April 8, 1954

LIB

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

Liberal

Mr. Garson:

I agree. I am not complaining at all.

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   REVISION AND AMENDMENT OF EXISTING STATUTE
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CCF

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

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

Mr. Knowles:

Withdraw.

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
Sub-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:

I think perhaps I might be forgiven if I at least put on the record in reply one or two points which I think are relevant. In the first place, with regard to the matter of habeas corpus. I was rather taken with the idea that it should have been the hon. member for Kamloops (Mr. Fulton) who moved the amendment to the motion in connection with habeas corpus because the purpose of the section we have provided in the new bill is to restore to the province of British Columbia the very excellent method of having an appeal from the judgment of the trial judge who turned down an application for habeas corpus. I thought that a lawyer practising in British Columbia would be grateful to us for restoring to them what they apparently had always desired to have and did have for many years until a judgment of the supreme court made it unavailable.

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   REVISION AND AMENDMENT OF EXISTING STATUTE
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?

An hon. Member:

Maybe he did not know that.

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   REVISION AND AMENDMENT OF EXISTING STATUTE
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PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

Oh, yes. But I do not agree with the minister's interpretation.

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
Sub-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:

As to the other matter, namely section 365, criminal breach of contract, I do not know how we could have done anything more than to have continued upon the statute books a provision taking care of wilful breach of contract which has been on the statute books of Canada and of Great Britain for the last seventy-five years. Having reached that decision, I do not know how we could have provided a saving clause to take care of the trade union congresses in any better way than to get in direct contact with them and discuss with them the terms in which that saving clause was drafted.

With regard to the matter of mischief, there is here I think a fairly fundamental difference of opinion between the hon. member for Winnipeg North Centre (Mr. Knowles) and the hon. member for Kamloops on the one hand and the government upon the other. They seem to favour the idea that in drafting a Criminal Code one should specify every single kind of mischief, every single kind of forgery or every single kind of larceny that can possibly take place, spell them all out and provide a separate penalty for each one of them so that in terms of their thinking the rather unintelligent magistrate

or judge who is in charge of the case will know, by reading that section, just what he is supposed to do.

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   REVISION AND AMENDMENT OF EXISTING STATUTE
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CCF

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

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

Mr. Knowles:

Is that a fair description of judges or magistrates?

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
Sub-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:

No. But that is the impression my hon. friend seems to have. We on the other hand think that the members of the judiciary are intelligent enough to reach a wise decision upon the facts of the case that comes before them, and within the wider terms of reference provided in Bill No. 7.

In order to demonstrate just how ineffective is this method which my hon. friends advocate, I should like to refer to the side-notes only of the main section 510 dealing with mischief in the existing code. In connection with mischief it refers to damage to house, ship, or boat; to bank, dyke, or seawall; to bridge, viaduct or aqueduct; to railway; to cattle; to ship; to signal; to bank, dyke or wall; to river or canal; to flood gate or sluice; to private fishery; to goods; to machines; to hop-bind; to letter bag; to tree or shrub and so on. All these are separate. The point I would make is that after specifying all these, of other things that could be the subject matter of mischief there must be scores more that are still not covered and that have to be covered by an omnibus clause.

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   REVISION AND AMENDMENT OF EXISTING STATUTE
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PC

Edmund Davie Fulton

Progressive Conservative

Mr. Fulton:

With a maximum penalty of two years.

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
Sub-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:

Yes. It was precisely for the purpose of providing a more rational method of defining crime that the new code was drafted. The commissioners were instructed to try to reduce the compass of the code and they succeeded in that regard by reducing it from 1150 sections to 750 sections. To what purpose. This is what they say on this point in their report:

The work of consolidation has been designed to do away with duplication and needless repetition and to draft provisions that will, where possible, eliminate particularization and reduce the need for amendment.

Most of us are perhaps guilty of intellectual vanity, each being proud of his own brain-child and maybe a little bit prejudiced in his viewpoint on that account. I am therefore not suggesting that the members of the royal commission on the one hand or the government on the other should have their views accepted as to whether the methods we have followed is the only proper method of drafting a criminal statute. But upon this very same subject let me read from one of the great British draftsmen who was responsible for the monumental

imperial consolidated acts in the middle of the nineteenth century. This is what he said. Incidentally, he was also the author or the editor of "Russell on Crime", one of the classical books on criminal law. He said this:

I am very strongly In favour of general clauses when they can be used without any others. They are not only clear and simple; but, if I be not very much mistaken, would reduce the length of our statutes to a greater extent than any other plan that could be devised. Let it be considered what might be effected in forgery alone. No satisfactory reason can be given why the forgery of every written instrument should not be included in a single clause. . . That clause might be so framed as to include all existing and future instruments; and as no forgery can be tried by any Court of Quarter Sessions, there is no reason why the same wide discretion as to punishment should not be given to the court as in cases of manslaughter.

Then further on-and this a man who was one of the great draftsmen of the last century-he said this:

Hitherto the usual system of framing criminal acts has been to specify each and every act intended to be subjected to any punishment; such a course has the advantage of calling direct attention to all the acts that are made penal; but such a course is open to this objection, that it often leaves offences of equally great criminality unprovided for, and thus affords the artful a chance of evading punishment. Several courses may be adopted to remedy this object. A clause may be framed in such general terms as to include all cases of the same kind within it. This is the simplest, and, perhaps, the best course; and it leaves the judgment of the court entirely unfettered as to the punishment in every case.

I think the argument of my friends the hon. member for Winnipeg North Centre and the hon. member for Kamloops would have been much more convincing if they could have told us of any cases of these particularized offences of mischief that were not covered by the section in the bill. If they are all covered in the section that we have, why should we have to take five or six pages of printing to describe what can be covered in half a page? For that reason, Mr. Speaker, I certainly cannot support my hon. friend's motion.

I should like to take this opportunity of thanking my friend the hon. member for Fort William (Mr. Mclvor) for his complimentary remarks as well as my friend the hon. member for Vancouver-Kingsway (Mr. Maclnnis). At the same time I should also like to express my deep appreciation-and I am very sincere in this-for the magnificent co-operation which we have had from all the members of the house, particularly those who sat on the special committee of the House of Commons last year. We said when we launched this bill in the first place that we wanted the 83276-248

Criminal Code

approach to the provision of a good Criminal Code of Canada to be conducted on a completely non-partisan basis and that each of us should vote in a non-partisan manner on the merits of each section as it came up.

I must say that I never sat on any legislative committee, either in provincial politics or in federal politics, in which there was less partisanship, a more objective consideration of the merits of each section and a willingness to listen to ideas no matter whence they came. We had some communist organizations there and it was a matter of great pride to me as a Canadian that they received the same courteous attention and the same consideration of their arguments as if they had not been people whose political principles we condemn by considering them and rejecting them. It seems to me that is the essence of genuine freedom of expression and real democracy. I want to say to the members of the house, particularly to those who served on that committee, that as the minister in charge of this bill I am most deeply grateful to them for the splendid manner in which they co-operated in producing what I think is quite a good piece of legislation.

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   REVISION AND AMENDMENT OF EXISTING STATUTE
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LIB

Louis-René Beaudoin (Speaker of the House of Commons)

Liberal

Mr. Speaker:

I declare the amendment to the amendment lost. Is the house ready for the question? The question is on the following motion of the Minister of Justice:

That Bill No. 7, an act respecting the criminal law, be now read the third time.

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   REVISION AND AMENDMENT OF EXISTING STATUTE
Permalink
CCF

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

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

Mr. Knowles:

Mr. Speaker, I trust you are not forgetting the amendment.

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   REVISION AND AMENDMENT OF EXISTING STATUTE
Permalink
LIB

Louis-René Beaudoin (Speaker of the House of Commons)

Liberal

Mr. Speaker:

No, I am putting the whole question. The hon. member for Winnipeg North Centre, seconded by the hon. member for Vancouver-Kingsway, moved:

That Bill No. 7 be not now read a third time but that it be referred back to the committee of the whole house, for the purpose of reconsidering clause 365, dealing with breach of contract, and clause 372, dealing with mischief.

The question is on the amendment to the main motion. Those who are in favour of the amendment to the main motion will please

rise? I say this because if we are agreed we are ready for the question now we could proceed without having the bells rung again.

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   REVISION AND AMENDMENT OF EXISTING STATUTE
Permalink
CCF

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

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

Mr. Knowles:

There may be some who missed the other vote.

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   REVISION AND AMENDMENT OF EXISTING STATUTE
Permalink
LIB

Louis-René Beaudoin (Speaker of the House of Commons)

Liberal

Mr. Speaker:

That is quite true. I shall therefore ask for the yeas and nays. All those who are in favour will please say yea?

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   REVISION AND AMENDMENT OF EXISTING STATUTE
Permalink
?

Some hon. Members:

Yea.

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   REVISION AND AMENDMENT OF EXISTING STATUTE
Permalink
LIB

Louis-René Beaudoin (Speaker of the House of Commons)

Liberal

Mr. Speaker:

All those opposed will please say nay?

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   REVISION AND AMENDMENT OF EXISTING STATUTE
Permalink
?

Some hon. Members:

Nay.

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   REVISION AND AMENDMENT OF EXISTING STATUTE
Permalink
LIB

Louis-René Beaudoin (Speaker of the House of Commons)

Liberal

Mr. Speaker:

In my opinion the nays have it.

And more than five members having risen:

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   REVISION AND AMENDMENT OF EXISTING STATUTE
Permalink
LIB

Louis-René Beaudoin (Speaker of the House of Commons)

Liberal

Mr. Speaker:

Call in the members.

Topic:   EXTERNAL AFFAIRS
Subtopic:   CRIMINAL CODE
Sub-subtopic:   REVISION AND AMENDMENT OF EXISTING STATUTE
Permalink

April 8, 1954