March 24, 1927

LIB

William Daum Euler (Minister of Customs and Excise)

Liberal

Mr. EULER:

I am not a legal man and

I cannot interpret the law.

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CON

Richard Bedford Bennett

Conservative (1867-1942)

Mr. BENNETT:

I am grateful to my hon friend (Mr. Power) for his observations as to my desire always to voice sentiments that favour the liberty of the subject. That however is not what we are discussing.

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LIB
CON

Richard Bedford Bennett

Conservative (1867-1942)

Mr. BENNETT:

The hon. member has

such a wide knowledge of everything that he reminds me of what was once said of Macaulay: "If I knew as much about anything as he pretends to know about everything I should indeed be wise". I hesitate to make the remark I am about to make. Is there a desire on the part of the House to render nugatory all the efforts the minister has made to put on the statute book an

Customs Act Amendment

effective law to prevent a recurrence of the conditions we had disclosed last year? Is that the object? If not, why make a joke of all this, as some hon. gentlemen seem to be doing? The truth is that in all jurisprudence, as my hon. friend from Quebec South so well knows, there are certain conditions which in themselves are regarded as prima facie evidence either of negligence or of guilt. For example, according to law of negligence, if a person traveling on a passenger train is injured, the very .fact that the conveyance is one intended for passengers is prima facie evidence of negligence on the part of the company. We use the expression in law, res ipsa loquitur-the thing speaks for itself. So that in criminal cases where we have certain conditions which in themselves constitute an evidence of guilt, and therefore is prima facie proof of it, any person found in certain relationship to those conditions is presumed to be guilty of the offence involved. The onus of proving his innocence rests upon the person so found. In the particular section to which attention is called it will be observed that:

If any person. . . . harbours, keeps, conceals, purchases, sells or exchanges any goods unlawfully imported into Canada-

-he must prove a lawful excuse. That is all. Take our laws relating to liquors. As my hon. friend from Quebec South knows, in Quebec, in Alberta and in Saskatchewan, under certain conditions, the onus of proving innocence rests upon the accused. Once a person is found in certain circumstances the onus is shifted and he must explain his position. This happens every day in respect of many matters I need not mention.

I shall not speak to-night on this question, but I desire to say this much before I conclude. I followed with a good deal of interest and some degree of effort all that was said last year with respect to the enforcement of the customs laws, and I learned then that men were perfectly willing to pay $1,000 at any time if they could get away with $5,000. They were quite prepared to pay $1,000 now and $1,000 again if by so doing they could gain $10,000, and this effort on the part of the minister and the government, by making the penalty so severe as to prevent a recurrence of what has so marked the administration of the customs laws of the country, must commend itself to hon. members. 1 do not say that severe penalties will cure evils of this kind, because they do not. But where you have a condition prevailing, a known condition such as that disclosed last year, and you find men flourishing as they do by gains ill-gotten from smuggling and

from the importation of narcotics, it is time we made the penalties severe enough. Drastic penalties in such cases are found to operate as a powerful preventive. Let me give an illustration; take the case of whipping. Hon. gentlemen will recall that a certain Cl ass of criminal was perfectly content to suffer imprisonment for burglary, for housebreaking, for bank robbery and offences of that nature; but the moment you added the cat-'o-nine tails he became less eager to carry on his operations. The reason is psychological, as those will understand who have studied criminology. I remember reading some time ago an eminent criminologist's opinion in this regard. There is something in the psychology of this form of punishment so repulsive to the mentality of the burglar that he will not readily risk the possible infliction of the penalty, which therefore proves a strong deterrent. Here you have a type of man engaged in smuggling on a large scale; he is a professional, a member of an organized gang or clique which is trying not only to defraud the country of its revenues, but, as the hon. member for Frontenac-Addington has said, to work irreparable physical injury on our citizens. He traffics in narcotics and other drugs. I am not talking about the casual smuggler who brings across a bolt of silk; I am concerned with the class who are known to engage in a business which is a menace to the lives of people, as brought out before the royal commission now7 carrying on its investigations.

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LIB

Jean-François Pouliot

Liberal

Mr. POULIOT:

So that no one would risk the penalty, would the hon. gentleman be prepared to suggest the death sentence in this case?

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CON

Richard Bedford Bennett

Conservative (1867-1942)

Mr. BENNETT:

Nothing could better accentuate the observations I made when I rose to my feet than the interruption of my hon. friend. There are under our criminal law three offences which may be punished by death; treason, murder and rape. The other day a judge imposed the penalty of death upon an accused convicted in Ontario of the last named offence and the Court of Criminal Appeal set aside that sentence. The point I make is this. The discretion as to what the penalty and the punishment shall be must always rest with the judiciary, but we have surrounded it with rights of appeal under which I venture to say there have been in this country very few instances of grave wrong done to any individual by reason of the severity of the punishment imposed. In addition to that there is the executive power which may always be set in motion for the purpose of relieving a convicted person from a penalty if

Customs Act Amendment

under the circumstances there is evidence to warrant such action.

I am not going to trespass further on the time of the committee. I do say to my fellow members of this House, some of whom were not here last year, that if they have read the evidence given before that committee last year, and if they have been following the evidence given before the royal commission, they must realize the extent and the enormity of the injury being done to Canada through the loss of revenue. Not only have we been injured in that way, but also through the idea which has been going abroad in this country that by violating the law men may create great fortunes for themselves, and by their ostentatious display of their ilbgotten gains create feelings of envy and dissatisfaction in the minds of the decent people of this country. I think hon. members will agree that the time has come when we should at once say, "You are beyond the pale of our civilization, and the resources of that civilization are not yet exhausted against its enemies," to quote the language of Mr. Gladstone. We are now dealing with one of the resources of civilization, which civilization is threatened by the perils and evils which I have indicated without going into detail.

I suppose it is not usual for one on this side of the House to support an opposing minister with such warmth, but I know from what I have read and from what I have seen that we are facing great danger from the continuance of this condition in Canada, and it has become imperative that this gang of swindlers and smugglers can no longer become the leading men in their communities, displaying their ill-gotten gains, their high powered cars, their beautiful residences, their silks, satins and jewels, and thus arousing the envy of the less fortunate but honest people. We should brand them as criminals not only with a fine, but we should send them to the gaols of the country, and then and not till then will the laws of this country be observed.

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LIB-PRO

John Livingstone Brown

Liberal Progressive

Mr. BROWN:

I am quite willing to believe in the good faith of those hon. gentlemen who have made objections to this bill, and who plead that undue penalties will be imposed upon people who are morally innocent. At the same time, I am inclined to fear that if the demands for the emasculation of this bill are successful it will leave the department with nothing more than a popgun with which to fight this evil. I think the knowledge gained last year through the sittings of that committee brought to our notice a condition of things which we must face in a most determined manner. Personally I am disposed to agree very heartily with the provisions which have been incorporated in the bill; some small amendments may be necessary, but in the main I believe we must adopt desperate remedies to cure desperate diseases. It may be true that ignorant and illiterate justices of the peace, men not accustomed to dealing with the law, may occasionally visit undue punishment upon individuals, but at the same time we must take that into account in all our laws, and we cannot depart from a sound principle because exceptional cases of hardship may arise. We must expect that that will be the case, but we cannot make laws to deal with exceptional cases. I repeat, I am afraid that if the suggestions of many hon. members are carried too far we will have nothing left which will be effective in meeting the condition of affairs which confronts us. I know in dealing with this question with the electors last fall I emphasized the need of considerable drastic measures to meet the deplorable condition revealed by the customs inquiry last year.

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LIB

Charles Gavan Power

Liberal

Mr. POWER:

I would quite agree with

the last two speakers if the majority of the people of Canada were professional smugglers, but those who carry on smuggling on a commercial scale are in the minority. If the resources of civilization are not exhausted, as my hon. friend has well said, surely we can find some means to punish these commercial smugglers without treating the whole population of our country as smugglers.

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CON
LIB

Charles Gavan Power

Liberal

Mr. POWER:

I will go further. My friend says the resources of civilization are not exhausted. Why, then, does he go back to the days of barbarism to find heavy punishments to inflict upon the people of this country? Many years ago sheep stealing was punishable by hanging; did that prevent sheep stealing? I think not; I am quite sure that on the contrary it prevented hanging. We are imposing heavy penalties on the people of Canada for infractions of the tariff law, while a large portion of the people of this country and a fair proportion of the members of this House regard any tariff law as morally wrong. So you place them in the dilemma of either following the dictates of their own conscience or violating the laws of the land. I do not agree with many who, like the hon. member for Lisgar (Mr. Brown) may feel that the imposition of a tariff is morally wrong, but I do think consideration should be given to their views and that the penalties for carrying out what is after all no moral wrong to them should not be so heavy.

Customs Act Amendment

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LIB-PRO

John Livingstone Brown

Liberal Progressive

Mr. BROWN:

Perhaps my hon. friend

would ask the hon. member for Rosetown (Mr. Evans) whether the restrictions on the sale of liquor are morally wrong.

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LIB

Charles Gavan Power

Liberal

Mr. POWER:

I am not at all interested

in the views of the hon. member for Rose-town in regard to the restriction of the sale of liquor. I can quite sympathize with him if he feels that to a certain extent they are too drastic, but I do not wish to be brought into a controversy on that matter. I simply wish to point out to the minister that while for the time being he may have the sympathy of a majority in this House and perhaps of the majority of the people, he will find endless trouble in carrying out this act; time and again there will be brought to his attention cases of unfortunate people who have been unjustly condemned, and within a short time, in order to be workable, the act will have to be made far more lenient.

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IND

Alan Webster Neill

Independent

Mr. NEILL:

May I ask the hon. gentleman a question? He stated1 this section was interfering -with the liberty of the people; I do not agree with him, but the word's are his. Does he not think that this is a case of sin following sin, of precedent piled upon precedent, since we made the fatal error the ether day of interfering with free speech in this House?

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LIB
LIB

James Lorimer Ilsley

Liberal

Mr. ILSLEY:

I would like to go back to the question I asked a few minutes ago, to which I would like an answer. I know that some time ago some gentlemen from Montreal went to the fprovinee of Nova Scotia and sold several automobiles that had been smuggled into Canada although they produced prima face evidence that the duty had been paid. I believe the victims are getting back their cars upon payment of the duty, and I see that the section as it stood previously was as follows:

If any person knowingly harbours, keeps, conceals purchases, sells or exchanges any goods unlawfully imported into Canada, whether such goods are dutiable or not, or whereon the duties lawfully payable have not been paid, such goods, if found, shall be seized and forfeited without power of remission, and, if such goods are not found, the person so offending shall forfeit the value thereof without power of remission.

That would appear to me as quite reasonable and proper, but I can quite understand that it may have been difficult in a great many instances to prove guilty knowledge on persons who had such goods in their possession. What I would1 like to know.now is whether the proposed section makes any

change in the law other than shifting the burden of proof. The new clause reads:

If any person, whether the owner or not, without lawful excuse. . . . harbours, keeps conceals, purchases-

And so on. Does that moan:

If any person, without knowing the goods to have been smuggled, harbours, keeps, conceals, purchases.

It is important that we know this. How can a person in whose possession are found smuggled goods, escape the penalty? How can he go into court and show that he has a lawful excuse? Supposing he says that he was furnished with some sort of entry paper, would it be said by the court that he should have looked into and satisfied himself as to the genuineness of it? Would that be a sufficient answer by the crown to the excuse which he was offering? That is an, important matter in that connection. I understand this is a copy of another section, and it may be that it is ample protection to the person who is accused, but the uncertainty should be cleared up. With regard to the general question of penalties, it is very important that we should scrutinize them, because undoubtedly the imposition of penalties which are too severe will not serve the object of carrying out the act properly.

Mr. EULE'R: I regret very much that I

could not hear all my hon. friend was saying. If I heard him correctly, what I did hear was that he was objecting to the fact that formerly the clause contained the word "knowingly," and that word is now 'being replaced by the words "without lawful excuse." If that is his objection, the answer to that is simply this: It is practically impossible in these cases to prove that a man knew and so to secure a conviction. Under this clause he is given the privilege of making a lawful excuse. Just what form that may take, I am not able to say. It may be given in various ways.

Mr. ILSLEY': Does the minister not think it is important to know that? There are men all over the country who may be proceeded against.

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LIB

William Daum Euler (Minister of Customs and Excise)

Liberal

Mr. EULER:

There is no doubt whatever that people were found unlawfully and knowingly in possession of smuggled goods, but it was impossible to show that they were knowingly in possession of those goods. We are now making it a little more difficult for those people to escape.

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IND

Joseph Henri Napoléon Bourassa

Independent

Mr. BOURASSA:

In other words, I understand the object of the minister is to have the opportunity of reaching all the guilty

Customs Act Amendment

parties, but with no opportunity for innocent parties, if they cannot prove their innocence, to escape. This is enlarging a very dangerous principle. I have always understood that from the point of view of moral law, as well as practical legislation, we should rather run the risk of letting one guilty party escape than of unduly punishing an innocent party. That is the great danger of legislation of this nature. I quite realize the object of the minister. Undoubtedly there is great difficulty in coping with the evil that was brought to the attention of the House last session by the committee of inquiry, but at the same time we should not let ourselves be impressed too much by the findings of that committee and we should think more of the dangers which we may run by introducing legislation that will either be impossible of application or work undue injury to people who will not be in a position to prove their innocence and thus to escape the penalties as they are provided for in this legislation.

Everybody knows that amongst officials of any department and especially those which are charged with the imposition of penalties, there exists the practice of enabling officers of the law to partake of the advantages of pursuit. Therefore they develop the spirit of finding guilty parties even when they do not exist and of endeavouring by all means to have parties found guilty in regard to whose guilt there is a doubt. They do this in order to justify their activities, to further their advancement with their chief, and to bring revenue to themselves. This is fully as great a danger to public morality as the amount of smuggling that may be done more or less under the application of a milder law.

If we had such a principle of severe punishment and such principles of evidence in all our criminal law with regard to offences of a much more immoral nature than those which are provided for by this legislation, the policy would be a general one; but as the matter stands now, with the leniency that is shown to such a variety and quantity of criminals and swindlers, especially in the financial world, I do not think the conscience of the country will be prepared to sustain a law of tliis nature and to make it easy for the government to carry it out. I think with the various members who have expressed the same opinion that the minister had better consider this matter further before it is passed definitely.

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Section agreed to. Section 27 agreed to. On section 28-Smuggling carrying offensive weapons.


LIB

Charles Gavan Power

Liberal

Mr. POWER:

I object to this clause which reads:

Every one is guilty of an indictable offense and liable to imprisonment for ten years, who while carrying offensive weapons is found with any goods liable to seizure or forfeiture under this act or any law relating to the customs, knowing such goods to be so liable.

Any hon. member knows very well that a large number of people who travel carry revolvers.

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?

Some hon. MEMBERS:

No.

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March 24, 1927