April 23, 1923

CON

Leon Johnson Ladner

Conservative (1867-1942)

Mr. LADNER:

I was just about to make the same suggestion as my hon. friend for St. John. It is possible that the Dominion analyst was wrong when he gave the certifi-

Narcotic Drugs Act

cate and a man could bring a perfectly good analyst to prove that he was wrong, but a'c*-cording to this section that evidence would not be admissible. I think provision should be made whereby it would be admissible. It says now that the certificate "shall be accepted as evidence." I do not see how you could get around that.

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Section agreed to. On section 18-Power of peace officer to search for drugs:


LIB

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

Liberal

Mr. BELAND:

There is no change here but I would like to move to add the word "vehicle" in the forty-first line after the word "vessel." The word "vehicle" has inadvertently been omitted.

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CON

Robert James Manion

Conservative (1867-1942)

Mr. MANION:

Has there always to be a warrant before a search?

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LIB

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

Liberal

Mr. BELAND:

Only in the case of a private residence.

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CON
LIB

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

Liberal

Mr. BELAND:

In that case, but not otherwise.

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Section agreed to. On section 24-Except in cases tried before two justices, no appeals in cases taken under section 4, (a), (d) and (e):


CON

John Babington Macaulay Baxter

Conservative (1867-1942)

Mr. BAXTER:

Why, may I ask, is that provision here? I do not want to throw any safeguards around people engaged in this illegal traffic. On the other hand, I do not want to throw any unnecessary protection around ignorant and prejudiced justices of the peace who sometimes try cases in the courts. No matter what offence a man is charged with, I can scarcely see why an appeal should be allowed to one class* of offence and refused to the same man if charged with something different. If he has been wrongly convicted he ought to have some way under the law of getting rid of that erroneous conviction, and if rightly convicted I would not mind if you put a heavier penalty on him through the agency of the court of appeal, whatever it may be. But I do stand for giving a man the right to be heard in a British court of justice against what ^appears to be error or sometimes intentional wrong-doing, and these small tribunals are not always fit to be trusted with a man's property or a man's liberty. In what I am advocating I do not wish to throw the slightest protection around the drug fiends who are debauching communities, but what I want is to have a little safety for the man convicted in the teeth of the law

by ignorant people, by people who seek a victim and believe they have one. Now let us be fair.

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LIB

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

Liberal

Mr. BELAND:

Last year there was some

debate in this House upon this very clause, but ultimately it passed this House without any division. Unhappily, in my estimation at least, the clause was rejected by the Senate. As I tried to explain last year the presence of this clause in the act is most important. In many, many cases an appeal is taken for the only purpose of extending to some of the most important witnesses a chance to get away out of reach, and it is to meet that very thing that the appeal is denied except on a question of law. An appeal is not permitted on the question of facts if the facts are established before a regular magistrate-

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CON

John Babington Macaulay Baxter

Conservative (1867-1942)

Mr. BAXTER:

But this does not make

any distinction between matters of law and matters of fact. It does make a distinction between cases tried before two justices and cases tried by a magistrate on the other hand.

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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 will admit

that a question of law can always be discussed without witnesses being present should an appeal be taken, but as to a question of fact, if the principal witnesses are not at the disposal of the Crown , prosecutor my hon. friend will realize that he would be at a great disadvantage in case of an appeal.

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CON

John Babington Macaulay Baxter

Conservative (1867-1942)

Mr. BAXTER:

I would suggest this:

Leave this clause as you have it, but take out the clause taking away certiorari. Certiorari does not depend upon witnesses, but I do not like that quite as well myself, because I do not want a man to escape by a legal technicality. But I do want him to have some better chance than a magistrate who may err in his decision on the facts.

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LIB

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

Liberal

Mr. BELAND:

I hardly think it would be possible to do away with this. I might say that a similar provision exists in the Criminal Code with regard to disorderly houses.

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CON

John Babington Macaulay Baxter

Conservative (1867-1942)

Mr. BAXTER:

It exists in too many cases. It exists in every prohibitory act in the country.

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LIB

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

Liberal

Mr. BELAND:

I suppose I should not

say, thank God I am not a lawyer, but I am not versed very much in the science of the law. However, I know that a provision of this kind is to be found in the legislation of many of the provinces. I think it is to be found in the Ontario Temperance Act; it is to be found in the Quebec law regarding disorderly houses, and in the Criminal Code also. My impression is that if we do not afford to those in

Narcotic Drugs Act

charge of this law all possible means of suppressing this traffic we are not doing what we should do. We must afford them all possible means of meeting a situation which is most serious, and I know that my hon. friend agrees with me in that regard. Some of the old principles of English law seem to be denied in this legislation. That is true, but still the case is altogether extraordinary.

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CON

John Babington Macaulay Baxter

Conservative (1867-1942)

Mr. BAXTER:

I sympathize with the hon. minister, and I would go further. I would not criticize the section that puts the burden of proving innocence upon the accused, because that is practically necessary in certain classes of offence, but I may say that the tendency of legislation is running a little too far towards taking away an opportunity of correcting an error that may be made by the first tribunal. The minister has spoken of the Ontario Temperance Act. I do not know much about it, but I know something about the prohibitory law in New Brunswick which I introduced and put through the legislature. I have bitterly regretted the fact that I put it through, because instances of undoubted cases of absolute brutal injustice have come to my knowledge, where magistrates convicted innocent men, simply because these magistrates were worse than partisans-they were absolutely blind. No man could come before them who would not be presumed to be guilty and condemned as speedily as possible. That is the spirit in which it has been done, and I have always regretted that I ever allowed my hand to be put to anything that deprived a man of the chance of getting justice. At the same time, I do not want to throw any safeguards around criminals, or permit any loopholes of escape for them in legislation of this character. But I want to see enough in the act to ensure that a really innocent man shall not be punished, and we ought to be able to frame legislation that will affect both of these objects, so that an innocent man shall not be tyrannously punished, and yet that a guilty man shall not have too great an opportunity of escape.

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CON

Robert James Manion

Conservative (1867-1942)

Mr. MANION:

I may say, in a general way, that I do not want the hon. member for Vancouver South (Mr. Ladner) to accuse me of sympathizing at all with any of the illicit drug peddlers, but I wish to associate myself again, for the reason I gave a moment ago, with my hon. friend for St. John (Mr. Baxter). The minister quoted the Ontario Temperance Act. There are many who think that act has done a great deal of good, but I have certainly seen cases under the Ontario Temperance Act conducted by some magistrates who took exactly the attitude outlined by the hon.

member for St John, especially in dealing with foreigners. There has been a tendency amongst some magistrates-I have seen it occur-to too quickly accept the word of some police officer and absolutely ignore the word of a foreigner in this country. I personally have a good deal of sympathy for these foreign people who come to the country and wish to become citizens and have become citizens, when some careless, irresponsible magistrate finds them guilty of an offence, practically without giving them a trial. Let me give an instance to illustrate that. I am not speaking without some reason for what I say. There was an instance-and it had to do with this Dominion government-about a year ago, where an excise officer visited a place, and found a little bit of home-made brew of some kind in the man's house. The man's wife was sick in bed, his children were very young, and they were far from any neighbour; yet the excise officer sent out some Royal Canadian Mounted Police officers and had this man brought into the city. In this case I do not blame the magistrates, but I blame the law that permitted this to occur, because the magistrate claimed he could not come to any other decision than the one he rendered. The magistrate convicted him and sentenced him to pay a fine of $700 which the man could not by any stretch of the imagination pay, and at the same time his wife and children were lying in a shack out in the wilderness. I took up the case with the Minister of Customs (Mr. Bureau) who looked upon the matter in what I considered was the proper light, and ultimately the heavy fine was remitted, and a nominal fine was imposed, because technically the man had committed a crime. We should avoid as far as we can putting on the statute book legislation which, no matter what kind of a crime we are dealing with, too quickly proves the man guilty, and does not give him a chance to prove his innocence in some other court if need be.

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LIB

Edward Mortimer Macdonald (Minister Without Portfolio)

Liberal

Mr. MACDONALD (Pictou):

Referring to the proposition of placing the onus upon the accused, and of limiting the right of appeal, from a legal standpoint, of course, it is an extraordinary course to pursue. My hon. friend for St. John said, with reference to the temperance law in the province of Nova Scotia, that the right of certiorari has been taken away. I think it has been taken away in probably every province in the Dominion in regard to the Temperance Act, and I quite agree that cases have occurred where the right of certiorari has been taken and an injustice has been done. We all know the circum-

Narcotic Drugs Act

stances under which legislation of that character is enforced, but no one has seriously questioned that parliament did a wise thing when they took away the right of certiorari in regard to cases of persons keeping disorderly houses. These matters are almost invariably tried by recorders or stipendiary magistrates in the cities, who are well qualified to deal with legal questions when they arise and also determine the facts. In regard to this particular matter, whatever we might say in regard to temperance matters, or any other matters that come within the purview of the criminal law, we are all agreed that this nefarious traffic, which saps the mind and body of the people, can only be dealt with in the strongest possible way. I am instructed that in the city of Montreal, out of 68 appeals that were taken, I think, during the last six months, 40 of the appellants, when the cases came on to be heard in appeal, never turned up, which indicates that the parties who were appealing had put up the necessary security merely for the purpose of gaining time, and evading the penalties which the law had provided and were willing to pay the money in order to escape. It is a well-ascertained fact that the traffic which is going on in regard to these drugs is one which, in the interests of the nation, must be dealt with with the same severity as if we had the application of military law. I think the sense of the House and the sense of . the committee would be that in proceedings against a physician, or registered druggist, or a veterinary, full rights should be preserved to the defendant in the case, but we are only doing our duty when we declare that no technical objection, or no ground which might be used by way of certiorari should be permitted to interfere with carrying out in a stern way the law which ought to be enforced in the interest of the nation and of our people.

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CON

Leon Johnson Ladner

Conservative (1867-1942)

Mr. LADNER:

I fully concur with the viewpoint of the last speaker (Mr. Macdonald). In the course of last year, after careful inquiries from reliable sources, I found that practically all the offences which would come under these subsections (a), (b) and (c) of section 4 were committed in the larger cities. That is in Vancouver, Winnipeg and Montreal, but there were very few cases in the city of Ottawa or Quebec; in fact nearly all the cases were in those large cities and just as one hon. member has stated, they generally have lawyers in those cities who are trained men, acting as police magistrates, and they are quite competent to render justice to people charged with these offences.

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April 23, 1923