June 28, 1944

OFFICIAL REPORT

FIFTH SESSION-NINETEENTH PARLIAMENT 8 GEORGE VI, 1944 VOLUME V, 1944 COMPRISING THE PERIOD FROM THE TWENTY-EIGHTH DAY OF JUNE, 1944, TO THE TWENTY-SIXTH DAY OF JULY, 1944, INCLUSIVE BEING VOLUME CCXLIII FOR THE PERIOD 1875-1944 INDEX ISSUED IN A SEPARATE VOLUME OTTAWA EDMOND CLOUTIER PRINTER TO THE KING'S MOST EXCELLENT MAJESTY 1945 CANADA


Houge of Commons ©etmtes



Wednesday, June 28, 1944


THE KING'S BIRTHDAY

REPLY OF HIS MAJESTY TO RESOLUTION EXTENDING GREETINGS AND GOOD WISHES

LIB

Thomas Vien (Speaker of the Senate)

Liberal

Mr. SPEAKER:

If the house will please rise, I have a communication from His Majesty the King:

Buckingham Palace

21st June, 1944.

Dear Mr. Speaker,

The King has received from the Governor General the address adopted by the House of Commons of Canada on June 8.

His Majesty greatly appreciates this expression of the loyal good wishes of the members of the house on the occasion of the official celebration of his birthday in Canada and commands me to ask you to convey to them his sincere thanks for their kindly sentiments towards himself.

Yours sincerely,

A. Lascelles.

The Speaker,

House of Commons of Canada.

Topic:   THE KING'S BIRTHDAY
Subtopic:   REPLY OF HIS MAJESTY TO RESOLUTION EXTENDING GREETINGS AND GOOD WISHES
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CRIMINAL CODE

AMENDMENTS-THEFT FROM POST OFFICE-FRAUD IN SALES OF MILITARY STORES-APPEALS FROM SUMMARY CONVICTIONS IN QUEBEC


Hon. L. S. ST. LAURENT (Minister of Justice) moved the second reading of bill No. 139, to amend the Criminal Code.


PC

John George Diefenbaker

Progressive Conservative

Mr. J. G. DIEFENBAKER (Lake Centre):

Mr. Speaker, in connection with this bill, which has to do with a number of amendments to the criminal code, an opportunity is given to make some reference to amendments to the criminal code and the necessity for such amendments being made at this time. Each session there is an annual piecemeal introduction of amendments to the criminal code, and the accumulation of these suggestions for amendments show the necessity for a complete revision of the Criminal Code of Canada at the earliest possible time, such revision to be based on the changing and changed conditions 100-271

through which we have passed and on the changes which have taken place in public opinion since the last revision of the code, also by reason of the scientific advancements that have taken place since the time of Sir John Thompson, who in a revision some fifty years ago codified our criminal law.

I suggest, Mr. Speaker, that the time has come for consideration by this house and by the Minister of Justice in particular of a revision of the criminal code in its entirety in order to bring it up to date and in order to remove the results of conflicting judicial interpretations which have been given on the various sections as well as anomalies that appear in many sections of the code.

All admit that the criminal code should be revised, and I .rise for the .purpose among other things of placing before the Minister of Justice the suggestion that there should be set up by parliament a committee composed of outstanding representatives of the law, and others, particularly of members of the bar, so that they may hear evidence from jurists, scientists, penal workers and psychiatrists to the end that there shall be a body of evidence available to enable the criminal code to be brought up to date.

Having regard to the fact that these amendments before us have to do with the revision of penalties I should like to suggest that something be done with regard to amending the criminal code in order to remove the situation that prevails to-day in that there is a mandatory penalty of death for all convicted of murder. That penalty has been changed in other parts of the empire. As a matter of fact -I am not at the moment entering into any discussion of the merits or demerits of capital punishment-in 1941 capital punishment was done away with in New Zealand, as was flogging and whipping as punishments for certain crimes. The trend recently has been to ameliorate the harshness of the criminal code, and I believe that provision should be made for the removal of the penalty of death so far as youths of eighteen years of age are concerned. In Great Britain that has been the law since the Children and Young Persons

Criminal Code

Act was amended in 1932 providing that the sentence of death shall not be pronounced or recorded against any person under the age of eighteen years. Only recently there was an example of the horror felt by the people as a whole when in the city of Montreal an outstanding jurist, following conviction by a jury, had to impose mandatory sentence of death upon a fifteen-year old boy. True enough, everybody realized that the sentence would not be carried out, and as a matter of fact, shortly after the trial of a confederate, the sentence was commuted, as has been the case for many years, because po person under the age of eighteen has been executed for murder, the sentence in every case having been commuted.

There is reason why these severe sentences should be removed from the code. As the Minister of Justice has stated, experience has shown that when mandatory sentences are out of line with what public opinion ragards as proper in the particular case, justice is defeated; for juries, realizing that there is no other way, in many cases, to avoid the rigours of the law, bring in a verdict of "not guilty" or a verdict for a lesser offence. No matter what may be said in regard to the jury system, one salient fact stands ou,t, namely, that throughout the years juries have been the protectors of the people against unfairness, harshness and the rigidity against change which have too often characterized law makers who are behind advancing public opinion.

I suggest too that provision should be made whereby the right of appeal to the Supreme Court of Canada should be made available in criminal cases from the appeal court in the various provinces. One of these sections has to do with the matter of appeal, but it does not face the problem of the right of appeal on the part of the individual. Too often, as the law stands to-day, the right of appeal to the Supreme Court of Canada, by a person in search of justice, is circumscribed within such narrow limits that many who would otherwise appeal are denied the opportunity to do so.

One of the important things in connection with the administration of the criminal law is that not only should a man receive justice out that he should believe that in fact he is receiving justice, and I believe that in that regard all possible injustice would be removed if the minister would consider the enlargement of these provisions.

I believe that in the administration of the criminal law we should seek not only to punish but to reform. As the law is to-day, any youth of sixteen or over who commits a

serious offence is sentenced to a penal institution. We have no institutions similar to those in the United Kingdom. In that regard we are far behind in the administration of our penal system. Many of the outstanding recommendations, most, if not all of what the royal commission on penitentiaries recommended in 1937, remain recommendations that have not been carried into effect.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS-THEFT FROM POST OFFICE-FRAUD IN SALES OF MILITARY STORES-APPEALS FROM SUMMARY CONVICTIONS IN QUEBEC
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LIB

Jean-François Pouliot

Liberal

Mr. POULIOT:

And rightly so. They have not been carried into effect and it was right not to carry them out.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS-THEFT FROM POST OFFICE-FRAUD IN SALES OF MILITARY STORES-APPEALS FROM SUMMARY CONVICTIONS IN QUEBEC
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PC

John George Diefenbaker

Progressive Conservative

Mr. DIEFENBAKER:

That is a matter of opinion. I believe that the recommendations that had to do with the improvement of the administration of justice ought to have been carried into effect, and so far as youth is concerned, so far as first offenders are concerned, provision should be made whereby it would not be obligatory as it is to-day to put them among old offenders. A system similar to that in the United Kingdom under the Borstal method should be brought into being in this country.

There is one other suggestion I would bring to the attention of the minister. Only recently in Toronto a prisoner sentenced to the penitentiary was taken to the common gaol, and while there a homicide was committed, allegedly by him. I feel a change should be made in the law whereby, when a man is sentenced to penitentiary, he should be forthwith taken there, where measures of security are much greater than in many gaols. As the law is to-day, unless a prisoner signs a waiver of his right of appeal, he remains in the common gaol for a period of thirty days. That, I submit, should be done away with, and provision should be made whereby those in authority may send prisoners sentenced to penal institutions to the penitentiary pending the period during which the appeal should take place.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS-THEFT FROM POST OFFICE-FRAUD IN SALES OF MILITARY STORES-APPEALS FROM SUMMARY CONVICTIONS IN QUEBEC
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LIB

Ralph Maybank

Liberal

Mr. MAYBANK:

Will the hon. member permit a question? That which is being suggested to the house would make it somewhat more difficult for the prisoner in case he desired to prosecute an appeal, would it not? I take it it is not the hon. member's intention to make appeals more difficult, but is it not a fact that sending the man to penitentiary would make the institution of appeal more difficult for him? How would the hon. member get around that?

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS-THEFT FROM POST OFFICE-FRAUD IN SALES OF MILITARY STORES-APPEALS FROM SUMMARY CONVICTIONS IN QUEBEC
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PC

John George Diefenbaker

Progressive Conservative

Mr. DIEFENBAKER:

The question is a perfectly proper one. I realize the difficulties of counsel communicating with his client in the penitentiary. One has to communicate

Criminal Code

with the Department of Jnstice in order to secure permission to do so. Apart from that, however, I see no difficulty in the way.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS-THEFT FROM POST OFFICE-FRAUD IN SALES OF MILITARY STORES-APPEALS FROM SUMMARY CONVICTIONS IN QUEBEC
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LIB

Ralph Maybank

Liberal

Mr. MAYBANK:

Distance, as a rule.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS-THEFT FROM POST OFFICE-FRAUD IN SALES OF MILITARY STORES-APPEALS FROM SUMMARY CONVICTIONS IN QUEBEC
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PC

John George Diefenbaker

Progressive Conservative

Mr. DIEFENBAKER:

Yes. But arrangements could be made for appeal directly after the sentence, and in any event, so far as the matter of appeal is concerned, it could all be done through the medium of correspondence as grounds of appeal have to do with legal arguments respecting the charge in general and very seldom with regard to the quantum of evidence.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS-THEFT FROM POST OFFICE-FRAUD IN SALES OF MILITARY STORES-APPEALS FROM SUMMARY CONVICTIONS IN QUEBEC
Permalink
LIB

Thomas Vien (Speaker of the Senate)

Liberal

Mr. SPEAKER:

I cannot see the relevancy of the hon. member's remarks with regard to the question of appeal. His remarks are general with reference to the provisions of the criminal code and amendments that may be made thereto, but the house is considering specific amendments, and so far as I have followed the hon. gentleman to the present moment, he has not specifically referred to the matter before the house. Rather, he has suggested that there should be a general revision of the code. That may be in order somewhere else, but not at this moment. If the hon. member wishes to discuss the question of ' the relevancy of his remarks at this time I shall be glad to hear him.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS-THEFT FROM POST OFFICE-FRAUD IN SALES OF MILITARY STORES-APPEALS FROM SUMMARY CONVICTIONS IN QUEBEC
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PC

John George Diefenbaker

Progressive Conservative

Mr. DIEFENBAKER:

What I had in mind was this. This bill amends the criminal code. Sections 364 and 365 mean that there is going to be an amelioration in the rigour of mandatory sentences. I bring to the attention of the house other sections that should be dealt with with regard to amelioration of sentence to the end that the administration of justice may be as perfect as possible.

The question of an appeal is dealt with by an amendment to paragraph (b) of section 749. This paragraph provides that in the case of summary convictions in Quebec, appeals shall be made to the superior court. The principles laid down with regard to amelioration of the mandatory sentence and the matter of appeals should be applied to the general administration of justice, and provision should be made that in respect of youths under eighteen years of age the death sentence shall not be mandatory. I contend that the amendments contained in the bill cover only a small segment of the problem, and that appeal to the Supreme Court of Canada is necessary in criminal cases to assure of a proper administration of justice.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS-THEFT FROM POST OFFICE-FRAUD IN SALES OF MILITARY STORES-APPEALS FROM SUMMARY CONVICTIONS IN QUEBEC
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LIB

Thomas Vien (Speaker of the Senate)

Liberal

Mr. SPEAKER:

The hon. member's argument is that the bill before the house deals with matters that are the subject of comment

to the Minister of Justice, and that further reference should be made to them because they are now raised by this amendment,

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS-THEFT FROM POST OFFICE-FRAUD IN SALES OF MILITARY STORES-APPEALS FROM SUMMARY CONVICTIONS IN QUEBEC
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June 28, 1944