April 28, 1908 (10th Parliament, 4th Session)


William Stevens Fielding (Minister of Finance and Receiver General)



liberty, and that, in the midst of a society as fully organized as possible to protect what deserves to be protected.
We must not allow this beneficent state of things which is the result of long and ardous work, political and legislative, to be marred by arbitrary acts and abuses of authority creeping by stealth in our legislative and judiciary proceedings.
The tendency of powers is always to grow stronger, even to exceed the necessary limits for their efficacy which should be their sole justification. Experience shows, and it is in the human nature, that if a cast is allowed to take privileges, it will take more than its share. But a people, taking care of its legitimate liberties, must, through its representatives, not allow that this should be lost sight of, that is to say, that the judiciary or other institutions, paid and well paid by the people, do exist only for the needs of the people and not for the satisfaction of what might be called everywhere else individual caprices, a thing which is opposed to all public interest.
The House has undoubtedly noticed that the doctrine sanctioned by the precedents I have quoted, applies as well to the verbal comments of a legislative assembly, on the hustings and even in the ordinary conversation, as to the comments of newspapers, so that In presence of this jurisprudence, which no late legislation has yet changed, I contend that a judge may, proprio motu, order the arrestation of a mayor or alderman or a member of a board of trade, or a warden of a county and principally of a newspaper publisher or any other .citizen, by whom he would justly or wrongly claim to have been insulted outside of court, and put him into jail by his authority.
I assert here that, previously to the late incidents which have occurred at Quebec and Halifax, 99 per 100 of the population of Canada did not realize that our laws still contained enactments authorizing such things. If my interpretation of this jurisprudence is right, and I would be glad to hear that I am mistaken. I hope that my proposal of applying a remedy will be favourably considered by a Liberal government.
I am not afraid of the answer which will be made, that is to say, that the courts being the guardians of the individual rights should have all the possible latitude, or other arguments of the same kind. First, besides the extraordinary powers, which I say they do not possess, the courts have all the necessary liberty of attaining their legitimate end, and we must not forget that an absolue and arbitrary power is always claimed to have the greatest solicitude for public liberties in order to more surely substitute itself to the laws, to constitutional and democratic authority, to
which the people who loves at the same time order and liberty, will Only bow.
It is more by the article itself than by the label that it is possible to judge of its real value. The authority which imprisons cannot at the first sight, be looked upon as protecting liberty, and it is only after we have been able to test the ordinary elements and guarantees of justice that we can come to this conclusion, I therefore ask that the party who comments a judicial decision should not be in a worse position than the one who criticizes any action of the government or parliament. Arbitrary power has no more right to be in the midst than at the head of society. The autocracy of a person who, by his talents or through circumstances, becomes a constituted authority, is not any more tolerable than the hereditary autocracy.
The head of a constitutional government administers practically the country under the most direct and vigilant control of the press, and I do not see why the magistrate would not perform, under the same conditions, the judiciary functions which are assigned to him.
There were judges before any printing establishments ever existed. I know that the press is younger than the bench and older than parliaments, but nevertheless we see parliaments controlling now, if not in reality, at least in theory, the courts of which they have come to be the creators and masters. For these matters as for others, the supremacy must be decided more by the nature of their functions than by their age, and the press which has opened the ways to democratic governments now the creators and masters of the courts, should be at least on equal footing with the courts.
I therefore ask for the journalist, who may have his wrongs and may make errors -and I know something about it, but we have all the necessary laws to repress that [DOT]-for the journalist, I repeat, who fulfils an undisputable, useful and courageous mission, the same privilege that is given in this very old law, to an accused party, of being tried by a jury of his fellowmen.'
When an unknown individual, who has however equal rights with other citizens, an immigrant or a vagrant isaecused of a crime, the law orders, and it is a just and prudent law, to try him only with a jury of twelve citizens unprejudiced and having no interest or relation whatever with him. 'Then why should we leave the right of rendering judgment to a man who has been, or claims to have been insulted by another, a journalist, for instance, who is obliged by clauses 2924 and the following ones of the Quebec statutes and of corresponding legislation in other provinces to give his address to the courts and in some way keep them acquainted with his busi-

ness and profession ? I say it is an anomaly which, after the incidents that have occurred in Quebec and Halifax, will not fail to call the attention of the democratic governor whom we have at the head of the country, and whose desire is not only to have in his programme the words ' justice and liberty ' which sound well to the ears of the people, but something that will represent really the treatment of the people.
The liberty of the press is the exact thermometer of the liberty of the nation. It is by the book, by the pamphlet, by printed matter, and finally by the press that the absolutism of the past has been destroyed, and that constitutional and democratic governments have been established in this modern society, and it is also by the press that they will be maintained there. It is not only a question of gratefulness and justice towards the press, but a question of safeguard for these popular institutions which modern nations do not seem to depart from. A former Minister of Public Works, (Mr. Tarte), who had a great knowledge of our Canadian constitution, and has applied it at times in a happy manner, never feared to say that the press was just as solid an institution as the bench.
By his broad views, by his examples of tolerance and equal justice to all, the government of the day seemed to have inspired the same sentiments to our magistrates, who, up to the last conflicts at Quebec and Halifax, have shown themselves more tolerant than arbitrary, but it seems as though it were not to be always so. Those of our colleagues who have kept the memory of the incidents of 1892, and they are numerous, will do me the justice of saying that X am right.
The prime minister of a province had just been dismissed by an authority-not the authority of the people-but an authority acting in connection with a libellous campaign, the parallel of which has never been met with in this country. Those who have maintained against him their undaunted hostility, have persisted in denying to him the credit that he had deserved; but the public opinion, having returned to a sober sense of the circumstances, has emphatically admitted his great administrative capacity, his intense care for substantial and moral progress of the people, his great patriotic motives, his disinterestedness, his high citizenship, and his unrivalled generosity. Nothing was proved against him. He suffered the punishment of the vanquished, and bore the rancors of the winning party. The leader who seems to have survived this coup d'etat, only to remain a living example of frailty of poiities, had destroyed a public man; the ministers he had chosen, and who, shortly after, incurred the same fate, undertook to ruin this man in his private life, he was dragged before the courts and accused of malfesance in office. A judge in whose impartiality the public opinion, in its state
of temporarily excitement, did not even place full confidence, was called to preside at the trial, and nobody could expect but a complete dishonour for the fallen statesman.
His opponents held the majority in the Senate, where the movement had originated. They also were the majority in the House of Commons, in the legislative council, in the legislative assembly, amongst the magistrates, and also amongst the public officials who, through sympathy or tactics, had joined the accusers, and this man who previously was endowed with an unlimited power, found himself surrounded by a mere handful of individual sympathizers, unable to put himself in touch with the people otherwise than by the medium of the public press.
In spite of the doubtful protection afforded by the existing legislation, the press manfully fulfilled its duty. The aforesaid judge rose from the bench; another one against whose public feeling was not aroused to the same extent, took up his place, and, notwithstanding the existing agitation, a unanimous verdict of acquittal was rendered. It behooves the liberal party to restore in behalf of the accused, whatsoever may be his social standing, or his political condition, the liberty of the press, as a guarantee of justice, in public as well as in private matters.
If good treatment received can repay for some slight injure, I have nothing, so far as the press or the courts are concerned, to thank or to grudge for.
The press has sometimes acted too generously towards me; sometimes also too unjustly. I have good friends among the newspaper men, and also more enemies than on the bench. Outside of the judicial decisions, which are not now under discussion, I have faced kind judges, and also some others not acting with an equal kindness. Those who would not be disposed to agree with me on this point, will readily admit that in this contest my personal interest would rather prompt me to side with the bench, which can reach me as a politician and as a lawyer, than with the press whose influence is purely political.
From my seat here I could easily and safely denounce the miserable individual who in a certain newspaper, acting as the mere tool of another individual well known for long to be my personal enemy. That stand I refuse to take.
I will also give the judges the credit that they have a very difficult task to perform, and also, that as a whole, they are generally men of talent, learning and good will, but I am not speaking at present for my own concern. I am a Liberal, I have been elected as a Liberal. I believe the said legislation to be based on Liberal and public motives. Such were the grounds upon which I introduced this Bill, which. I am afraid, will not reach an issue during

the present session, on account of the advanced stage already attained in our work, but, I confidently believe it to be my duty, to call the attention of Parliament and government, on the state of affairs arising from the recent incidents in Ottawa and in Quebec, for the citizens of the province of Quebec and of Canada as a whole. Mr. Speaker, I beg to move the first reading of this Bill.
Mr. AEMAND LAVE RONE (Montmagny.) (Translation). Mr. Speaker, it is not customary to discuss a Bill on its first reading, but, as the hon. member for St. Hyacinthe (Mr. Beauparlant) has just stated it, the session is now so far advanced that it is not probable that such question could be threshed before the end of our work. Such being the case, I consider it my duty to say a few words now.
I was very happy to hear my hon. friend discuss that question of relations between the press and the bench. I imagined for a time that I was listening to the attenuated echo of the voices from the old Liberals of St. Hyacinthe. unheard for so long a time.
The Bill introduced by the hon. member appears to me, to effectively inscribe in our code the old custom granting the unlucky pleader twenty-four hours to curse his judge. This Bill seems to me to be admittedly inspired by recent events. It leads to prevent a judge from calling before the court a journalist having taken upon himself to criticize the court incidents, or the decisions of the judge.
In principle, i agree with him, but, a special clause of the criminal code, and of the revised statutes, allows the newspapers to impartially report the proceedings before the courts, to give what is called a fair comment. Such newspaper articles of comment are privileged, and the writers and publishers of the same are not amenable, and the judge cannot assign them before the court.
But, if the Bill goes further, and permits during the trial to comment on what is passing on, I disagree. The existing law tends to protect not only the judge, but also the accused. For instance, not very long ago, a newspaper man had been dragged before the jury, and on this occasion, we have seen a certain press through fiery writings, try to raise public opinion during the trial, so as to influence the jury before rendering its verdict. At the time of the famous suit Prevost-Asselin, we have seen le " Soleil " inflaming the public opinion against the accused. Asselin.
If the Bill introduced to-day tends to permit the publication in a newspaper of such articles, apt to injure the defence of the accused, and to stir up the public opinion against him, I cannot support it.
As the hon. member for St. Hyacinthe has said, this Bill was suggested by recent events. Have we not seen, among other Mr. BEAUPARLANT.
newspapers, the ' Soleil,' which is to-day complaining of Judge Lemieux-because it is assigned for contempt of court-comment disparagingly on the speech of this same judge, which, judicially acting, had pressed the bar of Quebec to insist on the nomination of a prothonotary to the seat vacant for the last twelve months ? If it is right to have the public respected, it is equally right to defend the bench against such attacks.
Moreover, I believe that it should be allowed to comment the judgments rendered, provided public opinion is interested in the same and the writer is a disinterested person. But my opinion is
that in such cases, the writer should shoulder the responsibility of his opinion. For my part, I have commented in the newspaper some judgments, for instance in the case of Judge Ci-raon, whom I have accused of having condemned a newspaper man, without having heard the evidence of the defence. In so doing, I know the whole import of my act, and I was ready then, as I am to-day, to assume the whole responsibility' incurred. According to my mind, the Bill introduced by the member for St. Hyacinthe, should be amended in such a way as to prevent a newspaper man to make any comments during the course of a trial, on the outcome of the case, before the same is adjudged. I consider that we should maintain in our laws, the right granted to the judge, to call before the court, any newspaper man violating this provision. But, after the trial, he should not be called before the court, except according to the ordinary course of law. On general principle, I agree with the present Bill, and I hope that some day it will become law.

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