March 30, 1915

LIB

William Cameron Edwards

Liberal

Mr. EDWARDS:

That is not quite correct, that I saw no reason why they could not perform the duties properly. I candidly admit that I said that, and I am free also to say that I decidedly have changed my opinion.

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CON

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

Conservative (1867-1942)

Mr. DOHERTY:

I think we all quite realize that. What I wanted to point out was that I at least had got this far on a common road with the hon. member for Frontenac that I, from the best information I could get, believed I had got a perfectly impartial tribunal and he saw no reason why they should not perfectly carry out their duties.

Now, where is the parting of the ways? The parting of the ways between the hon. member for Frontenac and myself is upon the conclusion that the commission came to. His charge of opinion rests upon -the conclusion that the commission reached and the method in which he considered, in view of -the evidence, they reached that conclusion. So that we start with a commission, with no evidence to lead us to suspect the report of the commission, save the report itself. The hon. member for Frontenac discussed this commission last year and discussed this report. He discussed it on general lines, and he discussed it also with regard to the particular charges that were made against these two men. I said then that I would go into the evidence and compare it with the report, with regard more particularly to these two particular matters. I have tried to do that, putting into it the best capacity I had, and perhaps I may venture to claim that I have had some experience in the weighing of evidence. The result of my reading of the evidence, and my confronting of it with the report of the commission, I think it is only due to justice to say, is that, in so far as the charges against Mr. O'Leary are concerned, I can find no ground upon which I could disagree with the report. I am not saying, and no man can say, that the charges which the hon. member for Frontenac made were not true. But all of these matters have got to be judged on the evidence that is made. The member for Frontenac, I take it, had very much stronger grounds to believe these things to be true than he himself thinks that the evidence actually constituted. I have looked at that evidence, as I have said; I have compared it with the report, and I would be lacking in the courage to do justice if I did hot say that the results of the exercise of the best judgment that I have been able to bring to bear upon that question is that the report, in so far as it finds the charges made against Mr. O'Leary were not true, is justified by the evidence that was made before the commission. I make no profession to infallibility in that regard, but I have the responsibility, as the hon. member has pointed out, of reaching a conclusion as to the correctness of that report, and I am satisfied, as I have said, that that report is in that respect correct; and I feel, as I said at the outset, that, great as is my desire and great as should be the desire of everybody to treat with humanity and consideration the convict that has -erred, there i-s an imperative duty

to do justice to the man against whom an offence is not established.

As regards the other charges, the charges against Dr. Phelan, you have got to divide the report which these gentlemen made between their report on the specific charges which were made and their general report upon conditions in the penitentiary that were not covered by the charges that were made.

I should say, perhaps, before I pass from thi-s, a word upon the five years limit. I may say at once that the five years limit was not intended by me, nor do the words of the commission that I issued, nor do I think the words of that commission as interpreted by the commissioners themselves, involve any limitation of five years in so far as regards any particular matter. I may cite the words:

Provided that the inquiries under paragraphs (a) and (b).

That is the management of the penitentiary and the conduct of the officers:

Shall not extend back over a longer period than five years, except in so far as the commissioners may deem it desirable, in the public interest, to inquire into any particular matter or matters antecedent to such period.

I would like to point out the condition which I found. Particular charges were made against these two men by the hon. member for Frontenac. They were addressed to me, and he asked for a commission. I acknowledged that letter, and I pointed out to the hon. member that it appeared to me that if these charges as they stood were to be submitted to a commission it would be a fair thing to communicate them to the people charged in order that an answer might be made and the issue might go to the commission. The hon. member for Frontenac answered me and said he thought it would be more desirable if a commission were appointed, and then he would lay the charges before them. I acquiesced in that manner of dealing with it. Speaking from memory, I am not quite certain whether the hon. member for Frontenac suggested to me a wider scope of inquiry or not, quite possibly it was so. I know that such suggestions were made to me by different members when the question arose, and I may say it was an idea that I *had in my own mind that it would be well to make a general inquiry and also to deal with particular matters. That general inquiry was of no interest save to enable me to judge of existing conditions, and certainly I think it would have been an unwise

thing to appoint a commission to investigate back to the time when the penitentiaries were started to ascertain how men who are dead and gone might have conducted themselves or what evils might have existed in the past. I was particularly careful to remove from them any restrictions so far as any particular matter was concerned which they might deem it desirable in the public interest to inquire into.

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LIB

William Cameron Edwards

Liberal

Mr. EDWARDS:

I presume the minister has looked at the evidence, and must have seen that the time clause was invoked again and again by the commission and by the counsel acting for the persons charged.

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CON

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

Conservative (1867-1942)

Mr. DOHERTY:

I have seen places

where the five-year limit was combined, with other considerations. I am not prepared to say that in 2,000 pages of evidence there is no case where exclusively upon the ground of the five-year limit something has not been excluded. But 1 think that while there may have been references to the five-year limit, there were also other considerations stated as justifying the refusal to go into the inquiry of some particular matter. For instance, the charge of perjury against O'Leary. To proceed to try a man on a charge of perjury fifteen years after the alleged offence, when persons who may have been thoroughly competent witnesses at the time have disappeared or died,-I appeal to the sense of fairness of my hon. friend whether that would be a fair thing to do.

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LIB

William Cameron Edwards

Liberal

Air. EDWARDS:

I would appeal to the sense of fairness of the minister and ask him if he made that suggestion to me at the time.

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CON

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

Conservative (1867-1942)

Air. DOHERTY:

1 do not recollect that the charges specified a date at all.

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LIB

William Cameron Edwards

Liberal

Mr. EDWARDS:

The charge referred to a former investigation, and my hon. friend knows when that investigation took place.

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CON

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

Conservative (1867-1942)

Air. DOHERTY:

I do not think I could tell my hon, friend now when it took place, and most assuredly, at that time, the statement as to a former investigation conveyed no specific idea of date to me. Moreover, I might point out to my hon. friend that when he told me that he did not want those charges communicated to the people charged, with a view to their making an answer, but that if I named a commission he would then make his charges, I must confess that I did not charge my mind with the particular words contained in his letter.

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LIB

William Cameron Edwards

Liberal

Air. EDWARDS:

I am sure the minister does not *wish to misrepresent the facts, but he is not representing them correctly.

I did not state what he says at the time that conversation took place; I said that as soon as the commission was appointed, then copies of my charges would undoubtedly be sent to the men charged.

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CON

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

Conservative (1867-1942)

Air. DOHERTY:

Of course, if I am mistaken I want to be corrected, but I think I can turn up the letter the hon. gentleman wrote me making the charges. This is the answer I made to that letter:

I have your letter of the 2nd instant, in which you make charges against Deputy Warden O'Leary and Dr. Phelan.

And so forth.

Before appointing a commissioner to make such inquiry, it would appear proper that the accusations should be submitted to the parties accused, for the purpose of eliciting any reply they may desire to make. Before communicating with these gentlemen, I desire to he informed whether you are willing that I should transmit them copy of your letter or if- you prefer that the accusations he communicated to them in some other form. I may say that for the purpose of the contemplated investigation, my present intention is to issue a commission under the Inquiries Act, Chapter 104 of the Revised Statutes Jif Canada. '

The reply I got to that was:

In reply to yours of the 4th inst., re O'Leary and Phelan, I quite agree that copies of the accusations should be sent to the accused, hut I am not sure that it would be in the best interests of a fair investigation to do more than that. The Commission of Inquiry which you propose to appoint, will bring out the facts and I am quite willing to go before that commission and restate what I have written to you.

There are other officials of the Portsmouth penitentiary whose conduct should he investigated, and I hope that the commission will be given wide powers.

What I understood him to say was " I am quite willing to go before that commission and re-state the charges.

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LIB

William Cameron Edwards

Liberal

Air. EDWARDS:

Did you not say that

the first part of the letter should be sent to the men accused?

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CON

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

Conservative (1867-1942)

Air. DOHERTY:

As I understand ithowever, it is perhaps not very material.

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LIB
CON

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

Conservative (1867-1942)

Mr. DOHERTY:

My attention certainly

was not called to the time at which the charge of perjury was made. Perhaps it was [DOT]my oversight, perhaps sufficient attention was not paid on my part. But I only want to point out that when the commissioners said, as they did say, that they did not think that would be a

fair thing to do, it seems to me they were right in saying that, at all events. I may say, moreover, that an opportunity was given in a general way to the gentleman from whom my hon. friend got a large part of the information on which he has based his charges to make any statements with regard to matters anterior to the five years.

With regard to the charges against Dr. Phelan, it is not necessary that I should go over what the commissioners said. It seemed to me they reached a fair conclusion on that subject. What are the consequences that'ought to be drawn from that conclusion is another matter. Tfhe first thing that struck me in dealing with this commission and their report was that the great material thing was to improve the conditions that were complained of.

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LIB
CON

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

Conservative (1867-1942)

Mr. DOHERTY:

I thought the hon. gentleman read it himself. However, I will read it if he desires. Here is where they state the responsibility for certain conditions:

It being generally agreed that the condition o: the insane is and has been for years altogether unsatisfactory, the question " who are responsible?" demands an answer. The responsibility falls primarily upon two men, the surgeon and the inspector. The former, in his annual reports, should have given expression to views such as he presented in his evidence before the commission. This was clearly his duty and would have relieved him of responsibility,, but unfortunately a perusal of his reports leaves one with the impression that the state of the insane left nothing to be desired.

Then they go on to deal with Inspector Stewart.

Now here are the particular charges that my hon. friend desires that I shall read. I thought the hon. member was perfectly familiar with them at all events. There were four particular charges made. First he was charged:

(a) With gross political partisanship.

And the commission says:

The counsel for the Government properly says: "I do not propose to- argue that the evidence adduced supports the charge of political partisanship."

The second charge is:

Charge (b). The charge of "using violent and indecent language to a guard in the presence of others."

With regard to this the commission says:

The charge of "using violent and indecent language to a guard in the presence of others " is

established, but it is claimed that it was used in jest; the evidence leaves this uncertain. In any case, the surgeon entirely forgot the dignity of his position and the discipline of the prison in making use of the language in question ; and the incident discloses an unhealthy state of things.

Then:

(c) With conniving at the absence of a guard at an election trial where said gufird was wanted as a material witness.

With regard to that the commission says:

The commission did not consider this charge to be within the limits of their commission. It occurred thirteen years ago. Some of the parties are dead. It has no bearing on the present state of - the prison.

Then there is the grafting charge, in regard to which they say:

Dr. Phelan admits that in four cases he asked and received a small fee from an applicant for a guard's position as to his physical fitness, and this is a contravention of the statute, as he is not to practise his profession. He says he has not done so for several years. The amount wrongfully taken by him was $4.

The foregoing are the only charges made against Dr. Phelan by Dt Edwards.

I have not been able to find in my examination of the evidence any reason to question the conclusions reached by the commission not only upon these particular charges but in regard to Dr. Phelan by reason of the general conditions in connection with the hospital. The action that ought to be taken in consequence of that is another question. The first thing that seemed important for us to do was to proceed to remedy the conditions. The great condition that called for a remedy in my mind was that in regard to insane patients.

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?

Robert Bickerdike

Mr. BIOKERDIKE:

Mr. Chairman, you were particular to call me to order. I would now call your attention to the fact that I do not think there is any quorum and you cannot conduct the proceedings of the committee without a quorum.

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CON
CON

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

Conservative (1867-1942)

Mr. DOHERTY:

I think the hon. gentleman will have to make another count. -

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CON

Albert Sévigny (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Conservative (1867-1942)

The CHAIRMAN (Mr. Sevigny):

I

think the point of order is well taken: there are only 15 members in the House.

Mr. Speaker having resumed the Chair,

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March 30, 1915