Mr. Chairman, in what I say I shall refer particularly to subsections 3 and 4. Subsection 4 entitles the attorney general, or counsel acting on behalf of the attorney general, to reply, even though an accused does not offer evidence in his own defence. I know of only one or two cases in which this power has been used by counsel acting on behalf of an attorney general, It is a survival of the English common law, and is based upon the legal fiction of the supremacy of the crown. I am wondering where it has any application today.
Certainly those in the commission who redrafted or reshuffled the sections of the Criminal Code did away with common law offences. I feel that subsection 4 is a survival of the common law and is no longer applicable, having regard to present-day conditions. It was a power exercised by the crown, chiefly in treason and analogous cases. I think it is unfair to the accused. Today under our law the crown and the individual are equal, as a result of the changes brought about two years ago in connection with proceedings in the courts. In view of the fact that today the crown and the citizen are equal I can see
no justification for continuing this principle under which the crown, in our courts, occupies a superior position.
This provision has been in effect throughout the years. As I say, I know of only one or two cases in which it has been used. This was not in my own province but rather, I believe, in Manitoba in the year 1912, at a time when certain prosecutions were taking place in that province in connection with contracting work on the legislative buildings. The crown in that instance demanded the right of reply. I believe, too, the right was exercised in one case in British Columbia. I suggest this right should now be abrogated.
Subsection 5 is a new subsection which states:
Where two or more accused are tried jointly and witnesses are examined for any of them, all the accused or their respective counsel are required to address the jury before it is addressed by the prosecutor.
I believe this is a necessary change in the law, where there is a joint trial. Otherwise such trial becomes all mixed up, with counsel addressing the jury with respect to one charge, and waiting for other counsel to address the jury on another charge. I believe subsection 5 will go a long way toward meeting the difficulty in those cases in which there are two or more accused. It will remove the anomalous situation that does prevail when there are two accused, one of whom gives evidence on his own behalf and the other who fails to do so.
However, in connection with subsection 4, I would ask the Minister of Justice whether he does not consider the time has come to remove from the criminal law this survival of the old decision that the crown occupied a position superior to the individual, and where the citizen was second to the crown in the courts of the land.
Subtopic: REVISION AND AMENDMENT OF EXISTING STATUTE