March 10, 1954


Clause agreed to. On clause 631-Costs to defendant in case of libel.


PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

I have a question to ask here. I notice that under this clause the accused or the defendant in a prosecution for defamatory libel, if judgment is given for him, may recover his costs. I have no quarrel with that at all, but it raises a question with regard to the right of a prosecutor or informant under certain cases to recover costs by having an order made by the court for the payment of those costs by the accused. This right was given under section 1044 of the code, and I notice on consulting the concordance that section 1044 has been dropped. Would the minister say why it was dropped and why the prosecutor or informant, previously entitled to have an order made for the payment of his costs in certain cases, appears no longer to have that right? I might say I have consulted one of my colleagues who was a member of the house committee last year, and he cannot recall that there was any discussion on that point.

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LIB

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

Liberal

Mr. Garson:

In dropping the section the commission considered first the difficulty in arriving at a proper amount without turning

Criminal Code

a criminal prosecution into a trial of an issue of damages, second the existence of a civil remedy, and third the duty of citizens to assist in the prosecution of offenders. As the result of such changes, costs in criminal cases will not be awarded, except on summary conviction matters and to a successful defendant in a prosecution for libel.

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PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

It seems to me the minister has made an argument just exactly the opposite of the argument he made on the previous section. I fully agree that a person deprived of his property by a criminal offence should be entitled to have it restored to him by the court without being put to the further expense of a civil case. I agree with that. Now the minister is using the reverse argument and stating because of the existence of a civil remedy in many cases, there should be no order in criminal proceedings for the payment of costs to an aggrieved person. The argument does not seem to me to apply, as I pointed out, under section 1044 which, it is true, is for limited cases.

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LIB

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

Liberal

Mr. Garson:

Section 1044; what subsection?

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PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

I shall read subsection 1:

Any court by which and any judge under part XVIII, or magistrate under part XVI, by whom judgment is pronounced or recorded, upon the conviction of any person for treason or any indictable offence, in addition to such sentence as may otherwise by law be passed, may condemn such person to the payment of the whole or any part of the costs or expenses incurred in and about the prosecution and conviction for the offence of which he is convicted, if to such court or judge it seems fit so to do.

2. Such court or judge may include in the amount to be paid such moderate allowance for a loss of time as the court or judge, by affidavits or other inquiry and examination, ascertains to be reasonable.

2A. Such magistrate may also include in the amount to be paid the fees, for the appropriate items, as mentioned in the tariff set out in section seven hundred and seventy of this act.

Expenses and allowances for loss of time and so on could have been ordered to be paid by convicted persons under section 1044. That right appears to have been discontinued. I bring it up here because the clause now under consideration, 631, gives an accused person in certain cases, where judgment is given for him, a right to his costs. Yet as I point out the right to recover expenses which was previously there for an informant or prosecutor for whom judgment was given or on whose information or prosecution judgment was given is taken away.

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LIB

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

Liberal

Mr. Garson:

Is this not the distinction that can properly be drawn between the two cases to which my hon. friend referred, namely the act of our not carrying forward clause 1044 allowing costs against the accused in criminal proceedings, on the one hand, and yet allowing the successful defendant in prosecution for defamatory libel to get costs against the prosecutor? I have already stated the commission's reasons for dropping section 1044 of the present code.

I suggest that the distinction between these two cases is this. Where A libels B, B has the choice of two courses of action. One is to take a civil suit for damages against A. The other is to lay an information against A for defamatory libel. If the proceedings which ensue are a civil action the defendant A, if he succeeds, will get costs. If the proceedings are a prosecution for defamatory libel he would not get costs against the unsuccessful plaintiff but for the clause we are discussing. Thus it will be seen that the basis for the present clause is that where a person has been libelled and chooses the method of laying an information for defamatory libel, if he does not succeed in proving his case, he should reimburse the accused for the expense to which this prosecution for defamatory libel has put the accused. I think this is a proper provision.

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PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

So do I. I am sorry that I have not made myself clear. I agree with this provision, but why should a successful prosecutor not get his costs as he used to be able to do under section 1044? A successful accused may recover costs under clause 631, but a successful prosecutor may not recover costs because section 1044 has been dropped.

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CCF

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

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

Mr. Knowles:

Six o'clock.

Clause stands.

Progress reported.

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BUSINESS OF THE HOUSE

LIB

Walter Edward Harris (Minister of Citizenship and Immigration; Leader of the Government in the House of Commons; Liberal Party House Leader)

Liberal

Mr. Harris:

Mr. Speaker, we shall continue with this bill tomorrow in the hope that we can complete it.

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CCF

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

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

Mr. Knowles:

On that point, Mr. Speaker, does the minister mean complete the entire consideration of the code, or complete the first run through it?

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LIB

Walter Edward Harris (Minister of Citizenship and Immigration; Leader of the Government in the House of Commons; Liberal Party House Leader)

Liberal

Mr. Harris:

I was not quite as optimistic as my hon. friend, but if he will co-operate we can do it all in one day.

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CCF

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

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

Mr. Knowles:

I think the minister should be more communicative as to what the intention is. There have been some discussions between the Minister of Justice and representatives of parties on this side of the house as to the order in which we might deal with the contentious subjects, and I think we should know what the plan is.

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PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

I think the leader of the house is just having his little joke.

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LIB

Walter Edward Harris (Minister of Citizenship and Immigration; Leader of the Government in the House of Commons; Liberal Party House Leader)

Liberal

Mr. Harris:

Sometimes I am prompted to do so by the actions of the hon. member opposite. But, seriously, if it takes until

10, 1954 2875

Business of the House

let us say this time tomorrow evening to complete the first run-through, and if hon. members do not choose then to go back and start over again, we would accommodate them by going on with public works. But I would prefer that we go right back and take the sections which are standing over.

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CCF

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

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

Mr. Knowles:

Could final settlement of that be left until tomorrow?

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LIB

Walter Edward Harris (Minister of Citizenship and Immigration; Leader of the Government in the House of Commons; Liberal Party House Leader)

Liberal

Mr. Harris:

Yes, certainly.

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At six o'clock the house adjourned, without question put, pursuant to standing order.



Thursday, March 11, 1954


March 10, 1954