June 28, 1944

LIB

Arthur Graeme Slaght

Liberal

Mr. SLAGHT:

The hon. member is reflecting on the whole bench.

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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NAT

Richard Burpee Hanson

National Government

Mr. HANSON (York-Sunbury):

No, I

respectfully dissent from that. I have a very high regard for the bench as a whole.

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LIB

Arthur Graeme Slaght

Liberal

Mr. SLAGHT:

One would not think so, after the hon. member's last remarks.

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LIB

Thomas Vien (Speaker of the Senate)

Liberal

Mr. SPEAKER:

I would ask hon. members to address the Chair.

Topic:   CRIMINAL CODE
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NAT

Richard Burpee Hanson

National Government

Mr. HANSON (York-Sunbury):

I would not have said what I did if the hon. member for Parry Sound had not interjected; and I am not going to say any more on the subject. I am inviting the Minister of Justice to illuminate this discussion by telling us just what has changed the policy Of the Post Office Department.

Topic:   CRIMINAL CODE
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LIB

Paul Joseph James Martin (Parliamentary Assistant to the Minister of Labour)

Liberal

Mr. PAUL MARTIN (Parliamentary Assistant to the Minister of Labour):

Mr. Speaker, I think these amendments are certainly long overdue, particularly that one having to do with the inclusion of the words in the present section which provide that it is mandatory for a judge or magistrate to impose a sentence within the ambit of the phrase "or for any term not less than three years." This provision has called for amendment long before this. The hon. gentleman who has just spoken mentioned a case in the province of Ontario. Chief Justice Rose has given an obiter dictum to the effect that the magistrate has power to impose a suspended sentence, and

Criminal Code

in one case in which I appeared two years ago a suspended sentence was granted in spite of the mandatory direction of the present section.

Topic:   CRIMINAL CODE
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PC

John George Diefenbaker

Progressive Conservative

Mr. DIEFENBAKER:

What was the

nature of the offence?

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LIB

Paul Joseph James Martin (Parliamentary Assistant to the Minister of Labour)

Liberal

Mr. MARTIN:

The same kind, of case. It was Rex v. Mallott. It is reported I think in the Ontario Weekly Notes, but I have not at hand the citation. The point I had particularly in mind was in reference to that part of section 364 to which no amendment is suggested. This reads:

Every one is guilty of an indictable offence and liable to imprisonment for life who steals,

(a) a post letter bag, etc.

As one who has had some experience at the bar I feel it my duty to register strong objection to this kind of provision, even though it may be an omnibus provision. I find it difficult to conceive of any kind of crime under paragraphs (a), (b), (c), or (d) which would justify, a life sentence. It might be impossible to find a magistrate who would impose such a sentence, but any one who has practised at the bar knows that there are magistrates and magistrates. One does not know what might happen. There might be the restraining influence of the court of appeal, but I suggest that we should not permit the. inclusion in any of these sections of a punishment which is out of keeping with the tempo of modem criminal jurisprudence. There was a time in the history of our law when we punished an individual with death for theft, but in this day and age I do not think we are going to correct crimes of this sort by leaving in the hands of an irresponsible magistrate the power to impose, if not a life sentence, anything like it for such offences. I think we should unhesitatingly remove the discretionary power which this present section provides so far as the maximum sentence is concerned.

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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NAT

Gordon Graydon (Leader of the Official Opposition)

National Government

Mr. GORDON GRAYDON (Leader of the Opposition):

Mr. Speaker, I think the parliamentary assistant to the Minister of Labour (Mr. Martin), who has just spoken, has brought to the attention of the house a matter which deserves consideration and, if I may say so, the unanimous support of the house. I am not always able to support him as strongly as I can on this occasion, but I do not think we should pass this statute in the manner in which it now is and let an accused person who is convicted be liable for imprisonment for committing these crimes. Perhaps I had better read one of them to the house in order to im-

press upon hon. members the seriousness of the term which is imposed. The first crime is the theft of a post letter bag.

A post letter bag may not contain anything; it might be only an empty bag, because it does not state that it must contain something. If an employee of the Post Office Department were to pick up a bag and take it home, surely a magistrate should not have such extended jurisdiction as to permit him to impose life imprisonment. It might of course be properly said that a magistrate would not do that, but we have no right to grant that discretion.

This section indicates clearly the ridiculousness of some of these sections in this enlightened period of our national existence, and I support the parliamentary assistant to the Minister of Labour in his plea. It looks to me as though we are back in the old days when they used to hang men for putting their initials on London bridge. Those were supposed to be much darker days than what we are living in right now.

The postal employees generally are not an overpaid group of people, and I think it is bad to impose such a heavy penalty and make them liable to life imprisonment for what at best could be only a relatively small misdemeanour.

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

Paul Joseph James Martin (Parliamentary Assistant to the Minister of Labour)

Liberal

Mr. MARTIN:

This is the section as it

has stood for some time.

Topic:   CRIMINAL CODE
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LIB

Thomas Vien (Speaker of the Senate)

Liberal

Mr. SPEAKER:

May I point out that this discussion really belongs to the committee stage of the bill. We are now dealing with the principle of the bill. If you accept the principle, that does not mean that the bill cannot be altered by amendment in committee. If the principle is adopted, then the discussion now taking place could continue in committee.

Topic:   CRIMINAL CODE
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IND

Liguori Lacombe

Independent Liberal

Mr. LIGUORI LACOMBE (Laval-Two Mountains) (Translation) :

Mr. Speaker, it is not by extending the term of imprisonment to which delinquents are sentenced that we shall necessarily prevent crime. I have more faith in preventive than in punitive justice. Of what avail is it to the authorities to imprison for life an individual who is guilty of an offence if no appropriate action is taken in penitentiary institutions for the rehabilitation of prisoners? The latter are not always hardened criminals, far from it. If a post office employee steals a letter, a parcel or even a post letter bag, why should he, except in the case of a confirmed criminal, be liable to life imprisonment? I consider the amendments to the criminal code which are proposed in this bill

Criminal Code

as extremely severe; that is not preventive but punitive justice. The purpose of every piece of legislation, even in criminal matters, is both to improve the condition of individuals and to protect society. I believe that the proposed amendments go too far, at least as regards sections 1 and 2 of the bill, and I would rather see the criminal code remain as it is now.

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

Arthur Wentworth Roebuck

Liberal

Mr. A. W. ROEBUCK (Trinity):

Mr. Speaker, the difficulty with passing the principle of this bill as it stands is that by implication we are approving the sections as they stand as amended. It is true that formally all we are doing is to approve the amendment, but when we approve the amendment we are approving by implication the code as it stands as amended. We should not pass this bill, without some indication from the Minister of Justice (Mr. St. Laurent) that when it arrives in committee it will be amended to common sense. I have defended in court where there was a life sentence in prospect, and I wanted to tell the jury of that fact. There was a time in the courts of Ontario when judges ruled that you could not tell the jury what the limit of the penalty might be.

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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NAT

Richard Burpee Hanson

National Government

Mr. HANSON (York-Sunbury):

Can you now?

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LIB

Arthur Wentworth Roebuck

Liberal

Mr. ROEBUCK:

Yes, you can. A number of us brought that about because we refused to submit to an arbitrary ruling of that kind. We held that the jury had a right to know the limit of the penalty that might be imposed by his lordship. We achieved that right in the courts of Ontario, the right to tell the jury that if you convict the accused of this offence the criminal code allows the imposition of a life sentence. Can you imagine twelve good, decent and humane men listening to a charge under one or another of these clauses against some poor individual who may have stolen some inconsequential amount, a man with a wife and family and so on, and facing the possibility of putting the man in gaol for life? The thing is ridiculous. It is so extreme, as the leader of the opposition (Mr. Graydon) has pointed out, as to be pernicious, and it should be changed. I congratulate the hon.>

member for Essex East (Mr. Martin) upon having brought this matter to our attention.

The penalties provided in the code should be reasonable, penalties suitable to the offence in the circumstances. I practised in the courts of Toronto many years ago and I actually saw the criminal law reformed by the juries of the county of York. We had a judge who was unduly severe, who handed out five and seven year sentences with a generosity that was

appalling. In due season the juries refused to risk what he might do to the poor fellow in the dock. I saw juries bring in verdicts of not guilty when the prisoner was obviously guilty. Extenuating circumstances made incongruous the abuse which the judge was likely to inflict on him.

And so, too, with the code. You are going to have guilty men let off because of fear by juries of extreme, ridiculous and inhuman sentences. I commend the Minister of Justice for this amendment. I have had the experience of having some offender sent to prison for three years for an offence for which he should have been given three months, much to the regret of the magistrate, without the concurrence of the crown official, and certainly to the consternation of the man's friends and relatives and perhaps his wife and children. It is time that we gave magistrates the right to be reasonable. This we have denied them under the code as it now stands. Let us give them the right to be reasonable. Sometimes they may fail because of human limitations, but at least they should have the opportunity. This is good legislation.

I think some good purpose would be served by carrying out the suggestion made by the hon. member for Lake Centre (Mr. Diefen-baker) in having a more general review of the code, particularly of the sentences. The code sentences were adopted many, many years ago, long before we had reached the small degree of enlightenment which we now possess. What enlightenment we now have should be reflected in the criminal code. The Minister of Justice would be doing a public service if he could get a committee of many minds working on this subject in order that he might bring in at the next session a very much more extended series of amendments.

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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CCF

Joseph William Noseworthy

Co-operative Commonwealth Federation (C.C.F.)

Mr. J. W. NOSEWORTHY (York South):

Mr. Speaker, if a layman may be permitted to be so audacious as to take part in this debate between lawyers in a field where I think angels would naturally fear to tread, I should like to support the suggestions made by the leader of the opposition (Mr. Graydon), by the hon. member who has just taken his seat (Mr. Roebuck), and also the suggestion made by the hon. member for Essex East (Mr. Martin). I approve the withdrawal from the code of the minimum sentence formerly imposed. I agree with those who have spoken, that the amendment is in line with modern thought and practice.

I wish to register my opposition to the continued inclusion in the bill of the words "liable to imprisonment for life," which still gives the court the privilege of imposing a life

Criminal Code

sentence as a possible sentence for the offences set out in paragraphs (a), (b), (c) and (d) of section 364 of the code.

While I am on my feet may I say that the whole nature of this bill serves to emphasize the responsibility which society places upon the employees of the Post Office Department, and the necessity that these employees should be people of character and integrity. I want to compliment the Post Office Department and its employees upon the degree of responsibility and integrity which has been manifested in that department in the past. I just wish to say that that degree of character and integrity required of the employees of the Post Office Department is in strong contrast with the reward which society, through that department and the government, has been willing to pay to these employees; and I would suggest that this bill, which in one instance at least imposes a severer penalty than the former one upon the employees for a certain type of offence be accompanied later, when the minister's estimates come up for consideration, with the announcement that these employees are to be duly rewarded in keeping with the responsibility which we place upon them.

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

Arthur Graeme Slaght

Liberal

Mr. A. G. SLAGHT (Pariy Sound):

I

agree with the last speaker (Mr. Noseworthy) it is important that we should maintain in the public mind the necessity for the strictest probity in those who serve us in dealing with His Majesty's mail. There is an old tradition that His Majesty's mail must go through, and accompanying that is the tradition that that great arm of the public service, both the officers and the mail carriers, must comprise men of high integrity. In my view, in Canada these men are men of integrity. In my view, in the main, particularly as regards the carriers, they are underpaid. That is one of the problems not for to-day but for the future. If that be so, the frailty of human nature inclines men to err when tempted possibly in the matter of 82 or 85 which might be needed and which might cause them to break the country's laws.

Having said that, I desire to concur in the observations so well put by my hon. friend the member for Essex East (Mr. Martin), and I think the minister will find that they meet with the general approval of the house. I desire, Mr. Speaker, to adhere to your ruling to discuss the principle of the bill and not to speak as though we were in committee.

The principle of the bill is not such as the leader of the opposition (Mr. Graydon) suggested in error. He suggests that we are making a new start. We are not making a new

start, because the section we are amending provides for imprisonment for life, but places a minimum of three years. So far as the principle of the bill removes that minimum of three years I think it is sound. In so far as it seeks to perpetuate the right to punish with life imprisonment, I do not think the principle is sound.

The administration of our criminal law is the very foundation of our national existence, without which we cannot hope to succeed, and that administration depends upon the observance of a principle which a great English judge once enunciated: Not only shall justice be done, but the people shall feel that justice is being done. Having regard to that principle, I am bold enough to make a suggestion to the minister who takes the keenest interest in these matters. By his equipment before accepting this responsible post, as well as by reason of his record, he is well fitted to stand in this great and responsible position as Minister of Justice, and I wish to pay tribute to his record in that regard, as well as to his record since he has occupied the position. I venture, however, to suggest to him tha't when he comes to the committee he might feel inclined to suggest an amendment to the section which deals with section 364 and to reduce the term of imprisonment there by striking out the words "for life" and substituting words such as "for not more than", let us say, "eight years", or "seven years" or "five years"-some punishment that fits the crime. I suggest that he amend section 2, which deals with section 365, by reducing the term from seven to perhaps five years. My suggestion would be- and I offer it with diffidence, because this is a very open matter-that he amend section 364 by reducing the penalty to not more than seven years, and that he reduce the penalty under section 365, which defines lesser offences, to one of imprisonment for not more than five years.

Topic:   CRIMINAL CODE
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CCF

Stanley Howard Knowles (Whip of the Co-operative Commonwealth Federation)

Co-operative Commonwealth Federation (C.C.F.)

Mr. S. H. KNOWLES (Winnipeg North Centre):

As the hon. member for Trinity (Mr. Roebuck) has suggested, it is difficult to identify in brief form the principle of this bill. Many hon. members who have spoken seem to have regarded the principle as relating only to changes in the penalties to be provided for offences on the part of postal employees. I would point out that there is also section 3, which would change the penalties provided in section 436 of the criminal code, which section has to do with defrauding the government by delivering to the armed services goods which do not measure up to the specifications laid down. In other words, the broad principle of the bill is that certain

Criminal Code

changes be made with reference to the severity of sentences to be imposed, specifically in sections 364, 365 and 436 of the code.

The reason why I rise to say a few words is that, in my opinion, there is an inconsistency between the severity of the penalties allowable under sections 1 and 2 of the bill and the severity of the penalties allowable under section 3. A number of hon. members have pointed out that it would be possible, if this bill were passed in its present form, for a postal employee to be given a life sentence for the stealing of an empty postal bag. On the other hand, if a firm deliberately defrauds the government and the people of Canada, in the terms set out in section 3 of the bill, section 436 of the criminal code as amended would provide a maximum sentence of only seven years or a fine of 850,000 or both.

My interest in section 3 is related to certain remarks I have had occasion to make previous^ during this session with regard to the alleged defrauding of the government by certain bedding manufacturers. I have asked questions of ministers of certain departments and their parliamentary assistants, and there has been placed on Hansard information which would seem to indicate that such practices are in some cases being carried out. I refer to the failure of certain bedding companies, who are providing mattresses and other bedding products for the armed forces, to make those products in accordance with the specifications laid down by the government. Offences of that kind are covered by section 436, and the answer given me in one instance by the parliamentary assistant to the Minister of Munitions and Supply made it quite clear that at least one case is being proceeded with against a firm under this section. I have had strong representations made to me by parents and other relatives of members of the armed forces who learned that this kind of thing was being done. Not only is the government being defrauded but the health of persons in the services is being endangered in this way. I have taken this moment or two to refer in detail to this matter as one example of cases that come under section 436 of the criminal code. To my mind the offence I have mentioned is far more serious than the offences possible under paragraphs (a), (b),

(c) and (d) of section 1 of this bill. Like some of the hon. members who have preceded me I feel that we have no option but to raise these questions on second reading because the principle that we are being asked

to approve is the amending of the criminal code along the lines set out in the various sections. I wholly support the contention already made to the effect that a possible life sentence for the theft of an empty post letter bag should be reduced. I couple with that the suggestion-

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

Ernest Bertrand (Minister of Fisheries)

Liberal

Mr. BERTRAND (Laurier):

But if the bag had a $100,000 in it, what then?

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CCF

Stanley Howard Knowles (Whip of the Co-operative Commonwealth Federation)

Co-operative Commonwealth Federation (C.C.F.)

Mr. KNOWLES:

In that case the judge

would have the discretionary power to pass the appropriate sentence. The bill before us gives the judge the right to impose that very severe sentence even for a very light offence, and yet on the other hand, no matter how deliberate the action of a company in defrauding the government under section 436 of the criminal code may be, no matter how injurious it may be to the health of the people in the armed forces or to the health of our civilian population, the offence under the section even as amended by this bill cannot receive a greater punishment than imprisonment for seven years and a 850,000 fine. My contention is that the element of fraud in section 436 and the injurious effects upon health are so much worse than some of the offences under section 364 of the criminal code that there should be an alteration in the provisions of this bill. Like others who have spoken, I feel that there should be a lessening of the severity so far as sections l1 and 2 are concerned, but I contend also that there should be an increase in the severity so far as section 3 is concerned.

Hon. L. S. ST. LAURENT (Minister of Justice): I think I should deal very briefly

with some of the general observations that have been made with respect to this bill to amend the criminal code to provide for better administration of criminal justice.

The suggestion is made that there should be a provision dealing with mandatory sentences, removing the obligation to impose capital punishment in all cases of verdicts of murder. There may be very good reasons to urge for the limited extent of the removal which lias been enacted in the parliament of the United Kingdom for that kingdom.

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