March 10, 1954

PC
LIB

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

Liberal

Mr. Garson:

-leaving it to the prosecutor to decide, upon the facts of the case, whether it was serious enough to proceed by indictment. I do not think it is a wise policy to have a serious offence punishable on summary conviction and then by setting a heavy penalty for that serious offence thereby, on the basis of that one serious offence, establish an exorbitant maximum penalty for all summary conviction offences committed by corporations. If one examines carefully either the present code or this new bill for those summary conviction offences which a corporation can commit, and which are a great deal more limited than those which an individual can commit, I think he will see that, in relation to those offences, the maximum fine of $1,000 is not out of line. It certainly would be out of line with regard to the nuisance although, as I think my hon. friend would agree from his experience as a crown prosecutor, every time that act was committed, it would be a new offence; and $1,000 an offence would run into quite a bit of money.

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PC

Wallace Bickford (Wally) Nesbitt

Progressive Conservative

Mr. Nesbili:

In answer to the remarks of the minister may I say that I had a plant in mind whose name I hesitate to give for various reasons. But I can well envisage a plant producing such a product that only when they were using certain substances, which substances might only be used for a day or so at a time, would something like this be produced. If the plant is sufficiently large it might be well worth paying $1,000 each time that took place. Therefore I think the minister's suggestion of an indictable as well as a summary conviction offence under 163 is excellent.

Criminal Code

Topic:   '2862 HOUSE OF COMMONS
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PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

They might save up all their noxious materials and discharge them once a year.

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Clause agreed to. Clauses 624 and 625 agreed to. On clause 626-Fines and penalties go to provincial treasury.


CCF

Herbert Wilfred Herridge

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

Mr. Herridge:

I should like to ask the

minister a question under this section. I think it is the correct one. I was informed by a person I consider to be quite responsible that when the R.C.M.P. lay a charge for an offence involving the operation of sweepstakes, particularly the Irish sweepstakes, the case is heard in Ottawa and the fine or any moneys seized are paid to the city of Ottawa rather than to the municipality in which the offence occurred.

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CCF

Stanley Howard Knowles (Whip of the Co-operative Commonwealth Federation)

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

Mr. Knowles:

No wonder Ottawa's taxes are going down.

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LIB

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

Liberal

Mr. Garson:

I am afraid, in all candour, that I cannot explain that. I would have to make inquiries, find out if that is the case and raise the matter when we next meet.

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PC

Clause agreed to. Clauses 627 to 629 inclusive agreed to. On clause 630-Order for restitution of property.


PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

I am not very happy about subsection 2 of 630. It reads as follows:

Where an accused is tried for an indictable offence but is not convicted, and the court finds that an indictable offence has been committed, the court may order that any property obtained by the commission of the offence shall be restored to the person entitled to it, if at the time of the trial the property is before the court . . .

What bothers me here is that an accused may be convicted of an offence for which he is indicted and charged, yet the court may order that property obtained by the commission of some other indictable offence, which it can only imagine has been committed because the accused has not been found guilty of it, be restored to some other person. The section seems to me to be full of difficulties. I think it is a new provision. I have been comparing it with the section noted on the righthand page, section 1050. It seems to me that the relevant part of 1050 is subsection 3 which provides in part:

... If the jury declares, as it may do, or if, in case the offender is tried without a jury, it is

proved to the satisfaction of the court or tribunal by whom he is tried, that such property belongs to such prosecutor or witness . . .

-then the property may be restored to such prosecutor or witness. In other words, under section 1050 you have to prove before the court in which the accused is actually tried that the property belongs to a specific person before it may be restored. On the other hand, under clause 630 you do not have to prove that it belongs to anybody. It just depends upon whether the court is of opinion that some offence has been committed, even although the accused has not been convicted of that offence. The court may then order restitution of the property to the person entitled to it. There is no necessity for that degree of proof which is necessary under section 1050.

In view of the fact that under the new clause the accused will have been charged and found not guilty of the offence for which he was charged, I think it opens up too wide and too vague a possibility that incorrect orders may be made with regard to the ownership of property. The mind of the court may somehow or other be prejudiced against the accused, perhaps by his conduct in court or some such thing, and I am sure the minister will agree that there is a very wide possibility there of making unfair orders with regard to property found in the possession of an accused who has nevertheless been found not guilty of the offence with which he was charged.

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LIB

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

Liberal

Mr. Garson:

I do not think I can agree with my hon. friend. I do not think we can apply ourselves to the problem of providing a criminal law for Canada upon the assumption that all the courts are incompetent and not fit to exercise discretion. Once that reasonable degree of judgment and wisdom is conceded to the courts, then surely it is not unreasonable, where there has been an indictable offence involving property that belongs, from the clear evidence before the court, to Mr. John Doe, for the court to make an order restoring that property to its rightful owner. Even though the accused, who has taken this property, may get off because the crown cannot prove the case against him beyond a reasonable doubt; yet if the court is satisfied that the property belongs to Mr. John Doe and that he is lawfully entitled to it then the court can, by order at that time in summary manner, give him his property and not leave him in the position where,

when some person has committed an offence in respect of property belonging to him, he is going to be put to considerable legal costs to get his own property back.

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PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

I quite agree with the minister that it is not fair that a person unlawfully deprived of property should have to go to unnecessary expense to get it back. We could not be more closely in agreement there. But I do think the wording of subsection 3 of section 1050 is safer than the wording of the new clause. Let us read the whole section. It reads:

The court or tribunal may also, if it sees fit, award restitution of the property taken from the prosecutor, or any witness for the prosecution, by such offence, although the person indicted is not convicted thereof, if the jury declares, as it may do, or if, in case the offender is tried without a jury, it is proved to the satisfaction of the court or tribunal by whom he is tried, that such property belongs to such prosecutor or witness . . .

There it is very definite and very closely tied down to the person whose property it was. It has to be proved to the satisfaction of the court that such property belongs to such prosecutor or witness. I think that is an excellent provision, and I do not believe any such person should be put to the necessity of bringing a civil action to recover his property. But I think the principle should be preserved in the former words rather than in the new words. Perhaps it is just another case where I quarrel with the draftsmanship. I am sorry, but I cannot help doing it.

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LIB

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

Liberal

Mr. Garson:

I am glad to hear my hon. friend say that he agrees with the idea that a man who has already been prejudiced by the fact that his property has been stolen should not be put to the expense of taking civil action to get it back.

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PC
LIB

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

Liberal

Mr. Garson:

I thought my hon. friend was perhaps questioning the propriety of that idea.

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PC
LIB

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

Liberal

Mr. Garson:

If my hon. friend agrees with that point, then the only objection he is taking to the clause is that it does not provide a proper means of accomplishing that end.

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PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

I question whether it requires the proper degree of proof which it seems to me the old section clearly requires.

Criminal Code

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LIB

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

Liberal

Mr. Garson:

All right. Let us see the

degree of proof it does require. It says: Where an accused is tried for an indictable offence but is not convicted, and the court finds that an indictable offence has been committed-

They may have got the wrong man, but the property has been stolen. They are not sure of the man, but they are sure of the property.

-the court may order that any property obtained by the commission of the offence-

-without identifying any accused with that offence-

-shall be restored to the person-

To what person?

-to the person entitled to it-

To whom should it be restored except the person who is entitled to it? How will the court decide whether a man is entitled to it except on the evidence that the owner has brought before them? How could the court decide under the old section as to the proper possession of property except by evidence? And if the owner can show he is entitled to it, then why should he not have an order from the court saying he can take it away without any more formalities or expense?

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March 10, 1954