June 28, 1944

PC

John George Diefenbaker

Progressive Conservative

Mr. DIEFENBAKER:

That is as far as

I went.

Mr. ST. LAURENT: I gathered that that was as far as the hon. member for Lake Centre was recommending that we should go. Beyond that I think it is preferable, so long as capital

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punishment is to remain one of the punishments provided by our law, to have it mandatory, and not leave it the responsibility of the presiding justice in certain cases to feel bound to impose capital punishment and in other cases to have the privilege of not doing so. I think that for the cases in which parliament decides that capital punishment is the right penalty the provision of the code should be mandatory as it is at the present time. With respect to the limited removal recommended by the hon. member for Lake Centre I think that is a matter which would receive serious consideration from the kind of committee that the hon. member recommended be set up to consider the whole matter of the criminal code and to take the evidence of jurists, scientists and penologists on such improvements as it may be proper to bring about. Were the times not such as they are-I am not at all sure that I would be here then, but if I were I would be very much inclined to recommend, as the hon. member has done, the setting up of a committee and its operation in an active way. On the whole I think it is preferable to leave that over until the times are more propitious than they are just now, and in view of the news we have been receiving from the theatres of war let us hope that such times will not be too far distant.

The second recommendation of the hon. member would have to do with the enlarging of the possibilities of appeal in criminal cases to the Supreme Court of Canada. I think that would also be a matter upon which it would be of value to parliament to have the recommendations of the kind of committee suggested by the hon. member. As hon. members know, there is now the possibility of appealing to the supreme court whenever there is a conflict of decisions between the appeal courts of two or more of the Canadian provinces. That has served a very useful purpose in bringing into harmony the application of the code throughout the whole of Canada. It is possible that in perhaps not all criminal cases, but in a certain range there should be, without the necessity of obtaining leave and showing special circumstances, the right to take the opinion of the Supreme Court of Canada. Where the line would properly be drawn is a matter that has to be carefully considered. At the present time the line is drawn between decisions which conflict with those of the appeal court of another province and those that do not. If the line is to be moved I think it should be carefully considered as to where it would be set up again. It would be useful for parliament to have report of a [Mr. St. Laurent.}

committee that would have taken the evidence of jurists and others qualified to offer opinions of value upon such matters.

The next suggestion has to do with something about which I am sure every hon. member of this house and most of the Canadian people, though they are not in this house, are in agreement; that is, the desire to see our penal system developed in such a way as will make not merely for punishment but for reform. It has been stated on more than one occasion since the beginning of the war that the recommendations of the Archambault commission could not be fully implemented without the provision of large capital expenditures for the establishment of new institutions. However, I believe we can join the hon. member in saying that in the recommendations of that commission there is much, even though it requires considerable capital expenditure, which should 'be undertaken as soon as circumstances permit.

Another suggestion had to do with the controversial" question of whether or not a man convicted and sentenced to a term which would have to be served in a penitentiary should be removed to that institution before the expiration of the time during which an appeal could be entered. The matter was brought to a head by incidents which occurred in the Toronto gaol within recent weeks. Only this week the officers of the Department of Justice had conferences with the mayor of Toronto in reference to the situation which exists in that city. That suggestion would entail serious inconveniences. Just as an indication of these, supposing a man convicted in Kenora and brought to Kingston desired to appeal. His counsel in Kenora would find himself seriously handicapped by the fact that his client had been moved to Kingston.

There is also this further point. Up to the present time the penitentiaries have been organized for the purpose of carrying out sentences which involve hard labour. I submit with respect, Mr. Speaker, that it is not proper to impose any punishment upon a person until he definitely has been found guilty and subject to such punishment. During the time his case is before the courts for consideration it is proper, for the protection of society, that he be confined; but I think it would be improper to impose any other part of the punishment until the case is finally disposed of. If the suggestion were adopted we would require to have two departments in our penitentiaries, one in which there would be merely confinement, and the other, which exists at the

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present time, for the serving of time at hard labour. That is- an objection which was suggested to the mayor of Toronto. There are other inconvenient features, but the matter is now actively under consideration. In the meantime another suggestion within the powers of other authorities was made for the purpose of remedying the deficiencies which are so apparent in the Don gaol.

On more than one occasion the hon. member for Broadview (Mr. Church) has indicated his great concern over the number of serious or fatal highway accidents owing to motor traffic throughout Canada. I have obtained for him some statistical information, but I did not expect to have the matter discussed here to-day, and I note that the hon. member said he would refer to the matter and ask for the information when the estimates of the Department of Justice were being considered. In respect of the appeal to the superior courts of Quebec from summary convictions the hon. member suggested that we may have too many high court judges in Quebec. On that point I shall be able to show the hon. member the per capita cost for the indemnification of judges in each province; and he will find that, since there are no county courts in Quebec to which federal judges are appointed, the per capita cost for the indemnification of judges there is rather lower than elsewhere. I can also assure the hon. gentleman that the recommendations made by the chief constables' association with respect to the administration of the criminal code are always received very gratefully and considered very carefully, because it is realized that they, with the officers of my department, have a common concern in maintaining peace, order and good government in the country.

There remains the question submitted by the hon. member for York-Sunbury (Mr. Hanson) as to the reasons for the change in attitude on the part of the Post Office Department with respect to the severity of sentences provided by the criminal code. Of course the hon. member is quite right in thinking that the Department of Justice would not have suggested this change if it had1 not originated with the Post Office Department or at least been concurred in by the officers of that department. Since the beginning of the war the situation that has arisen in the operation of the post office is rather different from that which existed prior to the war. Before the war the work of the Post Office Department was generally done by permanent employees. Since the war started it has not been possible to select and enrol a sufficient number of permanent employees to do all the work that had

to be done, and temporary employees have been taken on; married women, minors and others who did not have the training or experience of the normal permanent staff of the Post Office Department. That created a new situation. You went before the court with some incident attributable to one of these temporary employees and charged that person with an offence which carried a minimum penitentiary sentence of three years and a maximum sentence of life. When you asked the jury to convict, the jury would1 say, " That person has not done anything deserving of a sentence of three years in the penitentiary as a minimum or life as a maximum. He may have gone through the motions, but parliament did not intend the sort of thing he has done to be the crime for which a minimum of three years or a maximum of life is provided." The result was that it became very difficult to obtain convictions.

The question has arisen as to whether there could be a suspended sentence. I think both the hon. member for Essex East (Mr. Martin) and the hon. member for York-Sunbury are entirely correct. Legally there could be a suspended sentence, as section 1081 provides, if counsel representing the crown consented; but most frequently counsel representing the crown took the attitude that, parliament having provided a minimum of three years, it was not within his right to consent to anything less than three years' imprisonment. In most cases counsel representing the crown would say, "I have no right to give my consent," and without that consent the court could not suspend sentence. It may have happened in certain1 cases that counsel for the crown took a different view, and would say, "Well, here I have the choice between not getting a conviction and getting a conviction on the understanding that I will agree that this man will not go to a penitentiary for three years."

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:

That was the occurrence in the case about which I spoke.

Mr. ST. LAURENT: That may have happened, in exceptional cases; but the general attitude of crown counsel was that, parliament having said that the minimum punishment would be three years, they had no power to agree to suspended sentence.

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):

I think the magistrate took that view himself, in the case to which I refer.

Mr. ST. LAURENT: I suppose the magistrate would probably say to counsel, " It does not seem proper that you should give consent, when parliament has stated that the minimum

Criminal Code

penalty will be three years' imprisonment." But parliament had provided that a magistrate could suspend sentence if counsel for the crown agreed to its being suspended. Those are the terms of section 1081. It is stated that if a maximum punishment is less than two years, the magistrate may suspend sentence without consent. If the offence is one which involves a possible punishment of more than two years' imprisonment, the magistrate could suspend sentence only with the consent of counsel representing the crown.

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):

That is

correct.

Mr. ST. LAURENT: I think the reasons I have given will probably satisfy the hon. member for York-Sunbury.

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):

I am not .controverting it.

Mr. ST. LAURENT: It is not a general reversal of the policy that the mails ought to be regarded as sacred.

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):

That still stands.

Mr. ST. LAURENT: Yes. That still stands; and we know that great precautions are taken to ensure the delivery of the mails. The necessity of taking on so many temporary employees, frequently minors, and the possibility of their committing small offences in respect of the mails, made it desirable to have machinery whereby some punishment could be imposed. That is so, because in most cases one would not get any punishment at all, with the statute as it stood. A jury would almost invariably say, "This person has not done the thing for which parliament provided a minimum punishment of three years. What he has done is not something of that kind. Therefore we will not find him guilty, when he is being accused of something for which parliament has provided such a severe penalty."

Then, in the administration of the department, there was very great reluctance to institute proceedings when a matter did not appear to be of a degree of importance sufficient to imprison a man for three years in a penitentiary. And, having a class of persons quite different from the class of permanent civil employees who usually handle the mails, it was necessary to have a more flexible type of machinery to deal with this new class.

If the house accepts the amendment, the new procedure will be in operation, and experience will show whether this step has been wise or otherwise. When the service gets back to the place where it will no longer have any-

[Mr, St. Laurent.)

thing but its regular permanent staff, there may be reason for establishing some rule other than the one now suggested.

As to the details of the bill, and without giving any undertaking to accept amendments, I think it would be preferable if the discussion of such amendments were had in the committee stage.

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):

That is agreeable to us.

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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Motion agreed to, bill read the second time and the house went into committee thereon, Mr. Bradette in the chair. On section 1-Punishment of theft.


NAT

Richard Burpee Hanson

National Government

Mr. HANSON (York-Sunbury):

I think we ought to have an explanation of the point raised by the hon. member for Essex East. It was one which I intended to raise, but about which I had forgotten for the moment.

Mr. ST. LAURENT: Mr. Chairman, first of all I would point out that, as has been suggested, this is merely the maximum penalty which can be imposed, and that section 1054 provides:

Every one who is liable to imprisonment for life or for any term of years, or other term, may be sentenced to imprisonment for any shorter term.

So that even under this, the punishment imposed by a magistrate might be one day or thirty days or thirty years or life. The discretion is entirely in the hands of the magistrate. The suggestion has been made that it is quite improper to have in this kind of section the suggestion that there might be something sufficiently grave falling under the section to warrant life imprisonment. I submit that that is not so, in fact. Those of'us in the house who are older than most members will recall the sensations mail robberies .used to create. I remember not so many years ago an armed mail robbery of a mail car on the Ocean Limited, perpetrated some miles below Quebec city. That offence resulted in charges of murder, because homicide did occur in carrying out the project of stealing from the mails. I am not suggesting that there could not be framed an indictment under some other section of the code that would apply. But here-

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):

Probably would apply.

Mr. ST. LAURENT: Robbery might be made to apply. But one can conceive of thefts of mail bags and mailed matter under conditions of gravity sufficient to call for the most severe kind of penalty, short of the death sentence. This comes down from the very first drafting of the code, about fifty-odd years

Criminal Code

ago. At that time mail robberies were grave incidents which were still lingering in the minds of people on the north American continent. The offence of thieving from the mails could be anything from what is done-even done at the present time-by way of abstracting a few stamps, a dollar bill or some other small item from a letter, to the old-time mail robbery. The provision here may appear to be out of line, but as hon. members know, the maximum penalty for robbery is life, and that sentence may be accompanied by lashes. This is only a possible life sentence.

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):

This is a relic of the old days.

Mr. ST. LAURENT: I think our whole criminal code is a relic of the ten commandments, expanded to different degrees. I think the removal of any minimum will permit satisfactory administration of justice for the time being. There is no doubt that there are sections of the code where there is not a proper balance between the penalties provided. When the parliamentary committee, to which both the hon. member for Lake Centre and myself are looking forward, is established it can go over the whole situation. There is no doubt that a serious effort will be made to have a more uniform scale of penalties throughout the code, but it was felt in the department that for the time being we should merely suggest such amendments as are required for immediate application.

The removal of this minimum is something required for immediate application and the increasing of the severity of the penalty in the other section is of immediate application. We were dealing with things which it was felt in the department should go into force at once. We were not looking forward to bringing about piecemeal a more perfect general instrument to deal with those unfortunates who fall by the wayside and stray from the straight and narrow path.

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):

It seems

to me that what the minister has just said in his closing sentences is that the Department of Justice is recommending an expedient to parliament to serve a situation which has arisen at the moment and which requires attention. I am not going to quarrel with that, but I do say that the ameliorating of the minimum sentence is entirely out of balance with the retention of the life imprisonment in the early part of section 364 of the criminal code. Having regard to the lack of balance between what he is doing, on the one hand, and what is being suggested by the hon. member for Essex East, on the other, the

minister ought to give consideration to this matter. It seems to me that the two things are incompatible; they are out of balance.

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

John James Kinley

Liberal

Mr. KINLEY:

You are taking away from the one side.

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):

As the

hon. member for Queens-Lunenburg says, you are taking away on the one side and you are retaining an inflexible provision or scale of punishment on the other.

Mr. ST. LAURENT: Not inflexible.

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):

It is not

exactly inflexible, but the minister is maintaining a tremendously high penalty for what after all, as he himself suggests, may be a minor offence. I am not going to labour the point. This has been recommended by other hon. members and I do think the minister might well withdraw the bill and give the matter some consideration for another day. I do not want to hold up the bill. The minister should give us some explanation as to why the penalty is being raised in the next section.

Mr. ST. LAURENT: I will do that when we reach the section.

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):

I make

that suggestion in the utmost good faith. I have been impressed by the argument made by the hon. member for Essex East. I should have made it myself, and I really had it marked down. The two things seem to be out of line. We are relieving on the one hand, but we are not relieving the maximum on the other.

Mr. ST. LAURENT: The unbalanced

position might be looked upon as important in this section, but if the hon. member will turn to section 358 he will find provision for a penalty of fourteen years for simple theft. If we are to have a balanced scale we shall have to go through the whole code. That is something that should be done at a relatively early day, and I am hopeful that whoever sits in this seat when the war is over will consider the suggestion which has been advanced this afternoon as to the manner of doing it as the right way to go about it. I I hope that both my hon. friend and myself will have occasion to practise before the courts when a code so improved is being applied. The fact that the maximum remains will not create any immediate difficulty in the 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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NAT

Richard Burpee Hanson

National Government

Mr. HANSON (York-Sunbury):

It is

theoretical.

Criminal Code

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. NOSEWORTHY:

What effect would

the omission of the words "for life" have upon administration?

Mr. ST. LAURENT: If a maximum is not provided, the magistrate could not impose any imprisonment. If we eliminated the words "for life" the imprisonment that could be imposed could not go beyond one second. It would just be a technical imprisonment and the sentence would be served just as soon as it had begun.

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):

It would

be void for uncertainty.

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

John James Kinley

Liberal

Mr. KINLEY:

The hon. member for York-Sunbury referred to me. As a lay member of the house I have been listening to the interesting discussion and it occurs to me that by the removal of the minimum penalty you are making the statute more drastic in effect. You have within the bracket a high penalty and a low penalty. In this case the supreme penalty is life and the minimum penalty is three years. If you take away the minimum penalty of three years, what will the impression be upon the courts when they see the new statute which contains no reference to a minimum penalty? If a sentence of only two years or one year is imposed, the public may say, "What kind of judge is that? He gives only one or two years when the statute says that a life penalty may be imposed."

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