May 25, 1921 (13th Parliament, 5th Session)

UNION

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Unionist

Mr. DOHERTY:

I am not in a position to say precisely the states in which there is such a definition, but I am informed that a similar provision does exist in certain of the states and that this is the definition that is given. I would like to point out that you must have two things combined: you must have a feeble-mindedness that gives rise to the necessity of care and supervision and so forth. The mere fact that care and spervision would be good for somebody would not put that person in this class. You must prove that the person has been subject to feeble-mindedness from birth or subject from an early age to mental defectiveness, not amounting to imbecility tout so pronounced that she requires, care, supervision and control. Now I am sure that the bon. gentleman, when he suggests that many of us require, care, control and supervision, even if we were prepared to admit it, would not expect us to admit it was feeblemindedness that made such necessary; it might be propensities of another description. I do think, with all respect, that no judge would err with that definition before him and having it put clearly before him that the things that he requires to have proved are, that from birth and from an early age the persons suffered from mental defectiveness not amounting to im-bicility, but of such a character as to make care, control and supervision necessary. It has to be pointed out that it wiU not be sufficient to prove that care and supervision would be good for that person, or that because that person may be addicted, say, to drink that control and supervision would be a good thing to bring him, or her, within the class of feeble-minded persons. It must be established that there was a mental defectiveness that was the source of this need of care and supervision; and it does not seem to me that we are putting before

the courts anything in the nature of a specially difficult matter to deal with in asking them to ascertain whether the facts laid down in that definition do or do not exist. Of course those facts will have to be established by evidence as all other facts require to be established. I feel very strongly that nobody is being exposed, in view of that definition of feeble-mindedness, to be convicted under this section under circumstances that he could not very well be held responsible for. The difficulty is, I would not say conjured up, but-like certain letters that have been heard here -really imaginary, and I think we might very safely leave those who might be prosecuted for this offence to be dealt with by the court. If you should have a case where the party would be in a position to show lack of knowledge, or so forth, I think we could safely leave it to the court to mete out under those circumstances so small a punishment as might be suitable to the offence. We have always to remember that a gentleman to whom this law is going to be applied is a gentleman who comes before the court in the position of having undoubtedly had illicit connection with some female; and while it might not be desirable to make that offence punishable as a crime, still if it did happen that the gentleman who did permit himself to have this illicit connection did make a mistake and did not pay sufficient attention to know that the victim was a feeble-minded person, I do not think he would be the object of great commiseration if he did get some mild punishment to make him realize that when you do take a chance of that kind you are taking a very serious chance.

Topic:   QUESTIONS
Subtopic:   CRIMINAL CODE AMENDMENT
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