April 23, 1923

LIB

Lewis Herbert Martell

Liberal

Mr. MARTELL:

It seems to me that the accused under this section 14 is absolutely presumed to be guilty at the beginning. LTnder that section as it has been amended the presumption of guilt is against the prisoner. In fact, he is said to be guilty. When the prosecutor comes into court, it is simply necessary to have the magistrate read the information; then the prisoner pleads not guilty, and he has to proceed and prove himself not guilty. If that magistrate is, as often happens to be the case, a prejudiced person, the accused person is so to speak convicted before he arrives in

court, and the man has no right of appeal. If the party does not establish his innocence, the onus of proof being placed upon him, surely the Crown or the informer does not suffer by giving him the right of appeal. He has to put up a bond of probably double the amount of the fine and sufficient security to pay the costs, and he comes before the court. Then the judge has an opportunity of trying the case de novo; he is judge of both the law and the facts. If you take away this right of appeal, you first declare that the onus is on the man to prove his innocence. Then, if he does not establish that to the satisfaction of a prejudiced magistrate-and magistrates in the country are not the same as the trained lawyers we find in the cities and larger towns- he is denied the right of appeal. If you have the man convicted and you have his bond for double the amount of the fine if he is fined, how does the Crown suffer? Then you take away the right of certiorari. In the Nova Scotia legislature some eight or ten days ago a bill was introduced by the provincial Attorney General, who is probably the best criminal lawyer in that province, to give in an application for a writ of certiorari, power to the judge to look at the depositions to see if a prima facie case is made out. Formerly if a conviction was complete and regular on its face, the judge could not look at the evidence; he had to confirm the conviction. By virtue of this bill, if it becomes law in Nova Scotia, where a provincial act is concerned, the judge before whom the matter comes will look at the evidence in order to see if a prima facie case has been made out, and if not, he has authority to make the rule nisi absolute. That is the experience of Nova Scotia under the Temperance Act and other drastic acts of the province. In this case you are taking away the right of certiorari absolutely. If a conviction happens to be a complete conviction on its face, no matter whether there is

Narcotic Drugs Act

evidence enough or not to substantiate the conviction, the judge has no power on certiorari. The man is haled before the court; if he is in the hands of a prejudiced magistrate, he is found guilty and he has no right of appeal. This is most dastardly legislation. It is true that very drastic remedies are required to cope with this drug evil; but they should not go so far as to take away every principle of British justice. While we are all agreed that drastic measures should be adopted in order to stamp out this evil, when you are amply protected, for heaven's sake give the accused a chance for his life.

Topic:   NARCOTIC DRUGS ACT AMENDMENT BILL
Permalink
LAB

Joseph Tweed Shaw

Labour

Mr. SHAW:

I remember very well last year when this legislation was before the House, I took the view, as was expressed by several of the other members, that our legislation was becoming rather drastic. It seems to me that the effect of this legislation is to deprive an accused person of a remedy which he might have in law, that is, by reason of the abolition of the certiorari right. We are also depriving him of his right of appeal, so that if he happens to be unjustly convicted, because of a misunderstanding of the facts, he has no remedy, and if there is an error in law, he similarly has no remedy. It seems to me that we should preserve to an accused person some means of satisfying the courts of his innocence, and while I have no sympathy whatever with those who commit offences against this particular act, yet it, may be possible, owing to inexperience of justices of the peace, that injustice may be done in which even an innocent man may be foreclosed from securing the right to which otherwise under British law he is entitled. The matter should be seriously considered before even, in this legislation, it is allowed to become part of our criminal law.

Section agreed to on division.

On section 25-Convicted alien subject to deportation:

Topic:   NARCOTIC DRUGS ACT AMENDMENT BILL
Permalink
PRO

Archibald M. Carmichael

Progressive

Mr. CARMICHAEL:

Some few days ago while I was in conversation with a party who was very conversant with Chinese matters, he advised me that a convicted alien might be either fined or imprisoned, but that deportation proceedings followed only a term in prison. It looks to me as though clauses 25 and 4 overcome that weakness, if it were a weakness; that by the two clauses 4 and 25, the minimum penalty that a judicial body may impose is both fine and imprisonment, and that deportation is sure to follow on any conviction. Is that the case?

Topic:   NARCOTIC DRUGS ACT AMENDMENT BILL
Permalink
LIB

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

Liberal

Mr. BELAND:

Yes.

Topic:   NARCOTIC DRUGS ACT AMENDMENT BILL
Permalink
?

Mr STEVENS:

Why limit deportation to paragraphs (a), (d) and (e) of clause 4?

Topic:   NARCOTIC DRUGS ACT AMENDMENT BILL
Permalink
LIB

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

Liberal

Mr. BELAND:

Those are traffickers.

Topic:   NARCOTIC DRUGS ACT AMENDMENT BILL
Permalink
CON

Henry Herbert Stevens

Conservative (1867-1942)

Mr. STEVENS:

Paragraph (b) reads:

Imports into or exports from Canada any drug. Paragraph (c) reads:

Exports any raw opium or any drug that is not packed and marked in such manner-

And so on. That party would be a trafficker just as much as the other, and it might. be possible to catch a very notorious trafficker under paragraph (c) and not be able to catch him under one of the other paragraphs. If he is convicted under paragraphs (b) or (c),

I do not see why he should not be deported. Why not say under the whole of clause 4?

Topic:   NARCOTIC DRUGS ACT AMENDMENT BILL
Permalink
LIB

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

Liberal

Mr. BELAND:

It would appear that paragraph (a) would cover all the cases, and (b) is only an explanation of what ports should be named by the minister. When the preparation of the bill was under way, this feature of it was very carefully looked into, and it was the opinion that clause 25, as it is now drafted, would meet all possible emergencies. If my hon. friend thinks the clause should be made broader, I have no objection to adding anything he suggests, but in the opinion of the officials of the department and also of the officials of the Department of Justice, that would cover the cases that we want to reach, that we have in view. I may say further that the administration of a similar clause incorporated in the bill last year did not give entire satisfaction. The principal reason is that under clause 10 (b), I think it is, of the former act, too much discretionary power was left with the magistrate. In many cases where an alien was convicted, deportation could not take place because the magistrate interpreted the law in a different manner from what we thought the intention of parliament was at the time of the passing of the act. Moreover, if I may explain, I think a decision has been handed down by a court in British Columbia. There the court held that a person sentenced to pay a fine and, in default of payment of such fine, to a term of imprisonment, not liable to deportation under the act. I am informed that some 49 cases of deportation have been stopped by that decision of the court. The section which has been prepared is supposed to cover all possible cases, and if the committee will read it carefully with me perhaps my hon. friend will share my opinion:

Notwithstanding any provision of the Immigration Act, or any other statute, any alien, whether domiciled in Canada or not, who at any time after his entry into Canada is convicted of an offence under paragraphs (a), (d) or (e) of section four of this act shall, upon the expiration or sooner determination of the imprison-

Supply-Indian Affairs

ment imposed on such conviction, be kept in custody and deported in accordance with the provisions of the Immigration Act relating to enquiry, detention and deportation. (1922, c. 36, s. 5, 10B.)

It is thought that this section will meet all cases.

Topic:   NARCOTIC DRUGS ACT AMENDMENT BILL
Permalink
CON
LIB

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

Liberal

Mr. BELAND:

Under section 4 of this act it is provided that he must not only be fined but also sentenced to imprisonment. My hon. friend will find, in section 4, line 26, that not less than $200 and costs as well as imprisonment is the penalty imposed, and further down it is provided that the court shall have no power to impose less than the minimum penalties "herein prescribed," and shall in all cases of conviction impose both fine and imprisonment. It is assumed therefore that this clause will meet all cases of deportation.

On the schedule:

Topic:   NARCOTIC DRUGS ACT AMENDMENT BILL
Permalink
LIB

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

Liberal

Mr. BELAND:

There is a new drug in the schedule.

Bill reported, read the third time and passed.

INDIAN AFFAIRS '

The House in Committee of Supply, Mr. Gordon in the chair.

Indians-Nova Scotia, $50,140.

Topic:   NARCOTIC DRUGS ACT AMENDMENT BILL
Permalink
CON

Henry Lumley Drayton

Conservative (1867-1942)

Sir HENRY DRAYTON:

How much

money was spent under this item for the last fiscal year?

Topic:   NARCOTIC DRUGS ACT AMENDMENT BILL
Permalink
LIB

Charles A. Stewart (Minister of Immigration and Colonization; Minister of Mines; Minister of the Interior; Superintendent-General of Indian Affairs)

Liberal

Hon. CHARLES STEWART (Argenteuil, Minister of the Interior):

I am informed that we spent the whole amount last year, $53,140, and we are asking this year, $50,140. The difference is explained in the vote required for the Truro highway which was completed, and a similar amount will not need to be voted this year.

Topic:   NARCOTIC DRUGS ACT AMENDMENT BILL
Permalink
CON

Henry Lumley Drayton

Conservative (1867-1942)

Sir HENRY DRAYTON:

I thought we gave a special vote last year of $3,000 for some dyking.

Topic:   NARCOTIC DRUGS ACT AMENDMENT BILL
Permalink
LIB

Charles A. Stewart (Minister of Immigration and Colonization; Minister of Mines; Minister of the Interior; Superintendent-General of Indian Affairs)

Liberal

Mr. STEWART (Argenteuil):

We have an item for dyking this year. The vote, for Nova Scotia is very much the same as last year, with the single exception that on carefully scrutinizing the estimates some changes will be found which I will deal with as we come to them.

Topic:   NARCOTIC DRUGS ACT AMENDMENT BILL
Permalink
CON

Henry Lumley Drayton

Conservative (1867-1942)

Sir HENRY DRAYTON:

The vote for Nova Scotia of $50,140 has been continued for some time I think, but last year the I Mr. BMand.]

minister brought down a supplementary estimate which added $3,000 to that vote. As he says, that was for repairs to roads and for dyking.

Topic:   NARCOTIC DRUGS ACT AMENDMENT BILL
Permalink
LIB

Charles A. Stewart (Minister of Immigration and Colonization; Minister of Mines; Minister of the Interior; Superintendent-General of Indian Affairs)

Liberal

Mr. STEWART (Argenteuil):

For the last fiscal year $3,000 was voted for the main highway through the Millbrook reserve in Colchester, and as the work is now completed a similar vote is not necessary.

Topic:   NARCOTIC DRUGS ACT AMENDMENT BILL
Permalink

Item agreed to. New Brunswick, $29,334.


CON

Henry Lumley Drayton

Conservative (1867-1942)

Sir HENRY DRAYTON:

What has been spent on this item?

Topic:   NARCOTIC DRUGS ACT AMENDMENT BILL
Permalink
LIB

Charles A. Stewart (Minister of Immigration and Colonization; Minister of Mines; Minister of the Interior; Superintendent-General of Indian Affairs)

Liberal

Mr. STEWART (Argenteuil):

We have not the complete audited accounts of the expenditure, although the amount is exactly the same as we asked last year. It covers practically identically the same vote as formerly.

Topic:   NARCOTIC DRUGS ACT AMENDMENT BILL
Permalink

April 23, 1923