Mr. GRAHAM.

I am inclined to think there is something in that. The return is only made every six months. With the consent of the committee-it is quite a radical change in the Bill-I move that we drop that section. In that case the old clause will stand.

Mr. SPROULE.

I would like to ask the hon. Minister of Justice (Mr. Aylesworth) why this Bill is confined to secret commissions. Suppose the consideration were given in the way of a bonus or in some other way and not as a commission, would it then be outside of this Act? There are many ways in which you can give a consideration.

Mr. AYLESWORTH.

The reason why this is limited to secret commissions is that a commission which is open and disclosed, known to the principal, is not an illegal thing. If any person chooses to pay to my agent a commission and I am aware of it there is no offence on the part either of the agent who receives such commission or of the man who pays it. The whole offence is in the secrecy of it and in the betrayal which would therefore probably be caused of the interests of the employer.

Mr. SPROULE.

That is not the feature of it that I am referring to. It is the question whether you could not give something in lieu of a commission, say a bonus, that would be a consideration the same as a commission would be and do it secretly.

Mr. AYLESWORTH.

The definition of ' consideration ' is that it ' includes valuable consideration of any kind.'

On section 3,

3. Every one is guilty of an offence and liable upon conviction on indictment to two years' imprisonment, or to a fine not exceeding two thousand five hundred dollars, or to both, and, upon summary conviction, to imprisonment for six months, with or without hard labour, or to a fine not exceeding one hundred dollars, or to both, who,-

(a) being an agent, corruptly accepts or obtains, or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gift or consideration as an inducement or reward for doing or forbearing to do, or for having after the passing of this Act done or forborne to do, any act relating to his principal's affairs or business, or for showing or forbearing to show favour or disfavour to any person with relation to his principal's affairs or business; or

(b) corruptly gives or agrees to give or offers any gift or consideration to any agent as an inducement or reward or consideration to such agent for doing or forbearing to do, or for having after the passing of this Act done or forborne to do, any act relating to his principal's affairs or business, or for showing or forbearing to show favour or disfavour to any person with relation to his principal's affairs or business; or

(c) knowingly gives to any agent, or, being an agent, knowingly uses with intent to deceive his principal, any receipt, account, or other document in respect of which the principal is interested, and which contains any statement which is false or erroneous or defective in any material particular, and which, to his knowledge, is intended to mislead the principal.

Mr. R. L. BORDEN.

Is this the exact language of the English statute?

Mr. AYLESWORTH, The language is not identical, but is practically indistinguishable and is certainly indistinguishable in meaning. I cannot point out the exact differences very well without comparing the sections line by line, but in substance the wording is identical.

Mr. R. L. BORDEN.

Would the minister read the English corresponding section?

Mr. AYLESWORTH.

Yes, I will read the English section.

If any agent corruptly accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gift or consideration as an inducement or reward for doing or forbearing to do or for having, after the passing of this Act, done, or forborne to do any act in relation to his principal's affairs or business or for showing or forbearing to show favour or disfavour to any person in relation to his principal's affairs or business.

And so on.

Mr. SPROULE.

May we have the English section corresponding with paragraph (b) ?

Mr. AYLESWORTH.

The corresponding section in the English Act is in these words:

If any person corruptly gives or agrees to give or offers any gift or consideration to any agent as an inducement or reward for doing or forbearing to do, or for having, after the passing of this Act, done or forborne to do any act in relation to his principal's affairs or business or for showing or forbearing to show favour or disfavour to any person in relation to his principal's affairs or business-1

&c.

Mr. PORTER.

If I may be permitted to go back to the first clause of section 3; do I understand that the offence under this Act is punishable either upon indictment or by summary conviction? I notice that section 3 provides, in the first place, for punishment upon indictment and that the latter part of the same clause provides for punishment upon summary conviction. If an offence under this Act can be tried by a police magistrate or justices of the peace and punishment inflicted, why make the same offence punishable upon indictment? Why have these two provisions instead of one?

Mr. AYLESWORTH.

The intention was that the offence, when it took place, might be prosecuted either upon indictment or by way of summary conviction, depending, of course, upon the seriousness of the offence. If, for instance, I find that my butcher is paying a few cents daily to my cook for the sake of securing my business that would scarcely be an offence which would be thought serious enough to prosecute upon indictment. On the other hand, if it were in larger matters of business, it might be ridiculous to proceed by way of summary prosecution, and the intention was, in framing the Act, that either course might be adopted according to the judgment of the prosecutor and of the tribunal before whom the prosecution might come for hearing. If the magistrate having the defendant summoned before him, upon investigating the circumstances, found the case, in his judgment, so serious that it would not be met by the lesser punishment which is provided in the section of imprisonment for six months, or a fine not exceeding $100, or both, he would decline to proceed and commit the person charged for trial upon indictment. On the other hand, if a person was found guilty and indicted for an offence which under the circumstances seemed comparatively trivial, the judge would no doubt sentence to the punishment which might have been imposed on a summary proceeding.

Mr. PORTER.

The objection I see is that no provision is made for determining,

and by whom, whether the prosecution shall be on an indictment or in a summary manner. Would it not be possible to provide that certain offences shall be tried by summary process and others more grave by indictment? It is now left to the discretion of the magistrate as to whether he shall try an offence or not, no matter how grave that offence may be. If the complainant should stand in with a magistrate the magistrate might try the case and dispose of it in any way he saw fit, whereas if it were taken to the Superior Court on an indictment it might be dealt with in an altogether different way.

Mr. AYLESWORTH.

It would be quite practicable to frame language which would draw a hard and fast line and make the place where the prosecution should be dependent upon the amount of money involved, but I think that would not be desirable. The more trivial offence graduates into the more serious by imperceptible degrees. It would be scarcely possible to lay down any definite rule as to amount which would gov ern every case that might conceivably arise. I would think it would be preferable to leave that to the sound sense of the magis trate or judge before whom the prosecution might come. It would be, in the first instance, for the good judgment of the prosecuting attorney or those before whom the charge is laid, and it would be a no more important duty to determine that than it would be to determine the amount of punishment which ought to be imposed.

Mr. CROTHERS.

Are there any general provisions in the Criminal Code which would assign cases of this kind? Surely it is not intended to leave it open to have such charges brought before an ordinary justice of the peace? It should be defined whether a police magistrate should try the case or whether it should be tried before a county court judge or in the high court. Other crimes are assigned by the code to one court or the other. If a case comes before an ordinary justice of the peace in the country and objection is taken that he has not jurisdiction to try it, where is there anything to determine whether or not he would have the right?

Mr. AYLESWORTH.

There are already provided for in the Criminal Code many classes of offences which may be tried either upon indictment or upon summary proceeding. I do not think there has been any practical difficulty in administering the law, and this would be of precisely similar character. The magistrate would have jurisdiction undoubtedly, and if he wishes to misbehave-if magistrates ever do misbehave- I suppose there would be nothing to prevent his trying a very important case and nothing but public opinion to correct him 361

if for a very serious offence he imposed a very trifling punishment.