March 10, 1954

LIB

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

Liberal

Mr. Garson:

The suggestion is that this offers a temptation to them to indulge in blackmail. I suggest that once a man has been convicted of an offence and has committed that same offence a second time, he thereby exposes himself to the possibility of being found guilty a second time and receiving a heavier penalty. I would say that if anyone wants to blackmail him in respect of that situation, all the ingredients of blackmail are there without this clause at all. For, in the terms of my hon. friend's approach to the matter-and I see him nodding his head in assent-all that would be necessary would be for the prosecuting counsel to say to the

accused's counsel, "If your client pleads guilty to this charge we will charge it only as a first offence, and not as a second offence." In those circumstances what my hon. friend calls the act of blackmail would be complete whether or not the clause now under discussion is passed.

Now, I share with my hon. friend the very greatest distaste for any such tactics as that, but it is not this clause that makes such tactics possible. Indeed, the purpose of the clause is the very opposite. If a man has been convicted once of an offence and commits the same offence a second time, for which second offence he can receive a heavier penalty, does it not seem the most elementary justice that someone should let him know before proceeding with the second case, and before he decides to plead either guilty or not guilty, that it is going to be charged as a second offence? And that is just what this clause says.

It seems to me that, instead of being prejudicial to the accused, it is all in his favour. Under this clause he knows what he is up against. On the other hand if he is given no such notice at all and pleads guilty, or does not make an effort to defend himself and is found guilty, and if in those circumstances the crown comes along and says to the court, "Now, this is a second offence and we are going to ask for the increased penalty"-I say in those circumstances my hon. friend would have a right to say that such an accused was being unfairly treated.

The reason for this clause is that it was felt that, where the crown intended to seek higher punishment because of a previous conviction, an accused person should have notice, before pleading either guilty or not guilty, that greater punishment would be sought. This change received the support of the provinces at a joint meeting with the commissioners. The departments of the provincial attorneys general thought this was just a matter of elementary fairness, and that if the crown were making a charge of a second offence an accused should be told before his case was tried, not after.

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PC

George Clyde Nowlan

Progressive Conservative

Mr. Nowlan:

In the first place I thought I made it clear, in any suggestion I made with respect to blackmail, that I was not referring to prosecuting officers. I said I did not think any responsible prosecuting officer would indulge in such practice. But I did say that some police officers would, and I say that without any hesitation. It would not arise through the action of any responsible prosecuting officer who was carrying out instructions either of the attorney general or of the minister of justice.

Criminal Code

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LIB

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

Liberal

Mr. Garson:

May I ask the hon. member a question?

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PC
LIB

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

Liberal

Mr. Garson:

Is it the crown prosecutor or the peace officer who decides as to what charge should be laid?

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PC

George Clyde Nowlan

Progressive Conservative

Mr. Nowlan:

That is just where the.

beautiful theory advanced by the Minister of Justice comes in. It does not stand up in practice, because I suggest the police officer knows very well what charge will be laid, although he may not know the technical phrasing of it in all cases. But if he picks up a man who has been convicted before, the police officer may know there has beeq a former conviction, while the prosecuting officer may not even know that he had been arrested.

What I am objecting to is the fact that you now have it spelled out in black and white right in this Criminal Code, this massive, document. Mind you, when I say "a policy officer" I am not saying all police officers;^ but human nature being what it is, it is a" fair statement to make that many of these! police officers feel that they should get convictions. They probably feel that the man is guilty. They do not want to waste too, much time in court. I am sure the Minister! of Justice has to admit the logic of that Although he cannot admit it officially, the minister knows it. I have seen scores and scores and hundreds of cases where police officers have urged, encouraged and sometimes threatened men with what would happen to them if they wasted time fighting the case. "Go and plead guilty, and we shall see that you get off easy".

That is the usual approach. Perhaps I should not say "usual", but it is an all too frequent one; I shall put it that way. Here you have spelled it out in black and white, so that any prisoner who can read can have it pointed out to him. Can you not hear-

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LIB

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

Liberal

Mr. Garson:

Not "imposed upon him";

"would be sought".

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PC

George Clyde Nowlan

Progressive Conservative

Mr. Nowlan:

I know, "would be sought"; but you know the effect these words would have in a cell at night. The prisoner is not going to get the fine nuances of that phrase which the Minister of Justice can put before us this afternoon in this chamber. The Minister of Justice of course quite properly cannot envisage himself in a cell at half-past two or three o'clock in the morning, because that would not happen to him, but it would happen and does happen to lots of people in this country.

My hon. friend says that in fairness to the accused it should be set forth. After all.

Criminal Code

Mr. Chairman, there will be the odd individual, the odd accused, who through poverty and desperation will not have a lawyer to advise him; but in 99 per cent of the cases, in 999 out of 1,000 major crimes or major punishments-and that is the only thing with which we are concerned; we are not concerned with trifling things here-the accused will have retained a lawyer.

I say to you, sir, with all due respect to the superficial-and I am not saying this unkindly-or the apparent logic presented by the Minister of Justice, that it falls down under the harsh realities of the circumstances in which this section will be applied and that it is unnecessary, if you simply anticipate the fact that the accused will have a lawyer. If he cannot afford one, and it is a serious offence, the court will appoint a lawyer for him anyway. It is much better for his lawyer to advise him privately as to his rights and liabilities in making a plea than to have it printed and set forth here in the Criminal Code where I have no doubt, Mr. Chairman, it will be used as I have suggested today.

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Clause agreed to. Clauses 573 to 591 inclusive agreed to. On clause 592-*Allowance of appeal against conviction. '


PC

Wallace Bickford (Wally) Nesbitt

Progressive Conservative

Mr. Nesbiit:

I should like to say a word on paragraph (d), and I should also like to go back to the remarks the minister made earlier this afternoon. Paragraph (d) says: -may quash a sentence and order the appellant to be kept in safe custody to await the pleasure of the lieutenant-governor where it is of the opinion that, although the appellant committed the act or made the omission charged against him, he was insane at the time the act was committed or the omission was made-

I wonder whether the minister would comment on whether it might be a good idea to use the same terms throughout the code with respect to mental illness, or insanity, or whatever it is called. I notice that the word "insane" is used further back, and the words "mentally ill" are also used. Then a little later on the word "insane" is used again. I was wondering whether the words "mentally ill" should not be added, because it is a more up-to-date term than "insane". The minister said earlier that the word "insane" should be retained to keep up with previous case law.

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LIB

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

Liberal

Mr. Garson:

The decision as to the words that should be used in drafting a given clause of a bill obviously has to be based in part upon the cases or appeals to which it is to apply. And here clause 592 (1) (d) of

the bill provides that the court of appeal upon hearing a criminal appeal may, amongst other things:

-quash a sentence and. order the appellant to be kept in safe custody to await the pleasure of the lieutenant-governor where it is of the opinion that, although the appellant committed the act or made the omission charged against him, he was insane-

The condition that is being described here is not the kind of condition that my hon. friend has in mind in those other sections that we are dealing with. The insanity which is referred to here is insanity of that degree which constitutes a defence to a charge of criminal responsibility. I think myself that "insane" is the proper term to apply to the appellant in such a case. His is legal insanity.

In any event, this is one of the provisions that will come before the royal commission which is being set up. If the royal commission were to come to the view that there should be some change in this clause, then we can receive and consider its recommendations.

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PC

Wallace Bickford (Wally) Nesbitt

Progressive Conservative

Mr. Nesbitt:

One further question in that regard. I take it from the minister's remarks that at the present time he considers the terms "insane" and "mentally ill" are not synonymous.

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LIB

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

Liberal

Mr. Garson:

I would think that would all depend upon what meaning was attached to "synonymous". If my hon. friend means that they are precisely synonymous I would say no, I do not think that they are precisely synonymous; but we shall have a better understanding when we get the royal commission's report as to whether the terms "mentally ill" and "insane" could be applied to that degree of insanity which should be recognized as a proper defence to a charge of criminal responsibility.

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CCF

Alfred Claude Ellis

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

Mr. Ellis:

When the royal commission brings in its reports may it be necessary to go back over some of these sections and make changes in view of the fact that we may get some new definition of the terms "insane" and "mentally ill"? In other words, is it not possible that the commission may give us an entirely different interpretation of the definition of the word "insane"?

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LIB

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

Liberal

Mr. Garson:

We have set up this royal commission in order that it may examine insanity as a defence to a charge of criminal liability, and say whether the law relating to that subject should be amended and if so, to what extent and in what manner. In other words, we may expect from the report of the royal commission either an affirmation that the present law is satisfactory and sufficient, or a quite definite recommendation

that the law should be changed; and the respects in which it should be changed will be indicated in the report.

As I have indicated on previous occasions in the discussion on Bill No. 7, we of the government have undertaken that when that report becomes available, we shall implement it if it commends itself to our judgment. If it does not commend itself to our judgment, then if any members of the opposition parties would like to bring in a bill implementing any portion of the report that we of the government might not see fit to implement, we shall expedite the consideration of the legislation which they bring in. In that way the House of Commons will have full opportunity to consider whether any amendment should be made to the criminal law arising out of the report of the royal commission.

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PC

Wallace Bickford (Wally) Nesbitt

Progressive Conservative

Mr. Nesbitt:

I do not like to labour this point, but there is just one thing more. In the event of nothing further happening as a result of the report of this commission, and no changes being made, I wonder if the minister would consider putting in the interpretation section of the act a definition of, first, insanity and, second, mental illness, since apparently they are not synonymous. I think it might save a lot of trouble at a later date.

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LIB

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

Liberal

Mr. Garson:

If when the report has been received and perused by my hon. friend he finds that it recommends no change and he wants to press this suggestion, we will receive it with the same careful consideration we have always given all suggestions by the opposition.

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Clause agreed to. Clauses 593 to 598 inclusive agreed to. On clause 599-Notice of appeal.


LIB

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

Liberal

Mr. Garson:

I would like to suggest that this section be amended by adding after the word "unless" in the twelfth line the words "before or after the expiration of that period."

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LIB

March 10, 1954