March 10, 1954

PC

John George Diefenbaker

Progressive Conservative

Mr. Diefenbaker:

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 I feel that subsection 4 is a survival of the common law and is no longer applicable, having regard to present-day conditions.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.

Topic:   CRIMINAL CODE
Subtopic:   REVISION AND AMENDMENT OF EXISTING STATUTE
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LIB

Stuart Sinclair Garson (Minister of Justice and Attorney General of Canada)

Liberal

Mr. Garson:

This is another case in which, in all candour, I must admit that the point raised by the hon. member for Prince Albert has some merit. It does, however, seem a bit extraordinary that this bill should have been in course of preparation and consideration for some five years now, and that during all this time, in its progress through the commission and through my own department, during its consideration by the commissioners on the uniformity of legislation, criminal division, and by the attorneys general of the provinces, as well as the special committee of the House of Commons and of the other place, this is the first occasion upon which representations to the effect of those just advanced by the hon. member for Prince Albert have been made by anyone.

I agree that this present provision merely continues in effect the substance of section

Criminal Code

944, subsection 3 of the present code which has been the law of Canada for a great many years. It has not been necessary on very many occasions to invoke this provision, yet I think it would be wise, before discarding it, to examine those occasions on which it has been invoked to see whether it would not be a good provision to retain to cover these exceptional cases when they arise. I would accordingly suggest that my hon. friend's suggestion might be submitted, like the one he made previously this afternoon, to the commissioners on uniformity, criminal section, for consideration at their next meeting. In that way we would get the views of those who will have some connection with the administration of the amendment proposed by my hon. friend from Prince Albert, if it were passed.

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Subtopic:   REVISION AND AMENDMENT OF EXISTING STATUTE
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PC

John George Diefenbaker

Progressive Conservative

Mr. Diefenbaker:

I have no objection to that. What I was trying to do was assure some degree of consistency, for I remember two years ago, when the crown and the citizen were given equal standing in the courts, the Minister of Justice as Attorney General of Canada saying that now we had arrived at a point where no longer does the crown occupy a superior position. It was because of that statement that I raise this point.

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Subtopic:   REVISION AND AMENDMENT OF EXISTING STATUTE
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LIB

Leonard T. Stick

Liberal

Mr. Stick:

I am just seeking information, since I am a layman. In most criminal cases the crown opens the case and closes it by means of the crown prosecutor addressing the jury last. I do not understand why the crown prosecutor should have the last word to the jury before the judge sums up the case. Why is the sequence not maintained, so that if the crown prosecutor opens he should address the jury first and counsel for the defence last? Is there any special reason for that? I was always curious about it.

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LIB

Stuart Sinclair Garson (Minister of Justice and Attorney General of Canada)

Liberal

Mr. Garson:

The explanation of the point which my hon. friend has raised arises out of the necessities of the trial. Because the accused is innocent until he is proven guilty, the prosecutor opens the case, and he has to adduce evidence to prove the accused's guilt before there is any case for the accused to answer at all. The accused's counsel then puts in his evidence to establish the best defence he can. When the accused's counsel has got all his evidence in, he gets up and explains to the jury what a wonderful defence it is that he has made. Next the crown prosecutor attempts by argument to show that the defence has not answered the crown's case. When, however, defence counsel puts in no evidence it is the crown prosecutor who first has to argue that the crown's case is well proven, and defence counsel then closes the argument.

The question we are now discussing is as to whether in exceptional cases the crown

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would have a further right of reply. Now, as I understand it, this reply to which the hon. member for Prince Albert strongly objects will be strictly confined by the judge to the answering of any new points that were brought out in the defence counsel's address. The crown prosecutor would not be permitted to go over his case again; his closing argument would have to be a reply in the strict sense.

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LIB

Leonard T. Stick

Liberal

Mr. Stick:

It has always struck me as unfair. If the accused is innocent until he is proven guilty, then it has always struck me that this procedure gave the crown an advantage in that it had the last word with the jury. I grant you that the judge is there to sum up the case, but I could never understand it from that standpoint.

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CCF

Clarence Gillis

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

Mr. Gillis:

I have heard some young lawyers make exactly the same criticism, that the crown attorney, who is usually an old, experienced lawyer, will come in and make his case. After all, it is a debate as to who is right or wrong. After he finishes his case the defence lawyer gets up and puts in his evidence. Then the crown attorney has the right of rebuttal. He has the right to get up and tear the defence to pieces and close the case. That is the last impression that is left in the minds of the jury. During that time the defence lawyer sits there. The crown attorney may have left himself wide open, but the defence lawyer is prevented from answering at all. Most young lawyers at least consider it very unfair and say that it places them at a great disadvantage.

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LIB

Stuart Sinclair Garson (Minister of Justice and Attorney General of Canada)

Liberal

Mr. Garson:

There is just one footnote that I should add to the remarks made by my hon. friend. The last thing that happens in a case is the judge's charge to the jury. The jury does not retire with the words of counsel ringing in their ears; they retire reflecting upon the words of the presiding judge.

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PC

John George Diefenbaker

Progressive Conservative

Mr. Diefenbaker:

And the court of appeal has the last say.

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LIB

Stuart Sinclair Garson (Minister of Justice and Attorney General of Canada)

Liberal

Mr. Garson:

Yes.

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Clause agreed to. Clauses 559 to 561 inclusive agreed to. On clause 562-Admissions at trial.


PC

John George Diefenbaker

Progressive Conservative

Mr. Diefenbaker:

This section has to do with evidence on trial. I should be very much interested in learning from the Minister of Justice whether or not the commissioners gave consideration to the promulgation

under law of rules respecting the admission of so-called confessions on the part of accused persons. Clause 562 says:

Where an accused is on trial for an indictable offence he or his counsel may admit any fact-

That is of course at the trial. As the minister knows, the whole subject of admissibility of confessions is one of the most difficult that the courts have to deal with. All want to see a guilty man punished, but all who confess are not guilty. Everyone in the active practice of law in the courts knows of cases in which the accused for one reason or another have signed very complete and all-embracing confessions. Later on those confessions have been established to have no relationship to the facts. I think of one case in the province of Saskatchewan. Back in 1933 a little girl was murdered at Naicam, in that province. I think the minister knows of the case, because the prosecution of the alleged murderer took place about three years ago; incidentally, he was acquitted. This little girl had been ravished and murdered. A man was picked up in Portage la Prairie, Manitoba, and he made a complete confession in detail. As he was examined by the police officers more and more facts came to his mind. He was finally brought back to Naicam and there he re-enacted the offence.

Some months later, when all hope of his acquittal had disappeared so far as his relatives were concerned, although believing in his innocence, a farmer living some 300 miles from Naicam read of this man's confession of having committed this murder on a certain day. He realized that this was the man who had worked for him throughout the summer, and that he could not have been at Naicam on the date in question. This farmer communicated with the attorney general's department. When the accused was faced with the fact that he could not have committed the offence he still clung stubbornly to his confession, because apparently he had stolen some money from his employer before he left for Manitoba. Under ordinary circumstances that confession would have been admitted, if the circumstances between the time he was committed for trial and the actual trial had not come to light.

I ask the minister whether he does not believe the time has come when there should be a declaration similar to that made in Great Britain in 1911 by a commission of judges relative to the safeguards that must be built up against the possibility of a false confession being made or being exacted, or whether he believes that the present rather

haphazard system, in which the whole question is in a doubtful state, is sufficient to assure justice.

I should like to see him give consideration not to having an amendment made to the Criminal Code but to a declaration by representative judges which could be delivered to officers of the mounted police bringing the law up to date, so that the whole field of confessions would be generally similar in interpretation in every part of this country. I think it would be a worth-while undertaking, and one that would add lustre to the tenure of the Minister of Justice.

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LIB

Stuart Sinclair Garson (Minister of Justice and Attorney General of Canada)

Liberal

Mr. Garson:

Mr. Chairman. I do not think that there has been a great demand for the reform to which my hon. friend from Prince Albert refers. I would be inclined to think there are quite a number of judges and counsel who are of the view that our laws of evidence relative to the admissibility of confessions are in good condition as they now stand. I think, moreover, my hon. friend will agree that no amendment to our existing laws of evidence could be devised for practical application to the great majority of cases, which would exclude such a confession as the one he has just described.

Would my hon. friend not agree that the difficulty in connection with this confession which he described arose from the fact that the confessor, quite inexplicably and irrationally but also quite voluntarily, without any inducement being held out to him by persons in authority, made his confession?

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PC

John George Diefenbaker

Progressive Conservative

Mr. Diefenbaker:

Without any illegal

inducement.

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LIB

Stuart Sinclair Garson (Minister of Justice and Attorney General of Canada)

Liberal

Mr. Garson:

Yes; as I understand my hon. friend's recitation of the facts, without any inducement, but prompted by some irrational impulse of his own he constructed a completely false confession that perhaps would have resulted in his being found guilty of a crime which he did not actually commit. I do suggest to my hon. friend that such a confession is not an example of a defect in our existing laws of evidence with regard to the admissibility of confessions. I suggest further to him that there is no law of general application regarding the admissibility of confessions in criminal trials that the human mind could devise that could exclude the explicit, voluntary false confession to which he referred.

However, that is not to say that my hon. friend's suggestion does not have merit. We are always anxious to consider any improvement in the law that can be made. We never cease to be anxious to do so. I shall be glad

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to take my hon. friend's suggestion into account. I think he will agree, as he has properly said himself, that the amendment which he suggests would not be to the Criminal Code. If made at all it should probably be made to the Canada Evidence Act.

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Subtopic:   REVISION AND AMENDMENT OF EXISTING STATUTE
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PC

John George Diefenbaker

Progressive Conservative

Mr. Diefenbaker:

As a matter of fact I did not intend that it should be an amendment to anything. What I suggested was a declaration similar to that which the judges of the court of king's bench in Great Britain made in 1911. The minister knows that the mounted police often use that declaration as a guide by which to determine the admissibility of confessions, and also to determine the course they should follow in securing admissions of guilt.

I feel that we should not be relying so much on a declaration made in Great Britain in 1911, but that we should have for our police officers a declaration of principles indicative of the course to be followed in order to be sure that confessions shall indeed be admissions of guilt rather than statements containing admissions that are not truthful. That is the reason I make the suggestion.

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Subtopic:   REVISION AND AMENDMENT OF EXISTING STATUTE
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PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

I do not think that there is much to add to what the hon. member for Prince Albert has said, except to say that I agree with him that it might be worth while to ask the judges of the respective provinces if they could either appoint representatives or perhaps meet together for such a purpose. I recall comments being made on the matter by one of the judges of our own court in British Columbia, who made a suggestion in the course of the trial which received some attention.

This judge had had experience in police court work, as he had been a police court magistrate before his appointment to the supreme court bench. He referred to admissions of guilt given to the police without due distinction being made-what he was saying was applicable to his own court, and another judge might not require the same distinction-as to whether the statement was voluntary or volunteered. He said that in order to satisfy him on its admissibility a statement not only must be voluntary, but it should be volunteered. He said, ''I have heard of too many voluntary statements, that is to say where no illegal inducements or promises of advantage were held out, which I know were not volunteered. After all," he said, "if I keep on asking you if you would not care to say such and such, finally you may build up the idea in your mind that it would be a good idea to say such and such

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'2862 HOUSE OF COMMONS


Criminal Code a thing. The statement you make is voluntary, but you certainly have not Volunteered it." There is a distinction to be drawn between the two types of confessions or admissions which I think is of importance, and which has in it elements which should be carefully considered. I think the suggestion made by the hon. member for Prince Albert is a good one. I should like to make another comment at this stage, and I do so with due respect for the commissioners who have redrafted this code and for the actual draftsmen who put it into legal language. I have not been able to avoid making a mental note, and here I am making an oral note, of the apparent temptation presented to the commissioners to change the wording for the sake of changing it. If you compare this clause with section 978, which it replaces, you will see tvhat I mean. Section 978 reads as follows: Any accused person on his trial for any indictable *offence, or his counsel or solicitor, may admit any fact alleged against the accused so as to dispense with proof thereof. Then we find clause 562 reads as follows: Where an accused is on trial for an indictable offence he or his counsel may admit any fact alleged against him for the purpose of dispensing with proof thereof. That is practically the same wording with just two or three words changed, as though the commissioners or the draftsmen had said to themselves, "Well, I can do it better, and I am just going to show that I can by changing a word here or a word there." I cannot see the purpose of such a change. It occurs over and over again. In some cases obviously the change does not alter the meaning of the section in such a way as to raise even a question that the case law might no longer be applicable. But I suggest that in some cases this change for the sake of change has the effect of raising the question whether the case law under the previous section will continue to be applicable. I am not going to repeat that comment. I hope I can resist the temptation to repeat it. But I think it is one that should be made, and this is a place where it seems to me to be particularly appropriate to make it. There is one change which I think I should ask the minister about. While making the slight changes in wording they have dropped the word "solicitor". Previously it provided that an accused or his counsel or solicitor could make an admission. Now, however, it is to be confined to the accused or his counsel. Is there not possibly some result of that change which goes beyond a mere change of words?


LIB

Stuart Sinclair Garson (Minister of Justice and Attorney General of Canada)

Liberal

Mr. Garson:

No, there is not. If my hon. friend will look at clause 2, subsection 7 of the bill he will see that "counsel" is defined as including solicitor.

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March 10, 1954