April 10, 1923

LIB
LAB

Joseph Tweed Shaw

Labour

Mr. SHAW:

There can be no question about that. The courts have decreed that the charges which were laid against Hayes were unfounded, and he stands to-day before the people of Canada and in the eyes of the law an innocent man.

May I say at the outset, that of the questions which were considered by the Court of Appeal in this matter, one was a legal question as to the right of an accused person charged under the section dealing with post office offences, of securing a jury. On that point, the court did not come to any conclusion, because in view of the facts they deemed it unnecessary to consider that question. There were I believe, at least, three questions reserved. The second was: Was the finding against the weight of evidence? That is the question submitted by Mr. Justice McCarthy to the Appellate Court. I think we should have in mind that well-established principle that no man shall be convicted if there is any reasonable doubt as to his guilt. The second question concerned itself with the question of whether or not Mr. Justice McCarthy, in trying the case, had, so to speak, misdirected himself. The third question is:

Did I err in finding the appellant guilty of the charge of stealing from the post office at Calgary a post letter addressed to Mrs. C. I. McFarlane, in that the appellant alleges no guilty intent was established.

Next,

Did I err in failing to direct that no evidence was produced to prove the value of the letter forming the substance of the first charge?

Next,

Did I err in failing to direct that no evidence was produced to prove the value of the letter forming the substance of the second charge?

These questions were placed for consideration before the appellate division, and I want to read some extracts from the judgments of Mr. Justice Beck and Mr. Justice Hyndman, dealing with this matter.

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LIB

William F. Carroll

Liberal

Mr. CARROLL:

Would the hon. member tell us briefly the decision of the Appellate Court on the second question.

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LAB

Joseph Tweed Shaw

Labour

Mr. SHAW:

I am going to read some extracts taken from the judgments of these Appeal Court judges. The judgments themselves are rather long. Mr. Justice Beck

Dismissal oj John J. Hayes

states, and his statement will be found at page 349, Canadian Criminal Cases, volume 38:

As I am of opinion that the conviction must be set aside and the accused discharged upon a proper view of the evidence and the judge's reasons for his decision, I refrain from a consideration of the question whether or not the accused was entitled to be tried by a jury. [DOT]

Further on at page 354, he continues:

There is absolutely no direct evidence of the guilt of the accused. The evidence against him, such as it is, is wholly inferential. The evidence makes it quite clear to me that, without discrediting in the slightest degree the evidence of Black, Hale, or the constable-

And these, by the way, may I mention, are the gentlemen who framed up the scheme on this particular man:

-(I emphasize this for reasons which will appear later,) there is room for more than one reasonable hypothesis to account for the two marked one-dollar bills being found in the way described in the hands of Hazleton. I set forth these hypotheses, of course, without wishing to suggest guilt on any particular individual.

In other words, Mr. Justice Beck found, under the circumstances, that any one of a number of individuals might have committed the offence. At page 357 Mr. Justice Beck again says:

Applying these principles to the evidence I am convinced not only that had I been trying the case I should not have convicted the accused, but that, in view of the several hypotheses consistent with his innocence, there is no evidence on which he could be properly convicted. Apart from this it seems quite clear to me that the judge misdirected himself. He gave reasons for convicting the accused as follows in which I insert comments indicating which I think are objectionable features.

To my mind it is impossible, in view of the law as I have indicated it, to say that this statement by the trial judge does not indicate that he very seriously misdirected himself. This being so, in my opinion, the conviction cannot stand. If this were the only ground for quashing the conviction, of course the court would have to consider whether or not a new trial should be directed,-

And I direct the attention of the Acting Postmaster General to this:

-but in view of what I have said with reference to the evidence, I would, even if it is thought that the evidence would on a strict application of legal principles justify a conviction, I would refuse to direct a new trial.

In other words, the court is satisfied that if a new trial were directed in this particular case this man must necessarily be found innocent of the charge. Mr. Justice Hyndman also deals with the matter.

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CON

Richard Burpee Hanson

Conservative (1867-1942)

Mr. HANSON:

The result of the appeal was, then, that the conviction was set aside and a new trial refused.

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LAB

Joseph Tweed Shaw

Labour

Mr. SHAW:

Yes. I may remark, for the information of hon. members, that the court might have taken three different actions in connection with this conviction. It might

have confirmed the conviction; it might have decided that there was some error in law and therefore ordered a new trial; or on the other hand it might have done, what in fact it did in this case, namely, hold that there was no evidence to justify a conviction and decide that the conviction must be quashed.

Now, that is the position in which this man finds himself, and the Postmaster General's department in regarding him as guilty of the charge is simply arrogating to itself the functions of a court of appeal from the appellate division of the Supreme Court of Alberta. The lawyer representing this accused man has been in communication with the Postmaster General's department; I do not think he has been able to get any direct word from the Postmaster General. A letter appears to have been sent under the signature of " T. P. Murphy, private secretary," and I want to direct the attention of the House to portions of it. This letter is dated the 2nd day of February and is addressed to Mr. Hayes' lawyer. It says:

I note you state that the case was appealed and the matter came before the Appeal Court. Mr. Hayes was completely exonerated by two of the judges, the third dissenting. I am given to understand that the quashing of the verdict of the lower court, on appeal being taken, was by reason of" the fact that there was considerable doubt of the guilt of Mr. Hayes in connection with the theft of the letter containing the marked money, but that the judgment did not "completely exonerate" him, as you state. In other words, the appeal was quashed because there was insufficient evidence, and not because it was clearly shown that Mr. Hayes did not commit the theft.

I would ask Mr. Murphy how a court could more fully exonerate an individual than this court did. I must confess that I have never known a case in which a court has held that a person is, to use the language of this letter, completely exonerated. Any exoneration is a complete exoneration, and that is the fact in this case. This private secretary indicates that he is placing his reliance on the judgment of Mr. Justice Clarke, which in substance is the same as the argument used by the Acting Postmaster General, and then he goes on to state:

The circumstances brought out in the evidence show that Mr. Hayes was the only person who would have opportunity, without being observed by others, to steal the test letter containing the marked money, which was subsequently sent by him to the stamp clerk.

Mr. Murphy evidently sets himself up as a judge of the facts and declares that this man is the only one who could have stolen the money, notwithstanding that the Court of Appeal has held that there were numerous individuals who might have been guilty of the offence. I quote further:

Leaving aside technicalities which necessarily enter into a legal trial, the fact remains that Mr. Hayes

Dismissal of John J. Hayes

violated a positive rule of the service in having this letter secreted on his person, and there is strong presumptive evidence that he tampered with it.

Mr. Murphy talks about "technicalities" after the court has found that there was not sufficient evidence to justify the charge against this man. In my opinion Mr. Murphy is guilty of an unwarranted assumption of appellate court functions. He concludes:

In view of the facts above stated, this department cannot, in the public interest, accede to any request that Mr. Hayes be reinstated in the service. The necessity for preserving the safety of the mails entrusted to the care of Post Office employees, makes it impossible, after a careful consideration of all the circumstances in this case, to retain Mr. Hayes in the postal service where he would have access to the mails.

It appears therefore that Mr. Murphy accuses this man of the very crime of which he has been acquitted by the court; and I think that this is a most outrageous letter for an official to send to the lawyer representing an accused person. The government should be the last body to adopt an attitude of this kind towards a humble citizen of this country; and I urge, Mr. Speaker, that ample reparation be made this man. He has been declared innocent; in the eyes of the law he is innocent. If our law is worth anything at all he must therefore be given the benefit of that finding, and in my humble judgment he should be reinstated in his position if he desires to resume it, and should have restored to him the pension privileges of which he has been deprived. I do not think he should be eternally damned in this way and made to suffer for a crime which he never committed and of which the courts in this country have freed him.

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LIB

William F. Carroll

Liberal

Mr. CARROLL:

Was there any finding as to the question of the denial of jury?

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LAB

Joseph Tweed Shaw

Labour

Mr. SHAW:

I might elucidate that point which is merely a legal one. Under our Northwest I erritories Act a person who is accused of the crime of theft where the value of the property is under the sum of $200 is not entitled to a jury. That is a provision of the Northwest Territories Act which has not been repealed, and consequently when Mr. Hayes found himself charged with the crime of stealing two dollars he was not entitled to a jury. In addition to that he was liable to a minimum penalty of three years in gaol. The Postmaster General mentioned the fact of his having been sentenced to three years as indicative of the enormity of the offence. Now, no one deprecates these offences more than I do, for we do require honesty in the public service; it is absolutely essential. But I want to direct the Postmaster General's attention to the fact

that the minimum sentence which the court could impose for the offence was three years in gaol; and the man was under our law denied the right of a jury. He was convicted, but that conviction was set aside, and the moment that the conviction was quashed he was innoeent in the eyes of the law. With the setting aside of the conviction the law regarded him as having been innocent at the time the charge was laid. I think it is only fair, Mr. Speaker, that the government, above all organizations, should assume a proper attitude in matters of this kind and not set itself in judgment above the courts of the country; and above all, this man having been found innocent, the government should make ample amends for the injustice, which has been done him.

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LIB

William F. Carroll

Liberal

Mr. CARROLL:

Did the majority of the court find that there was not sufficient evidence to convict the accused?

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LAB

Joseph Tweed Shaw

Labour

Mr. SHAW:

They must have so found; the majority of the court must have found that there was not sufficient evidence to warrant a conviction. As a matter of fact I am sure that was the finding. Mr. Justice Hyndman in his judgment declares, that all the facts having been apparently before the trial court, that it would be useless to have a new trial since acquittal would necessarily result; and I have already read extracts also from the decision of Mr. Justice Beck indicating his view of that matter. If there had been only a legal technicality, or if there had' been some doubt as to the value or the significance of the evidence, I doubt not that the Court of Appeal instead of ordering an acquittal would have ordered a new trial. That was not done, and that is the best proof that such evidence as there was was not sufficient to justify the conviction of this man.

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CON

Arthur Meighen (Leader of the Official Opposition)

Conservative (1867-1942)

Right Hon. ARTHUR MEIGHEN (Leader of the Opposition):

Mr. Speaker, the first information I have received of this case is that presented by the hon. members for Calgary (Mr. Irvine and Mr. Shaw). I must say that I find some difficulty in coming to a conclusion on the very brief statement of facts that has been made by the minister as well as by the hon. members to my left. So far as I have been able to gather, one Hayes, an employee of the post office at Calgary, was accused of stealing mail, was brought to trial before Mr. Justice McCarthy, and was by him convicted without a jury, the trial being in every way legal and proper. An appeal was taken to the Appellate Court of Alberta and was heard before Mr. Justice Beck, Mr. APRIL 10, 1923

Dismissal of John J. Hayes

Justice Hyndman and Mr. Justice Clarke. The appeal was on several grounds, but summing up briefly, it resulted in the quashing of the conviction on the ground of insufficiency of evidence, two of the judges being in favour of the quashing and Mr. Justice Clarke dissenting and supporting the conviction by the trial judge. It appears as well that in the judgment of the majority, given by Mr. Justice Beck and supported by Mr. Justice Hyndman, it was found that there were several explanations consistent with the innocence of the accused for the disappearance of the money in queston. The dissenting judge appears to have taken the view that the 'possibility of the money having been stolen by any other person was so remote that it could not be taken into account as overpowering the judgment of facts found by the trial judge.

The Post Office Department, as its conduct is defended by the minister, (Mr. Graham) takes the view that whatever the final judgment, the circumstances affecting the entire case are such that suspicion attaches to the accused, so much so that in the opinion of the department the confidence of the public could not be longer retained in him. The hon. member who has spoken last (Mr. Shaw) urges that the finding of the appellate court must be taken as establishing beyond suspicion the innocence of the accused. While as far as I can gather the facts from the debate, there does seem to be room enough for doubt to justify an acquittal, I would not like to subscribe to the proposition that the government of the country must in its decision of the fitness of an employee for office who has been charged with crime be absolutely bound by the judgment of a court. I feel that a department must be left in a position corresponding with that of the private employer. The private employer would have the right, and in justice to the shareholders of the buisness-if there were such-would be bound to exercise the right, of reviewing all the facts himself and deciding as to the qualifications and fitness of the man for a continuance of trust based upon those facts as they appeared to him.

Now, I have not been convinced that the case is so overwhelmingly in favour of the innocence of Hayes that the department is not justified in exercising its prerogative and saying that "The circumstances are at least so suspicious that we do not think he should be continued in office." It may be that on further argument the case in his favour could be made stronger, but it seems to me that a vote for the amendment is merely a vote

that in all cases the judgment of a court must be final as to the retention of the

4. p.m. employee. It certainly is final in bo far as it establishes that no proof has been made out of the guilt of the accused, and it is to that extent incumbent on the department, if it feels that his dismissal must take place, to effect it in such a way as to entail as little hardship on him as possible.

It does seem to me strange that Hayes must necessarily be deprived of his pension. I do not know that I got the facts in this special connection right. I understand that he was asked to resign, and declined. I do not think Hayes could have been expected to resign. He appears to have felt himself innocent, he was found innocent by the court, and resignation on his own part upon request by the department would imply something of an admission of guilt. Therefore his refusal to resign should not of itself deprive him of his pension. Though the department may be justified in regarding his case as so surrounded with suspicion that he must not be continued in a post of public trust, the department is bound to put him in a position consistent with his public service. Although for the reasons I have given I purpose voting against the amendment, I would hope that some way could be found of bringing to this man the pension of which I think he should not be deprived because of the final decision of the Court of Appeal.

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PRO

Robert Forke

Progressive

Mr. ROBERT FORKE (Brandon):

Mr. Speaker, I feel that we are being placed in a very awkward position. I agree very largely with the statements made by the right hon. leader of the Opposition (Mr. Meighen): I

think the government were justified under the circumstances in dispensing with Mr. Hayes' services in the Post Office Department. On the other hand, there is a doubt as to whether he was guilty or not, and I really hope that some way can be found to take care of him so that he may not suffer the loss of his pension. We cannot afford to have in the public service, more especially in the Post Office Department, a man upon whom there is the least shadow of doubt as to his character. It is all very well to say that he has been found innocent by the Court of Appeal. We know the facts of the case. There is some room for doubt, and under the circumstances I would not care to vote for the amendment. On the other hand, I would feel very guilty if by reason of the course we take now this man suffers for the remainder of his days and should after all prove to be an innocent person. I really hope the government will find some way of taking care of him.

Dismissal oj John J. Hayes

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LIB

William Lyon Mackenzie King (Prime Minister; President of the Privy Council; Secretary of State for External Affairs)

Liberal

Mr. MACKENZIE KING:

I do not think there was in the mind of any member of the government the least desire to have other than the fullest justice done by Mr. Hayes. I should like to draw the attention of the House to the manner in which this particular amendment has been introduced. Had my hon. friend who has moved the amendment seen well to go to the office of the Postmaster General and have a word with the Acting Postmaster General, I am sure he would have found no one more anxious and willing to take up this case and look carefully into it.

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?

Some hon. MEMBERS:

Hear, hear.

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LAB

William Irvine

Labour

Mr. IRVINE:

I would just like to point out that I did what I was advised to do by those in charge of this case .1 understood from them that they had done the very best they possibly could to secure remedy for this man's case and had failed. I apologise if I have not done what is the ordinary thing in cases of this kind.

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LIB

William Lyon Mackenzie King (Prime Minister; President of the Privy Council; Secretary of State for External Affairs)

Liberal

Mr. MACKENZIE KING:

My hon.

friend has been badly advised. If he had followed his own judgment it would I think have been better than acting upon the advice he has apparently followed. The amendment he has introduced really asks the House to record its opinion on two matters: The first is to the effect that the Post Office Department was wholly unjustified in dismissing Mr. Hayes. I would rather submit to my hon. friend that if all the circumstances which have been narrated by himself and by the seconder of his motion had come to the attention of the Post Office Department, they would not have been justified in retaining Mr. Hayes.

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LAB

William Irvine

Labour

Mr. IRVINE:

I would point out that I did not suggest that the government had overstepped its right in discharging Mr. Hayes, but I suggested that they had gone much too far when they had deprived him of his pension upon discharge after thirty-three years' service.

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LIB

William Lyon Mackenzie King (Prime Minister; President of the Privy Council; Secretary of State for External Affairs)

Liberal

Mr. MACKENZIE KING:

I am glad to hear my hon. friend say that, because under those circumstances he will probably withdraw his amendment. The amendment reads:

% That the dismissal of John J. Hayes. ... is wholly unjustifiable.

Now, my contention is that the Post Office Department, being the guardian of the public interest, and above all having to establish confidence in the handling of the mail, would have really been remiss in its duty if its officers had not under these circumstances intimated to

Mr. Hayes that they could not retain him longer in the service of the department. Now as to that part of my hon. friend's resolution, I think hon. members of the House will agree practically without exception, even my hon. friend himself, that the Post Office Department were right in that particular.

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LAB

William Irvine

Labour

Mr. IRVINE:

I am sorry to have to interrupt again, but I would point out that the dismissal of this employee is inseparable from his pension rights. If he is dismissed his pension is gone. If you will fix that up, I will fix the amendment.

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LIB

William Lyon Mackenzie King (Prime Minister; President of the Privy Council; Secretary of State for External Affairs)

Liberal

Mr. MACKENZIE KING:

As to the second part of the amendment, "and that immediate steps be taken to redress the injury done to the said John J. Hayes," if my hon. friend heard the Acting Postmaster General when he was replying to him, he will have observed that he said that if my hon. friend would come to his office and discuss this matter with him he would be very pleased to look into this case himself with a view to seeing that no injustice was inflicted on Mr. Hayes. I think that with that assurance from the Acting Postmaster General and having regard to the manner in which the amendment is drawn, my hon. friend will perhaps see his way to withdrawing the amendment and not pressing it to a division.

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April 10, 1923