April 23, 1923

CON

Robert James Manion

Conservative (1867-1942)

Mr. MANION:

I might mention that in Ontario, we are fully covered as regards ordinary medical practitioners, just as the minister explained in connection with Quebec. I cannot answer for the veterinary surgeons or the dentists, but I believe they are covered also in this way. Supposing some medical practitioner or veterinary surgeon or dentist prescribes a large quantity of the drugs in the schedule. Immediately the Department [DOT] of Public Health writes to him because the druggist makes a report to the department regularly. If a report went in that a large quantity of a drug was prescribed by a certain physician, dentist or veterinary, and from the quantity of the ding prescribed the department were of the opinion that it was not being used for medicinal purposes, then they would write the doctor, veterinary or dentist concerned and ask for an explanation. I believe, therefore, that the act covers the situation so far as Ontario is concerned, and I have no doubt the same thing applies to the other provinces. But suppose a medical practitioner were pulled up by the department and

condemned to pay a fine or be otherwise punished for some offence under the act; it would be the duty of the provincial authority mentioned by my hon. friend, the Medical Council, to deal with that practitioner. But so far as reports are concerned, I think the point made by the member for St. John (Mr. Mae-Laren) is a good one. No doctor would care to hand in to any policeman or police magistrate any information regarding his patients; he would not consent to do anything of the kind unless he were subpoenaed. The department can look into the matter and deal with any practitioner who is prescribing drugs improperly, and can deal with him as they see fit if a satisfactory explanation is not given.

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LIB

Henri Sévérin Béland (Minister of Soldiers' Civil Re-establishment; Minister presiding over the Department of Health)

Liberal

Mr. BELAND:

My hon. friend has perfectly explained the situation as it exists in practice. Subsection (a) covers the manufacturers as well as the druggists, wholesale and retail. As regards the duly authorized practising physician, it is not deemed advisable that he should be subjected to investigation on the part of a peace officer or a policeman. As my hon. friend has pointed out, it is rather an easy matter for the department to ascertain the quantities of drugs a doctor has been able to procure through the wholesale or the retail druggist, and it is always open to the department to institute an inquiry if they have reason to believe that a doctor is dispensing a large quantity of any forbidden drug. If there is some reason to think that he is using it for other than purely medical purposes we can follow him up, and that has been done in many instances. The hon. member for St. John has brought to the attention of the committee another feature of the subject that should be given consideration and that is that medical men be allowed to exercise professional discretion without being interefered with unduly by the powers that be, and I think that the law has been framed to meet such cases. As my hon. friend for Vancouver Centre has'said, the law is important as it is severe, the only difficulty being as to where to draw the line. We have attempted, as our predecessors did, to devise legislation that would suppress the illicit traffic in drugs, but our object is difficult of realization. The law as presented to the House to-day contains very severe and drastic provisions and I do not think it could be made more stringent than it is without indeed unduly interfering with individual liberty. At all events, I believe the section covers the points brought up pretty well.

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Section agreed to. Narcotic Drugs Act On section 9-Liniments, ointments, and other preparations excepted:


LIB

Henri Sévérin Béland (Minister of Soldiers' Civil Re-establishment; Minister presiding over the Department of Health)

Liberal

Mr. BELAND:

There is no change in this section, but my hon. friend for West York (Sir Henry Drayton) wanted to know whether the quantities of a certain drug I referred to in a former explanation were to be found in the act. That matter is dealt with in this section, which states that preparations can be sold lawfully though they contain some of that drug.

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Section agreed to. On section 11-Smoking opium:


LIB

Henri Sévérin Béland (Minister of Soldiers' Civil Re-establishment; Minister presiding over the Department of Health)

Liberal

Mr. BELAND:

The penalty under this section is increased from $50 to S100.

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Section agreed to. On section 12-Being in opium resort:


LIB

Henri Sévérin Béland (Minister of Soldiers' Civil Re-establishment; Minister presiding over the Department of Health)

Liberal

Mr. BELAND:

The penalty in this section is increased from one to three months. Section agreed to.

On section 14-Onus of proof on charge of importing, exporting, manufacturing, selling etc., without license:

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LIB

Henri Sévérin Béland (Minister of Soldiers' Civil Re-establishment; Minister presiding over the Department of Health)

Liberal

Mr. BELAND:

This section and section 15 might, I think, be cited in answer to the observations made by my hon. friend for Vancouver.

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CON

Robert James Manion

Conservative (1867-1942)

Mr. MANION:

Section 14 provides:

Where a charge is laid under either paragraphs (a), (d) or (e) of section four of this act, the onus shall be upon the accused to establish that he had lawful authority to commit the act complained of, or that he had a license from the minister authorizing such act. (1921, c. 42, s. 1 (f).)

I am not particularly taking exception to-the section but I notice in this country at the present time, and recently too, an increasing tendency to depart from the old British dictum that a man shall be considered innocent until he is proven guilty, and to establish instead the principle that a man shall be considered guilty until he is proven innocent. Now, many of the inspectors, not under this act, perhaps, but under similar ^legislation, are more or less irresponsible; and any irresponsible inspector can make a charge against a citizen and in this case accuse him of breaking the law, and it will be incumbent upon the citizen to prove that he is innocent of that charge. I believe in a general way that it is a very dangerous thing to put into any law such a provision as that. I think that the good old British dictum of a man being considered innocent until he is proven guilty is better than the opposite principle which is coming increasingly into effect, of

considering a man guilty until he is proven innocent. That is the principle in this case. Can the minister tell us how long it has been in force?

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LIB

Henri Sévérin Béland (Minister of Soldiers' Civil Re-establishment; Minister presiding over the Department of Health)

Liberal

Mr. BELAND:

It was inserted in 1921 and retained last year. It is now a repetition of two former enactments.

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CON

Robert James Manion

Conservative (1867-1942)

Mr. MANION:

Without referring to this clause particularly, I wish to put myself on record in a general way as being absolutely opposed to any change of the old principle.

I think that this country and the various provinces of it might well hesitate before changing a rule of law which has been good enough for our forefathers for generations, and which I think is absolutely sound. Let me repeat, a man who is perfectly responsible may be put into a very difficult and expensive position because, with all due respect to my legal friends around me, it costs money to defend one's self against any criminal charge. Therefore I believe it would be well for this and any other department of the government to consider such a clause very seriously before embodying it in any proposed legislation.

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CON

Leon Johnson Ladner

Conservative (1867-1942)

Mr. LADNER:

I submit from the wording of the clauses it is apparent that the government has considered the point very thoroughly. I think the hon. gentleman would appreciate the necessity of such provisions if he had knowledge of some of the revelations that have been made of late in Montreal, Vancouver, Winnipeg and other of our cities. I submit, Mr. Chairman, that these clauses are absolutely essential, for you cannot catch this class of people unless you enact such provisions. We are not legislating to give such a finesse of protection to the scoundrel who goes about the country creating ruin that is hardly equalled by any other evil-doers. I submit that these clauses should remain exactly as they are. They are quite practical and will serve a good purpose. The general principle here is proved by the exception.

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CON

Robert James Manion

Conservative (1867-1942)

Mr. MANION:

I wish to take exception to my hon. friend's remarks because of the implication they contain that some of us are anxious for this "finesse of protection" that he speaks of. I presume there is no member of this House, whatever may be his party affiliations, who is not just as eager as my hon. friend to do away with the illicit use of any of these habit-forming drugs; but I wished to state the principle which should underlie criminal enactments, and I have no reason for retracting any of my words. I

Narcotic Drugs Act

believe that any government should hesitate about insisting that a man is guilty until he proves himself innocent; rather the reverse should be the attitude.

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LIB

Lewis Herbert Martell

Liberal

Mr. MARTELL:

Mr. Chairman, I quite agree with the remarks made by the hon. member for Fort William (Mr. Manion). It is quite true, as has been stated by the hon. member for Vancouver South (Mr. Ladner), that drastic measures are needed to stamp out the drug habit, but I understood the hon. member for Fort William to be interposing an objection to taking away the onus probandi from the informant or the accuser.

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CON
LIB

Lewis Herbert Martell

Liberal

Mr. MARTELL:

It is an old principle of British law that he who alleges must prove. There has been a tendency during the last few years in this House, and also in some of our legislatures, to relieve the accuser or informant of the burden of proof. The old principle of the common law to which I have referred should always be the permanent feature borne in mind in drafting any statute, and should not be departed from except in extraordinary cases. I believe that the protest of my hon. friend for Fort William is well taken. A similar protest was made last year by the hon. member for St. John City (Mr. Baxter) in connection with the Fisheries Act. Everyone is beginning to realize that the sooner we get away from making convictions easy the better it is for the observance of the law, because we have so much paternal and freak legislation today that people are apt to be considered guilty upon the mere allegation of some official who presses for a conviction because he gets a portion of the fine imposed. While in this case it may be necessary for the minister to have the most efficient machinery possible at his command, yet I think he as well as all other ministers should as far as possible refrain from departing from the old legal procedure.

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CON

William Garland McQuarrie

Conservative (1867-1942)

Mr. McQUARRIE:

Would the hon. gentleman suggest that this clause should be struck out?

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LIB

Lewis Herbert Martell

Liberal

Mr. MARTELL:

No, certainly not, because the conditions probably are bad and demand drastic treatment. I only rose in my place to emphasize and support what was said by the hon. member for Fort William whom, I thought, was somewhat misunderstood. I believe he is right in demanding that we adhere to the old British principle. I think the public are becoming sick and tired of paternal legislation.

IMr. Manion.]

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CON

John Babington Macaulay Baxter

Conservative (1867-1942)

Mr. BAXTER:

There appears to be a slight mistake in the drafting of section 14. Two answers are put in the mouth of the accused by this section. One is that he had lawful authority to commit the act complained of: the other is that he had a license from the minister authorizing such act. The license from the minister would seem to apply to clauses (a) and (e). As to clause (e), I do not think the accused can very well set up that he had "lawful authority to commit the act complained of because the charge is that he unlawfully sells, gives away or distributes any drug to any minor." You cannot have lawful authority to do an unlawful act. I would be very much pleased to see some provision inserted by which a little mercy might be exercised where a man believing he was doing a lawful act sold a drug to apparently a man who turned out to be a minor. But it is unlawful to sell, give away or distribute a drug to a minor. You cannot have the authority of the minister to do that, neither can you lawfully do it. I think there is a mistake in the reference to the subsection.

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April 23, 1923