1917-08-09

SPECIAL COMMITTEE TO REVISE RULES CONCERNING DIVORCE.

[Stage Direction]
On motion of Hon. Mr. Hazen, the name of Mr. Boys, was substituted for the name of Mr. Boyce, on the special committee to revise the rules concerning divorce.
Motion agreed to.

Hon. C. J. DOHERTY (Minister of Justice) :: I beg to lay on the Table the evidence taken by the McLeod-Tellier Cornmission. I am laying on the Table at the same time the evidence and proceedings before the Galt Commission, because of the fact that this was in major part the material with which the McLeod-Tellier Commission was called upon to deal. Whether it will be necessary, in the event of the proceedings before the McLeod-Tellier Commission being printed, to print also that most important material that they had before them may depend somewhat upon whether or not that evidence, having been already printed, I understand, by the provincial authorities, is available or not. But I thought it better to place before the House the entire material which the McLeod-Tellier Commission had before it.
Hon. WM. PUGSLEY: Is it intended to print the evidence without the matter being further considered? My right hon. friend (Sir Wilfrid Laurier) mentioned the matter, and perhaps it might be as well to allow it to stand till to-morrow and see what he desires. If the evidence before the Galt Commission is already printed and available, I do not see any reason for printing the same matter twice over. It would be merely necessary to print the supplemental evidence.


Charles Joseph Doherty: I had a word last evening with the right hon. leader of the Opposition, and I rather understood from him then that he did not think it would be necessary even to lay on the Table this other material, but I think it is desirable, at all events, that we should put before the House the whole material which the McLeod-Tellier Commission dealt with. The evidence before the Galt Commission was perhaps the most important part, because theit first duty was to pass upon the sufficiency of that evidence, and their report expresses their opinion on that. I think it will be found that there is no occasion to reprint that evidence, which is very voluminous.


Mr. PUGSLEY:: Are there several copies available of the evidence printed by the Manitoba Government?


Charles Joseph Doherty: I am not in a position to speak on that subject to-day. We might let the question of printing stand over.


William Pugsley: You might have the supplemental evidence printed.



CRIMINAL CODE AMENDMENT.

[Stage Direction]
Hon. Mr. DOHERTY asked leave to introduce Bill 124 to amend the Criminal Code and the Canada Evidence Act.
William Pugsley: Will the hon. gentleman explain?


Charles Joseph Doherty: There are five amendments sought to be made by this Bill. They concern matters which are considered to be of some urgency and importance. The effect of the first section is to amend the existing section 4 of the Canada Evidence Act, so as to make the evidence of a wife admissible against the husband in prosecutions for non-support. The second section of the Bill proposes to amend section 213 of the Criminal Code, so as to include within its provisions those enactments making it a criminal offence to have illicit connection on the part of an employer, or, generally speaking, of a person in a position of authority over the victim or the participant in the illicit connection. The amendment consists in including another class of persons within that class of people the step-parent, foster parent or guardian who has illicit connection with his step-child, foster child, or ward. The third section proposes to amend the definition of a common bawdy house, so as to make it include a place where acts of indecency are committed, or a place to which people ordinarily resort for the purpose of indulging in such acts of indecency. Our attention has been called to a certain class of establishment, which is announced under guise of what might be a perfectly legitimate business or treatment, hut which, according to the police information, is really used for acts of indecency. The fourth section amends a provision which was made, I think, a year or two ago constituting it an offence for a trader who has become insolvent to have failed to keep regular books of account. That is already the law, but in its interpretation the purpose was defeated, because there was ambiguity in the terms with reference to the period of time within which such failure must have taken place. The purpose of the proposed amendment is to correct that ambiguity. The last section proposes to amend the present tariff of constables' fees for services rendered in connection with criminal prosecutions. This is in response to a very general request, and the proposition has been submitted to the provincial governments which .are also interested in it, and if my information is correct with regard to the most of them, if not all of them, it meets with no objection.


[Stage Direction]
Motion agreed to, and Bill read the first time.

[Stage Direction]
(Questions answered orally are indicated by .asterisks.)

Mr. J. J. HUGHES:: 1.	Is Major Bartlett, of Charlottetown, P.E.I., now employed1, or has he been employed by the Government or the Militia Department?
2.	If so, how long has he been so employed and what remuneration has he received or is he receiving for his services?


Sir EDWARD KEMP:: 1.	Yes, as officer m charge of supplies, transport and barracks at Charlottetown.
2.	Since January 1, 1916. He is receiving the p.ay of his rank.


CART. KENNETH C. MAGPHERSON.
Mr. PROULX:: 1.	Is Captain Kenneth C. Macpherson attached to military headquarters at Ottawa?
2.	If so, what are his duties and pay?
3.	Up to the outbreak of war did Captain Kenneth C. Macpherson conduct a real estate business at Ottawa or elsewhere?
4.	Did he perform active service in France or Flanders?
5.	If not, in what capacity or rank did he go to England and why did he return?


Sir EDWARD KEMP:: 1.	Yes.
2.	An assistant to the Assistant Paymaster General. $6.25 per diem.
3.	Yes, in Ottawa.
4.	Yes.
5.	Answered by No. 4.


QUESTION PASSED AS ORDER FOR RETURN.
Mr. KNOWLES:: 1.	In what cities of the Dominion does the Post Office Department make use of the street cars for the transportation of letter carriers?
2.	How many letter carriers in each city are privileged to have the use of street cars?
3.	What is the price paid by the department per carrier in the several cities for such transportation?
4.	From what basis is the amount paid by the department to the several street car companies derived?
5.	On what dates do the present agreements with the street car companies in each city cease?


INTERCOLONIAL RAILWAY-RATES ON COAL.
[Stage Direction]
On the Ordef-s of the Day:
Mr. D. D. MoKENZIE (North Cape Breton):	I call the attention of the Minister
of Railways and Canals (Hon. Mr. Cochrane) to a letter which I received from the

manager of the Bras d'Or Coal company, Limited, in Teepeot to the rates on the transportation of coal from Sydney to Montreal. The letter is dated July 28, 1917, and reads:
Dear Mr. McKenzie:-
In reply to your favour of July 23rd, the rates from Sydney, North Sydney, Sydney Mines and Little Bras d'Or have been increased to Levis and Carrier Junction from $2.35 a net ton to 53.75. These are the points that we are particularly interested in, but there has been a general increase in the rates of about proportionate to these increases from North Sydney to all points west of Mont Joli. Under Government supervision in the United States, the railways have been permitted to increase the rate by 15 cents a gross ton, and you can see that the Canadian Government rate has been increased by $1.40 a net ton.
Thanking you for your interest in this matter, I remain
Tours very truly,
Geo. B. Burchell.
The people in that part of the country are very much concerned about this large increase in the rates. I hope that the minister will be able to go back to the old rate.
Mr. COCHRANE:: It is well known that the old coal rate was exceedingly low; it was put into effect when our traffic was largely to the east, enabling us to bring back our cars loaded. But the situation has changed; practically all our loading is now west, and if we did very much coal business it would be necessary for us to bring down empty cars for it. The rate that my hon. friend has mentioned is less than one half cent per ton per mile, which is as low a rate as obtains in the United States. It is one thousand miles from Sydney to Montreal and one-half cent per ton would bring the rate up to a good deal more than the rate my hon. friend mentioned. It is only in proportion that we have raised the rate to Quebec city and other places in Quebec province. Having regard to the tremendous increase we have had to make in the pay of our men, and to the increased amount we are paying the coal producers for coal, certainly we are justified in increasing our rates.


PROPOSED NEW PENSIONS ACT.
[Stage Direction]
On the Orders of the Day:
Mr. E. M. MACDONALD (Pictou):: When does the Finance Minister purpose going on with the new Pensions Act? Many cases have come under the observation of hon. members in respect to which amendments ought to be made.


Sir THOMAS WHITE:: The matter Is
very important and, as my hon. friend
knows, somewhat complicated. It has received a good deal of attention. I am not in a position to make a definite statement to-day, but I shall do so later.



THE CANADIAN RAILWAY SITUATION.


[Stage Direction]
Sir THOMAS WHITE (Minister of Finance) moved the second reading of a certain proposed resolution in respect to the acquisition by His Majesty of certain shares and capital stock of the Canadian Northern Railway company not now held by the Minister of Finance in trust for His Majesty.
Motion agreed to, and resolution read the second time.
Sir THOMAS WHITE thereupon moved to introduce Bill No. 125, providing for the acquisition by His Majesty of the capital stock of the Canadian Northern Railway company.
Motion agreed to, and Bill read the first time.


[Stage Direction]
Hon. C. J. DOHERTY (Minister of Justice) moved the second reading of Bill No. 97, to amend the Criminal Code respecting jurors.
William Pugsley: I am surprised that in moving the second reading of a Bill proposing such a drastic change in the administration of the criminal law, the Minister of Justice has not seen fit to give to the House a full explanation, not merely of the provisions of the Bill, but of the reasons for its introduction. It is true that on the first reading he stated the object of the Bill. But he ought to go much further than that; he ought to show to the House the reasons Why this Bill should be passed.
I have had much to do with the administration of criminal law in my own province during a period of thirty-five years, and I have never heard the slightest expression of dissatisfaction with the law as it exists. It is absolutely Essential for the proper, efficient and satisfactory administration of the criminal law that it should be continued on the statute book as it is to-day. If this amendment is adopted and the law is changed in the manner proposed by my hon. friend, in many cases the administration of justice will be paralysed.

In criminal cases where the circumstances are such as to arouse passions and prejudices, it is absolutely essential that there should continue to be vested in the Attorney General as the representative oi the Crown the right to cause jurors to stand by until the panel has been exhausted, when, of course, the Attorney General again brings forward the jurors who have not been challenged peremptorily, and they must be sworn unless they are subject to challenge for cause. The existing law affords the greatest protection which could possibly be desired for the fair trial of a person accused of crime. By reference to the Criminal Code, section 932, it will be found that it is provided that:
Every one indicted for treason or for any offence punishable with death Is entitled to challenge twenty jurors peremptorily.
That is to say, a person indicted for treason or murder or any other offence punishable with death may, without giving any reason or showing any cause,. peremptorily challenge twenty of the jurors of one panel. In addition to that there is the challenge for cause, for instance, for expression of opinion, which is usually regarded as a sufficient cause of challenge. There are many causes of challenge which I need not state to the House. Section 932 also provides that:
Every one indicted for any offence other than treason, or an offence punishable with death, for which he may be sentenced to imprisonment for more than five years, is entitled to challenge twelve jurors peremptorily.
The power of the Crown to challenge peremptorily is limited to four jurors, no matter whether the indictment is for treason, or for murder, or foT any other offence. Take, for instance, a trial for murder or for treason. In the first place the accused has the right to challenge peremptorily twenty jurors, and the Crown has the right to challenge peremptorily but four. In addition to that there is the right to challenge for cause, which in the case of a crime exciting widespread interest in the community, arousing the passions and prejudices of the people generally, may be made, and in many cases those challenges for cause are allowed. For good reasons, when the present Criminal Code was enacted Parliament,carrying out the provisions which have been in the Criminal law for very many years, continued the right of the Crown to order jurors to stand by until the panel was exhausted. I challenge the Minister of Justice to cite a single instance in
fMr. Pugsley.]
the administration of the criminal law in this country in which any evil has resulted from the Crown having exercised that right. Unless it can be shown that some evil of a public nature has resulted from the law being as it is, why should the law be changed?
If we take the history of matters which have led up to this proposed change, we find that the reason for the amendment made by the Minister of Justice arose in Manitoba. In the other provinces of Canada there has been upon the statute book a provision that the panel may be increased materially. That provision has been upon the statute book of Ontario for a good many years; it has been upon the statute book of New Brunswick for twenty-five or thirty' years. Some little time ago a change was made in the Manitoba statute making the same provision which, in the other provinces, has, for so many years, resulted in a very satisfactory administration of the criminal law. Certain correspondence took place in reference to that legislation. The Minister of Justice threatened to advise His Royal Highness to disallow it. The minister did not seem to be impressed by the fact that Manitoba was simply following the example of the other provinces. At that time there were important criminal trials of a somewhat political nature, affecting prominent public men in that province, and we can well understand that the matter was brought to the attention of the Minister of Justice, and that he was pressed to consider whether or not the law passed by the Legislature of Manitoba should be disallowed. The Attorney General of Manitoba took the view, quite correctly, I think every one will agree, that the constitution of the criminal courts as well as of the civil courts is, under the provisions of the British North America Act, vested exclusively in the provincial legislature. The Minister of Justice must have taken that view because, after due consideration, he came to the conclusion that he could not advise His Royal Highness to disallow the statute of the Manitoba Legislature. But the Minister of Justice thought that he might get around the matter in another way, and so he comes to Parliament with the present Bill limiting the right of ordering jurors to stand by unless that right is allowed to be exercised by the presiding judge, not upon the exercise of his own judgment, but upon special cause shown. This is a very little Bill, but it is a Bill of enormous importance so far as the fair and proper administration of the criminal law is concerned.

The Bill reads:
Section nine hundred and thirty-three of the Criminal Code, chapter one hundred and forty-six of the Revised Statutes of Canada, 1906, is amended by adding the following proviso at the end of subsection one thereof:-
"Provided that the Crown may not direct any number of jurors to stand by in excess of forty-eight, unless the judge presiding at the trial, upon special cause shown, so orders."
What must the Attorney General do in the effort to get a fair-minded jury? Let us bear in mind the fact that the verdict of the jury in criminal cases must be unanimous. If by hook or by crook the friends of the prisoner can succeed in getting upon the jury, one man who will hold out, there will be no conviction and the accused will go scot-free, because the jury will be discharged. There may, of course, be another trial, but, by the exercise of equal ingenuity, it may be possible to get another obstinate juror who will hold out for the prisoner, and the accused will go free. I have known that to be the case in the- administration of the criminal law in my province. Juries were discharged, not only upon the first trial, but upon the second trial, and the result was that prisoners who there was the strongest possible reason to believe were guilty, were allowed to go free. The Attorney General must exercise his right of peremptory challenge first, before he can order the jurors to stand by. The Minister of Justice was wrong there.


Charles Joseph Doherty: If the hon. gentleman will look at the Criminal Code, I think he will see that I am right.


William Pugsley: I think not; I will find the section later. The Attorney General exercises his peremptory challenge first. In a case of murder-in fact, in any criminal trial-he may challenge four of the jurors. The prisoner's counsel has the right to challenge peremptorily twenty. If the Attorney General, the prosecuting officer acting for the Crown, has reason to believe that there are men on the jury whom it is not desirable to have sworn as jurors, he orders them to stand by. In ordinary cases forty-eight would be a sufficient number to be allowed to stand by, .but in cases i which I have known, at least one hundred jurors have been called by order of the judge, because it was necessary to call that number in order to get an impartial jury. In a case where jurors have been called to a number exceeding seventy-five or a hundred, we will say, as soon as the Attorney General stands by forty-eight, his right of stand by is exhausted. The names must then be called again, and he is obliged to
allow to be sworn on the jury any juror whom he may have ordered to stand by, hut whose name may be called again, and whom he is not able to challenge at all. That is a most important right. I have never known it to be exercised arbitrarily, because we all know .that in the administration of criminal justice the Attorney General-and the same may be said of counsel who are appointed by him to prosecute criminal cases-considers himself in the position almost of a judge. It is his duty to consider the accused innocent until he is proved- guilty, and to give him every fair chance. In the trial the Attorney General places himself almost in the .position of the judge.
Now, what does this Bill provide? It provides that after he has stood by forty-eight he must apply to the judge if he wants to stand by any more. He cannot give his private views to the judge, hut must ^how special cause, which means that notice is given to the counsel for the prisoner, and that the Attorney General has to produce affidavits to show why such and such a juryman should not he sworn. Affidavits are also presented on the other side, and the whole question of the desirability or otherwise of having a jury against whom the Attorney General may have the strongest possible objection has to be tried out in public before the judge, and the judge must give his decision whether special cause has been shown, and whether the Attorney General shall be permitted to stand that jury by. What is going to be the effect of that? The Attorney General has to show cause. He has to show partisanship. He has to show that a man is not worthy to be a juror as between the Crown and the criminal. He has to establish special cause, to satisfy thd judge that in the interest of justice that man should be stood aside, and if the judge decides that the cause is not sufficient, he has to allow that man against whom this charge has been made, which has been tried and decided against the Crown, to be called as a juryman to try the case as between the Crown and the accused. I hold that that would be very objectionable indeed, and it would in fact paralyse the administration of justice in important trials where great public interest and strong feeling has been aroused. My hon. friend from Gloucester (Mr. Turgeon) will remember the case which was tried in the county of Gloucester a good many years ago where it was exceedingly difficult to get a jury. There was a strong feeling of sympathy with the prisoners,

which is very often the -case in murder trials. In this particular case, if I remember rightly, the late Mr. Justice King, who was Attorney General, had to get an order for 150 additional jurymen before he could say that he had a panel out of which there could be a selection which would give a fair and impartial verdict-fair and impartial towards the prisoners, and fair and impartial towards the people, for whom the Crown is acting. If his right had been limited to stand by only forty-eight of these jurymen it would have been very difficult indeed for him to have obtained such a jury as he could feel could be relied on to give a fair and impartial decision.
I do trust that my hon. friend the Minister of Justice, knowing by what has 'been reported in the press that these gentlemen in Manitoba are not to be Te-tried, will drop this Bill. The cases in Manitoba have been dropped, and I repeat, I trust my hon. friend will drop this Bill. There is no need for it, no public necessity has been shown, no evils have ever resulted from this right in the criminal law. No evils have ever resulted from the fact that the legislatures of the different provinces have done the very thing which the Legislature of Manitoba has done, of giving the right to stand by a large number of jurors in exceptional cases where that is necessary for the fair administration of justice. I will ask the minister not to press this Bill, because he will find that it will enormously hamper in the discharge of their duties those who are charged, as the Attorney Generals of the different provinces are charged, with the administration of the criminal law, and in many cases it will actually paralyse the administration of criminal justice.


Charles Joseph Doherty: In reply to my hon. friend-


Mr. SPEAKER:: I must direct the attention of the House to the fact that if the Minister of Justice exercises his right to reply, it will preclude Any other hon. member from speaking on this motion.


Mr. C. A. WILSON:: What is the reason for this change in the law?


Charles Joseph Doherty: I cannot give the reason without stopping everybody else from speaking, but if I may be permitted to make one remark-the hon. gentleman (Mr. Wilson) has practised in Quebec under a system where the limitation on the Crown is absolute.


Charles Avila Wilson: I will wait to offer my opinion until the Bill is in committee.


William Pugsley: Will you permit me, Sir, to make just one suggestiop? The Minister of Justice has not yet taken advantage of his right to reply, which would preclude others from speaking. Might he not be permitted by unanimous consent of the House to give the reasons for this change in the law?


Edgar Nelson Rhodes: It would be highly
irregular to do that. The Minister of Justice has spoken in moving the motion, and there only remains to him the right to reply.


Mr. PROULX:: Have there been any requests for this legislation by the attorneys general of any of the provinces?


Charles Joseph Doherty: No, there have not 'been any. If I may Ibe permitted to say-


Edgar Nelson Rhodes: Order. If the hon. minister of Justice chooses to make his reply now he is at liberty to do so.


Edward Mortimer Macdonald: This Bill is one
which, on its face, is very innocent, but at the same time it is very serious, and it is most desirable that the country should know why this measure happens to be here. The Minister of Justice has just told us he had no request from any of the attorneys general that this measure should be passed, and in this busy session, with waT problems, taxation questions, and other serious matters engaging our attention, it is certainly of importance that we should know why the Minister of Justice turns aside to introduce measures calculated and intended to upset that well-established jurisprudence in regard to criminal matters which has existed in this country ever since Confederation. The history of this matter begins with certain things that occurred in the province of Manitoba. Prosecutions were initiated in that province against Sir Rodmond Roblin, a former attorney general of Manitoba, and the former provincial treasurer, the Hon. Mr. Caldwell, in connection with certain acts of a criminal character amounting to conspiracy against the public weal, for which indictments were laid. Those gentlemen came for trial before the Supreme Court of the province of Manitoba. Under the law of that province which had been in existence for many years, the number of jurors to be summoned on- the regular panel at criminal sittings of the court had been fixed -at forty-eight. I may say that is the same number as is provided for in my own province, and is a number, which, under ordinary conditions, has been found to be convenient in various provinces. Prom that panel of forty-eight

men tile jurors to try the particular case were to be chosen. After the first month of the sitting, if the sitting otf any particular term of the court lasted over a month, the judge was empowered to summon a second panel of forty-eight, if he deemed it necessary. Then an amendment was introduced on .account of the increase in population in the province, and the increased criminal business, and for other special reasons. This amendment left it to the discretion of a judge of the Court of King's Bench to summon a larger number of jurors to attend at the assizes in the first instance, if it appeared to him to be necessary or expedient. In other words, where the Attorney General of the province found that on account of the number of cases to be disposed of at a particular term of the court, and on account of the seriousness or important character cf those cases, a question might be raised as to the personnel of the jury, he had power to make an application to a judge of the Court of King's Bench, and the judge might order the summoning of an additional forty-eight men in the first instance. Shortly after this was past, and the first jury panel was summoned for the assizes in November, 1915, and in March, 1916. If the trial of the ex-ministers had come on within the first month of the assizes, the total panel could only have been forty-eight. What did my hon. friend do? He threatened the province of Manitoba with disallowance of the Act which gave the Court of King's Bench of that province the right to summon 96 men instead of 48 at the beginning of the term. Similar legislation exists in every province of the Dominion, and the House will see how perfectly reasonable and natural it should be that under the discretion of the court having regard to the number of cases and their importance, the number of jurors to be summoned at the beginning of the term should be left to the discretion of the judge. The Minister of Justice, however, threatened to disallow that legislation, alleging that the passing of it was contrary to the provisions of the British North America Act. I read from a very full statement of this matter in the Manitoba Free Press, which quotes from the answer given by Attorney General Hudson to the statement of the Minister of Justice upon the subject-[DOT]


Charles Joseph Doherty: Would it not he fairer to read my statement rather than to infer my statement from the answer of the Attorney General?


Edward Mortimer Macdonald: I regret I have not my hon. friend's statement. I would like to discuss it.


Charles Joseph Doherty: It was laid on the table of the House some time ago.


Edward Mortimer Macdonald: Has the minister a copy of it?	[DOT]


Charles Joseph Doherty: I have a copy of it, to which the hon. gentleman is quite welcome.


Edward Mortimer Macdonald: The quotations which are mane in this article were to the effect that the Minister of Justice spoke about the provisions olf the Criminal Code being indirectly extended by means of local legislatior so as possibly to produce injustice, and mentions his intention "to regulate in a manner compatible with justice the right of the prosecution to require jurors to stand by"-a right which he complains is uncontrolled judicially. Mr. Hudson, in his reply to the Dominion Government, says:
While he appreciates their solicitude on behalf of the prisoners now awaiting trial, the undersigned is of the opinion that the report of the Minister of Justice amounts to an attempt to interfere with the constitutional rights of the province, and while reflecting on the fairness of the prosecuting authorities in the province of Manitoba, entirely ignores the fact that the settling of the number of jurors to be sum-taioned is left to the judges of the Court of *King's Bench, and that they have no more power than has been given to and exercised by judges in the provinces of British Columbia, '*Alberta, Ontario, Nova Scotia, New Brunswick, *the Yukon Territory and the North West Territories for many years.
That is the position which the Attorney General of Manitoba took in regard to my hon. friend's intimation that he proposed to disallow the passage of an Act which simply gave the judge power to direct the summoning of 96 men instead of 48. The Attorney General of Manitoba took the position that the number of men who were to compose the grand jury or the petty jury in any particular case is a matter which relates to the constitution of the court, and under the provisions of the British North America Act it became a matter which was under the control of the provincial government solely. As my hon. friend from St. John (Mr. Pugsley) pointed out, the Minister of Justice desisted from his threatened disallowance, and introduced this Bill instead. That is the history of the measure.
A great deal has been before the House arising from this question of maladministration in the province of Manitoba by certain provincial politicians, and I think my hon. friend is pushing the desire to assist his friends in that province beyond all reasonable limits when under those conditions, and at this time he undertakes to introduce legislation that would interfere with the whole course of criminal justice

in this country, because of the fact that three political friends of his, charged with political crimes or misdemeanours, were on trial in the province of Manitoba.
That is what my hon. friend is doing by this .legislation. In other words, instead of proceeding to disallow the legislation of Manitoba, the hon. gentleman undertakes to get at the question in a different way by declaring that the legislation being in existence and 96 people being summoned, the old law should be changed and the number of people who may be permitted to stand aside, to use the language which is well known to every hon. gentleman who has ever had anything to do with a criminal case in which .a jury is empanelled, should be limited. My hon. friend proposes to restrict the right of the Crown to direct any number of jurors in excess of 48 to stand by unless the judge presiding at the trial upon a special case .so. orders. My hon. friend from St. John (Mr. Pugsley) has very aptly pointed out the difficulties under which crown counsel must be in reference to the question of asking jurors to stand aside. Every one who has had any experience, in either prosecuting or defending, knows how much judgment must be exercised by the crown counsel in dealing with a question of this kind. It is the proud boast of Canadians and Britishers that under the administration of our orim-ial law, the person to whom is entrusted the task of prosecuting an alleged criminal is not supposed to do so with that pertinacity, and that desire to secure a oon-viotion at all hazards, which characterize the administration of criminal law in the United States. He is there to protect the interests of the people and where he obtains possession o.f information with regard to the *possibility of certain persons who may be summoned on the jury panel having some sympathy one way or another
4 p.m. and exercises his judgment in the interests of the people, if he, must submit, in the presence of the prisoner and counsel for the prisoner, to the judge the reasons why he should ask any particular persons to stand by, it will produce the great miscarriage of justice indicated by .my hon. friend from St. John,. Yet, the Minister of Justice wants to disarrange the whole procedure of the criminal administration in this country simply because he started out to disallow this Manitoba Act and he proposes to get at the same result in another way.
There is a question as to whether the Dominion Parliament has any right to deal tMr. Macdonald.]
with this matter at all. The question of the number of men to, sit upon a jury, and thus to complete the organization of the court that is to pass upon the guilt or innocence of a prisoner, is a matter that goes to the constitution of the court itself. The court which is [DOT] to finally determine this question of guilt ot innocence is made up quite as much of the men who compose the jury, because they have to find on questions of fact, as it is of the judge who decides on questions of law. The appointment of a judge is a matter which is reserved to the federal power but the constitution of the criminal courts is unquestionably witihin the sole power of the Provincial' Governments, the only limitation in regard to the constitution being upon the question, of procedure. In all the provincial statutes there is to be found legislation determining the number of jurors who can sit upon a case and bring in a finding. The .question of the constitution of the grand jury in any particular province is a matter which is fixed by a British statute. The Attorney General of Manitoba, in discussing with the Minister of Justice the question of interference by disallowance with the Manitoba legislation, urged that my hon. friend had no right to interfere with that legislation because the power to pass it was a matter which related peculiarly to the constitution of the court and was not a matter of criminal procedure purely. He-pointed out to my hon, friend what Edward Blake said, when Minister of Justice, about legislation of similar character Mr. Blake gave his opinion with regard to the Manitoba Act of 1876 in these words:
Many of the provisions of the Act appear to touch upon criminal procedure hut it is to to observed that an act substantially the same passed by the Quebec Legislature in 1869 was left to its operation, being reported as free from objections.
That was the attitude assumed by Mr. Blake. The Minister of Justice would be well advised to leave untouched the legislation that has been passed by the provinces dealing with the number of jurors to be summoned and other conditions relating to the constitution of the jury, which my hon. friend is absolutely interfering with by this legislation, All over this country we have varying conditions as to population and other matters. It may be that in one province a certain rule will obtain and be absolutely satisfactory to the people while in another province situated in another part of the Dominion an entirely

different rule might be invoked. There does not seem to be any question, having regard to the proper administration of justice, and seeing that the whole matter of criminal administration has been vested by the British North America Act, and by practice in the provincial attorneys general and the courts that the criminal law will be better administered through the courts and the legislatures which have to deal with the matter. The legislation proposed by my hon. friend is entirely unnecessary. I am surprised that at this session, at this time, in these days and after this House has had such a protracted sitting, we should be asked to turn aside from the consideration of serious and grave questions and devote ourselves to a proposition to overturn and disarrange the whole criminal procedure of this country simply and solely because my hon. friend's friends were on trial in Manitoba, and because my hon. friend's intimation that he proposed to disallow the Act was resented by the attorney general of the province of Manitoba and he is afraid to disallow it. Why should we, in this left-handed way, undertake to interfere with the well settled jurisdiction and practice in regard to juries standing aside for reasons of that kind?


Mr. MORPHY:: I would not have risen to say a word in regard to this Bill were it not for the fact that there has been no explanation made of it. I shall not follow the line of the hon. member for Pictou (Mr. Macdonald) but in the absence of any reason being shown why the Bill should go through, I have been struck with the total lack of necessity for it. Without going deeply into the matter, it strikes me that throughout Canada to-day there is absolute confidence in the judiciary, speaking' at large. Most legal men have gone their ways professionally having the fullest confidence in the judiciary and in the exercise by the judiciary of a reasonable opinion.
This Bill has, in my opinion, a vicious feature. The prerogative of the Crown throughout the whole of Canada has been exercised fairly, and being so exercised, the public mind has been brought, I think, generally to the conclusion that the public right is fairly administered by the judges and by the Crown. To such an extent do I believe that to be true that I am prepared to say here that, instead of decreasing the prerogative .and right of the Crown as this Bill decidedly attempts to do, that prerogative and right over criminal matters
of trial before a jury should be increased rather -than decreased. This Bill is going to tie the hands of the Crown, possibly in important cases which may go to the very fundamental root of the administration of justice, and such a condition might arise, if this Bill becomes law, that the judge, the jury, and the court are absolutely tied up in such a way that the jury, which ought to be constituted for a fair trial of a criminal indictment, cannot toe so constituted.


William Pugsley: Hear, hear.


Hugh Boulton Morphy: The great difficulty, I think, as a member of this House, in voting upon a Bill of this kind is that I am forced to take just such views as I take from a careful reading of this three-line section, which apparently covers so little space, but means so much, involving essentially a radical change in the administration of justice, and especially since we are accustomed, upon the second reading of Bills in this House, to have some explanation. My remarks must he taken as expressed without having heard one syllable of a reason of any kind from the hon. Minister oif Justice as to why he has introduced this Bill. I, therefore, reserve my Tight to vote upon this Bill as I see fit, upon receiving the reply of the Minister of Justice. If the reply is satisfactory to- me I will support the measure, .and if not, I will vote against it,


Mr. CURRIE:: It seems a little out of
place for an ordinary layman to express an opinion, on a Bill- of this kind, but it seems to me, .after my experience politically, that there should be some limit placed on the number of jurors that the Crown, when seeking to attain a political end, should have the right to ask to stand aside without cause. I recollect one of the first trials of the character that occurred in Ontario, when Mr* Hartley Dewart, who is now one of the -feading Liberals in the province of Ontario, was acting for the Crown in the case of Robert Gamey, and he called seventeen jurors to stand aside, in order that he might be able- to get men on that jury that would give a verdict favourable to the Government that was then toppling to its fall and. which, in a few months after, was driven from office by the people of the province. The same thing has occurred in the sister province of Manitoba. Men were ordered to stand aside until the Attorney General was sure that the men he was putting into the box would

give a verdict, whether just or whether right or wrong, in favour of the Crown. I eay unhesitatingly that the day has gone by, and it should go by, in this country, where any officer of the Crown can stand up, as if he were at another bloody assizes and cause every juror that is called to stand aside until he can get men who will give him a verdict, whether it is right or wrong. For that reason I approve of this Bill and am going to support it. It is .a terrible thing to think a man for very little cause can be placed on trial for a political purpose, and virtually his honour and everything he has in the world jeopardized. Juryman after juryman is brought forward, and without the slightest reason being given the Crown says, "Stand that man aside." Why? Because the man might give a straight and honest verdict. If the Crown has an objection against a man acting as a juror, the Crown counsel should be prepared to stand up and say, "This man is a Tory and might not give a straight verdict." He should come out openly and say so. After a juror has been put in the box, the Crown can question him and say, "Havie you made up your mind on this case?" That is when the Crown challenges for cause. And the Crown can question a man, and the Crown has lots of room left to see that a panel of jurors is established to try anybody in this country.
Supposing a man happened to be arrested at some future time for committing some act against the laws we have passed in this House, would it be fair to this man, for instance, if he were against conscription, that he should be placed on trial and that nobody should be allowed to sit on a jury unless the Crown was sure that he was in favour of conscription, and that he would soak that man. I say that this law is absolutely necessary. I will refer to my own experience, in my own election. Naturally when you go up against a man in a fight he takes his favourite weapon, the one he has been accustomed to fight with. If you are fighting with a man who has been digging ditches, he will take a shovel or a pickaxe, and when you fight a lawyer he starts out with a writ. In my election no less than fourteen bogus writs were fired at me, because I was running against a lawyer. None of them went to trial. This weapon has been used politically against people in Manitoba and elsewhere, and unjustly in many cases. It is time a curb was put on those bloody political assizes, and the limit of the Crown's jurisidiction should be settled by the people of this coun-

try and by this House. For that reason, I am in favour of'this Bill and will fight for it, and I trust this House, and those who may have certain cases in their minds as possibilities, will see that there is a limit placed on the panel, so that the Crown cannot call three or four hundred jurors and tell them to stand aside, till they are sure they cannot get a man who has no idea in his head, except to soak the prisoner. I am in favour of the Bill, and I do not think there is any argument against it.


Charles Avila Wilson: I desire to say-


John Allister Currie: The hon. gentleman has already exhausted his right to speak on this measure.


Charles Avila Wilson: I will rise to a point of order and will discuss the point of order. This is what happened when you Mr. Speaker, were not in the Chair. I rose to ask a question-however, I see the minister agrees that I am in order, and I will proceed.


John Allister Currie: I have no objection.


Mr. BUREAU:: Do not speak by the hon. gentleman's grace.


Charles Avila Wilson: No, I am speaking as a matter of right. The question involved in this Bill is a most serious one. It is against the law of the land, as I find it in the Criminal Code and in the Revised Statutes of Quebec especially, with which i am more familiar. It is the same principle all over the country, in every province. My hon. friend from North Simcoe is not in accord with what the law says as to the question of jurisprudence.
Under section 3,437 of the' revised statutes of the province of Quebec it is provided that except in the districts of Quebec and Montreal the panel shall consist of forty jurors, speaking either one or both languages; there is no distinction between the two. In the cities of Quebec and Montreal, sixty jurors are empannelled; I mean, outside of the twelve grand jurors. But in those two cities thirty jurors must be familiar with the French language and thirty with the English language. That is the reason the number has been raised from forty in all districts to sixty in those two districts, Quebec and Montreal. I have acted on both sides for a good many years and I know,the position in which a Crown prosecutor is often placed. In the district of Three Rivers I acted as Crown prosecutor, specially appointed, in connection with two very noted murder cases, in both of which the verdict was quashed by the Court of

Appeal and a new trial ordered. In those two cases much interest was evinced iand partisans were cropping np among the people every day on one side or on the other. Everybody knows/ that challenge for cause may be exercised in any case provided the challenge is made immediately upon the juror being called. But that is not the case before the House to-day. When the first juror is called, if he is challenged for cause or challenged peremptorily by the defence, that ends his case. As far as the Crown is concerned, peremptory challenges are limited to four. The Crown has the privilege of setting aside as many jurors as it may think fit; that is the law under section 933 which we now propose to amend. Supposing out of the forty the Crown should challenge a certain number, either peremptorily or for cause. Here- is where the view of the hon. gentleman who preceded me is not in accordance with the law and the jurisprudence. When the jurors who have been put aside are recalled, they are bound to serve, whether the Crown desires it or not. Important decisions, which I claim to be good law, bear out this principle.


Charles Joseph Doherty: That is the protection that I want to keep for the prisoners.


Charles Avila Wilson: But suppose out of the panel of forty, twenty are challenged for cause and a certain number are challenged peremptorily. You may reach a condition where you will not have any one set aside to fee called. Then what will happen? Talesmen will have to be brought in. I see no reason why the Crown should be limited to forty, or even one hundred. In the murder cases to which I referred, no politics was involved; it was not during a time of election ; it was not a question of Conservative, Liberal, or Nationalist. It was an extraordinary case in an ordinary time. We had to resort a couple of times to talesmen, sending out to the streets in the vicinity of the court house .and securing men apparently qualified to serve as jurors. Any.man is qualified as a talesman; you do not have to resort to the secret lists kept by the sheriff. I have known instances where it was found necessary to call 100 or 150 men in order to reach the number required by law. Of course, we have to presume, as has been said by an hon. member, that the people have the greatest confidence in the judiciary .at large. But I have seen many cases where the Crown prosecutor has so far forgot himself .as to become a partisan in the sense mentioned by the member for
North Stenooe. However, I .shall await the explanation of the minister that 'should have been given at first. En passant, it is not fair to the House that a measure of this importance should be launched without the minister's giving an explanation of the main reason at least why it is introduced.


Charles Joseph Doherty: As to the criticism of my not having explained the Bill, I have to express my great regret that I am not as prompt .a riser .as the member for St. John City (Mr. Pugsley). The Speaker had just put the motion and was asking the usual question whether the motion should be adopted when the member for St. John rose.


Mr. CARVELL:: May I intervene for one moment? I was not here when this debate started, but I am just told that there was a ruling-I do not understand why-that the Minister of Justice has the right to close the debate.


William Pugsley: He moved the second reading of the Bill without any explanation.


Frank Broadstreet Carvell: I should like to say a word on this subject, if the minister will allow me.


Charles Joseph Doherty: Certainly. I have no desire to preclude anybody from speaking.


Frank Broadstreet Carvell: One of my friends told me that if the minister spoke I would be precluded from making any remarks.


William Pugsley: The minister said something which requires a word from me. I hope he would not suggest that I had any thought of speaking before he explained the Bill. The Speaker put the question; the minister did not rise; thereupon I rose and made my remarks.


Charles Joseph Doherty: I do not say that everything was not done in good faith. I do not suggest that the hon. gentleman meant to preclude my speaking, but that is just what happened. As the Speaker was concluding, I did not rise as promptly as I might have, and the member for St. John rose. I do not suggest that he intended to preclude me; I quite understand that he supposed that I did not mean to speak. To be quite frank, it did not occur to me at the moment-for reasons which I will explain when I come to reply-that this measure called for explanation. Some things that have been said since make it rather clear to me, however, that it did.


Frank Broadstreet Carvell: Were it hot for the peculiar circumstances under which this legislation was introduced, the minister

might possibly have some argument in the matter. I had been hoping that he would give some reason for introducing this very important legislation.


Charles Joseph Doherty: May I not have an opportunity of at least making one observation on that subject? The Speaker has ruled,that I cannot speak now without precluding everybody else from speaking.
Therefore, if I am refraining from giving explanations, it is because I wish to afford an opportunity to any one desirous of speaking. If I might make a suggestion, would we not get this situation cleared up by allowing the Bill to go into committee, when I could give full explanations and every one could say everything he desired in reply? That is only a suggestion so that we may get out of the position in which I am suffering reproach for lack of explanation under the ruling that I must not explain without preventing any other hon. member from speaking.


Frank Broadstreet Carvell: It is a new doctrine to me that a minister of the Crown, in introducing an important piece of legislation such as this, is precluded from giving any reasons for its introduction. Why did the minister not give his reasons when he introduced the Bill? I was not there when this Bill came up this afternoon, but I know enough concerning parliamentary procedure to know that the Minister of Justice must have moved the second reading of this Bill this afternoon. Why did he not then state the reasons for bringing in this important legislation? He now complains that, by reason of a ruling of the Speaker, he is precluded from stating his reasons for introducing this Bill. The Minister of Justice is not such a child as that. He surely does not want to presume upon the credulity of the laymen of this House, let alone the lawyers-


John Allister Currie: Mt. Speaker, I wish to call your attention to the fact-


Frank Broadstreet Carvell: I protest against .this interruption by the hon. member for North Simeoe (Mr. Currie).


John Allister Currie: The hon. gentleman is out of order.
Mr.UARVELL: Order. Is the hon. gentleman rising to a point of order?


John Allister Currie: Yes. My hon. friend does not usually recognize points of order.


Frank Broadstreet Carvell: Not very often when they come from my hon. friend.


John Allister Currie: I want to point out to you, Sir, that the Minister of Justice had begun the final speech in reply when he was interrupted by the hon. member for Carleton (Mr. Carvell), .and for that reason the hon. member for Carleton has no right to indulge in a speech now.


Mr. DEPUTY SPEAKER:: I should have asked if any other hon. member desired to speak. I did not do so. The hon. member for Carleton has the floor.


Frank Broadstreet Carvell: I was trying to point out to the Minister of Justice the position in which he finds himself. This poor gentleman has been on the bench of this country lor many years; he has been in Parliament for nine or ten years; he has been Minister of Justice for six years, and yet he informs us that he has had no opportunity of explaining this remarkable piece of legislation, and he thinks we should not criticise it, but should allow the Bill to go into committee, and then we can discuss the details. The details and the principle of the Bill are one and the same thing, and when we have discussed, upon- the second reading, the principle of the Bill, we shall not have much to say about the details in committee. There may have been eases in which possibly we do not require as much standing aside as has taken place in Canada upon certain trials, but the remarkable condition under which this Bill is introduced calls for protest from every hon. member in this House, no matter what his pclitics may be, As I did not know that this matter was coming up so early, I have not all the facts at my command; but, generally speaking, a criminal trial was neld in Manitoba, and before the trial took place an amendment to the Jury Act of Manitoba had been passed by the provincial legislature giving the presiding justice the right, on ithe application of the law officers of the Crown, to order an additional panel or an extension of the panel. I am speaking generally now, but I am sure I am practically expressing the purport of that legislation. The Minister of Justice was called upon to disallow that legislation, and some correspondence took place between the minister and the Attorney General of Manitoba. Orders in Council were passed by both Governments and forwarded the one to the other. Finally, the Minister of Justice now asks the Parliament of Canada, in view of this correspondence and those Orders in .Council, to amend the criminal law of Canada for the purpose of meeting one specific case which happened to arise

in Manitoba and in which his political friends were interested. That is the whole question. It is not a question of whether this is necessary legislation or not. This is purely political legislation in accordance with the exigencies of the political party of which the minister finds himself a member. I am sorry for the minister, because I think he is a member of this Government who has tried properly to carry out the duties of his office as Minister of Justice, and I can quite understand my hon. friend did not have the face to stand before Parliament to-day and explain this Bill. That is the reason for his silence, rather than his lack of knowledge of the rules of procedure of the House of Commons.


Charles Joseph Doherty: I am gradually acquiring courage.


Frank Broadstreet Carvell: To prove my statement, I will read to the minister the concluding paragraph of his report to Council of the 9th of December, 1916:
The Provincial Government is responsible for the administration of criminal justice in the province, and may therefore enunciate its intention in the application of the amendment in question. Your Excellency's Government is likewise responsible for Its policy in the promotion of such amendments to the Criminal Code as will tend to avoid injustice in the application of its provisions to existing conditions. The undersigned upon careful consideration of the situation introduced by the recent amendment to the local laws, deems it his duty to advise that the right of the prosecution to select jurors for criminal cases cannot, compatibly with the ends of justice, be enlarged in such a manner as might result from the application of section 46a to the project of securing a panel of petit jurors subject to the rule enunciated in section 933 of the Criminal Code ; and therefore for the avoidance of doubt, and with a view to the application of the law in accordance with what he conceives to be the reasonable purpose, he would be disposed to consider the propriety of disallowance unless the Lieutenant Governor of Manitoba be advised to give an assurance that his Government will see that, pending the consideration by Parliament of the provisions of the Criminal Code to -which the undersigned has referred, the prosecuting authority shall not exercise any right to require jurors to stand aside at criminal trials in excess of that which would have been permissible if section 46a as enacted by the recent Act of Manitoba had not been passed.
The undersigned accordingly recommends that a copy of this report, if approved, be transmitted to the Lieutenant Governor of Manitoba, for the information of his Government, with a request for an early answer to the inquiry herein suggested.
Humbly submitted,
(Sgd.) Chas. Doherty, Minister of Justice.
I do not believe that you can find in the annals of legislation or jurisprudence in
Canada such a document as I have read here, which I put forward as a copy of the memorandum submitted to the Privy Council of Canada, in which the minister says in effect to the Government of Manitoba: Important criminal trials are coming up, and unless you assure me that you will not apply the law as it stands to-day, I will disallow your legislation. That would have been bad enough if the necessity for this legislation existed to-day, because then the minister might have some reason for bringing it up. The necessity, however, has passed. We all know that the Attorney General of Manitoba has entered a nolle prosequi against the minister's friends. We know that they are not going to be tried. Therefore, this is no reason in the world why the law should be changed, and this legislation is brought in simply to save the faces of the Minister of Justice and of his political friends. It is a disgrace to the jurisprudence of Canada, and it is tampering with the dignity of Parliament, that we should be called upon to pass political class legislation of this kind. Let the matter stand for a year or two, and if there is any miscarriage of justice, let Parliament deal with it when there can be no imputation of political bias or political reasons.


Sir WILFRID LAURIER:: What miscarriage can there be?


Frank Broadstreet Carvell: My right hon. friend asks what miscarriage there can be? I cannot conceive of any. What harm can there be if the Crown does stand aside a number of jurors? In a few days an important trial will come on in my province, which has been tried twice already and in which the juries have disagreed. I understand that the Attorney General has decided to try the case a third time. The matter is not of very great importance, but it is one which has aroused a great deal of prejudice in the city of St. John, and it will be a very hard matter to get a juror selected who is not prejudiced on one side or the other.
Suppose the Crown were limited as this Bill provides, and bould only stand aside 48 jurors. I do not believe that the trial could go on. I do not know anything about the merits of the case; I have no idea whether the defendants are guilty or not; I have no opinion to offer on that at all. I do know, however, that it has taken up two weeks of the time of the circuit court of St. John, and it is a matter of so much publio importance that the Attorney General and the presiding judge have decided to try the case a third time during the present term of the court. Suppose that


Edmond Proulx: I asked the Minister of Justice whether he had received any requests from the Attorney Generals of this country for this legislation and he answered in the negative. We are discussing a question of procedure. This Parliament has passed a substantive law, and the provinces fix the number of jurors to be summoned. In all the districts of Ontario the number of petit jurors summoned for each sitting of the General Sessions of the Peace is 48. I think there are very few instances in which it is necessary to have recourse to a larger number. I have never seen such a case in my district. If there are such instances, the attorneys general of the different provinces would know, and would be the proper persons to ask for this legislation. The Crown prosecutors make rep >rt' to the respective attorneys general, and if there were any necessity for this law surely the proper authorities would ask for it. The Minister of Justice has told us there have been no requests from attorneys general, and I submit there is no necessity for the adoption of this law.


Mr. McKBNZIE:: I did not intend to say very much on this subject. It has been very well threshed out by the hon. member for St. John (Mr. Pugsley), the hon. member for Pictou (Mr. Macdonald), and the hon. member for Carleton (Mr. Carvell). I knew the Bill was on the Order Paper, and that it was liable to come up at any time, but I did not expect it would come up to-day. A constitutional question has been touched here as to whether this Parliament has a right to say anything about the number of jurors who may be appointed to sit in a case. The British North America Act contains something on the
subject, in enumerating the exclusive powers of this Parliament, among which I find subsection 27 of section 91.
The criminal law, except the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters.
That is, we have nothing to say about the constitution, of the court, but we have power over procedure in criminal matters.
I am.^very doubtful whether the number of jurors is a matter of procedure. My opinion would be that it is not. To lawyers procedure is the issuing of a writ, the numbeT of days that must elapse between its issue and its service, the number of days for appearing, and so on. The manner in which proceedings are instituted in the criminal courts, and the notices that must be served on the parties accused, and how they are to be dealt with, constitute, to my mind, the procedure in the criminal court. I may be wrong, but as far as I am capable of judging I do not think the number of jurors that will sit in a court is a matter of procedure. It is a matter of substantive law.


Mr. NICKLE:: The Bill does not touch the number of jurors.


Charles Joseph Doherty: It only deals with the number of challenges.


Mr. McKENZIE:: I understand the effect of this to be that the number of jurors permitted to be examined or rejected is limited by this legislation. The Minister of Justice shakes his head, but according to the old story, perhaps he ought to know there is nothing in it without shaking it.


Charles Joseph Doherty: It is wonderful how many things we ought to know, but do not.


Daniel Duncan McKenzie: The view I take is that the limiting of the number of jurors' is interfering with the constitution of the court, and as far as I can bring any judgment of my own to bear upon it, it is a matter for the local legislature entirely, and not a matter for this Parliament. I would suppose that a gentleman of the experience and wisdom of the Minister of Justice would have taken some warning from the difficulties in which he found himself either directly or indirectly some years ago, since he became Minister of Justice, in connection with being a little too lax about the bars of the penitentiaries in political cases. We had a famous instance before the House some four years ago, where a gentleman appointed by the Government of my right hon. friend (Sir

Robert Borden) who when he was to receive the seals of office and to be appointed, was found to be in jail. Rather an embarrassing position, for which something had to be done. The office had to lapse or go to somebody else, or the bars of this gentleman's imprisonment had to be removed. Appeal was made to the gentle heart of the Minister of Justice, or to those who were acting for him at the time, and, of course, between the two things-the lapsing of a political appointment, or the defeating of the ends of justice-the ends of justice had to be defeated, and the creaking door of the jail or penitentiary was thrown open, and out came this man. At the door awaiting him was his office from the Government of my right hon. friend. There was a great deal of trouble about this, and there was some very severe comment made upon it. The Minister of Justice manfully accepted .responsibility, but gave us to understand that it was not himself hut somebody else, a member of the Government, who was acting for him, who was responsible for allowing this man out. However, it was such a condition of things as should be a warning to the minister that he would not any more willingly interfere in matters political. Now, not satisfied with interfering with the jail, he began to tamper with the jury. This to my mind is most extraordinary, and I hope he will draw the line here, or the next thing we will find is some provision by which he can tamper with the evidence, and with the judges. It has been said by the hon. member for North Perth (Mr. Morphy), I believe, that we are exceedingly proud of our judges, and of the administration of justice in this country. I am getting to be somewhat of an old lawyer now, and I have had a good deal to do with criminal law. I never heard, in my province at all events, anybody complaining that representatives of the Crown, either the Attorney General or his representative, ever did anything but what was highly in the best interests of the very best administration of justice. I would suppose that laws of this character would be provided when some case arose calling for the interference of Parliament, and if the Minister of Justice can show there has been some case where there was a miscarriage of justice by reason of the condition of the law in Manitoba, or in any other province, I may change my mind absolutely. So far, however, I have not heard of any, and so far I will be quite willing to adopt the good old Tory doctrine of "leave well 
enough alone." The law has been going along first rate as it was, and I think it is dangerous to be tampering with it, particularly when there is no necessity. It would be a sad reflection to believe for a moment that the Minister of Justice is trying to trim the wind to suit the shorn lambs in Manitoba.


Charles Joseph Doherty: It would be difficult work to trim the wind.


Daniel Duncan McKenzie: It would be sad indeed, but when the lambs have escaped, I think the tempering of the wind could cease with their escape. It does seem, in the air, that there may be more lambs to be shorn. Perhaps the wind is being provided for them. I hope not. I hope the minister will maintain the high position a Minister of Justice should occupy in this country, and show that the balance in his hand shall be even, and that, as far as the administration of (justice is concerned, he is blind to everything but the proper functions of his office.


Hon. RODOLPHE LEMIEUX:: I am surprised that a gentleman who has occupied the high position of a judge of the land should lend himself to the drafting of such a Bill, thereby degrading justice in our country. Every one knows the origin of this legislation. Some of the political friends of the Minister of Justice (Mr. Doherty) were brought before the bar at the criminal assizes in Manitoba. It was very difficult to find jurors to give a verdict in the very important cases that were brought before the court and the Government and Attorney General of Manitoba thought that the law should be amended so as to give the necessary power to find jurors, really to give justice to both the accused and society. We find the hon. gentleman intervening, at the instigation of whom I do not know, but whom everybody suspects. He comes before this House, without giving any explanation, and tries to pass legislation that reflects on the integrity of Canadian justice. I think this Parliament should at once mark its disapproval of such legislation and I shall move in a minute accordingly. It is strange, Mr. Speaker, that such complacency should be shown to the Manitoba politicians who have disgraced the public life of this country. They should be satisfied, as my hon. friend from Carleton (Mr. Carvell) said a moment ago, that a nolle prosequi should have had to be entered after efforts had been made to find a verdict against them. The other day I put a question to the Minister of Justice as to whether the goat, because poor Kelly was the goat.

was still behind the bars at the Stoney Mountain penitentiary. I asked the minister if it was true that petitions had been received asking for the release of Kelly. I received from my hon. friend an answer which makes me believe that before the general election is over Mr. Kelly will be scot free in Manitoba. In order that the public may know what kind of a game is being played, not only with politics, but with such a sacred thing as justice I shall move:
That all the words after the word "that" be struck out and the following- substituted:
Bill No. 97, an Act to amend the Criminal Code respecting Jurors, be read this day six months.
House divided on tlhe .amendment of Hon. Mr. Lemieux, that the Bill be read this time six months hence, which was declared lost on the following division:
YEAS. Messieurs:
Bourassa,
Bureau,
Cardin,
Carvell,
Delisle,
Devlin,
Fortier,
Gauvreau,
Graham,
Hughes
(Kings, P.E.I.), Kay,
Lapointe
(Kamouraska), Laurier (Sir Wilfrid), Lemieux,
Macdonald,
Maclean (Halifax), Marcil (Bonaventure), Marcile (Bagot), Michaud,
Murphy,
Nesbitt,
Papineau,
Proulx,
Pugsley,
Ross,
Tobin,
Truax,
Turgeon,
Verville,
Wilson (Laval).-30.
NAYS. Messieurs :
Ames (Sir Herbert), Armstrong (Lambton), Arthurs,
Ball,
Bennett (Calgary), Bennett (Simcoe), Best,
Borden (Sir Robert), Boulay,
Bowman,
Boys,
Brabazon,
Burnham,
Clark (Bruce),
Clarke (Wellington), Cochrane,
Currie,
Doherty,
Donaldson,
Edwards,
Elliot,
Fripp,
Girard,
Glass,
Hanna,
Hartt,
Hazen,
Henderson,
McLean
(Queens, P.E.I.), Meighen,
Munson,
Nicholson,
Nickle,
Paquet,
Paul,
Rainville,
Robidoux,
Roche,
Schaffner,
Sevigny,
Shepherd,
Stewart (Hamilton), Sutherland,
Taylor,
Thornton,
W alker,
Webster,
Weichel,
Wilson (Wentworth), Wright.-50.

Messieurs:
Burrell,	Douglas,
Middlebro,	Pardee,
Barnard,	McCraney,
Barette,	Seguin,
Clements,	Knowles,
Cockshutt,	Charlton,
Green,	Buchanan,
Kemp,	Robb,
Stewart (Lunenburg),	McKenzie,
White (Renfrew),	Gordon,
Chabot,	Beland,
Hepburn,	Guthrie,
Smyth,	McLean (Sunbury and Queens, N.B.),
Bradbury,	Cruise,
Crothers,	McCoig,
Davidson,	Carroll,
Morrison,	Molloy,
Marshall,	Neely,
Alguire,	McMillan,
Carrick,	Oliver,
Boyce,	Boivin,
Stevens,	Sinclair,
Cromwell,	Gauthier
(St. Hyacinthe),


Edward Mortimer Macdonald: I thought my hon. friend from Colchester (Mr. Stanfield) was in the House. I was paired with the hon. member, and I desire to withdraw imy vote.
Mr. McKENZ'IE: I was paired with the hon. gentleman from Lunenberg (Mr. Stewart). Had I voted I would have voted for the amendment.


Mr. DAVIDSON:: I was paired with the hon. gentleman from South Cape Breton (Mr. Carroll). Had I voted I would have voted against the amendment.


Mr. CLEMENTS:: I was paired with the hon. gentleman from MoosejaAv (Mr. Knowles). Had I voted I would have voted against the amendment.


Mr. BRADBURY:: I was paired with the hon. gentleman from Dauphin (Mr. Cruise). Had I voted I would have voted against the amendment.


Mr. A. K. MACLEAN:: I was paired with the hon. gentleman from Queens Shelburne (Mr. McCurdy). I did not know he was in the House. I should not have voted.


Charles Joseph Doherty: If the measure of
necessity for explanation be the extent of misunderstanding existing then most assuredly hon. gentlemen on the other side have demonstrated that explanation of this Bill was necessary. If it had not been for that extraordinary (misunderstanding which their speeches have evidenced I would have thought that explanation was not necessary. It as said that in the tail is the poison. My hon. friend from Rouville (Mr. Lemieux) was pleased to be



the tail, and to inject the poison of imputation upon- myself-condensed from suggestions of some other hon. gentlemen-which I venture to (believe has had nothing in view but the necessity of trying to convert into a means of creation of political ammunition a measure intended simply to "protect the rights of our citizens before the courts of the country, and to see that they were placed under the guarding protection of the court itself, which we have been reproached for not respecting. Hon. gentlemen and distinguished lawyers have spoken of this measure as changing the law as it operated throughout the country up to this date. In certain provinces the right of the Crown to challenge had been limited to a lesser number than forty-eight by legislation fixing the number of the panel, and that provision will be in force after this law shall have been passed. Hon. gentlemen from those provinces have not hesitated, with others who come from provinces where that limitation has not existed, to complain about this extraordinary change in the law that is going to degrade the administration of justice. The member for Laval (Mr. Wilson) a most distinguished practitioner in the criminal courts, and the member for Rouville (Mr. Lemieux) a fortneT Solicitor General of this country, are of the opinion that a measure that will cause the administration of justice throughout the Dominion to be carried on as it has been carried on in their province and my province as long as I can remember, is a measure to degrade the administration, of justice. Hon. gentlemen, would I think, do, well to ascertain what the law is before they undertake to pronounce to what degree it is going to be degraded.
This Bill will create a uniform rul$ throughout the Dominion of Canada in regard to a matter of procedure in criminal cases which, admittedly, is a matter within the legislative competency of this Parliament. Hon. gentlemen slay that it will degrade the administration of justice. Before the existence of the legislation enacted by Manitoba-which is not being affected in any way by this legislation-four out of the nine provinces of the Dominion limited the number of jurors that could be summoned upon a panel. In Quebec, as the member for Laval has pointed out, the general limitation is to forty, a lesser number than forty-eight, to which we propose to limit not the number of jurors, hut the number of challenges. This (legislation proposes to limit simply the number of challenges.


Charles Avila Wilson: No. [DOT]


Charles Joseph Doherty: I wonder if my hon.
friend has read the Bill?


Charles Avila Wilson: The Bill Teads:	.
Provided that the Crown may not direct any number of jurors to stand by.
That is not a limitation of the number of challenges.


Charles Joseph Doherty: This legislation proposes to limit the number of stand-bys, but not to affect the number of jurors to he summoned. My using the word "challenge" was a slip.


Frank Broadstreet Carvell: In his notification to
the Manitoba Government the minister said that unless they would agree not to enforce their legislation as to the number of jurors to be summoned, he would be compelled to disallow the legislation.


Charles Joseph Doherty: I shall come to that and I shall give the truthful explanation. Although he once in a while speaks strongly, when the exigencies of the case require it, I look upon the member for Carleton as a fair-minded man and a competent lawyer. I am sure that the reasons for the proposal of this legislation will appeal to my hon. friend as they should appeal to any man desirous of seeing that absolute fairness is maintained in the administration of the criminal law as between the Crown and the accused. This legislation puts in the hands of the court the protection of that absolute fairness, yet it is suggested that the measure is intended to reflect upon the judiciary of this country. But the measure leaves the judge to determine the number of challenges, just as the legislation of the province of Manitoba left to him the determination of the number of jurors to be summoned. This legislation is not defeating the legislation of Manitoba; it is simply carrying that legislation out to its logical consequence. The legislation of Manitoba is that the judge is the proper person to determine the number of jurors; this legislation is that under those circumstances the judge is the proper person to determine the number of stand-bys that the Crown is to have. It was brought to my attention that the legislation of Manitoba had created a situation where a judge might order a panel of a very large number. I have never suggested, and I do not now suggest, that that legislation in itself was either unconstitutional or undesirable-mark you, I say in itself. My attention having been drawn to the subject by the legislation of

Manitoba, I ascertained that there existed in five other provinces legislation of the same kind under which the panel might be made to consist of an indefinite number. Again I say that I do not find in that any evil-in itself. I am free to confess, however, that that condition of the law came to me as a novelty. I, like the member for Laval, and the member for Rouville, come from the province in which, according to the member for Rouville, the administration of justice has been degraded from time immemorial because the number of standbys was limited through the fact that the number of jurors that could be summoned as a panel was fixed by law. .


Frank Broadstreet Carvell: My hon. friend surely does not mean to intimate that in Quebec the Crown does not have the same right of standing jurors aside as it has in other prov'nces, and surely there must be some provision in Quebec to provide for an additional pane! if an additional panel becomes necessary.


Charles Joseph Doherty: Undoubtedly.


Frank Broadstreet Carvell: Then, what is the difference between Quebec and the other provinces?
Mr. DOflERTY: I said that the number of stand-bys was limited in Quebec as it was previously to its recent law limited in Manitoba, and as it still is limited in two of the other provinces. It was limited by the fact that the provincial legislation made the panel a fixed number. Take it for instance in the district of Montreal. I am not suggesting that the Criminal Code limits the number of challenges in Quebec more than anywhere else, but I am pointing out what is the. practical working of the combination of the law in a province which limits the number of the panel, and the provision of the Criminal Code as it now stands.


Frank Broadstreet Carvell: I am not acquainted with Quebec law, but there surely must be in the Quebec statute some provision authorizing a panel in excess of forty under certain conditions.


Charles Joseph Doherty: Certainly, there is. That is to say, you can summon another panel, but you will not take the two panels and add them together and go on "standing by" indefinitely.


Frank Broadstreet Carvell: What is the difference?


Charles Joseph Doherty: You cannot do that. You have a panel of jurors. There they sit -those sixty men. Under the Criminal
273*
Code, the Crown may stand by every one of them, but after it has stood by sixty men, then you go back again and call those same jurors, and unless the Crown can assign special reasons, then the man that the Crown stood by half an hour ago, sits on that jury. The effect of permitting an indefinite number of jurors to be summoned is that the court may for perfectly justifiable reasons say: There is a tremendous quantity of business before this court at this term; I will order the summoning of 250 jurors. That may be perfectly right and absolutely justifiable, but what is the effect that it produces if our Criminal Code be left to stand as it is? It produces this effect: That the Crown, without the assignment of any reasons, may stand by 250 men. I do not say that the Crown will abuse that power in any particular case, but I do say that that is an exorbitant power to put into the hands of the representative of the Crown. That is the evil, and may I venture to say to hon. gentlemen who have been so severe about the degradation of the law, that from a very early period it has been pointed out as being one of the methods by which a dishonest or even a zealous Crown prosecutor may deprive the citizen of the practical benefit and advantage of1 being tried by a jury, tried by his peers impartially selected.
We have to protect and to surround the subject with such safeguards as will withdraw from the representatives of the Crown, instruments susceptible of being abused to the unfair detriment of the accused. What is trial by jury for? Trial by jury exists as the bulwark of the liberties of the individual citizen as against possible abuse at the hands of the Crown. If you put, as the condition of this combined legislation does, into the hands of the Crown the power of taking a large body of individuals and "standing by" an indefinite number, you put into the power of the Crown to select and find for itself jurymen that the Crown may believe are absolutely to be relied upon to produce a verdict to its own liking. Perhaps it might be more correct to say that the more you increase the number of men from whom the Crown can, by this process of elimination, select the twelve that it wants, the more you increase the opportunity for the Crown to find a jury exactly to its liking.


Charles Avila Wilson: What becomes of a juror who has been ordered to stand aside?	*


Charles Joseph Doherty: The juror who is ordered to stand by, stands by. He does what he

is told. He does not go away; he stays until called.


Charles Avila Wilson: Until when?


Charles Joseph Doherty: Until the panel is exhausted, and then the Crown begins over again and will have to call that juror.


Charles Avila Wilson: And then he goes on the jury.


Charles Joseph Doherty: Yes. That is why I say that if you summon sixty jurors the time will come a great deal quicker when the Crown will have to take the man it " stood by " than if you summon 250 jurors.
Mr. C. A. WILSON. No.


Charles Joseph Doherty: If your panel be 250 jurors, as it may be, supposing I am the first man of the 250 and I am ordered to stand by, the Crown will have to call, and stand by the other 249, if it likes, before it will have to come back and call me again. Therefore, if I am the first man of sixty the chances of the prisoner to compel the Crown to call me, notwithstanding its "stand-by," are immensely greater than they would be if I am one of 250. The matter is so obvious that I need not elaborate it. That was the situation created not alone by the legislation of Manitoba as combined with our provision in the Criminal Code, but that was a situation that existed as regards five of the nine provinces before the legislation in Manitoba.


Edward Mortimer Macdonald: Does the minister say that in any province in the Dominion, at the opening of any court, there have been provided 250 jurors who might be stood aside?


Charles Joseph Doherty: I do not know of a case in which there were 250 jurors. What I am pointing out is that the legislation makes it possible for that number to >be summoned. Why is this discretion given to the court? I am making no complaint against legislation which empowers the judge to summon the necessary number of jurors, because there may be conditions that require it, as in the particular case that was referred to.


William Pugsley: The minister says that discretion is given to the court. Is any discretion left with the court when their powers are limited by reason of special cause having to be shown?


Charles Joseph Doherty: There is discretion in the determination whether there exists the special cause.


William Pugsley: That is not discretion; it is finding as to the fact.


Charles Joseph Doherty: The hon. gentleman will observe that this clause does not define any particular fact or facts which are to be found as justifying it; it leaves that for the court itself. I think my hon. friend will realize, if he thinks it over, that he did not grasp what the requirements of special cause are. He spoke as if special cause meant special cause why an individual should be set aside. What the law requires, is special cause why in a particular case the Crown should be given greater latitude than 48.


William Pugsley: What would be that cause?


Charles Joseph Doherty: I was coming to that. The hon. gentleman, in giving an illustration where this would work badly, described a case providing precisely the special cause that would justify the change. He spoke of a case where on account of strong public feeling there might be very great difficulty, indeed, in getting a fair and impartial jury. He thought there might be danger of not getting a fair trial if the number was limited to 48. Now the provisions about extending the number are pretty much on the same footing as the provisions under which a court can order a change of venue.


Frank Broadstreet Carvell: Then what is the necessity for this legislation?


Charles Joseph Doherty: Under the present legislation a judge, even if he thought it was an outrage and there was no reason for it, would have to sit back impotent on the bench and see the Crown stand by 150 men. This legislation is to place in the power of the judge the opportunity of seeing that no abuse occurs, and I may say that in endeavouring to give power to the judge to prevent abuse I have this afternoon brought on my own devoted head a torrent of about as unjustifiable abuse as I think it ever was my misfortune to listen to. There is no use in my protesting what my motives are.


Frank Broadstreet Carvell: You are on record.


Charles Joseph Doherty: There are minds so constructed that if there are facts and circumstances that make it possible that a man might have acted on a vile motive, those minds immediately conclude to the vile motive.


William Pugsley: Who is the minister hitting at now?


Charles Joseph Doherty: I say that the viler the mind the more readily dees it conclude, to the vile motive, and I leave it to hon. gentlemen opposite to decide as 'between themselves the respective degrees of vileness of motive that have ibeen attributed to me, and then they can determine for themselves the respective degree of vileness of their own minds.


William Pugsley: The minister is waking up. '


Charles Joseph Doherty: We have heard some talk .about the administration of justice. I ask you, Mr. Speaker, if it is going to be possible for a Minister of Justice in this country to endeavour to put before Parliament the measures which in his judgment are necessitated in order that justice may be done if, when he does that, whether he be right or wrong, he has to run the gauntlet of this sort of imputation? May I ask you what difference it makes whether my motives be as vile as even the vilest of minds can conceive, or whether they be worthy of the purest of celestial beings? Either this measure is right, or it is wrong. I am prepared to meet hon. gentlemen upon the question of whether it is right or wrong, and I am prepared to ask hon. gentlemen, who are proud to describe themselves as Liberals, what fault they can find with this measure. Of course, they can find faults in me-lots of them. Anything that their minds may conceive as discreditable they can get up here and impute to me, and, with all respect, it leaves me pretty indifferent.
Rut I ask them to deal with this measure. What is the matter with the measure? Do they think it desirable that we should maintain a condition which puts into the hands of the representatives of the Crown this exorbitant facility of finding a jury just to suit themselves? Let me in all frankness point out that to-day at all events there are no political friends of mine at stake. Of course, there have been things in the course of my not very prolonged political career that have been of a nature to make me sick-there is no other way in which I can describe it-and the performance this afternoon is 'the worst of all.


William Pugsley: I could not hear what the minister said.


Charles Joseph Doherty: If the hon. gentleman
desires that I should repeat it-I said that-there had been things in the course of my not very long political career which I can describe in no other words than to say that
they had made me .sick, and I have experienced nothing that has been mere of that nature than what has taken place here this afternoon. We, the representatives of the people of Canada-most of those who have spoken being distinguished members of their profession-are here concerned with the question whether a certain method of procedure is or is not calculated to give to the citizen the full protection intended to he given to him by the system of trial by jury. And what have we discussed, or rather, what has been put forward as a subject of discussion? Hon. gentlemen opposite have vied with each other in finding the vilest motive they could impute to the Minister of Justice. If for one moment we assume that eveTy motive that was attributed to me actually existed, how -much further are we advanced upon the question whether it is a proper thing that the Crown should have this extraordinary and exorbitant power of control over the complexion of the jury that is to try the citizen?
I have said that this notion was not born in my brain-though I must say that the thing coming to me, a man who has grown up under a system where the Crown could challenge hut 60, because the panel at it disposal was 60


Charles Avila Wilson: Is there any country within the British Empire that has limited the number that can be stood aside? My information is that for centuries back the privilege of the Crown in this respect has not been restricted to 48 or any other number.


Charles Joseph Doherty: May I give the hon.
gentleman ,a little history? It is a pity we should have to go so far back to determine whether it is desirable or not


Frank Broadstreet Carvell: It is an important change in the criminal law of the country.


Charles Joseph Doherty: Have I not made it
-clear yet that -as regards the operation of that section of the Criminal Code it did, up to the enactment of this 'legislation by Manitoba, operate one way in four provinces, and operate in a different way in five provinces? What we acre doing here-
-Mr. PUGSLEY:	Did it not in all the
provinces? ' Did not the right to " stand by" extend to the whole panel, whatever it was?


Charles Joseph Doherty: It extended to the
whole panel, whatever it was, and it extended no further than the panel. Therefore, in -provinces that limited the number of the panel, 'the number of stand bys was

limited to the number of the panel. In provinces that provided for an indefinite panel, you had a situation that wherever the judge thought a large number of jurors should be summoned, perhaps because there was an extraordinary number of cases, the practical result was that in each one of that large number of eases, the Crown had this indefinite advantage at least up to the full extent of the number the judge might admit the summoning of, because of this right of stand by.


Wilfrid Laurier: What is wrong in that? It is the panel.


Charles Joseph Doherty: 
Frank Broadstreet Carvell: We have only twenty-one in New Brunswick.


Charles Avila Wilson: What is the number in Manitoba?


Charles Joseph Doherty: The number in Manitoba was forty-eight, until this legislation

was enacted; that is to say, it was forty-eight in the Winnipeg district and a smaller number in the other districts of the province. I do not recall the exact number.


Frank Broadstreet Carvell: Thirty-six.


Charles Joseph Doherty: That was the situation up to the enactment of the legislation in Manitoba. Four provinces limited the number of the panel, and our Criminal Code, working in view of that provincial legislation, in effect provided the number of "stand bys" np to forty-eight, or np to sixty in Quebec, and left the Crown under the obligation, after that many had been made, of taking the men that were on the panel, unless, it could indicate a -reason why they should not be taken. Under the law of the provinces that permitted an indefinite number, whenever a judge ordered an extraordinarily large number-and he might do it for perfectly legitimate reasons-by the simple combination of the two laws the Crown that in Quebec could "stand by" sixty at most, and in Manitoba, up to that time, could "stand by" forty-eight at most, and that in other provinces could "stand by" a lesser number, became by the change of the legislation-whenever a province changed its legislation in that sense-entitled to "stand by" whatever number the court had seen proper to summon because it had a large number of cases to deal with. Now, in all fairness -I leave it to all fair men in this House, lawyers or laymen, as to whether that is a desirable situation in a country which boasts of its inheritance of British institutions, and boasts of none more than its inheritance of the system of trial by jury.


Edward Mortimer Macdonald: What is the trouble now?


Charles Joseph Doherty: The hon. gentleman does not see the trouble yet?


Edward Mortimer Macdonald: No.


Charles Joseph Doherty: The existence of that
state of affairs was something that caused me to believe that the essence of the advantage of trial by jury is destroyed when you leave in force a system which makes it possible for the' Crown to find its own jurors. I would not wait until somebody had come to me and said,"There is a man who suffered from a possible injustice; now is your time to remedy it." There is an old adage about the folly of locking the stable door after the horse is gone. I thought I would lock the stable door while the horse was still there; and that is the very head and front of my offending.


Frank Broadstreet Carvell: The horse was there when ' you started to look the door, but he got out.


Charles Joseph Doherty: I am not aware of what horse the hon. gentleman refers to.


William Pugsley: What does the minister Tefer t-o?


Charles Joseph Doherty: I have done with any
discussion on questions of motives. I leave the hon. gentlemen to their vile motives-


Some hon. MEMBERS:: Order, order.


Charles Joseph Doherty: -to get along together as well as they know how. We cannot, in this civilized Canada, in Parliament, discuss a question of what is the best system of trial by jury without hon. gentlemen seeking to interrupt even explanations by coming back to the old stories.


Daniel Duncan McKenzie: I rise to a point of
order, because it is well that a precedent should be established. I do not think it is competent for a member of Parliament to speak of his fellow members in debate in ' this House as having vile motives. The minister says we are left to our vile motives.
I want to know if that is permissible in this House.


Edgar Nelson Rhodes: It is six o'clock, I shall give my ruling when the House resumes.


Charles Joseph Doherty: I said that hon. gentleman had attributed to me vile motives.


Frank Broadstreet Carvell: Oh, no.


Charles Joseph Doherty: If I am mistaken hon. gentlemen will correct me. I congratulate the hon. member for St. John on his devotion to the exactitudes.
At six o'clock the House took recess.
After Recess.
The House resumed at eight o'clock.


Edgar Nelson Rhodes: At six o'clock the hon. member (or North Uape Breton and Victoria (Mr. McKenzie) rose to a point of order -with respect to the remarks made by the hon. Minister of Justice. As I understood the position and the language of the hon. -minister at that time, it was that he was complaining that motives had been attributed to him- by some hon. members, and that if they could be properly attributed to hi-m such action on bis part would be vile. iBut, in order to make it perfectly clear, T have examined the transcript of the Hansard reporters' notes, and I find the following :
Mr. Doherty:	X have done with any discussion on questions of motives. I leave the hon. gentlemen to their vile motives.
In my judgment the language is not parliamentary, and ought to be withdrawn.


Charles Joseph Doherty: I bow to your ruling,
and withdraw the particular words as they appear in Hansard, with -all the greater pleasure, because I bad intended to say what you, Mr. Speaker, stated that you understood I intended to convey. I notice that -the words appear in Hansard "vile motives ". In speaking of their " vile motives," I m-ay say that .all that I had in mind was the motives they attributed to me, and if any hon. gentleman thinks it of sufficient importance, if he will look back to what I did say, he will see that I had imputed no motives to anybody. What T intended to say was that I had done with this question of -motives, the question being the motives attributed to myself, and that I was quite willing to leave the hon. genltlemiem who (had imputed these vile motives to me, which I may say they had elaborated, out of their own inner consciousness, to digest the vileness attributed to -me as best they might. At any rate, perhaps they may find it more easy to digest, as we have had our dinner.
I'f we m-ay come to the real question which, while it is important-I should not have introduced it if I had not thought it [DOT]was important-it is certainly very different from what hon. gentlemen seem to understand it to be. I stated before the House rose -at six o'clock that the idea that the extension of a panel to a very laTge number, carrying with it, as it would if our law be not amended, the right to " stand hy " a very large number, was of -a nature to work injustice to the accused, is not-original with me. I have before me the history of things that happened in the past, and I will cite what Hallam says in his Constitutional History. He is dealing with the difficulties that -arose in the fair and just application of the system of trial by jury, and he points out that prior to the revolution it had been the practice of the Crown, not merely to stand aside but to absolutely challenge, without giving any reasons, any number of jurors, and th-at this situation was found to be so abused that there was express legislation, even under Charles I, restricting the right of the Crown to challenge, to the right to challenge for cause. Even under that legislation the Crown sought to enlarge its privileges by claiming to reserve its challenges until all the panel had been called, and that is the ori-

gin of the "stand by." And, though, at the outset, it was merely a claim on the part of the Crown justified by no provision of law, and in fact running counter to the special provision which prohibited the Crown's right to challenge to the challenge for cause, it was nevertheless persisted in until, from being an abuse .at the outset, in virtue of the continued practice it was accepted and acquiesced in. Speaking of the methods which, even after the revolution, were resorted to in order notwithstanding the provisions of the law to give undue advantage to the Crown, he points out two means by which the Crown sought to control the trials, namely by the sheriff selecting a panel known to be favourable, or by punishing the jurors by fine or imprisonment if they failed to give a desired verdict. After the revolution,' a third means was employed, namely of enlarging the panel, in some cases to more than 200, and making use of the Crown's right of standing aside in order to pack the jury. Prior to the revolution the panel appears to have been limited in practice to forty-eight. Then he goes on to speak of the right of challenge by the defence, with which we are not concerned. By the common law, the King might challenge peremptorily without being limited to any number. This * was regarded as unfair to the subject, and it was enacted by 33 Edward I, chapter 4, that none should challenge for the King except for cause certain, and this also is re-enacted by 6 George IV, chapter 50. The practice, as I mentioned a little while ago, appears to have grown up for the Crown to withhold its reasons for challenging until the whole panel was exhausted. A strenuous effort was made in several cases to upset this practice, and to compel the Crown to assign a cause at the time of challenging, but without success. The case of O'Coigly and others is notable in this regard. Counsel there pointed out that the authority for this practice was Staunford, who had set it up in his Pleas of the Crown. Hale and Black-stone appear to have adopted this opinion, and the practice became general.
There is the origin of the "stand aside." It originated in what, at the time of its beginning, was certainly an abuse, but it seems to have been acquiesced in and accepted, and I am not criticising-although I might desire to criticise it-so long as its scope is kept within definite limits, as it is and was in our law in all these provinces where a limited panel is provided. The attempt by the Crown in any province to

resort to the means which I have already referred to as having been employed on the part of the Crown to control trials, namely, the enlargement of the panel in some cases to more than 200, I do not interfere with, but this latter consequence of it, making use of the Crown's right of standing aside in order to pack the jury, will not be permitted. It is not necessary, in order to justify this legislation, as I was called upon to do, to point out cases where that power has been abused. It is, in my judgment, sufficient that it should appear, as it clearly does appear, that the condition of the two legislations as they stand-the provincial legislation, not only in Manitoba but in four of the other provinces, and our Criminal Code legislation-combined, make that abuse possible. In my judgment it is the duty of one in my position, when it is brought to my attention, that under existing laws there is room for abuse, to look for and apply a remedy.
Moreover, I desire again to call attention to the fact that this legislation does not propose absolutely to limit the right of the Crown to stand aside; it leaves that right absolute up to the number of forty-eight jurors. Inasmuch as under the existing law the number may be very much greater-I am informed that in one instance the number was 150; that may have been justified by the exigencies of the business before the court-this legislation simply puts under the control of the court the right of the Crown to proceed to "stand by" a greater number than forty-eight. It seeks to correct the above that is possible under existing conditions, but not by absoltuely withdrawing the exercise of the right of standby for a greater number. I quite recognize, as pointed out by the member for St. John, that there, may be conditions and circumstances under which the right ought to be exercised for a greater number. But under this legislation, that is left to be determined not by the Crown alone but by the judge who sits there as arbiter to see that everything is conducted fairly between *the Crown on the one side and the accused on the other. This legislation merely throws an additional safeguard around the liberty of the subject, and does it without imposing any undue restriction upon the Crown. The Crown, when it has reason for doing so, can always address itself to the judge; and if we all have that confidence which hon. gentlemen have expressed in the judiciary, we may all feel assured that the judiciary in dealing with an applica-

tion of that kind will not lean unfairly against the Crown.
Something has been said about the fairness of Crown prosecutors. In my experience I have found that they have sought to act fairly. But I am free to admit also that in the course of my practice I have observed cases where I thought that there was a perfectly honest but still an undue zeal on the part of a representative of the Crown. These things may happen. The men who represent the Crown are human, as other men are. I think any lawyer will concede that one is apt to be carried a little further when he is interested in >a case, whether it be for the prosecution or for the defence, than he would where he was not charged with the maintaining of one side rather than another. No fair Crown prosecutor. I am sure, will1 complain because he is limited in his number of " stand bys " to the number that the judge may think fair and just under the circumstances. After all that has been said this afternoon about motives, it may not be unfair to any one to say that all of us are sometimes under the influence of very honest and very strong convictions; under the influence of passion that may be aroused under particular circumstances; and disposed, if left with absolute power, to exercise that power to its extreme limit. While I fully recognize the fairness of the body of Grown prosecutors in general, still, under certain conditions, popular passion in a community may be aroused to a great height over some question-perhaps a political question; perhaps -a question where racial feeling plays a large part; perhaps a question where religious prejudice plays a large part. As one member of that community the Crown prosecutor is liable to be swayed by those feelings just as many absolutely honest men are swayed by them. What can be the objection, under those conditions, to putting such restraint upon the Crown prosecutor that he shall not he entitled to go on indefinitely ordering men to " stand by " with the result that he is enabled, where the panel is very large, practically, in the words of Hallam, to pack the jury? Why should *he not be subjected to the check of submitting to the judge the question whether he should exercise that power beyond the number to which he would have been limited in Manitoba before this legislation; beyond the number which at common law by practice-not as a matter of law-was the usual number of a panel; beyond the number which in the
province of Quebec .and in two otner provinces he is to-day limited? I ask the hoc. gentlemen for the moment to forget this discussion about motives. Let them, if they like, remain with their belief that my motives are very bad; but let them look at the law. Are they going to vote against this additional protection to the liberty of the subject-which in no manner hampers the Crown ot its representatives in the performance of their duties-which leaves it to the court to determine when and under what circumstances the right of "stand-by" shall be exercised beyond the number to which it was limited, though not by the terms of the Criminal Code, both at common law by the practice and under the statutes of all those provinces which fixed a limit to the number of jurors? I think the amendment speaks for itself.
I should like to say one word about the interchange of correspondence between this Government and the Government of Manitoba. It is not absolutely germane to the question whether this Bill shall be read the second time, but it may throw some light upon my awful motives. As the-mat-ter has been gone into I should like to rectify some statements that have been made, in good faith, I am sure, hut .as the result of imperfect examination of that correspondence. Those statements., I think, found some justification in the unfortunate misapprehension on the part of the Government of Manitoba of what was intended by the first communication addressed to them. What brought to my attention-let me admit, to my knowledge; because I had not known of it before-the fact that under any of the provincial legislations the evil that I have pointed out was possible, was the legislation of Manitoba which introduced, so far as that province was' concerned, this power on the part of the judge indefinitely to extend-subject, of course, to his discretion-the number of jurors to be summoned. As I said before recess, I lived my life, and I practised my profession, and I sat upon the bench, in a province where no such abuse could be possible, because we had a fixed, limited panel of jurors, and I frankly admit that when, with my preconceived notions, I read that statute of Manitoba I was shocked. I thought that legislation was going to create a possibility such as I have pointed out, and, although it may be an awful confession of ignorance to ,say that one does not know all the laws of all the provinces of this Do-

minion, I did not know that similar legislation existed elsewhere.


William Pugsley: The minister never heard -of any evils resulting from it in those four provinces?


Charles Joseph Doherty: The fact that the possibility I have pointed out should exist is, in my judgment, a very grave evil. I do not think thait we should leave the security, which should be assured to the subject by the system of trial by jury, fairly administered, open to possible .abuse. I have not investigated to ascertain whether there have been abuses in the other provinces, hut so far as my inquiry goes-and it has been confirmed by what has been said here this afternoon by hon. members from other provinces-I find that, while the law left it open to fix a very large number of jurors, in practice, that has not been done, and therefore the opportunity for any abuse in the exercise of the right to stand by has not, to my knowledge at all events, and from -the information I have gathered this afternoon from hon. members familiar with conditions in other provinces, arisen. But 1 think we ought to make that abuse impossible. I was confirmed in the view that we ought to do that 'by what is found in the citations I have made. I do not contend that there was on the part of the province an intent to work things unfairly. I have pointed out an evil that may result. May I point out a good that may result? While I was shocked at the possibility of that abuse happening, it did not occur to me that that legislation had been passed in Manitoba having in mind the provisions of the Criminal Code and for the purpose of enabling the Crown to do anything unfair in criminal oases. If hon. gentlemen will read my report to Council which was communicated to the Manitoba Government, they will see that I was at pains to point out and to recognize that the Provincial Government might perfectly properly, for its own purposes, think it desirable to create this power of summoning a larger number of jurors. But I proceeded to call their attention to what might happen in criminal eases, when they took place, by reason of the provision in the Criminal Code. I did go on to indicate what in my judgment were the objectionable features of that possibility. I concluded by suggesting-and I believed that all I had to do was to make the suggestion to get the assurance-that any steps on my part looking towards a consideration of the question of disallowance might be obviated

by the assurance, which I thought would come without a moment's hesitation, that the Crown in Manitoba did not purpose using that law in that way and for that purpose. I do not want to criticise the Government of Manitoba. I did not think they had passed that legislation for that purpose; I do not think so now, and I never suggested that I did. I did not, as was stated this afternoon, threaten disallowance if they did not give that assurance. I said that, is such an assurance were given, it would not be necessary to consider the question of disallowance. That represented absolutely what was in my mind, and I had not given consideration as to whether the legislation ought to be disallowed or not. The only reason for mentioning that was that it was the only remedy open if one on consideration came to the conclusion that it was necessary to exercise it, and was the only matter in connection with which it was open for me to communicate with the Government of Manitoba. Much to my surprise, and also to my regret, the Manitoba Government seemed to take this representation as implying some imputation upon their good intentions. They furthermore seemed to have conceived that my action was based upon some suggestion of unconstitutionai-ity of their legislation. Nod only did I not take the position that it was unconstitutional, but if I mistake not I even said that my action did not rest upon any such contention. While that is true, I want to say that it is not as absolutely clear to me as it is to the hon. member for Pictou (Mr. Macdonald) that the legislation is constitutional. I think there is room for discussion as to whether the number of jurors forms part of the constitution of the court or is properly meant to be governed by the Parliament that has authority over criminal procedure. I did not, however, advance an opinion upon that subject, and I am not doing so now. If I had thought that was unconstitutional, there would be no reason in the world for me to suggest disallowance, because if it were unconstitutional, anybody affected by it had his perfect remedy before the courts. Therefore, I did not rest my position upon the unconstitutionality of the legislation. But I may point out that, as appears by the citation of the hon. member for Pictou, the late Hon. Edward Blake entertained doubt upon the constitutionality of legislation by a province fixing the panel.


Edward Mortimer Macdonald: He did not ask them to amend it or to suspend its operation.


Charles Joseph Doherty: No, but if the hon. gentleman will remember, Hon. Mr. Blake expressed his doubt, but he said: Inasmuch as similar legislation in another province had been passed and not questioned, I do not find it necessary to question it. I do not go further than to say that Hon. Edward Blake expressed a doubt, and I go no further than to say that I have a doubt.


Edward Mortimer Macdonald: And he did not interfere.


Charles Joseph Doherty: Neither did I.


Edward Mortimer Macdonald: Oh yes.


Charles Joseph Doherty: I think, however, I might, after the somewhat animated discussion we have had, be allowed to make my explanation of the matter as it presents itself to my mind. I am not asking hon. gentlemen to part with those ideas of theirs of evil intent on my part; they are at liberty to keep them. But it is fair to the House and to the public, to whom I presume the observations of this afternoon will go-if indeed it was not to the public that they were specially addressed-that they should have my statement of what I did do and of the motives that inspired me.
As I have .said, any intervention did not rest upon any uneonstitutionality of the legislation. My intervention was the result of my belief that the authorities of Manitoba, having no motives of that kind, having no desire to use the legislation unfairly, would have isimply said, as I mys'elf would hake said: " I have no. idea of that kind; I will undertake not to extend my ' standbys * in any unfair way by reason of the change in the law." However, they entertained a different view. I regret 'that they took offence. I had intended to impute no evil motive. I thought it unnecessary that they should have entered into a discussion of the constitutionality of their law, which I did not question in my report, and I so replied. I then gave consideration to the question whether disallowance was a proper remedy. I came to the conclusion that it was not a proper remedy, and therefore I did not recommend to disallow. But I did proceed to do what from the very first I had pointed out what I thought was the proper remedy, namely, to propose to amend the larw so that the abuse which was possible under it might be rendered impossible.
The hon. member for St. John did make some observations in criticism of this law. As far as I could follow the observations of other hon. gentlemen, they were largely, if not entirely, in criticism of myself.


Charles Avila Wilson: Not 'as far as I am concerned.


Charles Joseph Doherty: I had forgotten; I admit that the hon. member did not criticise me. The hon. member for St. John did point out some things which he thought were objectionable in the law, and I trust that I have made clear to him that the consequences which he apprehended need really not be apprehended. Perhaps he did not exactly grasp the effect of the provision with respect to. special cause justifying .a further extension of the right of " stand aside " beyond 48.
The hon. member for Carleton, if I followed him correctly, expressed the opinion that in itself this was rather a good law, or, at all events, it might he a good law (to pass at some other time. If the hon. member is satisfied that it is a good law, then the good time to pass a good law is now. If this is a good law and gives a protection that ought to he given to. the liberty of the subject, I do not think we should consider it a thing that it is not worth our while to deal with now.


William Pugsley: I do not think any hon. gentlemen on this side of the House have spoken very warmly in favour of this legislation.


Charles Joseph Doherty: I only mentioned the hon. member for Carleton, who I understood to s$y-iand I think I am citing his language correctly-that it might be a good law to pass at some other time. I did not affirm that he said it was a good law.


Frank Broadstreet Carvell: I said it was debatable whether it was a good law to pass at some other time.


Charles Joseph Doherty: I am convinced that it is a good law. I do not know whether I have convinced the House, hut I have given my reasons for thinking so, and it is because I believe it to be a good law that I am asking to have it passed.
When I decided that this law ought to pass, 1 was not blind to the fact that because of a combination of circumstances there might be persons-I wish to use no offensive . words.-who would sav that because it was done at that time it was done for the reason that has been given this afternoon. I think I would he a very cowardly man-and whatever else I may be, I am not a cowardly man-if because introducing a good law at a particular time exposes me to the sort of language that I was subjected to this afternoon, I hesitated to introduce it. I would have failed

in. my duty, believing it to be a good law, if I had been frightened out of introducing it because I might be attacked in the way I was .attacked this afternoon, and most assuredly I shall not be frightened out of pressing it by that sort of language that was indulged in. I am quite prepared to take the judgment of the public upon my motives, and upon the question how far this legislation is a degradation of the administration of justice. May I, without offence, say that the very wildness of the language used in attack upon myself is to my mind the clearest demonstration that there is nothing to be said .against the law.


Mr.   BOSS@: Has any complaint been
made to the 'minister :by law societies, crown prosecutors, or the legislatures of the provinces, as to the old law working out oppressively?


Charles Joseph Doherty: None at all. The hon. gentleman talks about the old law. I might point out that there was not any one old law prevailing throughout the Dominion.


Mr. ROSS:: I mean the present law.


Charles Joseph Doherty: The law to-day is not uniform throughout the Dominion, and there could not have been complaints from my own province of the evil of which I am speaking, because the legislation of my own province safeguarded the accused against that very evil. There might have been, as regards the other provinces, where it was within the power of the judge to order a large panel, but as I said some time ago I have not been given instances of the evil, and I have not acted upon reports of that kind. In my judgment, when you find that a law, particularly a law upon which depends the protection of the liberty of the subject, is open to abuse which may be absolutely prevented without doing injustice to anybody, then is the time to amend that law.
Let me point out an evil that comes .from the existence of the possibility of .abuse. If the abuse be possible, there will be many times when it will fee imputed to those who have the administration of the law. If this unlimited power be in the hands of a Crown prosecutor he may in cases where he is exercising it for the most excellent reasons have imputed to him improper motives, just ' as I have experienced this afternoon. That is most undesirable and this legislation is to remove that possibility, while at the same time it leaves the Crown prosecutor ail the rights he ever had, subject to the control of the court.

In reference to the very matter that has been referred to in Manitoba, I do not impute any evil motives to the legislation that was introduced nor to those who proceeded to carry it out. But, unfortunately because that legislation made .abuse possible, and because certain eases did arouse a great deal of feeling, there was an element in the public who said that the legislation was brought down to enable the Crown to resoTt to that abuse-that it was done expressly to get at political adversaries. I do not believe it, and it was unfortunate that any of our population should think that. It was unfortunate that the modification in the law that made that possible should h.av6 synchronized with the approaching political trials. Under the amendment I propose, there will be no room for a suggestion of that kind, and we shall attain the very great good I have described.
In conclusion, in view of what has been represented as being .the nature of what I am doing; in .view particularly of the astounding language of the hon. member foT Rouville, who accused, me of having degraded the administration of justice and brought it down into ithe mire-I have forgotten how he described it-let me say this:	That in my belief this is legislation
simply to put an additional safeguard, to the liberty of the subject, without restricting the rights of the Crown, and for my part if during my not very long career in this House and in the office I hold I should have done nothing "else but provide this additional safeguard for the citizen, when he is accused, I would have felt that my presence in this House and my holding of the office I do hold, have been anything but entirely useless. Notwithstanding what has been said, I shall always take credit to myself foT having observed a possible abuse, and, having so observed it, taken the means to correct it, and I trust this House will endorse my attitude in doing so.


[Stage Direction]
Motion agreed to, Bill read a second time and the House went into committee thereon, Mr. Rainville in the Chair.
On section 1:
1. Section nine hundred and thirty-three of the Criminal Code, chapter one hundred and forty-six of the Revised Statutes of Canada, 1906, is amended by adding the following proviso at the end of subsection one thereof:-
"Provided that the Crown may not direct any number of jurors to stand by in excess of forty-eight, unless the judge presiding at the trial, upon special cause shown, so orders.
Frank Broadstreet Carvell: We have heen treated
to a spectacle this afternoon and this even-

ing -which fortunately does not o-ccux very often in this House. The Minister of Justice introduced a very serious amendment to the criminal law of 'Canada., and he took a course which I have never seen taken by any other Minister o.f Justice or minister of the Croiwn in my fourteen years in Parliament. He introduced the Bill in absolute silence, and gave no explanation whatever as to the necessity for this legislation. While I may be charged with vile thoughts *and probably vile 'language, one cannot help thinking that he had an idea the thing might slip through and nothing would be said about it. Then, after discussing the subject for an hour and a half, the minister becomes bold and says he is not a coward, and he proposes to justify his conduct. There are other people in this House who are not cowards either.


Charles Joseph Doherty: I did not suggest any
one was.


Frank Broadstreet Carvell: There are many people here who are as willing to justify their conduct as he is. Notwithstanding his charge of vile thoughts and vile language on my part, I will tell him what I think about it, for fear I did not make my previous remarks sufficiently plain, and I hope when I am through .there will not be any misunderstanding whatever about my views on this question. I think the time has come for pretty plain talking to this hon. gentleman. We have been lectured by him this afternoon and this evening, and 'I object to being lectured by him1 over legislation of this kind, and being now in committee we will have it out. What are the facts? About a year ago the ex-Premier of Manitoba and two of his colleagues were indicted and brought to trial in the province of Manitoba on a very serious charge of con, .spiracy, of robbing and defrauding the province of Manitoba out of large sums of money. Either before or after they were brought to trial, the province of Manitoba decided to change its Juries Act. Before this trial came on, the Juries Act of Manitoba was as found in section 46, chapter 108:
There shall be eighteen grand jurors and thirty-six petit jurors summoned in the first instance for any sitting of the Court of King's Bench for the trial of causes, matters and issues which are to be tried with a jury and for the trial of criminal matters and proceedings.
2. The number of petit jurors to be summoned in the Eastern Judicial District for any such sitting shall he forty-eight.
The Legislature of Manitoba proposed to pass the following amendment to that law:
When either before or during any sitting of the Court of King's Bench referred to in section 46 of this Act, it appears necessary or advisable for any reason to have a larger panel, the Judge assigned to preside over such sitting, or any other judge of the Court of King's Bench, may in writing request the Sheriff to summon any number of petit jurors in excess of the humber provided by section 46.
(2) Thereupon, such additional petit jurors shall be chosen and summoned by the Sheriff in the manner outlined in the said Act, and all sections of the said Act shall mutatis mutandis apply to such additional jurors.
In due course, as the law provides, this statute was sent from Winnipeg to the Secretary of State for Canada, and in the ordinary course of procedure it was probably brought before the Attorney General of Canada, the present Minister of Justice. This honourable gentleman wants the House to believe that he was 'so shocked because the province of Manitoba was bringing its legislation in line with the legis-tion of Ontario, Nova Scotia, New Brunswick, Alberta, and British Columbia, that without any knowledge of the fact that his political friends were liable to be tried- or possibly affected by 'it, without even knowing that those men were going to be tried and that this might affect them, his sense of justice demanded that he should right this wrong, and remove this injustice and place the criminal law of Canada on an equality all over the Dominion. That is the attitude the minister wants to take. I do not believe it, and there is not a man in this House, either Liberal or Conservative, who believes it. It is not possible. If my hon. friend wants to be plain, we will be plain with him. On the 9th December, 1916, he sent a long memorandum to the Governor General in Council. I read a part of it this afternoon. In this memorandum he recites what the law in the province of Manitoba was before, then he sets forth the proposed amendment, and the Order in Council. The latter is as follows :



P.C. 3060.

[Stage Direction]
The Committee of the Privy Council have had before them a report, herewith, from the Minister of Justice, dated 9th December, 1916, Upon a statute of the Legislature of Manitoba, 'passed at the last session, Chapter 62 of 1916, assented to on 10th March, 1916, and received by the Secretary of State for Canada on 8th 'April, entitled, "An Act to amend the Jury Act." By the provisions of which a section 46 (a) is added to the Jury Act of the province, Chapter 108 of the Revised Statutes, 1913, 'providing as follows:-
Then follows the addition to the Mani-fccha Jury Act, which I have already quoted:
[Stage Direction]
The Committee concurs in the views of the Minister of Justice as set out in the said report, and on his recommendation advise that a copy hereof and of the accompanying report if approved, be transmitted to the Lieutenant-Governor of Manitoba, for the information of his government with a request for an early answer to the inquiry as therein suggested.
All of which is respectfully submitted for approval.
Rodolphe Boudreau, Clerk of the Privy Council.
In this report he plainly tells the province of Manitoba:	"If you do
not refrain from acting upon your legislation, I will disallow it," ' because Parliament is not in session and therefore the only way I can protect my political friends in Manitoba from your legislation is to disallow it; but, if you will promise me that you will not act upon it, I will not disallow .it." The answer came back from the Attorney-General of Manitoba, the only answer that any self-respecting provincial government could send back to a threat of that kind, and it concluded as follows:
4.	With all due respeot to His Excellency's advisers, and while he appreciates their solicitude on behalf of prisoners now awaiting trial, the undersigned is of the opinion that the report referred to amounts to an attempt to interfere with the constitutional rights of the province, ahd while reflecting on the fairness of the prosecuting authorities in the province of Manitoba, entirely ignores the fact that the fixing of the number of jurors to be summoned is left to the judges of the Court of King s Bench, and that they are given no more power than has been given to and exercised by judges in the province of British Columbia, Alberta, Ontario, Nova Scotia, New Brunswick, the Yukon Territory and the North West Territories, for many years.
5.	For these reasons, the undersigned recommends that the undertaking or assurance asked for by His Excellency's advisers be not given.
' Respectfully submitted.
(Sgd.) A. H. Hudson,
Attorney General.
That was the answer that came back to the Minister of Justice and I say to him that no self-respecting attorney general for one moment could make any other reply to such a threat. That was on the 9th day of December. These gentlemen up there were to be brought to trial immediately, but on account of the illness of Sir Eodmond Boblin the trial was postponed. When they were liable to be brought up for trial again, some time in the winter, another report was prepared by the Minister of Justice dated the 31st January, 1917. In this document he says, in effect: As Parliament is now in session and as I can interfere by the poweT behind me and pass legislation prohibiting the province of

Manitoba from carrying out its enactment, I will not disallow your legislation but I will introduce legislation here and jam it through in order to embarrass the province of Manitoba and render nugatory the very proper legislation which they have enacted. .When we, brought these matters to the attention of the hon. gentleman this afternoon in language with which no person could find any fault, making no imputations against him whatever, but simply in the most delicate manner possible calling his attention to the position of affairs, we were treated to a tirade of abuse for an * hour this afternoon and an hour after we met again this evening. Under these circumstances I think it is time there was some plain speaking to this hon. gentleman. Now, Sir, he did not even know that the trials were liable to come on in Manitoba ! A member of a Government in which three of the most pronounced politicians from the province of Manitoba are his colleagues, one of whom had been the colleague of the very men who were indicted-
Charles Joseph Doherty: The hon. gentleman says that I said that I did not know these trials were coming on. I have no recollection of having said so.


Frank Broadstreet Carvell: The hon. gentleman' said he was not affected by it.


Charles Joseph Doherty: Yes.


Frank Broadstreet Carvell: For my purposes, there is no difference whatever. As far as the public and the members of this House are concerned, there is absolutely no difference between the hon. gentleman saying that he did not know and that he was not affected by it. He was not affected by it with Hon. Eobert Eogers sitting on his right hand in Council, a man who was the colleague of these men, a man who was a member of the Government when the very things were done for which these men were to be put on trial and he was not affected by it! He hopes this House and the country to believe that. It is unthinkable. It is not debatable at all.
He apparently introduced this Bill for the purpose of thwarting the very proper legislation of the province of Manitoba. The Attorney General of Manitoba entered a nolle prosequi when the notice of this legislation was given. Then the minister could not very well do much less than he is doing to-day. He could not abandon the Bill because the political aspect would be so patent that everybody would know what the abject of it was. Therefore he was forced to go on with it. Now he takes

the high-and-mighty stand that if he accomplishes nothing else as Minister of Justice of Canada except to redress this wrong he will not have served in vain. Think of the Minister of Justice of Canada taking that attitude, of giving forth to the world the statement that if he does nothing else except to interfere with the administration of justice in Manitoba during the past six years his efforts will not have been in vain !
When we bring out these facts
9 p.m. we are treated to a tirade of abuse such as has very seldom been handed out to the members of this House since I have been here.
In order to substantiate the hon. gentleman's contention, he finds himself compelled to make two or three violent assumptions. In the first place, he is forced to assume that the judges of the King's Bench of Manitoba, or of any other supreme or superior court in Canada, are going to act from improper motives.


Charles Joseph Doherty: I think I must be allowed to correct that statement. I certainly said nothing of the kind.


Frank Broadstreet Carvell: I do not say you said so; I say you are forced to that assumption, and I am going to give you the proof of it.


Charles Joseph Doherty: I was not aware of the assumption.


Frank Broadstreet Carvell: You cannot get away from it. Without the amended law of Manitoba the Attorney ^.General could not succeed in getting an extra panel except by the order of the judge, and he had to convince the judge of the necessity of the extra panel before he could get it. Therefore, when he admits there was unfairness, that the law might work out harshly against a prisoner, and a prisoner would not get a fair trial-and that he should get all the protection of the British law that we heard so much talk about this afternoon-he is assuming there is fraud bn the part of the presiding judge or that the presiding judge acts contrary to the interests of justice. That is an assumption that does not come with very good grace from the Minister of Justice.
If the legislation of Manitoba had gone as far as the legislation of New Brunswick- which had not shocked his conscience during the five years before this matter came up, and which was allowed to go on and did not get him waked up, and by which the Attorney General could order an extra panel-it would not have been so bad. Practically all the great English-speaking
provinces having had these laws. Then the province of Manitoba passes legislation to bring itself into line with the other provinces, with the result that his conscience is shocked by a sense of outraged justice. Without any political interference or influence being brought to bear upon him, he at once rushes and says: I am going to remedy this outrage, and see that the ad-ministratkih of justice shall not be outraged any longer in Canada. He is not sincere. He was not sincere then, and he is not sincere to-night.


Mr. CROTHERS:: Mr. Chairman, I rise to a point of order. I want to know if it is within the rules of this House for one member to say to another that he does not believe what he says?


Frank Broadstreet Carvell: I did not say so.


Thomas Wilson Crothers: You did some minutes ago.


Frank Broadstreet Carvell: I beg pardon.


Thomas Wilson Crothers: I know what you said.


Frank Broadstreet Carvell: You did not wake up early enough.


Thomas Wilson Crothers: You said a moment ago that he was not sincere.


Frank Broadstreet Carvell: Yes, I say that now.


Thomas Wilson Crothers: I submit that that language is not permissible, that it is not allowable for one hon. member to say of another that in making a statement he is insincere. I would like your ruling upon it, Mr. Chairman.


Joseph Hormisdas Rainville: The word used by the hon. member for Carleton (Mr. Carvell), I think, is parliamentary.


William Pugsley: Quite proper.


Frank Broadstreet Carvell: I will show wherein the hon. gentleman was not sincere. He says that his sense of justice was outraged when he found out that legislation such as this had been passed by Manitoba, and when, to his horror, he found that similar legislation existed in four other provinces of Canada
If the hon. gentleman was sincere, why did he not at once start in to Tepeal the enactment or amend it, as he is doing tonight? Did he do that? Not by any means. He simply held a club over the head of the province of Manitoba, and said:	If
you do not change the Act, I will disallow it. Was that sincere? Was his sense of justice outraged? If it had been outraged,

why did he call upon Mlanitoba alone to repeal their legislation oa- he would disallow it? Why did he not say:	I will
amend the criminal law of Canada? What more evidence do hon. gentlemen want of his insincerity than that?


Charles Joseph Doherty: Does 'the hon. gentleman want to know why?


Frank Broadstreet Carvell: You will have a chance later on. We are in committee now.


Joseph Hormisdas Rainville: I
would like the hon. gentleman to address the Chair.


Frank Broadstreet Carvell: I will do so. We have the whole night to thresh these things out, and if the hon. gentleman is getting a little plain talk he has only himself to thank for it, and he will find he will get all the talk he wants-*


Some hon. MEMBERS:: Oh, oh.


Frank Broadstreet Carvell: 
Edward Mortimer Macdonald: I do not know about that.


Frank Broadstreet Carvell: Oh yes he doe3.
He knows that by the Criminal Code, by the legislation of every province of Canada, and by the legislation of Manitoba to which he objects, they could only summon the number of jurors that the judge ordered and thought fit and proper. There, again, I say my hon. friend must assume unfairness on the part of the presiding judge, he must assume crookedness on the part of everybody, in order to justify his position. If he has fault to find, and feels he has been unjustly attacked, he has himself to blame for it.
If be comes in with sectional legislation, designed for the protection of certain persons, and tries to force this thing through Parliament and is hauled over he coals for it, it is his own fault. There is no use pleading for sympathy, or lecturing gentlemen on this side of the House, or making any threats. I hope the hon. gentleman will take a little lesson from what I am telling him, and change his attitude, and that during the rest of the debate we shall not be treated to any more such exhibitions -as we had just before six o'clock and for three-quarters of an hour afterwards.


Edward Mortimer Macdonald: My hon. friend, in defending a proposal to introduce this measure, gave a dissertation upon the law of juries from the time of Charles I, through

various intervening periods down to the year 1907. All this dissertation of my hon. friend upon this abstract question of law has no more relevancy to the Bill which we are discussing than any academic problem with reference to the constitutional history of Great Britain. After this historical dissertation upon this irrelevant subject, he endeavoured to indicate to this committee that the fact that this legislation was introduced when it had been, and the fact that he wrote the Attorney General of Manitoba and passed Orders in Council dealing with the legislation enacted by the Legis- [DOT] lature of Manitoba, were accidental circumstances. The Minister of Justice's soul was burning over this anomaly which he discovered in the statutes of Manitoba, under which every province in this Dominion has been staggering along, without anybody ever making any complaint about the administration of justice, ever since Confederation. The sudden interest of the minister in this question of jury legislation in Manitoba synchronized-to use that happy phrase which the Minister of Finance (Sir Thomas White) introduced into this House, when he had been engaged in a somewhat similar occupation to that of my hon. friend the Minister of Justice- with certain political events in the Parliament of Manitoba. That there was a synchronism there is no manner of doubt, and the Minister of Justice admits -that he knew that his political friends were about to be tried in Manitoba, but he did not allow that fact to affect him any. Well, we are bound to accept his word, only again we have this anomalous and very peculiar synchronism, which is, to say the least of it, very singular. My hon. friend resents the idea that anybody should suggest any particular motive in regard to this matter, but here are the facts-the House will have to draw its own conclusions, and so will the country. What does my hon. friend say in his Order in Council which he issued in December, 1916, after the first trial of Sir Rodmond Roblin, Mr. Coldwell and Mr. Howdan had taken place, and while they were approaching the period when the second trial was to be held? My hon. friend's knowledge and zeal about the cause of criminal administration in this country became keen, and prompted him to pass an Order in Council on December 9, in which appears this very peculiar statement:
Criminal trials are proceeding in the province of Manitoba; the Parliament is not in session and it will in the ordinary course of things be several months before a suitable
amendment can be obtained to regulate, in a manner compatible with Justice, the right of the prosecution to require jurors to stand by.
According to this Order in Council, criminal trials were likely to take place. What does my hon. friend say to the Government of Manitoba with respect ito these criminal trials? The Order in Council continues :
With a view to the application of the law in accordance with what the minister conceives to be its reasonable purpose, he would be disposed to consider the propriety of disallowance unless the Lieutenant Governor of Manitoba be advised to give an assurance that his Government will see that, pending the consideration by Parliament of the provisions of the Criminal Code to which the undersigned has referred, the prosecuting attorney shall not exercise any right to require jurors to stand aside at criminal cases in excess of that which would have been permissible if section 46a as enacted by the recent Act of Manitoba had not been passed.
That provision of the Order in Couneil is most anomalous. The right to disallow legislation passed by a provincial legislature can be exercised iby the Minister of Justice and the Government in a proper ,case. But here is the synchronism: Sir Rodmond Roblin, Mr. Coldwell and Mr. Howden were to be tried in January. The Minister of Justice says to the Attorney General of Manitoba: I will disallow your legislation unless you undertake not to enforce the provisions of your law with regard to the right to stand by. My hon. friend need not complain about hon. gentlemen on this side making statements or suggesting theories. Here is a statement which I find in the Manitoba Free Press, which gives in detail the subsequent events. The Manitoba Free Press and my hon. friend have not been so far apart within the last week or two. This is what that newspaper says:
It is not in the interests of justice that the Dominion Government threatened to reduce the jury panel to forty-eight. The necessity for such a restriction had never appeared to any minister of justice till the second trial of the 'ex-minister loomed in view. It is not in the *interests of justice that the law which prevails In England and in nearly every Canadian province was to be violated by the Dominion Government. It was to embarrass or prevent the due trial of the three ex-ministers.
No bon. gentleman on this side bas suggested that. But the Manitoba Free Press, a great organ of public opinion, a few months ago thus arraigned the Minister of Justice, charging him with threatening Manitoba by his Order in 'Council in the interests of the ex-ministers. The article goes on:



Why the haste in wiring to the provincial government for its answer? The Dominion Order in Council was dated December 11 and received here-
That is, in Winnipeg.
-about the 16th. The Dominion Government wired for the answer on January 5.
Note the peculiar synchronism. The memorandum from the Minister of Justice reached Winnipeg on December 16, and he was in so much haste for a reply, in view of the fact that these criminal trials were coming on, that he sent a telegram on January 5 asking foT a reply. That action is entirely without precedent in the 'history of my hon. friend's department. The Manitoba Free Press goes on:
Sir Rodmond's illness had not then arrived.
What occurred then? Sir Rodmond Rob-lin became ill, so ill that application was made to the judges for postponement of the trial. The application was granted. The Manitoba Free Press proceeds to say:
When the trial was postponed on account of Sir Rodmond Roblin's illness, the Dominion Government's anxiety immediately abated and five weeks after receiving the Manitoba Government's answer the Minister of Justice "is disposed to think that it is not necessary to recommend any further action with respect to this particular statute."
Sir Rodmond Roblin's trial was coming on in January. My hon. .friend makes out his Order in Council dated December 11, posts it to Winnipeg immediately, and it reaches there on December 16. Not receiving an answer, he wires on January 5: Why havie you not answered? Sir Rodmond Rob-lin becomes ill; the trial is postponed-and my hon. friend's interest in the matter suddenly ceases. Subsequently he receives an answer from the Attorney General of Manitoba. Instead of displaying a continued interest in the matter, he does nothing to prevent the operation of the law; he sends no telegram, he writes not even a letter. But five weeks afterwards he replies that it is not necessary to recommend any further change in that particular statute. And now we have this wonderful piece of legislation in the interests of jurisprudence which my hon. friend dilated upon for two hours this afternoon, and which, according to his view, is so essential in this time of war and stress. The Manitoba Free Press says:
But to save his face he repeats that he proposes, therefore, to introduce into Parliament a measure intended to give effect to his newly and precipitately acquired views of the month of December and to overturn a law of many years' standing.

My hon. friend may complain of the Manitoba Free Press in making these statements several months ago, but neither he nor his colleagues can get away from the synchronism of all these events. The Manitoba Free Press says further:
The threat of disallowance is a barefaced attempt to prostitute the constitutional prerogatives of the Dominion to serve political and personal ends of Robert Rogers and Arthur Meighen-to subvert justice to save personal and political friends-to make the constitution the handmaid and protector of graft and crime. It is a fitting display of the debauchery of the present Government, that it is ready to become the tool of Mr. Rogers in undermining the administration of justice.
That is the statement of the Manitoba Free Press, made some months ago when the events were fresh in the minds of the people of that province. The minister this afternoon did not meet that charge made by the Free Press.
Note the category of events in regard to this matter: The coming on of certain criminal trials, the hastily passed. Order in Council, the .sending of a telegram, the postponement of the trial, the minister's sudden cessation of interest in the. matter, and his holding the Attorney General's answer five weeks before replying. Then, .as the Manitoba Free Press says, to save his face, he introduces this legislation. Is it any wonder that we on this side asked the House this afternoon to divide on the question whether this legislation should be put on the statute book?
Is it any wonder that we call the attention of this House and of the country to the fact that, at this time and under the serious circumstances, this Minister of Justice in this Government turns aside to delay the progress of Parliament in order to pass legislation which had its emanation purely in political conceptions and which would never have been heard of if there had not been criminal trials in Manitoba to be looked after?


Hugh Boulton Morphy: I had an opportunity of saying a word or two on this Bill this afternoon and had I been present in the House when the division was taken, I would have voted against the Bill. I made the statement to-day that I would vote against the Bill unless the minister would satisfy me that it was in the public interest that the Bill should be on the statute-book. I have listened carefully to-night, since eight o'clock, to what the Minister of Justice has had to say, and nothing he has said has satisfied me. The minister said that criticism levelled in this House this afternoon

appeared to be more at himself than at the Bill. Personally, I resent that. I do not think it is fair for a minister to make a matter of that kind personal. When an bon. member, as is his right in this House, rises to speak his mind, I do not look upon that as a .personal matter, nor do I believe that the criticism was so much levelled at the minister as at the contents of the Bill he is putting forward. I see by section 933 of the Criminal Code that this law proposed to be amended has been upon the statute-book for about forty-seven years. I have been patiently waiting to hear something .from the lips of the minister that would justify his tampering with this law. I have heard the criticism of hon. gentlemen opposite and the motives they have imputed. I do not know that they are right; I cannot say that they are wrong. I have not gone into the subject deeply, and I have read nothing about it. But the view I take is entirely different from the view they take; my mind is directed along totally different channels. The minister has gone at great length into what I might term ancient English history to show the origin of the law relating to the powers of the Crown to stand aside in criminal indictments. I did not think that was relevant at all, and I thought it was a bit of a red herring that the minister was drawing across the scent. The point that strikes me is that, assuming that hon. gentlemen opposite are correct in their theory that this law was intended to help political friends in Manitoba, it is quite clearly shown to-day that the need for such a law does not exist, and if that were the motive, the Minister of Justice might reasonably drop his Bill. Since he hangs on with such pertinacity to the pushing through of this Bill, one must seek for another motive, and the motive that I would impute to the Minister of Justice-an Irishman might.be entitled to use the phrase, an unconscious motive-would probably be this. I do not believe that the minister realizes to-night the effect of this Bill. I do not believe he has this Bill in his mind's eye, having relation to the situation that this country presents to-day. With sedition and rebellion threatening us in various quarters of this Dominion, the Minister of Justice brings in a Bill which tends to weaken the power of the Crown to deal with offenders. If there ever was a time in the history of Canada when the power of the Crown should be strengthened, that time is now. I have watched very carefully to find any concrete case of abuse 274J
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given, and I find the minister has absolutely failed to give any set condition which has arisen throughout the length and breadth of Canada which authorizes him to bring forward this Bill. On the eve of a possible crisis in this country, with numerous acts of sedition being committed today, as will be found reported in the Montreal Gazette of this morning, with numerous acts of rebellion threatening to break out, at a time when the power of the Crown should be made supreme, I do not conceive it possible that the Minister of Justice in this Parliament will seriously promote a Bill which intends to sap, enervate, and weaken the powers of the Crown in this country, powers that, as he admits himself, have always been administered fairly. The Crown prosecutors throughout the country have been fair; the judges have-had the weal of the country at heart; they have administered the law impartially, with absolute fairness and rectitude. And, after forty-seven years under the law as it stands giving the Crown the right to compel any number of jurors to stand by, or as we in Ontario say, to stand aside, we find that this Bill is curtailing the power of the Crown by limiting the number of jurors it can stand aside to a maximum of forty-eight. I cannot for the life of me see why the Bill is asked for, by whom it is asked for, or what evil it is intended to cure. If it were the Manitoba situation, that is out of the way. I ask the minister-now that we are in committee, when he can speak as much as he likes, when he is not limited as he. was this afternoon when- we were in the House-to tell me, as a member of this House, what case he wanted to meet, what concrete case gave rise to this Bill and who asked for it. The minister in answer to an hon. gentleman opposite today said: No attorney general of any province of the Dominion asked for this legislation. I waited in vain to hear the minister tell this House of one case which had arisen which constituted an abuse of the statute as it exists. As a professional man I have gloried in the Criminal Code as laid down through the professional genius of the late Sir John Thompson. It has been a model document, a model code of laws, and for myself I feel that the code will exist in strength in proportion to the fewness of the attacks that are made upon it. It is a pity to tamper with the Criminal Code unless good cause is shown. The minister has not shown good cause, and I purpose voting against this Bill at every stage unless I can get some light.


Charles Joseph Doherty: With regard to the
observations of the hon. member for Carle-ton (Mr. Carvell) and the 'hon. memlbeT for Pietou (Mr. Macdonald) I feel I have already .sufficiently dealt with what they have said. With regard to what has been said by the hon. member for North Perth (Mr. Morphy), I regret that I have not 'been able to carry conviction to him that there is good reason for the introduction and passing of this Bill. I notice that the hon. gentleman said that he heard my remarks after eight o'clock. 1 do not assume that if he had heard what I said before six 1 would have convinced him. Let me point out that this is not a modification of the law as it existed throughout Canada. It is not at all difficult for the hon. gentleman to .apprehend the question when he looks into it, 'but I must confess that it is a little difficult for me to make quite clear how it is that the difficulty which I think should .be met is brought about. That difficulty does not result from the disposition of the Criminal Code standing by itself. That disposition of the Criminal Code was enacted, I have no doulbt, in view of an existing condition of affairs whereby in four at least out of the five provinces thebe was an absolutely fixed number 'beyond which the panel could not go. I have understood also, in view of the practice at common law, and which had prevailed, if I .am correctly informed-and hon. gentlemen from other provinces rather bore that out this afternoon-that the panel summoned is not more than 48. The situation that this amendr raent is intended to meet is this: under the Manitoba legislation, and under the legislation of four of the other provinces, while in some there is a number for the panel mentioned, and in others there is no number mentioned, in all those provinces the judge may extend the number of the panel. I have been criticised for saying [DOT]an "indefinite " number. I do not mean to convey by the word " indefinite " more than that the judge might summon any number that in 'his judgment he thought desirable. I was at pains to point out that I had no fault to find with that power being conferred upon the judge, -and that there might in many instances be very substantial reasons which would not only justify but absolutely call for the summoning of a veTy large number of jurors. I think I mentioned one case which came to my knowledge of the holding of a court where 150 jurors were summoned. While I find no fault with that possibility, being, as it is, under the control of the judge, what struck me was that out of that 
possibility, combined with the provisions of the Criminal Code as it stands, might grow this situation. In the provinces where a fixed number had been created, the Crown was limited in its " stand by " to the full number of the panel. In Manitoba, for instance, that would be 48. But in Manitoba, since the amended legislation, the Crown came to have the right to extend the number ot "stand by" to the full extent of the number of jurors that the court might consider advisable to have summoned. The result, as it works out without this amendment, is that in a particular case the Crown would have the right to " stand by " the entire number of jurors who had been summoned, and properly summoned under those circumstances, instead of only 48. Where there was a limited number to a panel the standby was necessarily limited to that number.


William Pugsley: Is it not quite proper to assume that a judge, in making an order for increasing the panel, would always do so with a knowledge that the right of standing aside the jurors existed in the prosecuting officer?


Charles Joseph Doherty: The judgp would do so with a ifu'll knowledge of that, but at the same time there might be reasons quite independent of the existence of that right which might make it desirable or necessary to have a very large number of jurors.


Charles Avila Wilson: The number of cases to be tried in a district has nothing to do with the number of jurors. In a rural district, for instance, a panel of 40 will be summoned, and in Montreal and Quebec a panel of 60. By a provision in the law, if the cases are numerous, another panel can .be summoned, and we sometimes see as many .as three or four panels in the same district.


Charles Joseph Doherty: Certainly. -The hon. gentleman always speaks from his familiarity with the excellent system-I say it with .all respect-that grows out of the legislation of those provinces with a fixed panel. If your first panel is not sufficient in number, you have the remedy by summoning additional panels. But in a trial before the first panel the Crown may stand aside until it comes to the end of the panel, and then it will have to go back and begin over again, and unless it has reasons to give against any man that it then wants to reject it must challenge. Now, if you proceed on a system where there is a fixed number to the panel, the abuse which ap-

pears to me to be possible is protected against, and you would not need this legislation. But it is because in certain of the provinces a panel might be of a very large number that the legislation is needed.


Charles Avila Wilson: Would my hon. friend allow me to make a suggestion? I agree with the remarks made by the hon. member for North Perth (Mr. Morphy), who has convinced me more than any one in this House, without referring to the Manitoba question at all, that we are dealing with a more serious amendment to the Criminal Code than people imagine. I cannot foresee the extent of the effect of this new legislation. The minister says that, as far as the provinces where a limited number of jurors composing a panel is fixed, His Majesty's justice is protected, and the subject is also protected. That being so, it is very easy to infer that there are some provinces which have an unlimited number of jurors. The suggestion I make is that the Minister of Justice should enter into a conference with, or communicate with, the Attorneys General of those provinces which have not improved their law, and ask their opinion, or suggest that they should enact at the first sitting of their legislature an Act to restrict the number of jurors, in order to have uniform legislation, so far as numbers is concerned. The number may vary according to the population or the needs of the centres where those jurors may be called upon to sit. Then, if there is any complaint, a general measure of this kind may be passed.
While I am on my feet, I would like to draw the attention of the minister to one part of the Bill, and ask him how it will work out. Take, for instance, the last words "upon special cause shown." My experience before the criminal courts is this: My hon. friend from Montcalm (Mr. Lafortune) is Crown prosecutor in Montreal. He may simply say to Juror No. 1 in case, "Stand aside," and may go through the whole panel in the same way. If he oversteps the number of forty-and this cannot happen unless we are in a rural district after talesmen have been called-if he "stands aside" the forty on the panel, he will not have exhausted the privilege he has under the law.


Charles Joseph Doherty: This legislation does not say that he shall in all cases have the right to forty-eight, even if the panel is not forty-eight. It limits him as an absolute right to forty-eight. In the case where there are only forty, if the jury is not exhausted by challenge or otherwise, after you have
stood aside the forty then you come back and go over them until you finally get a jury, or challenges have prevented you from getting one. That is when the jury panel is exhausted, and you resort to talesmen. This amendment deals with the right to "stand by" with regard to the panel, and it limits to forty-eight. Of course it does not mean or at least it was -not intended to mean, that where the panel is less than forty-eight the Crown will still have the right to "stand by" forty-eight. Where the panel is only forty, the Crown is restricted to forty "stand bys."
Mr. PUGSLEY. In what districts is the panel sixty?


Charles Joseph Doherty: In the districts of Montreal and Quebec.


William Pugsley: The minister is speaking of the great advantage of a limited panel. Why does he try to- pass a law by which in the province of Quebec, where there is an admirable limited panel, counsel representing the Crown can only cause forty-eight to stand by, leaving twelve over whom he is absolutely powerless unless he can challenge for cause?


Charles Joseph Doherty: I had not quite concluded what I had to say in answer to my hon. friend from Laval (Mr. C. A. Wilson).
I am not wedded to the particular number, forty-eight. When I was making the limitation I had in mind that it should be of general application, and forty-eight was the number which has become law by practice.
I am not suggesting that there was at common law any restricted fixed number, but in practice forty-eight was the usual number. In Manitoba, whose legislation we were dealing with, that was the maximum number in any district. In the districts outside of Winnipeg it was thirty-six, I believe. Taking the two districts I have mentioned in Quebec, I was depriving them of twelve. On the other hand, I was taking a number which I thought was a fair average of the provinces which have fixed numbers. It may be that it would be wiser to keep this restriction down to what is the maximum number in any province having a fixed number, and I would have no objection to considering that suggestion.


Frank Broadstreet Carvell: That simply shows the danger and difficulty of tampering with a well-recognized law. If you apply that proposition you will get the fixed number down to twenty-one in New Brunswick, which would be ridiculous.


Charles Joseph Doherty: As I was making a law of general application, I was trying to take a number that might be-not right up to the maximum or right down to the minimum-but that might fairly be. considered a general number. As I have already stated, it is the principle that seems to me important, and if it be thought that there would be an advantage in saying sixty rather than forty-eight, I would be open to consider the suggestion. The hon. member for Laval has stated that I should take the matter up with the Attorneys General, and suggest to them that they should-in the case of Manitoba, at all events, and any other provinces which may have at any time fixed a number by statute-revert to that number. I would not have any particular objection to doing that, but if I did it I would be undertaking to intervene with the province with regard to the sort of legislation they should enact concerning a matter which they would most strenuously claim to be within their own jurisdiction, and which I am prepared to admit for all practical purposes in regard to this present measure, is their constitutional prerogative.
I had ventured to communicate with the Attorney General for Manitoba, and, whatever we may think about our own respective languages, his reply was not of a kind to indicate that he welcomed or was delighted with my intervention.
Mr. PUG'SLEY: He did not like the bluff.


Charles Joseph Doherty: That was his interpretation possibly. At all events, he did not like my intervention. I think we may all agree that he did not like my intervention, and then we will get peace. There may be a perfectly good reason for the provincial authorities claiming that I should not interfere with the right to say what number of jurors should be summoned. But on one thing, with all respect for the opinions that have been expressed, I think we all agree, and it is that this Parliament has responsibility, whatever action it ought to take, for the criminal procedure. If my view is sound, that there should toe an amendment in our criminal. procedure, it is merely because the action of the provinces in the exercise of their right and ifor their own legitimate purposes, has created a situation-which I do not suppose they had any desire or intention to create-in which, by reason of this unlimited provision of the Criminal Code, abuse to the detriment of the liberty of the subject may become possible.


William Pugsley: It has never done so. The criminal law has given absolute satisfaction.


Charles Joseph Doherty: The hon. gentleman has made that argument before.


William Pugsley: I have tried to drive it home to the minister.


Charles Joseph Doherty: I have tried to meet that argument, and I think I have driven it absolutely home.


William Pugsley: The minister has repeated his argument a l'ittle bit more than once.


Charles Joseph Doherty: I am not finding fault with the hon. gentleman if he thinks it useful. I dare say that one is obliged to repeat what he has already said, tout may I point out that I got on my feet because I was asked to do it. I was not endeavouring to make any undue repetition. My own conception was that possibly we should get as good a result and possibly save some time if, after I had heard the observations that hon. gentlemen were prepared to make, I should try to deal with them all in one speech. But it was considered better that I should reply after my hon. friend from Perth (Mr. Morphy) had spoken, and I was quite willing to acquiesce in that view. But I do not want to claim for myself exemption from having repeated, nor do I intend toy my suggestion to find fault with my hon. friend (Mr. Pugsley) for insisting on his argument. I only want to say that if .my observations do not carry conviction, yet, in so far as I am able to give a satisfactory answer, I have given that answer.


William Pugsley: These things may impress other members of the committee. What the committee, will do does not depend entirely on what the minister says.


Charles Joseph Doherty: The remark was addressed to me. I do not wish to curtail the hon. gentleman's privilege of reiterating any argument that he may think proper. I was trying to complete what I thought ought to be said in answer to my hon. friend from Laval (Mr. C.
10 p.m. A. Wilson). I do frankly think, if the provinces see it that way, that the best way would be for them to fix a unmber for their panels. I quite recognize that there may be conditions in a province of which I know nothing that might make a larger panel desirable from their point of view. The hon. member for

Laval apparently thought that it was desirable that there should be a limited number of challenges. The best way to get the result desired is to deal with the matter by the Criminal Code.
In regard to my hon. friend from North Perth, one thing which struck me very forcibly was his suggestion that this was an unfortunate time, by reasons of conditions that may exist throughout the country, to weaken the powers of the Crown. I submit with deference to those who may not agree with me that it was not in my conception that in doing what I was doing I was weakening the powers of the Crown, because I have not suggested that there should be an absolute limitation on the rights of any one. The Crown has always this recourse open to it. The judge who is sitting there will determine whether there shall be an extension or not, whether the conditions which my hon. friend from Perth pointed out exist in such a way as make it desirable, for the maintenance of order and the enforcement of law, that there should be a wider exercise of the right of " stand by." I should think that the hon. member would agree with me that we may safely trust to the courts to recognize those conditions. The proposed legislation does not end the right to " stand by," it simply lays down a rule for ordinary application open to variation under those circumstances and conditions in which a particular case presents itself affording good reason for an extension. I should be very sorry to think that it would be in anybody's mind that I was actuated in the introduction of this legislation by any motive of weakening the powers of the Crown to enforce the law at the present time. That was very far from my conception when I introduced the Bill. In some respects I think the hon. member will agree with me that some of the conditions that he has in vtiew, if they existed at all at the time of the introduction of this Bill, have perhaps been brought still more closely* to our attention since then. Frankly, I should not apprehend that a provision of this kind would in any way endanger the powers of the Crown with re, gard to the enforcement of the law; my confidence in the judiciary is quite too great for that. I would like to repeat one thing which I said this afternoon and which I think meets a great many of the objections that have been made.


William Pugsley: The judiciary have lately not always given evidence that they are all worthy of confidence.


Charles Joseph Doherty: I do not know why lately more than any other time. We have had evidence of the existence of a difference of opinion between judges from time immemorial, and which will continue, to the advantage of the profession to which my hon. friend and myself belong. We have both had to congratulate ourselves upon the fact that judges came to different conclusions on the same evidence and on the same arguments. I was going to say that what seems to me to have been a conclusive answer to the objections that were lodged is that the same authority which under the provincial law controls the determination of the number of the jury panel, under this law which gives the Crown forty-eight challenges without the intervention of the judge, also controls how much further the Crown should be allowed to go in the exercise of the right of "stand by."


Charles Avila Wilson: I understand that
the " stand aside " number would be 48, and more if the presiding judge at the trial, upon special cause shown, so ordered. Those words, " upon special cause shown ", perplex me. When the Crown says, "stand aside", I would not dare, as an attorney for the defence, ask the Crown prosecutor what his reasons for that request were. 'That would not be proper. What reason would be given by the judge? He will have to give the reasons in public why he gives the Crown prosecutor the power and privilege to order a larger number than 48 to stand by. Would he give those reasons? No. The Crown prosecutor may represent to the court that about 50 of the 100 of the new jurors that are called are Liberals, and this is a Liberal case, and the judge may permit the Crown to extend the "stand asides" to 56 or 58. Or, take the reverse case and suppose they are Conservatives, how can <a 'Crown prosecutor give his reasons to the judge, except in camera, and how can the judge deliver those reasons from the Bench, to authorize the Crown to exercise that privilege in regard to the "stand aside"?


Charles Joseph Doherty: I pointed out this afternoon what I understood would be the position in that regard. I do not understand that it is a question of whether one individual is going to be told to stand by. As the matter stands at the present time, my hon. friend, the member for Montcalm sits in His Majesty's court, where he prosecutes criminals.


Charles Avila Wilson: And where he
shines.
4330 .


Charles Joseph Doherty: And my hon. friend
from Laval sits at the desk and defends the accused, and he likewise shines. Now, my hon. friend from Montcalm has "stood by " forty-eight. He proceeds to ask another man to stand by. The hon. gentleman from Laval, if this law passes, will object. The hon. gentleman from Montcalm says, " I want to show to the court that there are special reasons for my going further." I do not think the hon. gentleman from Montcalm would dream of suggesting that the next dozen jurors were Liberal or that they were Conservative, or that he would give any reason of that sort. But there may be perfectly good reason. I think you might find the existence of certain conditions in the public mind which might constitute a reason. The hon. gentleman no douibt has had occasion to move for a change of venue.


Charles Avila Wilson: The case is not similar.


Charles Joseph Doherty: It is not identical, but the same causes might justify the extension of the right to "stand by." The law. moreover, does not lay down any rule for the judges, but leaves the matter in his discretion to say-upon special cause shown to him, which he thinks makes it desirable for the good administration of justice-that the right of "stand by" should be extended. Very cognent arguments have been put forward here, and instances given of cases where the "stand bys" should go beyond 48. These same arguments would be put before the court, and the conditions outlined in suggested cases might possibly exist, and the court would determine, in the exercise of its judgment and discretion, whether that was sufficient cause for the extension of the right to "stand by." I do not quite grasp why the hon. gentleman apprehends difficulty in that regard. There are many similar matters of procedure, where the judge is left a discretion as to the application of an absolute rule or its extension, and I do not think we need apprehend that any judge would look upon reasons such as have been suggested as applicable in any case I can conceive.


Daniel Duncan McKenzie: I regret very much that the Minister of Justice should suppose we had no purpose in discussing this Bill but to find personal fault with himself. I am sure nothing could be further from my own mind than to give direct personal offence to the Minister of Justice. But the hon. gentleman knows that one's conduct and
[Mr. C. A. Wilson. 1
acts can well be criticised without any personal offence being intended. I may be promoting a certain line of religious belief that would be absolutely objectionable to the hon. Minister of Justice, and which he could abuse and tear to tatters and characterise as absolute heresy, and at the same time have no intention of saying anything against me. In like manner, it is quite open to us, I think, to criticise this Bill, and criticise it particularly because of its genesis, and the conditions of the country, and particularly the conditions in Manitoba, where this trouble originated. In this House it is well, perhaps, that we should be keen on the scent of anything that may savour of trouble, or savour of any undue exercise of the power of the minister or of the Government, particularly in the administration of justice; and it is better that we should err by going too keenly after matters of that kind than that we should sleep at the switch and allow matters to go on which would tend to abuses and lead people to believe that in the administration of justice, as well as other things, there was* pull, and that the man who got clear was the man who had the big pull while the poor man, who had few friends at court, had no chance to escape. It would he a deplorable condition of things if that idea got abroad, and it is perhaps better that fault should be found with the Minister of Justice when he does not deserve it than that too * much latitude should be given, in the other direction. I have in my hand copies of a series of telegrams proven in court, and I think when the Minister of Justice hears them he will be perfectly satisfied that we, on this side of the House, have reason to believe that influences were being exercised from Manitoba from the very inception of this matter out of which these troubles arose, which were not proper and should not have been exercised. I have here a copy of a telegram which was proven in court, which I am satisfied is a correct copy, dated Winnipeg, 1st April, 1915, addressed to my hon. friend's colleague, hon. Robert Rogers, at Ottawa, fn which it is said:
Governor Cameron in collusion with Grits here. Has under his authority directed Government to appoint Royal Commission to inquire into Kelly contracts. Important that he should accept Government's nominee for the Commission. There is danger that he may refuse. If he should, it will precipitate crisis. Your interest in Dominion election at stake. Better protect your position and see that Cameron follows advice of Government. He is broke, as you know. I think this is very important and should he attended to at once.

No charge has been made against minister personally. He should have ignored the position it he wanted. Hisi actions are very suspicious.
R. M. Simpson.
Mr. Simpson is a man who stood close to the minister. I wish to call the minister's attention to very extraordinary language in thi6 telegram, which, I think, is enough to arouse suspicion anywhere. The Minister of Public Works is told that the Governor is broke. What is meant by that? That means that he is poor; that he has no money; that he can be approached with a bribe. It means: Bring money with you, and we can fix the whole thing. That is what the word means; I have nevieT heard it used in any other connection. There is another telegram here to Hon. Robert Rogers, bearing the same date, and eent by Mr. G. R. Coldwell, Minister of the Manitoba Government of that day. It is as follows:
The Governor is evidently moving under instructions from the Grits. He is attempting to force our hand. You know his position. This thing means more to you than appears on the surface. Would advise you to take measures to protect. His removal promptly should be considered.
A Manitoba minister advises a minister of the Crown in the Government of my right hon. friend to take steps to remove this Governor and get him out of the way. There is another telegram from Mr. Rogers, replying to Dr. R. M. Simpson. It is marked confidential, and' is a6 follows:
Thanks for message. Am acting strongly in the matter.
Strongly, I suppose, to get the Governor removed.
Governor has absolutely no right to take matter into his own hands. His plain duty is to follow the advice of his advisers.
R. Rogers.
Here is another telegram from Sir Rod-mond Roblin to Hon. Robert Rogers, dated April 7, and marked confidential:
Governor wrote me officially this morning saying after fuller consideration that work should be stopped. Commission should be appointed to-day before my leaving and that Mather, Galt and Macdonald be commission. Saw him immediately; after long interview he had agreed that I could go east but that must return and appoint commission not later than Wednesday noon, fourteenth. He strongly objects to Haggart. Leaving to-night for Toronto.
As I understand it, Haggard is a judge of the Supreme Court, and it was in connection with his election that these moneys w-ere used. Fault is found with the Governor because he does not appoint Haggart as one of the commissioners to try charges against his own election fund.
There is another telegram to Hon. Robert Rogers, dated April 9 and marked confidential. It is as follows:
Ministers here inform me that Governor acting in unfair and partisan manner respecting nominees for commission and its appointment by next Wednesday. Coldwell believes that unless matters are arranged satisfactorily the ultimate result will have far-reaching effects in Dominion election and thinks you should be here before Wednesday.
This is signed by R. C. A. Manning, whose name figured in some real estate matters.
There is another telegram dated at Winnipeg, April 13, 1915. It is sent by ex-Premier Sir Rodmoind Roblin to Hon. Robert Rogers, and is as follows:
Conditions here demand your immediate presence if you are to accomplish what is desired. Imperative you leave to-night. Answer.


Mr.   CHAIRMAN@: Order. Are these telegrams relevant to the subject under discussion?


Peter H. McKenzie: Certainly. They are relevant to the question under discussion, as an objection to the introduction of this Bill.


John Allister Currie: There is only one way to question the ruling of the Chair.


Daniel Duncan McKenzie: I was not ruled out of order. I would advise my hon. friend to keep his encyclopedia closed for a moment. He is not the whole earth, the heavens above, the waters beneath, and everything else that God created. Let him allow other people to mind their own business.


Joseph Hormisdas Rainville: Will the hon. gentleman show that the reading of these telegrams is relevant to the question under consideration?


Daniel Duncan McKenzie: I have one more telegram to read, and then I will show tas far as I can that they are relevant.
Mr. CURRilE: I will have to ask you, Mr. Chairman, for a ruling. We have sat here during the whole sitting listening to the member foT North Cape Breton occupy the time of the committee, spending thousands of dollars of the people's money, repeating old yarns and old statements. I ask if the hon. member is in order in reading those telegrams?


Daniel Duncan McKenzie: The point is that these documents are too hot for my hon. friend.

There is no 'bam behind which he can get now.


Joseph Hormisdas Rainville: Can the hon. member show that the reading of these telegrams is relevant to the matter that we are now considering? The rules are quite clear that discussion must be relevant.


John Allister Currie: I rise to a point of order. I ask that the rules of the House be observed. The rules of decorum require that when the Chairman rises the hon. gentleman who has the floor shall take his seat. I point out to you, Mr. Chairman, that the member for North Cape Breton has not obeyed that rule, and never does.


Peter H. McKenzie: I never saw the member for North Simeoe right in anything; perhaps he is right now. He should remember the castigation the Prime Minister gave him on one occasion in connection with a ruling of the Chair. I understand you to intimate, Mr. Chairman, that you were open to conviction if I should' show you that my remarks were relevant to the matter under discussion. We are showing that this legislation is improper; that it was conceived in sin and brought forth in iniquity; that it should never have been introduced; that it had its origin in an attempt to defeat the ends of justice in Manitoba.
I am showing by these telegrams that sinister motives and influences were, from the very inception of this trouble, being brought to bear upon this Government. For that reason I am reading these telegrams proving, with other matters, that this thing had its origin in an idea of preventing those men from being properly tried; that the whole thing from the beginning was a conspiracy, and that influence was brought to bear upon the Government to interfere, some of them saying: Dismiss the Governor; others saying: Buy the governor; give him money. I have another telegram that will show that further sinister motives were influential. As I have been allowed to read those telegrams, I might be allowed to finish. I am, Sir, however, subject to your ruling. We have been discussing all the afternoon the Tact /that there were motives behind this legislation. I am going to the very beginning and root of these things and showing that those telegrams prove what I say.
Mr. CROTHER8: I submit that the whole argument so far put forward by the hon. member for North Cape Breton (Mr. McKenzie) is out of order. We have had

the second reading of this Bill when the principal of it was determined upon. We are now in committee. It is not open to any member of this committee to discuss the principle of this Bill now. My hon. friend has not said a word with regard to any of the details of the Bill. We are in committee to discuss the details, not the principle, of the Bill.


Mr. GRAHAM:: By that suggestion of my hon. friend regarding the point of order, he establishes an altogether new rule which will not be found in the Rules of the House. It has been the custom in this House, ever since I became a member of it, to discuss in committee the principle of a Bill as well as the details. Time and again, at the request of the Government, the second reading of a Bill has been allowed, and all the discussion has taken place in committee.


Thomas Wilson Crothers: That is not so in this case.


William Pugsley: There is another very good reason, too, namely, that the Minister of Justice went fully into the reasons for this Bill, went into the motives which had actuated him when introducing it, referred to the situation of affairs in Manitoba and discussed the whole matter quite fully.


Thomas Wilson Crothers: That was only in reply.


William Pugsley: The minister was allowed to do that, and it is surely quite open to my hon. friend to deal with the same matter.


Charles Joseph Doherty: The hon. member is
confounding what I said on the second reading of the Bill, with what I said in committee. When I spoke on this Bill, I was speaking in reply on the motion for the second reading of the Bill, and I may point out that I made the suggestion, when some little discussion arose, when there was some little flutter about the question whether I had had an opportunity to explain or not, that perhaps we might get out of that difficulty if we went into committee, and then I could give the explanations which were thought desirable and which it was thought I had with more or less sinister purpose refrained from making. My suggestion was quite rejected, and it was insisted upon that we were on the second reading of the Bill, and that, therefore, I could say nothing but my reply. My suggestion that we -should throw the whole matter open in committee was absolutely rejected, and we proceeded

accordingly, I do not, therefore, think there is anything to be made on the point of order out of what I said which was upon the second reading, and/1 do not think there is any reason to depart from what I understand to be the rule, namely, that we are now dealing with the details of the Bill, because hon. gentlemen opposite insisted that we should deal completely with the principle of the Bill on the second reading.


William Pugsley: Did not the minister
in committee speak of the purity of his motives?


Charles Joseph Doherty: That was not in committee.


William Pugsley: Did not the minister
in committee say that he was proud of the Bill?


Charles Joseph Doherty: No.


William Pugsley: I think the minister has forgotten.


Charles Joseph Doherty: Ail that burst of eloquence was for the benefit of the House. Since we have become a committee, I think even my hon. friend from Carleton (Mr. Carvell) will do me the justice of saying that I have been very reserved in my observations.


Frank Broadstreet Carvell: A great change has
come over the dreams of the minister since we came into committee.


Joseph Hormisdas Rainville: Under the rules of this House, the details of a Bill are discussed in committee. Subsection 5 of rule 13 says:
*Speeches in Committee of the Whole must be strictly relevant to the item or clause under consideration.
The hon. member for North Cape Breton (Mr. McKenzie) read many telegrams not at all connected with the section, and, on a section, he was discussing supposed motives in regard to the Bill. Under these circumstances, I must decide that the hon. member was out of order.


Daniel Duncan McKenzie: I will abide by your ruling, Sir, and I will not read these telegrams, but I have not finished my remarks.


John Allister Currie: As you have ruled in that way, I think, Sir, you should rule that those telegrams be struck out of Hansard. I would ask for a ruling on that point.


Daniel Duncan McKenzie: This purist from North Simcoe (Mr. Currie) does not want the truth to be known.


Joseph Hormisdas Rainville: It is for the committee to decide.


John Allister Currie: Then put it to the committee.


Daniel Duncan McKenzie: All that I was pointing out was that notwithstanding the fact that the shoe pinches the hon. member for North Simcoe, who seems to be the "chucker-out" of the other side when any occasion arises-


John Allister Currie: I rise to a point of order. The hon. member has made a reference to me which I think is unparliamentary and altogether uncalled for. Hon. members on this side who are opposed to him have been accustomed1 to listening to his abuse in this House and taking it in silence, but I think it is time there should be a limit set to the manner in which he abuses hon. gentlemen in violation of the rules of the House.


Joseph Hormisdas Rainville: I would ask the hon. member for North Cape Breton (Mr. McKenzie) to speak relevantly to the section under discussion.


Daniel Duncan McKenzie: Chucker-out is perhaps not relevant. I am satisfied to take that position.


John Allister Currie: What is a chucker-out?


Daniel Duncan McKenzie: I am absolutely in the hands of the Chairman, and I will abide by his ruling. What I was pointing out, and what I could have pointed out without the use of any documents at all, was that improper influences were brought to hear upon this Government in connection with the Manitoba scandals from their very inception, and1 I have proved that from those telegrams. There is evidence under my hand, and there is, I am sure, evidence in the possession of the Government which will show that after Judge Macdonald-


Thomas Wilson Crothers: I rise to a point of order. Are those remarks relevant to the section under consideration?


George Perry Graham: Is not the Bill embodied in one section?


Thomas Wilson Crothers: There is only one section.


Joseph Hormisdas Rainville: I do not want to be always on my feet to call on an hon. member /to speak relevantly, but I think if he would come back to the section itself and discuss its merits, that would be better.


Daniel Duncan McKenzie: I am saying that this section should never have been introduced, and I repeat what I said before, that it has been conceived in sin and brought forth

in iniquity, and I have been attempting to show its genesis, and1 now we are down to its revelation.
The Minister of Justice would not have thought of this legislation were it not for his confederates from Manitoba, not one of whom is here to defend him to-night when they get him into trouble. The motives that gave rise to those telegrams are the same motives and purposes which brought about this legislation. Those telegrams are just as much part of the record as the Orders in Council that were read and put in evidence; they were put in without a word of comment. I submit that the telegrams are coming down very close to the Government when they are directed to such an important member as the Minister of Public Works. He promised that he would be active in this matter and do everything he could to protect the men who were so desperately scared that they wanted the Prime Minister to advise the removal of the Governor, and they also purposed to buy Judge Macdonald by giving a commission to his son. That is contained in those telegrams, That is the character of the influence that was brought to bear upon this Government, when finally, after everything else failed, they introduced this legislation to block the trial. That is my criticism of this Bill.


William Pugsley: My hon. friend the Minister of Justice questioned a statement which I made this afternoon that the Crown prosecutor, after he asks jurors to stand by, can then only challenge for cause,- cannot challenge peremptorily.


Charles Joseph Doherty: He has his four peremptory challenges.


William Pugsley: My statement was that he must exercise his peremptory challenges first. If he orders jurors to stand by after that, he can only challenge for cause. My hon. friend questioned that, and I should like to refer him to section 928 of the Criminal Code, which I think will convince him I was right. My statement was in accordance with what I always understood the law to be; that was my recollection of the way the law was administered when I happened to be in charge of the administration of the criminal law in my own province. Section 928 says:
If, by challenges and directions to stand by, the panel is exhausted without leaving a sufficient number to form a jury, those who have been directed to stand by shall be again called in the order in which they were drawn, and shall be sworn, unless challenged by the accused, or unless the prosecutor challenges them

and shows cause why they should not be sworn.
So I think it is absolutely clear that the counsel for the Crown, if he desires to exercise the right of peremptory challenge, must do so before he orders the jurors to stand by.
I think that the views which have been presented by my hon. friend from North Perth (Mr. Morphy) are views which ought to have very great weight with the Minister of Justice, and if nothing else will prevail upon him, they ought to have the effect of inducing him to withdraw the Bill from the consideration of the committee. There is no more loyal supporter of the Government in this House than that hon. gentleman. He has had a long experience in legal matters, and I have no doubt much experience in the administration of the criminal law. As a Government supporter, bound as he would be to the Government by just the same ties that bind us on this side of the House to our leader, it would be with great reluctance that he would present a different view. I take it that my hon. friend, disposed as he would be to view favourably government measures, has felt constrained to express his opinion against this Bill and to state that he will vote against it at every stage on which it may be presented for consideration. My hon. friend has presented the view that we may have prosecutions of more than usual importance in this country. That is just possible; I do not know whether it may be so or not. But I do say that every man who wishes to see the criminal law of this country properly administered should take the position of my hon. friend from North Perth and vote against this Bill. It is a Bill which is calculated to weaken and to paralyse the administration of justice in important cases in which public feeling is roused, and I say that from a long experience extending over 35 or 40 years in administering the criminal laws, and in prosecuting for the greater part of that time. 1 know of many, many cases where I have had 75 to 100 jurymen summoned because of the widespread feeling that existed in the community, and if I had been limited in the right to "stand-by" the jurors to 48, as this Bill proposes, leaving 50 jurors whom I would have not right to "stand-by," no right to challenge peremptorily, whom I could only challenge for cause, and if, as is provided by this Bill, I had had to call witnesses or make affidavits showing why I should be allowed to "stand-by" additional

jurors, my efforts in administering the law would, for reasons which any lawyer will understand, have been very much hampered, and, indeed, almost paralysed.
Is it wise to pass a law of this kind at any time? My ihon. friend from North Perth refers to the present time, but at any time, in the interests of society, in the interests of good government, in the interests of the proper administration of the criminal law, is it wise to make an amendment which will weaken the administration of justice, and give greater opportunities for the escape of criminals? Is it wise to do that without the slightest evidence being presented to this committee that any evils have resulted from the present law, or that there has been any dissatisfaction on the part of the public with the way in which the law has been administered?
Reference has been made to our judiciary.
I take pride, as other hon. gentlemen do, in the fact that with few exceptions here and there, this country has reason to be prcud of its judiciary. But I think the same may be said of those from whom the judiciary of this country is constituted; that is, those who are practising at the Bar, and particularly those who have been charged, as (Attorney "Generals, (Solicitor Generals and King's Counsel, with the prosecution of criminals and with discharging the most important functions in connection with the administration of the criminal law. Speaking generally, just as generally as one can speak, with regard to the judiciary of this country, they have performed their duties honestly and well, and I do not think they have ever shown-at .all events, not to my knowledge-any desire but to do what is absolutely fair as between the Crown and those who have been .accused of violating the law. But do not weaken their hands. We know how desperately an accused will fight for his liberty or his life.
We know how desperately his counsel will fight for him, and no blame can be attached to him for doing so. It requires the greatest judgment, the greatest care, and the most minute inquiry with reference to the personnel of a jury to get a fair and impartial jury, prepared honestly to discharge its duty and to do justice as between the Crown and the prisoner at the Bar. The difficulties surrounding the work of Crown counsel are very great. Forty or fifty years ago Parliament passed this law, giving to those who are indicted for murder the right to challenge summarily and peremptorily twenty ot the jurors, and giving them an
unlimited right to challenge for cause; limiting the right of the Crown to challenge peremptorily only four members of the jury, and providing that unless a jury, consisting of twelve members, were unanimous in their verdict, there could be no conviction, and still leaving upon the statute book that right of the Crown counsel to cause the jurors to stand by. I say we should hesitate before we weaken the law as it has stood there all those years, ever since this country has been a confederation, and particularly without any evidence or any suggestion that any evils have existed in connection with the administration of that law.
I appeal to my hon. friend, as one who knows something of the administration of the criminal'law and the difficulties which surround it, and the difficulties which stand in the way of securing convictions, to withdraw this Bill. He is bringing it before the House without any complaint from the Attorneys General of the provinces of Canada, who are charged with the administration of the criminal law, and whose duty it is to see that criminals are punished. Without consulting them or asking their advice, the Minister of Justice, who has nothing to do with the administration of the criminal law except so far as recommending the passage of statutes in this Parliament is1 concerned, is seeking to make this radical change, this change of enormous importance in the constitution of the courts which are to try criminals, and this without seeing that there has ever been the slightest evil or cause for dissatisfaction. I do not think he ought to do it. I do not think he should press this Bill. My view is that he should simply ask that progress be reported, and allow the matter to pass over in that way.


Mr. D. A. LAFORTUNE (Montcalm) (translation):: Mr. Chairman, I have been listening with a great deal of (attention to all that has been said on both sides and I absolutely concur 'in the statement which has been made, namely, that the amendment to the Act, now before you, is a most important one.	[DOT]
The administration of justice, in the province of Quebec, where I have had the honour of being the Crown prosecutor for almost twelve years past, has not taken cognizance of any error; nothing, absolutely nothing has happened, nor has been done that might justify the hon. Minister of Justice for introducing this Act.
I have practised at the BaT, before the assizes, several years before I was appointed Crown prosecutor, I have heard the most


Charles Joseph Doherty: Will the hon. member allow me a question?


David Arthur Lafortune: Certainly.


Charles Joseph Doherty: Would this objection be met if, in this Bill, we substituted .sixty jurors to forty-eight? This provision would leave the province of Quebec in her present position. The difficulty we are trying to settle is the one offered in eases where there is no limit as to the number of jurors fixed by the law. As I have already stated to the hon. member for Laval (Mr. Wilson), if good reasons can be offered for justifying such a change I will not hesitate and adopt the suggestion to change to sixty the number of forty-eight. I do not know if such a provision would meet the objections of my hon. friend, but, at all events, that number of sixty jurors would leave the province of Quebec in her present condition.


David Arthur Lafortune: In reply to the hon. Minister of Justice, I may tell hiim that the law, such as it is in our statutes, works perfectly, and I have never heard of any complaint, or grievance, in a word, of anything reprehensible against- it. That law ordains that -the sheriff of Montreal shall summon sixty jurors, of whom thirty are English-speaking and thirty French-speaking. We, therefore, summon these sixty jurors, and to anyone of them, as they are being called, the Crown has the right to say: stand aside, stay where yon are, you Will not concur in the formation of the jury, and -that, without giving any reasons. As far as the accused is concerned, the law determines how many jurymen he has the right to challenge; he can even challenge them all for cause; for instance, if he has grievances against them, sufficient reasons to. eliminate them from the jury, such as questions of kinship, of personal interest or others. If the judge decides that the

reasons offered are not sufficient, the accused has the right to recuse only a small number of the jurymen.
I may tell the hon. Minister of Justice that if he knew these matters ias I do and df he wants full justice meted to all, he should put aside the smallest number of jurymen possible. In my long experience at the Bar, we have very seildom put aside more than three or four jurors, when the jury was being formed, for when the accused perceives that the Crown Attorney asks the elimination of a large number of the jurymen, he feels uneasy and believes the Crown is prejudiced against him, that it is ill inclined towards him. If the accused is in such dispositions, he wiill try and entangle the formation of the jury and may prevent full justice being rendered. Now, moreover, in the application of this law, it happens but very seldom that the Crown avails itself of its privilege of putting aside two or three jurors whilst the defence examines the composition of the jury and for reason of rivalries of lawsuits, of disputes or for personal reasons, generally exhausts the right it is granted by the law.
Why fake away from the Crown the power it hais to stand aside the number of jurors it may see tit?
As so well expressed by the hon. member for Laval, as well as 'by the hon. member for Perth (Mr. Morphy), that would likely tend to lessen the Crown's power, and it is desirable that we should have, as representatives of His Majesty, absolute' powers. It is important that we should be given the power to summon the jury to the best of our judgment and knowledge, and also to stand aside, such and such of these jurors for any reason whatever, in order to give full justice to the accused, and here I may remind the hon. Minister of Justice that he must not forget that, as representatives of the Attorney General, we are, so to say, the standing justice and just as interested that justice be meted out as the sitting justice, himself could be, and the Crown prosecutor who would deliberately assume to exhaust the list, to exhaust the panel of jurymen, would not be worthy of his high office.
It seems to me that we should not presume that those who are called upon to assist in the fair administration of justice can take it upon themselves to do unfair acts, acts that would be regrettable or reprovable. That cannot be supposed. Should such a thing haopen, as the hon. Minister of Justice has stated, the Crown Attorneys are human, they imay err, just as jhdges may err, as magistrates may make mistakes; but
there would be something most regrettable were this Bill to become law.
As stated by the hon. member for Laval, when referring to the Bill now before the House:
"Unless the judge presiding at the trial, upon special cause shown, so order."
I doubt whether it would be wise to give the judge presiding at the trial, a discretion which the law does not allow him to-day. As I have just said, Mr. Chairman, Crown attorneys are human, they may err; judges also are human and are also liable to be mistaken. The Crown attorneys are not more interested than the judges themselves. We are not paid to win cases; the Crown attorneys are paid by the State a fixed salary, and we have absolutely no interest to do anything which might not be of a nature to render justice to the accused. It is all to the contrary, and I (believe that the members of the Bar now (before me will do me that justice and render due justice to those who have preceded me:	Hon. Justice Laifontaine, Hon. Justice Guerin, Col. Hibbard and a great many others who have filled the office of Crown prosecutor.
I think I am not going too far when I say that these gentlemen were all honourable men about whose conduct we never heard any complaint I say then, that to give discretion to the presiding judge is a dangerous thing from the view point of the administration of justice as well as from the view point of the accused.
I should like to call the attention of the hon. Minister of Justice to the fact that if an investigation were to take place, that would necessarily cause delays, and would not permit of such quick disposal of cases as is essential in the criminal courts. When there are 150 cases on the roll, for a single term, if the Crown has to show cause in each case why more than forty-eight jurors may be asked to stand aside, if we have to investigate, it will require twice as much time to exhaust the pamell.
When all the jurors have been summoned, has not the accused the right to say: " I leave it to the representative of the Crown; I leave it to his righteousness, Ito his honesty, to his responsibility, to his long experience and I am sure that he will do nothing, absolutely nothing to prejudice my case"?
A great deal has been said about things that took place in Manitoba. I will not speak about that, 'because I know nothing of the facts. I have but a very imperfect and incidental knowledge of the case. But in the province of Quebec, ever since I

have been a practising member of .the Bar, I have seen many cases conducted by the most distinguished members of the Montreal Bar and perhaps of the Dominion, and it has never entered the mind of any one that a measure as the one now under discussion could be brought down.
The jurors, Mr. Chairman, are summoned for twdlve days. Sixty jurors are summoned and must stay at the disposal of the Crown during twelve days. If the delay is boo short; if we see that it will not be possible to get through with .all the cases in the twelve days, the .sheriff is instructed to summon a new panel-two and even three if necessary-and sixty jurors are summoned each time-a panel is composed of sixty jurors.
I submit, Mr. Chairman, that the Minister of Justice has given no good reason to justify the .adoption of this Bill and I repeat the sayiing that I once heard in this House: Let well enough alone.
If 'the minister had .stated a case or cases in order to establish the necessity of such a Bill, I would be the first man to. approve of it and to say to my hon. friend:	" You
are quite right." If exceptional cases had been reported, if it had been established that some representatives of the Crown had taken undue advantage of their position, I would be the first man to approve of the change, but as the minister does not show cause, since he states no facts, and since he gives no good reason, I say again:	" Let
well enough alone."
Bill reported.
On the motion of Sir Bobert Borden, House adjourned at 11.20.
Friday, August 10, 1917.