June 25, 1951

LIB

David Arnold Croll

Liberal

Mr. Croll:

There are adults in public parks whereas you do not see too many around schools. The first thing you know you will find that these people were better off in jail. I think it is a good step in the right direction, but let us not make it too confining or these people will almost be prisoners whether they are in or out. That is the difficulty as I see it. The thought is that there are children in great numbers around school grounds and playgrounds, and very few adults, but in parks you usually find older people and the difficulties do not arise in the same way.

Topic:   VARIOUS AMENDMENTS RELATING TO OFFENSIVE WEAPONS, PENALTY FOR OFFENCES OF A SEDITIOUS NATURE, IMPROPER USE OF MAILS, ETC.
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PC

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

I must disagree with my hon. friend. Some of the worst cases we have had in my city have arisen in parks. I think far more of them have occurred in parks than in school grounds or playgrounds. Some playgrounds are located in public parks, but the expression "public park" would be much broader than playgrounds. My hon. friend indicates that many adults are usually to be found in the public parks. We have some pretty big public parks and the presence of adults in some of them has not prevented some of the worst of these offences being committed. In many cases playgrounds are supervised, but it is not possible to supervise all parts of the public parks. In the larger cities we have public parks that may run to several hundred acres.

Surely our first concern in a situation of this kind is not going to be the enjoyment of liberty on the part of people who have been convicted of the types of offences that

Criminal Code

are enumerated here. Mind you, Mr. Chairman, we are dealing here only with people who have already been convicted of these horrible offences against young girls. In a situation like this I am not going to waste very much concern on these people as to the abridgement of their right to loiter or hang around public parks. I am going to expend a good deal of concern on the young girls who may be using these parks for quite lawful purposes. I think we should be greatly concerned about protecting them from people who have been convicted of these sexual crimes against young girls. I cannot see any objection to the inclusion of public parks in the type of areas in which people convicted of these crimes are to be prevented from loitering or wandering. If they are going about their business and are not loitering or wandering they will not be committing an offence against this section, but if they are just hanging around, and, as we know from the newspapers, they hang around public parks a great deal, then they may be up to no good. I think that we ought to add public parks to the two areas in which these people are prohibited from loitering or wandering. I would urge that on the minister. It may be that on further reflection similar areas may occur to members of the house, but that is one that comes to my mind at once, and I would urge the minister to accept that addition.

Topic:   VARIOUS AMENDMENTS RELATING TO OFFENSIVE WEAPONS, PENALTY FOR OFFENCES OF A SEDITIOUS NATURE, IMPROPER USE OF MAILS, ETC.
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PC

George Randolph Pearkes

Progressive Conservative

Mr. Pearkes:

I should also like to suggest bathing pools and other swimming places.

Topic:   VARIOUS AMENDMENTS RELATING TO OFFENSIVE WEAPONS, PENALTY FOR OFFENCES OF A SEDITIOUS NATURE, IMPROPER USE OF MAILS, ETC.
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LIB

George Matheson Murray

Liberal

Mr. Murray (Cariboo):

The minister mentioned the British Columbia Bar Association. Has he not also received representations from the ladies of the Lady Laurier club of Dawson Creek on this matter?

Topic:   VARIOUS AMENDMENTS RELATING TO OFFENSIVE WEAPONS, PENALTY FOR OFFENCES OF A SEDITIOUS NATURE, IMPROPER USE OF MAILS, ETC.
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LIB

Stuart Sinclair Garson (Solicitor General of Canada; Minister of Justice and Attorney General of Canada)

Liberal

Mr. Garson:

Yes, I did.. The formal representation came forward from the British Columbia Bar Association, but we have received other more informal representations including those from the ladies of Dawson Creek.

Topic:   VARIOUS AMENDMENTS RELATING TO OFFENSIVE WEAPONS, PENALTY FOR OFFENCES OF A SEDITIOUS NATURE, IMPROPER USE OF MAILS, ETC.
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LIB

Joseph-Alfred Dion (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Liberal

The Chairman:

Shall the clause carry?

Topic:   VARIOUS AMENDMENTS RELATING TO OFFENSIVE WEAPONS, PENALTY FOR OFFENCES OF A SEDITIOUS NATURE, IMPROPER USE OF MAILS, ETC.
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PC

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

No, Mr. Chairman. Can we let it stand for a moment?

Topic:   VARIOUS AMENDMENTS RELATING TO OFFENSIVE WEAPONS, PENALTY FOR OFFENCES OF A SEDITIOUS NATURE, IMPROPER USE OF MAILS, ETC.
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LIB

Joseph-Alfred Dion (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Liberal

The Chairman:

Shall the clause carry?

Topic:   VARIOUS AMENDMENTS RELATING TO OFFENSIVE WEAPONS, PENALTY FOR OFFENCES OF A SEDITIOUS NATURE, IMPROPER USE OF MAILS, ETC.
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PC

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

Has the minister anything to say about the suggestions that have been made? If not, I would be glad, if the clause could stand for a moment, to draft an amendment to include public parks and public bathing areas.

Topic:   VARIOUS AMENDMENTS RELATING TO OFFENSIVE WEAPONS, PENALTY FOR OFFENCES OF A SEDITIOUS NATURE, IMPROPER USE OF MAILS, ETC.
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LIB

Stuart Sinclair Garson (Solicitor General of Canada; Minister of Justice and Attorney General of Canada)

Liberal

Mr. Garson:

I would not be in favour of barring a person who has been convicted from a park or from sitting on a bench or

Criminal Code

from attending a refreshment bar any more than the hon. member for Spadina would. But having regard to the fact that the words used in this section are "loitering or wandering", that is off the beaten path and not where there are places to sit, and so on, I would say that if the individual is loitering or wandering out around the shrubbery and so on, that is the sort of thing we want to stop. For my part I would be quite willing to accept an amendment to that effect.

Topic:   VARIOUS AMENDMENTS RELATING TO OFFENSIVE WEAPONS, PENALTY FOR OFFENCES OF A SEDITIOUS NATURE, IMPROPER USE OF MAILS, ETC.
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LIB

David Arnold Croll

Liberal

Mr. Croll:

This man may be attending a band concert and cannot find a seat, so he is walking about for the moment. He might well be charged with loitering or wandering about. It is too confining altogether. As it stands at present the section is admirable, so let us see how it works out. If in the light of events we have to enlarge it we can do so, but I agree that this is a step in the right direction and we should let it go at that for the time being.'

Topic:   VARIOUS AMENDMENTS RELATING TO OFFENSIVE WEAPONS, PENALTY FOR OFFENCES OF A SEDITIOUS NATURE, IMPROPER USE OF MAILS, ETC.
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PC

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

I am moving that clause (k) as it appears in section 13 of this bill be amended by the addition of the words "or public park or public bathing area". In reply to what has been said by the hon. member for Spadina I stress that in the first place this applies only to people who already have been convicted of some of these heinous carnal offences against youngsters. That is the first point. The second is that it applies only where they are found loitering or wandering in or near these public areas. If a man is listening to a band concert and behaves himself I do not think anyone will say he is loitering or wandering about. It seems to me a very sound idea that people with records like that who are found in these public areas loitering or wandering about should be liable to conviction on a charge of vagrancy. It is not any more serious than that, but I am sure it will give more effective opportunity to keep such people moving out of such places.

Topic:   VARIOUS AMENDMENTS RELATING TO OFFENSIVE WEAPONS, PENALTY FOR OFFENCES OF A SEDITIOUS NATURE, IMPROPER USE OF MAILS, ETC.
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LIB

Leon David Crestohl

Liberal

Mr. Cresiohl:

I do not think the amendment goes far enough. In the clause the words used are "school ground or playground". That indicates that these are places where children gather unattended. If the hon. member for Eglinton wishes the clause to go further he should simply say "or other places where children gather". That would not restrict us to bathing areas or public parks but would include all places where children gather. It might be a picnic ground; it might be any other place where children gather unattended. I understand the purpose of this measure is to protect children in places where they gather unattended and unsupervised.

[Mr. Garson.l

Topic:   VARIOUS AMENDMENTS RELATING TO OFFENSIVE WEAPONS, PENALTY FOR OFFENCES OF A SEDITIOUS NATURE, IMPROPER USE OF MAILS, ETC.
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PC

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

I appreciate the helpful

spirit in which the hon. member has made his suggestion. The difficulty, of course, lies in the draftsmanship. There is a danger in using language as general as the hern, member has suggested. If he would apply the section generally to places where children gather that would include the school itself; it might include a church or Sunday school and so on. The hon. member said these were places where children gather unattended, but I would suggest that children do not always go to these places unattended. School grounds are supervised at certain hours of the day. In many places public playgrounds are supervised at certain hours. I think if we add the two other places I have suggested we will be on sound ground, and we will not run into any question of the vagueness of general terms. If there are any specific suggestions the hon. member can offer I am sure we would welcome them.

Topic:   VARIOUS AMENDMENTS RELATING TO OFFENSIVE WEAPONS, PENALTY FOR OFFENCES OF A SEDITIOUS NATURE, IMPROPER USE OF MAILS, ETC.
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LIB

Leon David Crestohl

Liberal

Mr. Cresiohl:

Picnic grounds.

Topic:   VARIOUS AMENDMENTS RELATING TO OFFENSIVE WEAPONS, PENALTY FOR OFFENCES OF A SEDITIOUS NATURE, IMPROPER USE OF MAILS, ETC.
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PC

Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

A picnic ground is almost certain to be in a public park, and I think that would be included under my amendment. There are some private picnic grounds, but presumably those would have some measure of supervision on the part of the owners. Here the emphasis is on public places, schools and playgrounds, and my amendment follows the general scheme of the section.

Topic:   VARIOUS AMENDMENTS RELATING TO OFFENSIVE WEAPONS, PENALTY FOR OFFENCES OF A SEDITIOUS NATURE, IMPROPER USE OF MAILS, ETC.
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Amendment agreed to. Section as amended agreed to. On section 14-Driving while ability to drive is impaired.


PC

John George Diefenbaker

Progressive Conservative

Mr. Diefenbaker:

This is the section dealing with drunken driving, and it is a most interesting experiment on the part of the department. It seems to me they are endeavouring to zone the law on drunken driving, and that by zoning the law they have actually reduced the danger to those who, being intoxicated, operate motorcars. Under the present section the minimum penalty on summary conviction is seven days and the maximum penalty is a period not exceeding thirty days. Because it is sometimes difficult to establish intoxication a junior offence has been created. This provides that everyone who, while his ability to drive a motor vehicle is impaired, drives such motor vehicle, is guilty of an offence. The penalty provided for a first offence is a fine not exceeding $500 and not less than $50 or imprisonment, or both fine and imprisonment.

I think in practice this will emasculate the drunken driving section in effect today and provide an easy escape for those who drive motor cars while intoxicated. Furthermore

Criminal Code

provision is made regarding chemical tests, urine tests, breath tests and so on; but on analysis of the section my submission is that it really amounts to very little. It provides that the result of a chemical analysis of the blood, urine, breath or other bodily substance may be admitted in evidence notwithstanding the fact that no warning was given. Then there is a further subsection stating that no person is required to give a sample of blood, urine, breath or other bodily substance for chemical analysis for the purposes of this section. In other words while it purports to extend the field within which the prosecution is able to secure evidence against an accused charged with driving while intoxicated, in fact it does not do so. All it provides is that such evidence may be admitted. Then, you come to the question whether or not it will be admitted. The giving of a warning that the accused does not have to submit is not necessary, but there are still many other reasons why the court would hold that what had been done had not been done voluntarily, and because of that the evidence would not be admissible. I think that while this section has a grandiloquent sound about it, in effect it is more show than it is actually helpful in meeting the situation.

I realize the difficulties. I did when I suggested on more than one occasion in the house that the breath test, the urine test and the blood test should be allowed. I realized that there would be an interference with the individual's rights by the taking of those tests. But drunken driving has become a serious matter menacing the lives of hundreds, if not thousands, of people within our country and requires very drastic action.

Mr. Justice Barlow of the trial court of Ontario, in January last, stated that of the seven manslaughter cases at the previous assizes in Toronto, each and every one of them had originated in the beer parlour. This indicates the degree of danger for persons properly using the highways, when they are brought in contact with those who operate cars when intoxicated. I am not going into the experience in other nations except by way of a quick reference. In Norway the provision is made that all drivers who have a blood alcohol concentration of -05 or over are considered guilty of an offence. There is a medical examination as well as an examination of the blood. In Sweden they have a combination of medical examination and chemical tests. There all those who have [DOT] 08 of alcohol in their blood are included, and those who have between -08 and -15, depending on the outcome of the clinical examination, are found either guilty or not

guilty. When it is found that the concentration of alcohol is over -15 per cent the person is guilty, regardless of the outcome of any chemical examination.

Recently the provincial directors of the Accident Prevention Association of Ontario met in conference in the city of Toronto. They dealt at length with the situation. They had authoritative speakers present on that occasion. Tests were made in Toronto in accidents involving personal injuries that had taken place over a period of time. It was found that in all the accidents that had taken place in Toronto that were investigated, twenty-three per cent of the drivers had more than a trace of alcohol in their blood. It further showed that the proportion of drivers that make errors in driving increase with the increasing concentration of alcohol from -05 to -14. It was also found that eighty-six per cent of all drivers having -15 per cent of alcohol in their blood had committed acts of driving negligence of one kind or another, which indicates that a percentage of -15 is a dangerous percentage for at least eighty-six per cent of all drivers operating motor cars. At this meeting at which there were toxicology representatives, and also enforcement officers, the final conclusion was that there was a definite relationship between the concentration of alcohol in the blood and driving errors resulting in accidents.

My submission is that this section, when read cursorily, indicates a serious endeavour is being made to provide for blood, urine and breath tests, whereas in fact the question is begged and not faced. I believe that the zoning of the law and the provision that is made now in the new subsection 4a, to which I have made reference, will have the result of increasing the number of convictions to no great extent, but will in fact be an invitation to drunken drivers and will result in a fine being imposed for the first offence rather than a prison sentence. While some may say that the possibility of seven days in jail is not a deterrent to those who would drive motorcars when in an advanced state of intoxication, nonetheless I think experience has shown-I am referring now to the evidence of police officers-that the fear of a minimum period of imprisonment has a deterrent effect. In fact, I believe the predecessor to the Minister of Justice stated on one occasion that an increase in the penalty providing for a greater minimum period of imprisonment would result in a greater degree of fear on the part of potential wrongdoers.

I am one of those who have always taken a strong stand on behalf of the liberty of the subject, and against any unnecessary invasion of his constitutional rights. But having regard

Criminal Code

to the mounting death rate in this country as a result of the driving of motor cars by intoxicated drivers, there is only one language that such potential wrongdoers understand and that is the stern enforcement of the law. Instead of revising the penalty to a mere fine with a minimum of $50, I would have thought there would have been an increase in the minimum period of imprisonment which now stands at seven days. Many may think that this new subsection 4d provides blood, urine, breath or other bodily tests, but it does not. It permits the court to admit such tests, but there is nothing to prevent the court from holding, whether or not a warning was given, that such an interference with the person of the alleged wrongdoer constitutes an invasion of his rights, and as such is inadmissible. Indeed, the wording of the section would seem to be an invitation to the court to hold that, except in unusual circumstances, such tests should not be admissible. I am going to say no more at this time but I feel that this section which, before it finally came before the house in its present form, had been proclaimed as a great forward step is in fact one that will do little or nothing to meet the increasing menace of homicide by drunken drivers whose regard for the rights of others diminishes in almost direct proportion to the degree to which they have imbibed intoxicating liquor. I should like to know who recommended the section in its present form, for it certainly does not go as far as the law enforcement officers would like it to go. Indeed, it constitutes but a mere faltering step forward in an aggressive campaign to protect the lives of our citizens from those who, by reason of their intoxication, care nothing for the rights of others.

Topic:   VARIOUS AMENDMENTS RELATING TO OFFENSIVE WEAPONS, PENALTY FOR OFFENCES OF A SEDITIOUS NATURE, IMPROPER USE OF MAILS, ETC.
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PC

Gordon Francis Higgins

Progressive Conservative

Mr. Higgins:

Mr. Chairman, I rather feel

that, in joining in this debate, following the hon. member for Lake Centre, I am taking a great deal on my shoulders. I might say to the much more learned hon. member that I do think twice about doing so. Certainly if I object to any of the remarks he has made, he will recognize the fact that it is purely junior counsel doing so. I feel, however, that this section which is proposed to be put into the code is a good one, as far as I see it. From practice as I myself know it, I think it would be a much greater deterrent to driving while drunk than is the present section in the code. I feel that if magistrates have this section to use they will be much more inclined to convict than they will be if they are obliged to operate under the present section. I say that with all due respect to my hon. and learned friend who has had infinitely more experience in larger spheres

than I have. But I myself feel that this is a good section, and I would want it to stay there.

I agree with him-and I am not quite certain that he spoke altogether as I feel about the other important section having to do with the invasion of the rights of the subject, in connection with this question of the testing of the various processes of the human body. I feel strongly about that matter, Mr. Chairman. With all due respect to those who drafted this section, I feel that a warning should be given by the arresting constable, or whoever does the arresting, before such a test is made. I do not think it is right or proper that these tests should be merely taken as a matter of course without the arrested person being properly warned that he need not be subject to a test if he does not wish to have it.

From the little knowledge that I have of these things, I see how a grave injustice could be done. Certainly it is contrary to the principles of British justice as I know it. As I say, if my hon. and learned friend had spoken in a contrary fashion-and I am not quite certain whether he has or has not-I agree with him. If he has not, I disagree with him. I think that provision should be included. I think a warning should be given before any man has to undergo a test of any of these types that are set forth in this act.

Topic:   VARIOUS AMENDMENTS RELATING TO OFFENSIVE WEAPONS, PENALTY FOR OFFENCES OF A SEDITIOUS NATURE, IMPROPER USE OF MAILS, ETC.
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PC

Agar Rodney Adamson

Progressive Conservative

Mr. Adamson:

I just want to bring one

situation to the minister's attention. While I am in general agreement with this section, it seems to me that the mandatory imprisonment for drunken driving-particularly drunken driving which has resulted in an accident-should be clearly stated in the Criminal Code. I mention this point in view of an accident that happened here in Ottawa only a few days ago, where a driver had not only one accident but two, and where he nearly killed one of the surveyors working for either the city of Ottawa or the parks commission, as I gather. He left the scene of the accident, leaving the surveyor or the engineer prone on the ground, having destroyed his transit, changed cars, got into a taxi and when he was picked up

through what must be considered to be a bright piece of work on the part of a policeman-was found to be in an advanced stage of intoxication. The driver was fined $500. That man might easily have killed somebody. In fact, he seriously injured a surveyor. Had he gone up and hit him on the head with a hammer or, in other words, assaulted him, he would certainly have been imprisoned for bodily assault. But because he hit somebody with a motorcar, he is fined $500.

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I am not a lawyer, but it seems to me that it is just as dangerous and just as bad for a driver, when drunk, to drive a motorcar over a man as it is to go up and assault him on the street. It seems to me that the section should have a clause providing for mandatory imprisonment for this sort of accident.

In my opinion the thing which causes as much in the way of accidents as I have seen is the insulting behaviour of motorists to each other, the insulting behaviour of motorists to pedestrians and vice versa. I do not suppose it could be possible that some clause could be put in the code with regard to insulting language used by motorists to each other. Nothing is so likely to adversely affect the driving ability of a motorist who is in charge of a heavy and powerful machine which is capable of causing death in a split second as the impairment of his judgment; and there is nothing that is more likely to impair a driver's judgment than anger. I do not suppose it would be possible to have such a clause in the section. There is the old saying about care and courtesy. It is a question of courtesy in driving, something which is of inestimable importance to safety and security on our roads.

Topic:   VARIOUS AMENDMENTS RELATING TO OFFENSIVE WEAPONS, PENALTY FOR OFFENCES OF A SEDITIOUS NATURE, IMPROPER USE OF MAILS, ETC.
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June 25, 1951