August 11, 1917

CON

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

Conservative (1867-1942)

Mr. DOHERTY:

Under this measure it

will apply to all companies.

Topic:   XI, 1917
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CON

Samuel Francis Glass

Conservative (1867-1942)

Mr. GLASS:

In that respect it will better meet the needs for which it was created.

Topic:   XI, 1917
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LIB

Daniel Duncan McKenzie

Liberal

Mr. McKENZIE:

To my mind, section 508 (c) is very badly drafted. I find it difficult to understand its meaning. It may be clear to an insurance man, but as an ordinary individual I regard it as very complicated and extremely difficult to understand. In view of the provisions of subsection (2) I cannot understand why this is made an indictable offence. The subsection provides a punishment which comes easily within the most ordinary summary conviction. Indictable offences are dealt with in a veTy elaborate, expensive and difficult way, as the minister knows. If the intention is merely to collect a fine ranging from $20 to $50, I do not understand why a man should have to go before the Grand Jury, the Petit Jury and the Supreme Court. It seems to me the machinery provided is altogether too cumbersome for the penalty.

Topic:   XI, 1917
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CON

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

Conservative (1867-1942)

Mr. DOHERTY:

Speaking without the Criminal Code before me, unless I am mistaken-and I do not think I am-the fact that this is made an indictable offence does not make it impossible to be dealt with otherwise than by indictment. There are the provisions of the Criminal Code under which there may he option for summary trial, etc., so that no injustice is done to any one.

Topic:   XI, 1917
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LIB
CON

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

Conservative (1867-1942)

Mr. DOHERTY:

Perhaps the hon. gentleman is more familiar with them than I am.

Topic:   XI, 1917
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LIB

Daniel Duncan McKenzie

Liberal

Mr. McKENZIE:

Proceedings are commenced the same as for sending a man to the Supreme Court, but when he is before a stipendiary magistrate he has the right to elect to be tried before that magistrate.

Topic:   XI, 1917
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LIB
LIB

Daniel Duncan McKenzie

Liberal

Mr. McKENZIE:

Only in certain cases. This would have to Ibe put in the list of cases that could be so tried before he could come under that category. I think it would be well worth while for the minister to consider it, because, certainly, it should be dealt with in the ordinary way, summarily before a magistrate.

Topic:   XI, 1917
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CON

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

Conservative (1867-1942)

Mr. DOHERTY:

The Bill was drafted by the Deputy Minister of Justice and I understand that in putting it in this form he put it in the same form, and dealt with it in the same manner, as analogous offences are dealt with in the Criminal Code generally. With all respect, and while I am prepared to admit what may be the more accurate knowledge of my hon. friend, I entertain a pretty strong conviction that it is open to the accused in a matter of this kind

to obtain a summary trial. In any event, should that not be true, there is no injustice done to the public, or done to the individual, and there is no evil, from the point of view of the public prosecution, arising from allowing it to stand as an indictable offence. All that is lost is that there would be no option on the part of the prosecution to proceed otherwise 'than one is bound to proceed upon an indictable offence. I am sorry that I did not anticipate the raising of this question, which is quite a proper question for the hon. gentleman to raise, and that, not being provided with the Criminal Code, I am not in a position to speak more positively than I do. But, I feel confident that no injury would be done to anybody liable to be prosecuted for this offence by reason of its being made an indictable offence.

Topic:   XI, 1917
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LIB

Daniel Duncan McKenzie

Liberal

Mr. McKENZIE:

I understand what

the minister means but I can assure him that if he would look at the Code,' and look more particularly into the procedure, he would see that there is liable to be a great injustice done to the party accused. If he is tried summarily, if he is not satisfied with the magistrate's decision he may appeal. That is a great satisfaction to anybody. If he is brought before a magistrate and he has to elect to be tried under indictment he has ho appeal. I am sure the minister will understand that this is a very striking difference.

Topic:   XI, 1917
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CON

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

Conservative (1867-1942)

Mr. DOHERTY:

It is a difference; but on the other hand the party accused has an option as between the two methods of trial. He will not be dealt with on a summary prosecution without an appeal except as the result of the exercise of his own option. *

Topic:   XI, 1917
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LIB

Daniel Duncan McKenzie

Liberal

Mr. McKENZIE:

Under this Act there aTe two things that he can do. The magistrate before whom he comes will have to send him up for trial to the Supreme court. He will have to explain to him that on a certain day the Supreme court is going to sit where he can be tried before a judge and a jury. He will have to say: "You have the option to forego that and be tried before me now if yeu consent to it." The accused says: "I prefer to go to the jury," or,

" I consent to be tried before you." If he says that he consents to be tried before the magistrate, he is tried and whatever the decision of the magistrate taay be there is no appeal from' it. But, if he is tried summarily before a magistrate on an ordinary information, he can appeal in the ordinary way and, of course, the procedure

EMr. Doherty.]

under which a man can appeal is a more popular and a better procedure in small case,g of this kind.

Topic:   XI, 1917
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CON

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

Conservative (1867-1942)

Mr. DOHERTY:

While I appreciate the value that may attach to an appeal, on the other hand, I think it deprives a man of trial by jury which is an inherent right. Then, to have , him tried otherwise

than by jury without regard to

any consent of his own is perhaps a more serious thing. There should be a procedure which leaves it open to him to be tried by a jury or to havethe trial before a magistrate without appeal. He has an opportunity and he has an option. If we make it a matter of summary trial simply, he will have to go before the magistrate. It is true, he will have an appeal to a judge of the higher court, but he will have to stand by the findings of the judge, he will be deprived of his trial by jury. While the penalties are not exceedingly heavy, the offence in itself is not in any way a minor' one. It would be very undesirable to treat it as such. From the point of view of the class of people who will be liable to be charged with offences of this kind, people who may be in the very largest way engaged in this very important business of insurance, I do not think we should merely, because the penalty is not heavy, deprive them of the right to have a trial by jury if they so desire. I do not think it is much of a grievance that instead of being subjected absolutely, in the first instance, to the judgment of the magistrate-with the right of appeal, it is true-the accused is placed in a position where he may at his own option have the verdict of his peers or the judgment of the court but without an appeal.

Topic:   XI, 1917
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LIB

Daniel Duncan McKenzie

Liberal

Mr. McKENZIE:

I see that the minister stands iby the Act, but I wish to point out to him as a lawyer who has had a good deal of practice in matters of this kind, that to send a man up under an indictment is a very serious matter. If a man is brought up with a view to his being indicted under this Act he comes before the magistrate or he elects to fake the privilege which the minister points out. Then the magistrate has to send him to jail. He (applies for bail. The magistrate has no power to take bail. If he is brought before a magistrate under this Act and he says: " I will not agree to be tried summarily before you, I want to be tried by a jury," what must the magistrate do? He must send him to 'jail. If he is sent to jail he must

get an order from a county court judge to get bail. It is true that there is a provision by (which the magistrate is permitted to say: " The evidence is not strong, I will simply hold you over for trial, and I will take bail myself." The magistrate can say that, but if the evidence is strong and he commits for trial it is beyond his power absolutely to take bail and the man must go to jail and then apply to a supreme or county court judge for authority for some magistrate to give him bail. It is for this reason that I am bringing the matter to the notice of the minister.

Topic:   XI, 1917
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CON

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

Conservative (1867-1942)

Mr. DOHERTY:

I understand the hon. gentleman does not question the power of the magistrate to grant bail?

Topic:   XI, 1917
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LIB
CON

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

Conservative (1867-1942)

Mr. DOHERTY:

I have not the section before me, but as I recollect it, it is a matter for the magistrate to appreciate, and, if I am not mistaken, he is entitled to appreciate the nature of the evidence and the probability of the person disappearing rather than presenting himself for trial, in the exercise of his power to allow bail.

Topic:   XI, 1917
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LIB
CON

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

Conservative (1867-1942)

Mr. DOHERTY:

I regret I have not the Criminal Code before me and I do not like to question the positive assertion of the hon. gentleman, but I do know that, in my own experience, it is only for the graver offences that a magistrate would refuse to admit a man to bail. Certainly he would not in the case of an offence of which the penal consequence is so light as in this case.

Topic:   XI, 1917
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August 11, 1917