr. McKenzie) is correct. My point is that we have no right whatever to consider the evidence which it is now proposed to submit to the Committee of the Whole House. We might refer any Bill back to the Private Bills Committee. I will go further and say this : we are probably bound by the custom which has prevailed in the House in this regard. But the Divorce Committee is a committee specially appointed by the Senate to hear the evidence of witnesses under oath, and before that committee the petitioner and the respondent may be represented by counsel. Now we have no divorce committee in the House of Commons, and these Bills coming from the Senate are referred to the Private Bills Committee. I submit that the jurisdiction of the House of Commons should be limited practically to a consideration of the evidence taken under oath before the Divorce Committee of the Senate and a determination of the form of the Bill. We have no right to reopen the case and hear additional evidence and then, on the ground of that additional evidence heard by the Private Bills Committee of the House, say that we will not grant the divorce. There should be one final determining body on the evidence itself. Then the Private Bills Committee should have the same right as the Divorce Committee of the Senate to weigh the evidence, and the House of Commons should also have that right. But I do not think that either the House of Commons or its Private Bills Committee should have the right, as a matter of justice, to hear further evidence and keep the thing in the air.

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L LIB

Daniel Duncan McKenzie

Laurier Liberal

Mr. McKENZIE:

As I understand the point of order, it is that evidence taken before the court in Montreal is not evidence before this committee; that is, that we cannot in this committee deliberate upon what is absolutely hearsay evidence so far as we are concerned. It was evidence in another court; it was heard and deliberated upon by the judge, but it is not evidence for us. Whether this committee decides to send the Bill back to the Private Bills Committee is not, I understand, the point of order; that wil have to be dealt with as a substantive question by itself. The point of order is whether or not we can hear as evidence before this committee testimony which was taken before the Court in Montreal. If that be the point of order,

I suppose it would be well taken.

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UNION

Robert Laird Borden

Unionist

Sir ROBERT BORDEN:

Every one

understands perfectly well that evidence taken before a court of justice in Quebec or any other province is not evidence before a committee of this House. The question what is evidence before a committee of this House is, in the first place, a question for the committee itself and not for this committee. That committee must decide what is evidence, and if they go wrong, an appeal can be taken to this House. The point of order, as I understand it, in the first instance was this. Some hon. gentlemen on the other side desired to have this Bill referred back in order that evidence might be given for the purpose of disproving the conclusion at which the, committee of the Senate had arrived. I did not understand them to suggest that evidence taken before a court in Montreal would be evidence before this committee. They were giving the fact that evidence of that character had been given in the Superior Court of Montreal as evidence to show that evidence of the same character should be given before a committee of this House. Then the question was raised whether or not it would be competent for that committee to hear such evidence if it should be given in a proper way. My intervention was merely to say that I thought it was perfectly competent for that committee to hear that evidence if it were tendered in a proper way.

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L LIB

Rodolphe Lemieux

Laurier Liberal

Mr. LEMIEUX:

I am glad to hear the right hon. gentleman on this point. I share absolutely his views on the matter. I have read the evidence in the present case; I have not only suspicion but practically moral certainty that there has been collusion between the parties, and it would be very interesting to have the case opened up again in order to make the facts clear one way or the other. As the case stands at present, I am morally certain that there has'been collusion. I wish I could be at liberty to divulge to the House what the father of the party, whom I would call the defendant in this case, told me on Saturday. I need not say that both parties belong to most respectable families in the province of Quebec. I am informed that there is collusion in this case, and it would serve

the ends of justice if the case were referred back to the committee so that evidence may be heard on that point. .

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UNION

Michael Steele

Unionist

Mr. STEELE:

I do not wish to speak on the point of order, but I wish to make a statement on behalf of the Private Bills Committee.

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L LIB

Georges Henri Boivin (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Laurier Liberal

The CHAIRMAN:

Order. Has any hon. gentleman anything else to say on the point of order?

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L LIB

Joseph Arthur Calixte Éthier

Laurier Liberal

Mr. ETHIER:

I have something to say on the point of order. As regards the reference to the Private Bills Committee, I agree with the former Prime Minister (Sir Robert Borden). I understand that he is following now the same policy that he followed in 1909. At that time I was Chairman of the Private Bills Committee, and on that occasion a similar Bill appeared before the committee. The principle which we are invoking at present is the same as that which was invoked then in the remarks of the former Prime Minister; it applies to the present case, and to the application made by my hon. friend. This is what was said by the former Prime Minister as reported in Hansard of May 10, 1909, at page 6070:

Mr. R. L,. BORDEN: The Chairman of the Committee on Private Bills, I believe, called attention in connection with one of these Bills, to a tendency towards acting on evidence of a more or less loose character in considering these Bills for Divorce.

In that year there were only twenty-one Divorce Bills before the House. This year there are over a hundred.

I have already taken occasion to inform him privately that I entirely concur with the view he expressed. I think it is of the utmost possible importance that the evidence upon these proceedings in the Senate should be given and acted upon only in the way in which such evidence would be given and acted upon in a court, and I would most earnestly deprecate any tendency in the Senate or in our own committee when examining the evidence towards a view which would bring a looser condition of affairs than has prevailed in the past. I think these proceedings should be conducted exactly as legal proceedings are conducted in a court, and only such evidence should be received as is strictly legal evidence. Unless there is the clearest possible evidence, and unless that evidence is of a legal character, the Bill ought not to pass the committee and Parliament ought not to concur in dissolving the marriage. Every one who is familiar with the proceedings in courts with regard to such matters, is aware that there are some precautions observed in court which do not seem to have received very much attention in the proceedings of the Senate.

That is the ease in this particular instance.

For example, in Great Britain, and in all the provinces of Canada where any such courts were constituted before confederation and therefore remain up to the present, there is the King's Proctor who attends in court, who crossexamines the witnesses, who is paid by a fee taxed in the costs of the case, and whose especial duty it is to see that the evidence is sufficient and that there is no collusion between the parties.

In this case it is not proven that there is no collusion.

I do not know to what extent any safeguard of that character has been adopted in the Senate Committee, but I see no reason why every such safeguard should not receive careful attention and consideration In the Senate, and if it be correct, as the Chairman of the Committee on Private Bills has already publicly declared, that there is a tendency towards the granting of divorce upon evidence of a looser and less-satisfying character than that which has been required in the past, I, for one, desire to raise my protest.

Following that principle which the right hon. gentleman has set forth, I do not see why this committee should not accept the suggestion made that this Bill should be referred back to the Private Bills Committee, should we have jurisdiction to reopen the matter.

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May 23, 1921