May 25, 1921

L LIB

Henri Sévérin Béland

Laurier Liberal

Mr. BELAND:

The hon. gentleman, of course, is speaking for himself.

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Subtopic:   CRIMINAL CODE AMENDMENT
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UNION

Levi Thomson

Unionist

Mr. THOMSON:

I will leave my hon. friend out. However, I seriously think the words are not well chosen, and that there will be a wide range of interpretation given to them. I have not any phraseology to suggest to my hon. friend such as would better fit the case, but I think the words at present in the section are unsuitable and dangerous to have there.

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UNION

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

Unionist

Mr. DOHERTY:

I am not in a position to say precisely the states in which there is such a definition, but I am informed that a similar provision does exist in certain of the states and that this is the definition that is given. I would like to point out that you must have two things combined: you must have a feeble-mindedness that gives rise to the necessity of care and supervision and so forth. The mere fact that care and spervision would be good for somebody would not put that person in this class. You must prove that the person has been subject to feeble-mindedness from birth or subject from an early age to mental defectiveness, not amounting to imbecility tout so pronounced that she requires, care, supervision and control. Now I am sure that the bon. gentleman, when he suggests that many of us require, care, control and supervision, even if we were prepared to admit it, would not expect us to admit it was feeblemindedness that made such necessary; it might be propensities of another description. I do think, with all respect, that no judge would err with that definition before him and having it put clearly before him that the things that he requires to have proved are, that from birth and from an early age the persons suffered from mental defectiveness not amounting to im-bicility, but of such a character as to make care, control and supervision necessary. It has to be pointed out that it wiU not be sufficient to prove that care and supervision would be good for that person, or that because that person may be addicted, say, to drink that control and supervision would be a good thing to bring him, or her, within the class of feeble-minded persons. It must be established that there was a mental defectiveness that was the source of this need of care and supervision; and it does not seem to me that we are putting before

the courts anything in the nature of a specially difficult matter to deal with in asking them to ascertain whether the facts laid down in that definition do or do not exist. Of course those facts will have to be established by evidence as all other facts require to be established. I feel very strongly that nobody is being exposed, in view of that definition of feeble-mindedness, to be convicted under this section under circumstances that he could not very well be held responsible for. The difficulty is, I would not say conjured up, but-like certain letters that have been heard here -really imaginary, and I think we might very safely leave those who might be prosecuted for this offence to be dealt with by the court. If you should have a case where the party would be in a position to show lack of knowledge, or so forth, I think we could safely leave it to the court to mete out under those circumstances so small a punishment as might be suitable to the offence. We have always to remember that a gentleman to whom this law is going to be applied is a gentleman who comes before the court in the position of having undoubtedly had illicit connection with some female; and while it might not be desirable to make that offence punishable as a crime, still if it did happen that the gentleman who did permit himself to have this illicit connection did make a mistake and did not pay sufficient attention to know that the victim was a feeble-minded person, I do not think he would be the object of great commiseration if he did get some mild punishment to make him realize that when you do take a chance of that kind you are taking a very serious chance.

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L LIB

Samuel William Jacobs

Laurier Liberal

Mr. JACOBS:

Does my hon. friend call five years imprisonment mild punishment?

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UNION

Fred Langdon Davis

Unionist

Mr. DAVIS:

I submit that the negative feature in this adds nothing to the definition. In that lies the difficulty, and the provision would be very much clearer if the words "not amounting to imbecility" were struck out. The provision would then read:

"feeble-minded persons" means persons In whose case there exists from birth or from an early age mental defectiveness so pronounced that they require care, supervision and control for their own protection or for the protection of others.

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UNION

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

Unionist

Mr. DOHERTY:

I think the reason for inserting the words in question is that there already exists a provision covering the case of a man having illicit connection with an imbecile woman, and that the pur-

pose of making the distinction is, I apprehend, because the present offence is not treated as being as grave and subject to as serious punishment. I am not able to lay my hand on the section at the moment but that section exists without doubt.

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UNI L
UNION

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

Unionist

Mr. DOHERTY:

Section 219 reads:

Every one is guilty of an Indictable offence and liable to four years' imprisonment who unlawfully and carnally knows or attempts to have unlawful carnal knowledge of any female idiot or imbecile, insane or deaf and dumb woman or girl under circumstances which do not amount to rape, but where the offender knew or had good reason to believe,

And so forth. With regard to the observation about punishment, and in view of the difference, I think we might substitute four for the five years.

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UNI L

Frederick Forsyth Pardee

Unionist (Liberal)

Mr. PARDEE:

Why in face of section 219 does the minister think it at all necessary to add this amendment. That section already reads more strongly than this amendment, and you are endeavouring to so word the latter that the greatest doubt would prevail and expert evidence would have to be given as to whether the woman was or was not feeble-minded. She might be feeble-minded along one line and perfectly sane along other lines, and I think the hon. member for Winnipeg (Mr. Blake) will back me up in that statement. Now you are taking from a clear-cut we'll-defined section and you are endeavouring to surround it with such difficulties that when a case comes before a judge to decide whether the accused is guilty or not guilty medical evidence will have to be had first on one side and then on the other, that the girl is compos mentis in all but one thing, or non compos mentis all down the line. A man might be enticed by a female who appeared perfectly sane and able to take care of herself, he commits this offence, and then you make it a matter of expert testimony whether he has committed an unlawful act or not. I have no sympathy whatever for the man who knowingly seduces a woman who is feeble minded and appears so-punish him as severely as you like; but here in section 219 you have the offence laid down perhaps even stronger than this amendment in its definiteness:

Every one is guilty of an indictable offence and liable to four years' imprisonment who unlawfully and carnally knows or attempts to have unlawful carnal knowledge of any female idiot or imbecile, insane or deaf and dumb woman or girl under circumstances which do not amount to rape.

You cannot make it stronger than that unless you get yourself into a maze of technicalities, and I submit to the minister that he had much better leave the section as it stands.

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UNION

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

Unionist

Mr. DOHERTY:

Section 219 remains

just as it is-

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UNI L
UNION

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

Unionist

Mr. DOHERTY:

-and under it there

is the same necessity of proving the insanity. The purpose of this amendment is to make it an offence to have illicit connection with girls or women who are not insane but are feeble minded as defined. This creates a new offence. It does not alter the offence which is created under section 219. I observe, however, that in the latter section there has been borne in mind what the hon. member for George Etienne Cartier suggested, that there should be some provision for knowledge on the part of the person accused, and I think that probably it might be proper to make the same provision in connection with this offence. I would be prepared to amend this clause by adding similar words which would meet the objection made by the hon. member for George Etienne Cartier, and would go a long Way to obviate the other objections that have been suggested.

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UNION

Levi Thomson

Unionist

Mr. THOMSON (Qu'Appelle):

I am in full sympathy with the minister's desire to provide adequate punishment in these cases, but I still think that his terms are very indefinite. In his explanation of this section it seemed to me he was leaving the impression that feeble mindedness was part of the definition. As a matter of fact it is not feeble mindedness that we are defining; mental defectiveness is the term used. That is just as vague as the other terms we are referring to. As I said before, we all require "care, consideration and control." I am not sure that we are not all more or less mentally defective.

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L LIB

Samuel William Jacobs

Laurier Liberal

Mr. JACOBS:

This time you are talking of the Farmers' party?

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UNION

Levi Thomson

Unionist

Mr. THOMSON (Qu'Appelle) :

We

will accept the Farmers' party, if you like. But there is a certain amount of mental defectiveness about everybody. No man is effective in every particular. I should like to see the minister formulate something which will be a little more definite.

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UNION
UNION

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

Unionist

Mr. DOHERTY:

In view of the observations which have been made and the manifest differences of opinion which exist, I suggest that we let this clause stand and go on with the other clauses of the Bill.

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L LIB

Jacques Bureau

Laurier Liberal

Mr. BUREAU:

Instead of standing we had better rise.

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UNION

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

Unionist

Mr. DOHERTY:

Of course, it is necessary, preliminary to standing, that we should rise. But there are many clauses of this Bill which I think we could dispose of, and perhaps we might consider dropping entirely those that are very contentious.

Section stands.

On section 2-"Recorder's Court" included in definition of "justice."

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UNION

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

Unionist

Mr. DOHERTY:

I beg to move that

section 2 be dropped. The provision was proposed at the instance of the municipal authorities of Montreal. I have had communications from the Attorney General of the province in which he enters objection to the passing of the clause. I do not think it would be proper for us to pass it until these two authorities who are directly concerned in it have come to a conclusion.

Section dropped.

On section 3-provision respecting instructions to jury in cases of seducing girls between 16 and 18, seducing female employees, carnally knowing girls between 14 and 16. *

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May 25, 1921