May 5, 1965 (26th Parliament, 3rd Session)


Francis Andrew Brewin

New Democratic Party

Mr. Brewin:

Mr. Speaker, I had thought this discussion might proceed to such a length
Administration of Justice that I might be in the unique position of being able to move the motion and talk it out all in one speech, but that would not appear to be the case now. I regret that this private Members' hour, by circumstances beyond the control of the House, is now being reduced to approximately 30 minutes. My colleague, the hon. Member for Winnipeg North Centre (Mr. Knowles), said this hour has 40 minutes. I now observe this hour has only 30 minutes. However, I do not wish the brevity of the discussion to take away from the importance of the motion.
Its purpose is to try to provide effective means for granting criminal legal aid in all cases of persons charged with serious crimes. I should only say to hon. Members, in case they seem mildly disinterested in the subject, that no citizen, not even a Member of this House, can be quite sure he may not become interested in the provisions of this motion, and by "interested" I mean personally interested in its provisions.
The motion before the House represents my attempt to sound a blast on Gideon's Trumpet, a blast which I hope will disturb the tranquility which usually descends upon the House at five o'clock. The reference to "Gideon's Trumpet" is because that is the name of a very absorbing book in which a first rate journalist, Anthony Lewis, describes how a very elderly, nondescript prisoner convicted in Florida of breaking and entering- his name was Gideon Wainright-successfully evoked the jurisdiction of the Supreme Court of the United States and obtained from that court a historic declaration of principle.
[DOT] (5:30 p.m.)
This principle was that no person accused of a serious offence involving the possible loss of life or liberty could be convicted without an opportunity being offered to him, if necessary by the state itself, to have the assistance of legal counsel in his defence. In that case the Supreme Court of the United States established formally the principle for the whole of the United States that no conviction obtained either in a Federal or in a State court, without the accused being provided with counsel, could be sustained unless the right to counsel had been clearly and unequivocally waived by the accused. The Supreme Court on that occasion made the following statement which I commend to the House:
Reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court who is too poor to hire a lawyer, cannot be assured a fair trial unless

May 5, 1965
Administration of Justice counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defences. That governments hire lawyers to prosecute and defendants, who have the money, hire lawyers to defend, are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials, in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.
Then we go on to quote these words of Mr. Justice Sutherland:
The right to be heard would be in many cases of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defence even though he may have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.
It is not good enough simply to provide counsel, as is done under many legal aid schemes in this country, only where there is a plea of guilty. In many instances persons are induced to plead guilty, receiving sentences of varying severity, when they should not have pleaded guilty at all. I could quote both United States and English precedents in this regard but I will limit myself to one reference only. This is what the Public Defender of San Francisco had to say:
Experience has shown that many uninformed and inexperienced persons, without financial means to employ counsel, plead guilty to crimes in order to save time and trouble or to win suspension of sentence. They do not realize that a plea of guilty may ultimately affect their rights and privileges as citizens of the community, even depriving them of employment in certain job categories. This is particulary true of young people appearing for the first time before the courts.

The situation is well put in Gideon's Trumpet where it is stated:
The most innocent man, pressed by the awful solemnities of public accusation and trial, may be incapable of supporting his own cause. He may be utterly unfit to cross-examine the witnesses against him, to point out the contradictions or defects of their testimony, and to counteract it by properly introducing it and applying his own.
This was written by a lawyer in 1825. Incidentally, it is written by a Philadelphia lawyer-I understand this places him in a special category of lawyers. He wrote that in 1825, and it is still true today. In the words of Mr. Lewis:
The sense of loneliness, the confusion of guilt and outrage, the feeling that one is caught up in machinery he does not understand-all these emotions well up in a person who finds himself arrested for even a moderately serious traffic offense.
An accused person today is confronted by increased pressures on every side. Society has responded to those pressures with a proliferation of criminal statutes which fill volumes of law books. Every modern penal code is full of tremendous complexities.
What is the situation in Canada? We have provided by the Criminal Code that everybody in this country is entitled to make a full defence either by himself or by counsel. We have provided in the Bill of Rights certain basic rights which in my view involve the right to have the assistance of counsel. For example, the Bill of Rights provides that no one shall be deprived of life or liberty or the enjoyment of property except by due process of law. It further provides that every law must be interpreted so as not to authorize the abrogation or infringement of any of these rights or deprive the person of the right to retain or instruct counsel or deprive a person of the right to a fair hearing in accordance with the principles of justice in the determination of his rights.
The situation in Canada is that although we have these great pronouncements of principle we lack the machinery necessary to make them operative. It is all very well to say a man has the right to defend himself. It is all very well to say he may hire counsel. But if he does not possess the financial means, and if counsel are not available, he is left with a right which is inoperable and ineffective. The situation varies from province to province. An excellent brief was submitted by the British Columbia Civil Liberties Association about a year ago. I think it was submitted to the Department of Justice. They said:
Only a small minority of those accused actually receive legal aid. For example, in the year 1960,
May 5, 1965 COMMONS
there were 181 "Miscellaneous and Criminal" cases granted legal aid in Vancouver. By comparison, there were 5,441 persons charged with indictable offenses in the Province in that year.
Only a small proportion of those accused were represented by counsel. I believe this is typical of the situation. The reason I became interested in this matter is that a constituent of mine, charged with arson, pleaded guilty after giving himself up. No medical examination was made of this man and no counsel appeared on his behalf. There was no presentence report. He was given a sentence, as I recall it, of 16 years in the penitentiary for this offence. As a result I became interested in this subject.
I appreciate we do not have time to examine this question in detail. I anticipate it may be said by the representatives of the administration, and of the Department of Justice as well as by others in this House, that this matter of legal aid is, under our constitutional system, a responsibility of the Provinces. However, it seems to me that here, as in so many other instances, there is an overlapping responsibility. If the Bill of Rights solemnly declares that all Canadians are entitled to certain rights, there is surely some responsibility resting on Parliament to ensure that these rights are available across Canada. While it is true that under the British North America Act the administration of justice is entrusted to the Provincial Legislatures, criminal procedure is, under section 91, a responsibility of this Parliament, and it is very difficult to distinguish criminal procedure from the administration of justice. I concede that schemes of legal aid dealing with those involved in the criminal law should be integrated with schemes of legal aid that cover civil cases as well; and it is quite obvious that any legislation dealing with this matter should be administered by Provincial authorities. Indeed, in the Province of Ontario a committee has recently reported on this subject, and I believe the Government has promised to bring in legislation providing for legal aid, not only in criminal cases but also covering certain civil cases.
[DOT] (5:40 p.m.)
It is therefore desirable that any scheme of legal aid that is evolved in connection with criminal proceedings should be integrated into Provincial schemes and should be fitted to the situation that exists in each one of the Provinces where the Bar is organized Provincially and where different
Administration of Justice circumstances prevail. But it is my submission, Mr. Speaker, and I urge this upon the House, that this is a case where there is responsibility resting on both jurisdictions, and it is for this reason that I have recommended in this resolution that the Government should consider the advisability of a conference among the Minister of Justice (Mr. Favreau) and the Attorneys General of the Provinces in order that they may work out a scheme, jointly financed and jointly operated by the Government of Canada and the Governments of the various Provinces, so as to ensure that legal aid be in fact provided in all criminal cases in which imprisonment is a possible outcome, and where the accused person is not able to look after his own particular needs.
This may seem to some people rather less important than the provision of medical services universally, and I would be the first to agree that medical services are far more of a necessity. But I do want to suggest that those who are caught up in the toils of the criminal law ought to have the provision of adequate legal services, which is no longer a luxury but has become a very real necessity in our society. This view has been clearly propounded by the highest courts of the United States; it has been recognized by the law in England and many other jurisdictions, and I see no reason in the world why this Government and this Parliament should not give a lead by organizing effective legal aid throughout Canada and offering to assist financially legal aid schemes to be put into effect in all the Provinces across Canada. This is a matter, as I say, of primarily Provincial jurisdiction; but it is a joint responsibility. The Bill of Rights of this House will remain in some respects meaningless, and the provisions that we have put into the Criminal Code to provide a full and fair opportunity to defend oneself against an accusation of crime will be inadequate until something of this sort is done.
Private Members' hour is sometimes very unproductive, but I hope the introduction of this subject will ensure that the Government of Canada, and particularly the Department of Justice and the Minister of Justice will look very seriously into the necessity for giving a lead in this matter. Too seldom we have an effective lead given in important social reforms of this sort. Some people have said this is a measure that would aid lawyers. I do not think it is intended to aid lawyers at all, and I do not think the lawyers I know

May 5, 1965
Administration of Justice need any aid at the present time. This is, however, a Bill to make the necessary services available to people who are in trouble, and there are many, many of them in every constituency in Canada. Although this is a short and truncated period, I hope we have started something that will eventually result in some positive action to help in a field in which we all have a primary and very real responsibility to give leadership.

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