June 24, 1926

CON

Arthur Meighen (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. MEIGHEN:

I thank the hon. minister. I read first at page 1407. He uttered two sentences before he used the following words:

If the committee will look two pages further down in the same evidence they will find that I took good care to say, before leaving the box, that I did not want to mislead the committee-

Evidently the minister had been in the box before.

-that I had been in Ottawa on two or three occasions to attend council meetings, and when here had gone to the office and attended to some routine matters. The 29th September, or 28th and 29th September was evidently one of those occasions. I remember very well having seen a telegram or a letter of the 21st September which was on my desk when I arrived.

How does the minister say he was right in stating that to the committee if he had not read that letter? Everybody would assume from that answer that he had read the letter. Then he goes on:

I might say I was at the office only in the evening. My private secretary, Mr. Ide, was there with me, assisting me to clean up correspondence, and when I saw the letter of September 21, without taking the time to go through the file, I was informed by Mr. Ide in a previous message sent by the-

[DOT]

and so on. Twice there he states he saw it. I turn to the next page, 1408:

Q. Tlhe fact is Moses Aziz has no-t yet been imprisoned?-A. No, he has not.

Q. And so far as the records show he has not been imprisoned because of the intervention of the Minister of Customs and Excise?-A. Well, I would not like to admit that the intervention of the minister was the sole cause of his not being imprisoned.

Now I ask hon. members to listen to this:

Q. It is the causa or causan, speaking as a lawyer,-

said Mr. Bennett.

-of his not being imprisoned?-A. Possibly. I am sure the committee will appreciatesaid the hon. minister:

-that seeing this letter as I did on the 28th or 29th of September, having just entered into my duties and not knowing the rules and regulations, I was asked to consult the Hon. Mr. Lapointe who was not in Ottawa at the time, and whom I could not consult.

Now, the hon. gentleman will remember that in the body of that letter he was asked to consult the Hon. Mr. Lapointe, and he explains that he did not see him, because Mr. Lapointe at the time was out of town. So far I have quoted from the minister's evidence, but now I want to direct the attention of hon. gentlemen to what the minister himself said in this House before the question of the hon. meriiber for Winnipeg North Centre (Mr. Woodsworth) was posed. I ask hon. members to look at page 4837 of Hansard containing the speech of the minister delivered the day before yesterday, and I direct special attention to this because the minister knows this address was revised by himself, and very rightly so.

I read:

Sitting at my desk in Ottawa, on or about September 28, 1 was approached by my secretary who had several hundred letters to dispose of-the accumulation of a month. He was trying as rapidly as possible to deal with them, and reading this one to me he remarked, "This is a request from Mr. Robichaud-"

and so on. The minister in his own speech before the question was put declared to this House that that letter was read to him by his secretary before it was answered, and previously three times in three sentences in his evidence he declared that he had seen the letter which asked him to consult with Mr. Lapointe. I wonder if this impresses the hon. member for Winnipeg North Centre. Are we to hear now the minister say he did not see it or read it, that he had not it read to him, that he did not know its contents when he made and directed that reply, in face of the fact that three times on'oath he swore he saw it, again in his speech he said it was read to him, and in face of the further fact that the reasons given in this House for acceding to the request were reasons which involved considerable inquiry on the part of the minister,

Customs Inquiry-Mr. Meighen

inquiry which it is certainly not reasonable to assume he would undertake without making inquiry into the contents of the letter itself. I lay these matters before hon. members, and I venture to say that all who will read this evidence will never accuse me of having presented unfairly the position of the minister.

Now he says: I was justified in directing that despatch and in writing my reply of September 28 or 29. I ask hon. gentlemen to keep closely in mind what that reply was. The minister said: I did not stop this man going to jail. I had to order him to jail-that is the only inference; I am not putting it in his own words, I admit-under the custom of New Brunswick, unless the private prosecutor interferes and sees that a warrant of commitment is issued after sentence, the warrant will not be issued; "That," he says, "is. the custom in New Brunswick; I did not keep him out, all I did was to say to Mr. Stewart, 'Don't interest yourself to see the warrant is issued'." The fact is that is not what the minister did at all. The minister directed Mr. Stewart to go to the magistrate and see that the warrant was not issued.

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LIB

Georges Henri Boivin (Minister of Customs and Excise)

Liberal

Mr. BOIVIN:

I never communicated with

Mr. Stewart at all.

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CON

Arthur Meighen (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. MEIGHEN:

No, but he directed his

chief preventive officer to do it.

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LIB
CON
LIB

Georges Henri Boivin (Minister of Customs and Excise)

Liberal

Mr. BOIVIN:

I never spoke to Mr. Wilson until a long time after the Moses Aziz matter came before me, when I instructed him to send a message and have Moses Aziz incarcerated. You will find the instructions given through Mr. Blair, or through the chief preventive officer.

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CON

Arthur Meighen (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. MEIGHEN:

I do not know how many intermediaries there were, but I know that what was sent was sent by the direction of the minister, according to the evidence. The number of intermediaries is for the minister to explain, I do not know how many there were.

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LIB

Georges Henri Boivin (Minister of Customs and Excise)

Liberal

Mr. BOIVIN:

The minister had only been in his office a few days and did not know the method of procedure.

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CON

Arthur Meighen (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. MEIGHEN:

Very well. This is what is shown in the evidence to have been his instructions. If the minister will stop to look, I think he will find he himself said a telegram was sent at his request or direction. I am satisfied the minister will find that to be the case. Certainly it is shown by other evidence that it was sent at his direction, and

the telegram was to the effect that the minister desired to make further investigation before the warrant was issued, and that Stewart was instructed to go to the magistrate and see that the warrant was not issued. But I ask hon. members, I put it to the minister: Does he think at this hour that he has any right to intervene after sentence is pronounced by a court of justice?

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LIB

Georges Henri Boivin (Minister of Customs and Excise)

Liberal

Mr. BOIVIN :

[DOT] It all depends on the merits of the case.

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CON

Arthur Meighen (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. MEIGHEN:

Who tries the merits,

the minister or the judge?

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LIB

Georges Henri Boivin (Minister of Customs and Excise)

Liberal

Mr. BOIVIN:

My right hon. friend has

asked me a question. He asks me now if I am under the impression that I have a right to intervene between the condemnation of an accused and the execution of the sentence, I say that it may not be expedient for a minister to intervene, but that under the law as it stands to-day and in the opinion of the Deputy Minister of Justice as embodied in my speech the assertion is made that the minister has the right to issue a warrant of commitment or to not issue it as he sees fit.

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CON

Arthur Meighen (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. MEIGHEN:

After hearing the minister now I feel like saying that reprehensible as was his conduct in relation to both the barge Tremblay and Moses Aziz, I would rather be guilty of it than of certain statements the minister has made in this House. Does the minister stand before his fellow' lawyers in this House, before a layman or before anyone and say that after conviction he has the right to interfere? Imagine him doing so! The law of the land is there; the man was convicted under a Dominion statute,^ and not under any provincial law. Are hon. members of this House to accept the assumption of the minister that after the merits of a case are tried before a judge there is still jurisdiction in the minister to prevent execution of the sentence? Is British law in that condition? Will the minister repeat that he believes in his heart that he had the slightest . right, after the judge gave his judgment in the case, to step in between that sentence and the prisoner?

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LIB

Lucien Cannon (Solicitor General of Canada)

Liberal

Mr. CANNON:

Certainly he had.

At six o'clock the House took recess.

After Recess

The House resumed at eight o'clock.

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CON

Arthur Meighen (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. MEIGHEN:

The last words the House was treated to as it rose at six o'clock were an assertion by the Solicitor General, concurred in by the Minister of Customs, that

Customs Inquiry-Mr. Meighen

that minister had the right, under the law of Canada, to step in between a sentence and its execution. It is one of the sad features of this House that hon. members can be found who will make assertions of law of that character. The law is written in the Criminal Code, its provisions are there; the duty of the magistrate is there. Surely it is the common knowledge of every British subject that whatever may be the rights of a prosecutor, and they are very limited, up to the time of a conviction, the moment the conviction takes place those rights, whatever they are, are closed, and the prisoner is m the hands of the court, subject to no jurisdiction but the jurisdiction of the court. If it is to be assumed that the Department of Customs has control and discretion-and it has in very large degree -during the progress of the prosecution, but that after the merits are tried, the verdict given and the sentence pronounced, it still has control, then I ask what are our courts of justice more than mere machinery of government departments? The minister said just before six, and these words are in line with What he said in his speech of the day before yesterday, that under the law as it stands to-day and in the opinion of the Deputy Minister of Justice as embodied in his speech, the minister has the right to issue a warrant of commitment or not to issue it as he sees fit. As I said before, it is really something of a shock to hear a minister of the crown-yea even a member of parliament -make an assertion of that sort. The minister issue a warrant of commitment? He never issues a warrant of commitment. It is the magistrate who issues the warrant of commitment, and the magistrate's duty to issue it is imperative and final, subject to the intervention of none whatever save a higher court. Aziz might have appealed to a higher court had he wished; but if he does not, no department of this government and no. minister of the crown, has the right to sit in appeal over a judge and pass judgment on the merits of the sentence, or as to whether it is right or wrong.

I have before me the form of the conviction and the form of the commitment. I do not wish to labour the record with too much in the way of quotations, but if hon. members will look at Crankshaw's Criminal Code, fifth edition, at pages 1286 and 1287, they will see what the duty of a magistrate is, and will see very clearly that no one can intervene between the magistrate after sentence and the prisoner himself. Now an attempt was made-

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LIB

Lucien Cannon (Solicitor General of Canada)

Liberal

Mr. CANNON:

Will my hon. friend allow me a question? As I said this afternoon, it is probable that I may follow the right hon. gentleman, so in order to understand one thing may I put this question: Is it not a fact that the Criminal Code also has a clause to the effect that after sentence the Minister of Justice can interfere?

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CON

Arthur Meighen (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. MEIGHEN:

The Minister of Justice can recommend parole or clemency to His Excellency as to imprisonment or ai to fine, undoubtedly. There is a jurisdiction in clemency in His Excellency the Governor General, but that duty he never can depute to anybody. Here was a case where an attempt was made not only to get the Minister of Customs to interfere, but to interfere even before the man went to gaol; and so great was the confidence of the friends of Aziz-this "precious help in the election"-that they believed they could get the man out of gaol before he got in, by intervention of the Minister of Justice. Do not let anybody be confused, The question is as to the right of a minister of the crown, or of anybody at all, to step in and pervert a court of justice after the prosecution has wholly passed out of his hands and rests in a court of law. I do not think I need labour the subject more in order to convince any member of this House; but I want to say a few more words in order to put the Minister of Customs in the position he is bound to occupy in relation to this matter.

He states that he produced an opinion of the Deputy Minister of Justice to the effect that he had a right to interfere after sentence was pronounced. I beg all hon. members- I do not need to say this to lawyers; every lawyer knows that no deputy minister of justice can sign any such thing-but I beg all others to read, and read carefully, what the Minister of Customs read from the Deputy Minister of Justice. I have it before me and I am afraid I will have to burden the record by reading it again. I ask hon. members to watch carefully and see if the Deputy Minister of Justice says one single word, expresses one single thought, on the subject of jurisdiction after conviction. I ask hon. members to follow the reading and they will find what the Deputy Minister of Justice says is that in the conduct of the prosecution-under the law it can be done, and as a matter of convenience it is done-instead of the Department of Justice conducting a prosecution it could be conducted by the Department of Customs. That is what the Deputy Minister of Justice says. He shows that under the

Customs Inquiry-Mr. Meighen

law that could be done, so that whatever could have been done by the Department of Justice in conducting a prosecution can be done by the Minister of Customs. That is quite true, but neither the Deputy Minister of Justice nor anyone acting under him can step over the threshold of the conviction and stand between a prisoner and his sentence. Now I read this memorandum which the minister would like hon. members to confuse with the opinion that he had the right to do that act.

Referring to your inquiry as to the practice in the handling of customs and excise prosecutions-

Hon. gentlemen will note that:

I may say that there is a custom of long standing whereby the instructions to legal agents of this department or to the Royal Canadian Mounted Police in certain classes of cases are given direct by the department whose minister is charged with the administration of the particular statute under which the proceedings are being taken.

The conduct of the prosecution is given to the department whose minister is charged with the particular work in respect of which there is an infringement: The memorandum

proceeds:

The classes of cases referred to are principally prosecutions under the Customs and Excise Act, the Income War Tax Act, the Opium and Narcotic Drug Act, the Food and Drugs Act and other statutes relating to health and agriculture. The reason for this practice, which has had the approval of successive ministers of justice, is that in the large majority of cases belonging to any particular one of these classes the points of law and the other considerations which arise are similar, and do not require to be specially considered by this department in each case. In order to keep the business in connection with these prosecutions running smoothly it is essential that the procedure should be so far as possible free from red tape. The practice referred to eliminates a great deal of unecess-aiy correspondence between the departments concerned, resulting in a saving of time, labour and expense in the handling of this work.

So far as the customs and excise cases are concerned. the practice seems to be not inconsistent with the desires of parliament for at least two reasons, first because the administration of the Customs and Excise Act is given to the Minister of Customs, and secondly, because it is provided by section 266 of the Customs Act that:

"All penalties and forfeitures imposed by this act, or by any other act relating to the customs or to trade or navigation shall, unless other provisions are made for the recovery thereof, be sued for, prosecuted and recovered with costs by His Majesty s Attorney General of Canada, or in the name or names of the Commissioner of Customs, or any officer or officers of the customs, or other person or persons thereunto authorized by the Governor in Council either expressly or by general regulation or order, and by no other person." .

Under the practice the proceedings are taken in the name of the Attorney General of Canada, but they are instituted upon instructions from the Department of Customs and Excise, and are carried on, adjourned, discontinued, abandoned or pressed to a conclusion as that department may direct.

There is the end of the whole opinion. Of course the Minister of Customs knows that the direction of prosecution, instead of being in the hands of the Attorney General, is only in his name, and it is in the hands of the Department of Customs-the direction of the prosecution to a conclusion. But once it is concluded his jurisdiction ends. To intimate to this House that after a conclusion is reached the minister could stop a warrant of commitment is a suggestion which does no credit to the minister and is something which should shock the conscience of parliament.

Now I turn to the minister's contention that the reason he did this was that he had the right to do so. I have argued, and I think shown conclusively, that he had not, that no deputy minister of justice or any other minister ever gave him such an opinion-and I may say parenthetically that, labouring as hon. members have to get an opinion, if they could have got such a statement from the deputy minister of justice they would have had it. They would be here in parliament with it. They might have brought it even to the committee, but they could not get it, so -they produce just a long harangue in order to confuse the members of the House.

I now proceed to show that the minister knew he did not have the right, not only on the 28th and 29th October, but that he knew it ever since. He stands here and gives his reasons. Why did he not give these reasons when examined by the hon. member for West Calgary (Mr. Bennett), the hon. member for Peace River (Mr. Kennedy) and the hon. member for West Hamilton (Mr. Bell)? I ask hon. members to ponder again and ask themselves why he did not give these reasons then. Did he believe he could stand crossexamination? If he did so believe, would he not have given the evidence? He sought to intimate this afternoon that the reason was that he did not know the committee regarded seriously this letter from Mr. Robichaud. What has that to do with the question? Nothing in the world. I now affirm and stand -prepared to prove that the minister swore in evidence that he had no right at all to issue that retardation of the order of commitment, no righ-t at all to interfere with that sentence, and not only that he had no such right, but that he knew so from the beginning-knew so at the time he gave his evidence. This is the minister who stands now before the House and says he had the right. If hon. gentlemen will turn to page 1408 of the evidence they will find verbatim the letter of Mr. Robichaud. They will also find verbatim a telegram sent at the request

Customs Inquiry-Mr. Meighen

of the minister to Mr. Stewart, their officer, which telegram reads as follows:

Am directed to request you Lto stay execution of warrant of commitment against Moses Aziz pending further investigation. Arrange with magistrate accordingly.

Now we proceed a little further and we get to the evidence of the hon. the Minister of Customs. He said something about taking the place of the acting minister and being responsible alone. The evidence reads:

Q. That may be, although it seems that there is a difference between staying iproceedings against a man, that is holding up prosecution, and interfering with commitment after sentence has been pronounced.

A. I am quite willing to admit [that. I admit I did not understand this case very thoroughly, as I did not think it was within the power of a minister to stay proceedings on a warrant of commitment.

I will undertake to give six definite and distinct repudiations on the part of the minister of his right to interfere with that warrant. On the next page the examination proceeds :

Q. The question is still open, and I think you from the files satisfied yourself that the man should go to jail, but you held it up until Mr. Robichaud came to see you, and stall the man is walking the streets and defying the laws of the country.

A. I want to be fair to Mr. Robichaud and I want the committee to be fair with me. I wanted to keep the promise with Mr. Robichaud, but I am willing to admit there may have been negligence on my part in not bringing Mr. Robichaud to my office. I want the committee to realize that since parliament opened the Minister of Customs has been exceedingly busy.

That is preliminary only. The examination proceeds:

Q. Why not issue the writ of commitment now?

A. I will be very glad to after I have heard Mr. Robichaud. If he has nothing further to say, there is no reason why it should not be issued.

The only reason he ever gave was that he had the right. Then the next question reads:

Q. What right have you to interpose yourself between a warrant issued by the court and its execution?

A. I do not pretend to have that right, but whether right or not I promised Mr. Robichaud I would hear him before I withdrew the order.

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LIB

Lucien Cannon (Solicitor General of Canada)

Liberal

Mr. CANNON:

If I understand the question aright, it is: What right have you to

interfere between a warrant of commitment and its execution? Is that not correct?

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CON

Arthur Meighen (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. MEIGHEN:

The minister will not

rise again after I have read a few more answers. The question was whether he had a right to interfere when he did interfere, and he admitted that he had no such right. I continue:

Q. Surely, you realize this, that you are a minister, and have your duties to perform as Minister of Customs and Excise?

A. I do not think for a moment I have a right to withhold it.

To withhold it merely. Will the minister rise now? He had no right to withhold the warrant, although the telegram was to withhold it.

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LIB

Georges Henri Boivin (Minister of Customs and Excise)

Liberal

Mr. BOIVIN:

I shall be very glad to rise and reply to my right hon. friend if he will permit me.

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June 24, 1926