Yes, quite right-that is bothering both of us, to which we mutually wish the answer, is assisted in some degree, I think, by the sidenote. It states in language that is more brief, more lucid than the provisions of the section itself that there is no acquittal unless the act or omission is not wilful.
No. I think it underlines what I was saying. When you read the marginal note and try to resolve the double negative I suggest that "no acquittal" would have to be interpreted as conviction. A conviction will be registered unless the act or omission is not wilful. The more one goes through this the clearer it becomes that the necessity for proving innocence has been placed upon the accused. The only thing that can be said in favour of the clause is a remark made by my good friend and my legal counsel, the hon. member for Digby-Annapolis-Kings. I hope it was not intended to be kept off the record, but perhaps I may take the liberty of quoting him in any event. He says this language is so balled up that no jury would ever understand it anyway. That being the case, there would never be a conviction under it. Seriously, I do not think the minister, the hon. member for Digby-Annapolis-Kings or I want to leave obscure language like that on the statute books.
In fairness to those who are responsible for the language of this clause, which should be read in conjunction with clause 204, defining infanticide, it should be said that they are faced with considerable difficulty in most cases of this kind. This difficulty arises from the fact that under a given set of circumstances the question may be whether the accused should be convicted of infanticide or murder, or should be acquitted. Perhaps it might be helpful if I were to read from the judgment by Chief Justice McRuer in a decided case, Rex v. Marchello, 1951 Ontario Weekly Notes, 316.
This case deals with the question whether an accused, under a given set of circumstances, is guilty of murder or infanticide. In that connection I should say that one of the first questions the crown has to decide is whether the charge laid against the lady in the case is a charge of murder or a charge of infanticide. Bearing upon that, the language of Chief Justice McRuer I think is relevant. He said:
The onus resting on the crown to prove all these combined elements in the crime would appear to be so heavy as to make it almost impossible to convict an accused person on a charge of infanticide if laid as single count in the indictment.
That is to say, if the indictment just had the single charge of infanticide in it.
On the one hand, the crown must prove a negative-*
We get into this difficulty my hon. friend from Winnipeg North Centre was describing. -by showing that the accused "had not fully recovered from the effects of giving birth to the child", and an affirmative that by reason of giving birth to the child the balance of her mind was at the time of the offence disturbed-
The crown has to prove that as well.
-while, on the other hand, on such a charge it would be a good defence to show that the accused had, at the time of causing the death of the child by wilful act or omission, fully recovered from giving birth to the child or that the balance of her mind was not then disturbed. In such case, even if a reasonable doubt was raised in the mind of the jury she would be entitled to be acquitted on the charge of infanticide, and thereafter she could not be charged with murder or manslaughter as an accused person cannot be put in jeopardy twice for the same homicide.
There is a principle in law that if one commits an act, and if a charge is laid in respect of the commission of that act, and the accused is tried on that charge and is acquitted, then no further charge could be laid based upon that act. Under all such circumstances the accused is "home free".
I believe my hon. friend can see from this carefully considered language of Chief Justice McRuer that the subject matter we are discussing here bristles with great difficulties. The problem which arises in every one of these cases from the very beginning is as to whether, upon the set of facts, the charge should be infanticide or murder. Then, as Chief Justice McRuer makes very clear, when you get into the actual case the crown is up against a very difficult position because it has to prove a negative of one proposition and a positive of another in order to secure a conviction for infanticide,
I think my hon. friend can see from this inadequate, and perhaps from his standpoint unsatisfactory discussion of the subject that the drafting of the clause he criticizes is a task of no inconsiderable difficulty.
With great respect, I submit the minister has proved my point. I listened with interest to the case he cited from Chief Justice McRuer, and I think it is fair to say the minister gave that citation to show that the law as it now stands affords considerable protection to the accused. But, Mr. Chairman, this clause that is now before us, clause 570, is a new clause which puts an additional barrier in front of the accused, or conversely makes it easier for the prosecution. My whole point is that this clause 570 is new. When the minister stands up and gives us the case law I think he is making a good case for the proposition that the law should stay as it is. This addition changes the situation, and as I have already said makes it just that much easier for the prosecution to win or just that much more difficult for the accused to be declared innocent.
Lately we have seen some interesting newspaper reports stating that changes of sex have taken place. I wonder how Chief Justice McRuer would handle the case if such a person were charged with infanticide.
Without digressing to the interesting subject which has been raised by my hon. friend to the right, I do not think it is a matter that occurs so frequently that the code has to deal with it at the moment. I think the minister will admit that the saving clause at the bottom of clause 570 is really superfluous, and does not affect the situation in any way. It says:
. . . she may be convicted unless the evidence establishes that the act or omission was not wilful.
That is elementary, because if it was not wilful it would not be a crime. I do not think that is really of much help to us in analysing what the hon. member for Winnipeg North Centre has elaborated upon. He has presented it much more cogently than I could, so I am not going to repeat what he has said. According to the explanatory note, this is a new section and certainly it is going to shift the burden of this thing so far as the defence is concerned. It is not relieved at all by the last part of the clause, because if it is not wilful it is not a crime; it is not homicide. If a mother rolls over on her baby at night and the baby smothers, that would not be a wilful act and she could not be prosecuted for infanticide.
Frankly I am not too much concerned about it, as I told my hon. friend a little while ago in an aside, because those of us who have had any experience in these matters know how difficult it is to get a jury to convict in a case 'of infanticide. So often there is sympathy for the mother, and often the mother is unmarried in such cases. Ordinarily the jury will lean over backward to avoid a conviction for this offence, and very often properly so. With this other factor in there, when you charge a jury very learnedly on the law they are going to throw up their hands and say, "I did not know what he was talking about, I do not believe the judge understood it, so I will go out and acquit her".
I should like to ask the minister if he would comment briefly. I note that clause 571 is new, and I think it is a good thing to have it in here. To me this new clause represents an advance. Heretofore, when an indictment has gone to a jury, and when a second indictment has set forth in detail that an accused was being charged with a second offence, such accused was obviously prejudiced.
We now come to clause 572 (1). Frankly I do not like this one. Possibly the minister can explain it. We see that it refers to sections 851 and 963, and I do not think it helps at all. The explanatory note goes on to say that section 572 is new, in part. Section 572 (1) says, in effect, that where an accused is convicted of an offence for which a greater punishment may be imposed by reason of previous convictions-that is, when he is convicted of a second offence and has a previous conviction-no greater punishment shall be imposed upon him by reason thereof unless the prosecutor satisfies the court that the accused, before making his plea, was notified that a greater punishment would be sought by reason thereof.
As I read the clause it would seem to open up a dangerous situation. An accused person may have a perfectly good defence to a crime with which he is about to be charged. This accused person has committed a previous offence. If he pleads guilty the crown prosecutor, or the prosecuting officer, can say that he will treat it as a first offence. But then he may say, "If you plead not guilty, we are going to treat it as a second offence."
I think a situation is being created here where, with all due respect for the many competent prosecution officers throughout the country, accused persons are going to be laid open to blackmail. For the life of me I do not know why we should have this clause in there. What good does it do a man, before he is convicted, to be told, "If you are convicted you will get more than you would-get if you plead guilty."
As I read the section this is an invitation to police officers to hold a club over a man's head and to say, "Plead guilty, or else. And here is a law which says so. Here is a law which says that the judge can convict you of a second offence, and you will get a lot more. I am warning you that if you plead not guilty to this you are going to get the works." Without the knowledge of the minister, or without the knowledge of a responsible prosecuting officer, I can see that sort of thing happening. I am sure the minister will know instinctively that it will happen.
I am wondering just what value the clause might have. The minister may say that the commissioners recommended it, or there may have been a recommendation from somewhere else. I have not gone into the history of it. But when I read it, it does seem to me to give too great opportunity for blackmail, and I suggest the minister should consider it carefully.
I am afraid I am in complete disagreement with my hon. friend in what I consider is his misconstruction of the purpose of this clause. Let us suppose that an accused is convicted of a certain offence, and has served his penalty. Then he commits the offence a second time, and is again charged. Let us suppose further that it is one of those offences for which, upon being convicted a second time, he can receive a heavier penalty. Now, once we grant that our prosecutors are blackmailers, which I do not. admit-