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House of Commons, 9 June 1869, Canadian Confederation with Newfoundland

HOUSE OF COMMONS

Wednesday, June 9, 1869

The Speaker took the chair at 3 o'clock.

L'ISLET ELECTION

Mr. M. C. Cameron presented the final report of the L'Islet Election Committee, declaiming that the election was null and void, but that the defence of the sitting member, Mr. Pouliot, was not frivilous or vexatious. The decision was based on the ground that the returning officer had disfranchised certain parishes by not granting them a poll, and was arrived at by a majority of 3 to 2. Yeas, Messrs D. A. Macdonald, Connell and Cameron. Nays, Messrs. Caron and Cimon.

YORK ROADS

Hon. Mr. Langevin brought down a return to the address for all correspondence etc., respecting the claims of the Government against James Beaty Esq. and the York Roads Company.

THE NORTH WEST

Hon. Mr. Rose gave notice of resolutions to authorize the Government to raise a loan of £300,000 sterling on the Imperial guarantee to pay the Hudson's Bay Company, and a further loan not exceeding £300,000 sterling, for the purpose of opening up communication with the North West Territory, organizing a government therein, and promoting its settlement.

INSOLVENCY LAWS

Sir John A. Macdonald moved the House into Committee of the Whole on the Act respecting Insolvency. Mr. Harrison in the Chair.
Hon. Mr. Abbott moved the first clause of the Bill, which provided that the Act should apply to all persons, traders as well as non- traders, except that in the case of non-traders there should be no voluntary assignment under the Act.
Mr. Mackenzie said he still retained the convictions respecting this measure which he had already expressed. He would not again take up the time of the House, but hoped that the changes mad-e in the Bill would be explained clause by clause.
676 COMMONS DEBATES June 9, 1869
Hon. Mr. Holton suggested that the member for Argenteuil might in this first clause make a general statement of the changes.
Hon. Mr. Abbott replied that the changes were too numerous to admit of this course. Besides he did not think there were in the Bill changes of much importance as to principles. The changes were chiefly in the direction of simplifying the procedure, shortening delays and giving increased power in many respects to the creditors.
Mr. Ross (Prince Edward) moved that the word non-trader in the 1st clause be struck out.
Mr. Ferguson asked if non-traders were not to be allowed to take the benefit of the Act.
Hon. Mr. Abbott replied that they might be put under its operation by their creditors, but could not do so at their own option.
Mr. Ferguson doubted very much whether this law was wanted at all or not, and if an opportunity were given it for a six months hoist, or repealing the whole law, he would be found in that direction.
Mr. Geoffrion thought that that the non- trader should come under the Act as did the trader, and said that such a law ought to be made applicable to Lower Canada.
Sir George E. Cartier was not in favor of an extension of the provisions of the Bill to non- traders in Quebec. It was unnecessary, as the distribution of the estate of non-traders was provided for by the Common Law of that Province.
Hon. Mr. Irvine also argued that there was no necessity for this law in Quebec, that the regular trader, who from his position was largely exposed. to risk and might fail occasionally, should have means provided for relieving him of his liabilities when unable to meet them. It was only fair to the creditor to afiord him an easy, simple means of liquidating the estate, but this would not apply to the non-trader. If he fell into debt it was not by misfortune but by extravagance. Hence there was no reason for exceptional legislation in his favour and as to his creditors, if they trusted him beyond his means they only got what they deserved. For these reasons he would vote against this clause of the Bill, and he did so the more readily as in Quebec the law provides for the distribution of the assets of a non-trader who was unable to pay his debts.
Hon. Mr. Holton said that the hon. gentleman who had just taken his seat had fallen into the fallacy of assuming that this Bill, and insolvent laws generally, were contrived in the interest of the debtor class. Now the whole scope of the present measure was to enable the creditors to distribute the estate on some equitable principle. Incidentally, and only incidentally, the debtor class might benefit by getting the discharge from liability. That was his view of the scope and purport of the law. Coming to the application of the measure to non-traders, he would say that the creditors of non-trades had an equal interest with creditors of traders in getting at the effects and securing a proper distribution of the estate of an insolvent debtor. But the Minister of Militia argued that the power asked for the retaining of non-traders was possessed already in Quebec. He (Mr. Holton) thought it very objectionable to make an exception of a particular Province in any legislation competent for this Parliament to enact; and for his part, while he desired to see the principle of this Bill applied to non-traders, sooner than see an exception made by any Province in the matter, he would infinitely rather that non traders should be excluded from the operation of the Act. The object of the Dominion Parliament should be to assimilate the laws and not legislate exceptionally.
Mr. Bodwell said that the question arose who were traders and who non-traders. If every man was a trader, who bought and sold, he would like to know what individual in the community was not a trader. If a man trading in a particular line of business was unfortunate, and allowed his business to go into the Insolvent Court, why should not a trader in any other line of business have an equal right? Many were engaged in produce dealings, and throughout the West a farmer could not be found who did not deal more or less outside of the regular business. Were no remedies to be provided for these classes in the event of a failure.
Mr. Currier—If a farmer does business in that way he is a trader. If he not only sold his own stuff, but buys and sells, he is practically a trader.
Hon. Mr. Holton—And if a lawyer fails?
678 COMMONS DEBATES June 9, 1869
Mr. Currier—If a lawyer is so improvident as to buy property which he has no means of paying for, he ought to be punished. (Laughter).
Mr. Bodwell still saw great difficulty in drawing a distinction between traders and non-traders. Scarcely a man was engaged in manufacturing but bought and sold, nor did he know an instance of a man engaged in the learned professions who did not speculate more or less. Desiring to see the law extended to all classes of the community, he would move in amendment to the amendment that the latter portion of the clause "except that in the case of non-traders there shall be no voluntary assignment under this Act," be struck out.
Mr. Ross (Dundas)—If it is desirable that there should be an Insolvency Law, he could not see why it should be made exceptional in its operation. He was prepared to vote to do away with the law altogether; but, if we had such a law, one class of persons who got involved ought to have the same opportunity of getting relieved as another. The amendment, however, of the member for South Oxford did not meet his views. He would rather leave the law as it was.
Hon. Mr. Smith did not understand how it was possible to discriminate between traders and non-traders. He would let the operation of the law be uniform and applicable to all alike.
Mr. Dufresne said an Insolvency Law was exceptional. Every principle of law and justice required a man to pay his debts; but experience showed that certain exceptions might be desirable. In Lower Canada it was considered that a trader acted as an agent between other parties, and that circumstances which he could not control might prevent his meeting his obligations. Traders occupied an exceptional position, and they required such a law as this, but the general principle was that every man should pay what he owes.
Mr. Mackenzie—No divorce between a man and his debts (laughter).
Mr. Dufresne—Yes, that is the principle. They were willing, therefore, to allow an exception in that case; but not to extend it to others. If honourable gentlemen from other sections wished the law to apply to non- traders, they might make that provision with reference to their own sections; but he hoped they would not force it on Lower Canada.
Hon. Mr. Wood said that in Ontario the working of the Insolvency Act had not found much favour with any large class of the community. A large portion of the merchants, farmers, &c., would be glad to see the Insolvency Law done away with altogether. The working of the law had proved most unsatisfactory. Not one estate in a dozen had paid 10 cents on the dollar after meeting expenses. Many had paid nothing. He believed there were cases of persons who had deliberately contracted debts with the intention of getting rid of them under this law. It was said it was impossible to distinguish between traders and non-traders. If the distinction was not defined in the Act, it had been clearly defined by many decisions in Courts. He thought it unadvisable to change the first clause, which, while allowing persons, whether traders or non-traders, to take advantage of the Act, did not allow non-traders to make a voluntary assignment.
Hon. Mr. Dunkin thought the clause could not stand as it was. No Court of law had any difficulty in deciding who were traders and who were not. The true principle in this matter was that of the amendment, not the amendment to the amendment. What they wanted to deal with here, especially with their limited jurisdiction, was the insolvency of the trading class. If this Parliament was to impose a uniform rule in a matter of this kind on all the Provinces, in spite of the objections of any particular Province, what was the value of the jurisdiction assigned to the Provincial Legislatures with regard to property and civil rights?
Hon. Mr. Smith—Does the hon. gentleman mean that under the Union Act this Parliament has not the power to deal with non- traders?
Hon. Mr. Dunkin said he did not go so far as that, but he was opposed to this Parliament straining its jurisdiction too far, and that in a matter of this kind, it should not force on Quebec what it did not ask and what it did not like.
Mr. Jones, (Leeds), had listened patiently, but with pain to the remarks of the member for Brome. We either had control over the matter of insolvency or we had not. If we had, what force was there in his arguments, and why should he attempt to get up a feeling between Quebec and the other Provinces? He had been surprised to hear a member of the Government of Quebec arguing in a circle and contradicting himself. He (Mr. Jones) 680 COMMONS DEBATES June 9, 1869 believed that equal rights should be extended to all classes of the community, whether traders or non-traders, and that any one unable to meet his liabilities and who was simply unfortunate, should be allowed to take advantage of the Act.
Mr. Blake thought there could be no doubt as to the power of this Parliament to legislate With regard to non—traders, as well as traders, the Union Act giving it exclusive jurisdiction over both bankruptcy and insolvency. It was known that in England bankruptcy was the term technically applied to the case of traders, and insolvency the term applied to the case of non-traders; and he could not conceive why the two terms should have been used unless it were intended that this Parliament might declare that non- traders as well as traders might be discharged from their liabilities under certain restrictions. As regarded the policy of extending the law to non-traders, that was a different matter. If the interests of the other Provinces demanded that there should be a general insolvent law, as distinguished from a bankrupt law, all that could be said against it in Quebec was that there was an equal distribution in the case of non-traders. He did not think that should be a sufficient objection to their applying a general system to the whole country. It would require to be an objection founded on some inconvenience in Quebec Which should induce them not to apply the system to the whole country, unless there were very strong and powerful reasons overbearing that inconvenience. What was the object of a bankrupt or insolvent law at all? Was it in the interest of the debtor, in the interest of the creditor, in their joint interest, or in the interest of he community at large? He apprehended it was not solely in the interest of the debtor or the creditor, but rather that it was in the public interest such a law should be established, and that in certain cases there should be a machinery for the speedy discussion and realization of the estate of a person unable to meet his obligations, and of relieving such person from further liabilities when his whole estate had been realized. Whether the public interest then demanded in this country and in our state of circumstances that that arrangement should be extended to non-trader, was, he thought, practically the question that we had before us. While he was willing to agree that the operation of our insolvent law in the past had been such as to render that law to a large extent unpopular, he apprehended a great many of the objections which had been taken to it were due, not to the law, but to the lax mode in which it had been worked by persons who had an interest in improperly working it. So long as creditors took the short sighted course of compromising frauds so as to get a little more in the pound rather than let the frauds go before the Courts, so long would any insolvent law which could be put on the statute book be abused. If the creditor would take the true view and let the provisions of the law be carried out with reference to frauds, he would find those cases of fraud would become more and more rare. He believed, therefore, the abuse of the law was mainly attributable to the neglect and blindness of those whose direct interest it was to maintain it. But as regarded the amendment now before the chair, he must say that it did not seem to him that practically there was a very large class of cases in Which it was proposed to extend the law to non-traders. In the first place, no voluntary assignment was allowed in the case of non- traders; in the second place, when they came to the provisions as to compulsory liquidation, the 14th clause laid down certain cases in which the law should apply to all cases of debtors. These were, if the debtor absconded, if there was a fraudulent secretion of property, if there was a fraudulent assignment of property, if there was a procuring of property to be taken in execution, with intent to defraud, &c.—but simple default, and a simple inability to pay, although that inability might be established by the return to an execution of no goods, was not enough to drive the non-trader into compulsory liquidation.
Hon. Mr. Holton—That is wrong.
Mr. Blake—But according to this Bill, and according to the law as it had been since 1864, that was so. It was only in the cases specified in the 14th clause to which he had referred, that a non-trader could be put into compulsory liquidation at all. He confessed that it appeared to him that the fragmentary application of the law to non-traders was not well considered and they would have a grave question to deal with, if any hon. gentleman proposed to wipe out altogether the distinction between traders and non-traders, and to give us one law for all as regarded both voluntary and compulsory liquidation. That however, was not the proposition before the House. Now the position was this—that in a few cases at the instance of the creditors there might be compulsory liquidation in the case of the non-traders. In his own Province he did not believe that the law as it stood would be resorted to by creditors against non-traders. In many instances it merely 682 COMMONS DEBATES June 9, 1869 allowed persons to be taken where it was alleged that goods or lands had been fraudulently made away with. He thought that the law, as it stood in this respect, was extremely unjust to the creditors. It permitted a voluntary assignment to the non-trader. It allowed him to whitewash himself; but it did not practically give the creditor power to put him into compulsory liquidation, unless he violated the law of the land in the particulars he had referred to. He hailed the alterations made by this Bill as an improvement and was prepared to support it in preference to the Law now on the statute book, although he would prefer to see it apply to traders only, unless the whole Bill was to be re-cast.
Hon. Mr. Holton said that unquestionably the member for West Durham had pointed out the inconsequential character of the subsequent clauses with this clause. At this stage, it would be better if the member having charge of the Bill should state his view of this matter. His (Mr. Holton's) understanding was that the Bill was to be made applicable throughout to non-traders, in the same sense and to the same extent as traders.
Hon. Mr. Abbott did not understand that to be the decision of the Committee; and it was impossible it could have been their intention. Apart from the fact that they passed the measure clause by clause, and after the most careful consideration framed the measure as it stood, it was quite clear that they never intended the Bill to apply to non-traders in all respects as to traders, for this reason, that the exceptions to which the member for West Durham referred were peculiar to trading, and could not be made to apply to non- traders. One of these exceptions is, that if a man ceases to meet his liabilities as they become due, and does not assign his estate within a certain number of days, that he should be called on for an assignment. The member for Chateauguay himself would be the first to object to such a provision as that being made applicable to the non-trader. The trader loses his credit and may be said to be insolvent when he stops payment. In ninety-nine cases out of a hundred, stoppage of payment by a trader indicates that he has not enough to pay his debts in full. The mere failure of a non-trader to pay a debt when it matures does not, to the same extent, indicate any such thing. He should not, therefore, be made liable to the provisions of the Act.
Hon. Mr. Holton said he referred to compulsory liquidation in the 14th clause, and maintained that in dealing with compulsory liquidation the decision on the first clause must remove all distinction in the others, as to traders and non-traders. He thought the words, "of being a trader," in that clause aught necessarily to have been struck out.
Hon. Mr. Abbott maintained his position, and after some further debate said, in reply to the member for Chateauguay, that no clause short of No. 80, if he recollected aright, had been left by the Committee to the Chairman to draw up.
Hon. Mr. Gray said that the question before the House was not so much what the Committee intended to do as what they did do. His understanding of the Bill was that throughout it referred to non-traders as well as traders and he differed altogether from the views advanced by the member for Brome. If such views were to prevail, better Confederation had never taken place. He thought that if one question more than another came within the province of the Dominion Parliament it was this of bankruptcy and insolvency. In the Maritime Provinces at present, persons could not be relieved of their debts and the result was that persons from these Provinces frequently went to England and did business on a small scale for a few weeks to bring them within the provisions of the bankrupt laws, and the creditors soon found themselves divested of all control over the property. In his opinion there ought to be a good Insolvency Law for the Dominion, applicable equally to all portions.
Hon. J. H. Cameron said that in Ontario the non—trader was liable to voluntary and involuntary assignments, but under the provisions of the present Bill the voluntary assignment was prevented, while the other remained. His impression was that the law was to be exactly the same as in Ontario before, except that a non-trader could not by his own voluntary act go into insolvency. He had not at all supposed that the effect of the present Bill was that any creditor or number of creditors could put a non-trader into bankruptcy.
Hon. Mr. Holton was satisfied the hon. gentleman was mistaken. The Bill, as introduced, excepted Quebec from the operation of the law as far as non-traders were concerned. On his (Mr. Holton's) motion the Committee resolved that the Bill should be made applicable to traders and non-traders throughout the Dominion, with the proviso that a non-trader should not have power to make a voluntary 684 COMMONS DEBATES June 9, 1869 assignment. He desired to call attention to the circumstance that the other night the Minister of Justice, in whose power the Bill stood, gave as a reason for not then presenting the measure, that the member for Argenteuil had undertaken to recast the clauses affected by the decision come to in the committee.
Hon. Mr. Abbott thought that the member for Chateauguay had not thrown any new light on this subject. Before discussing the clauses of the Bill the Committee resolved to come to a decision on one or more leading points which permeated the Bill. Among these was the question—shall the exception of the Province of Quebec from the ruling that this law should be applicable to traders and non-traders be continued, or shall the law be applicable to all the Provinces not excepting Quebec? And as the honourable member for Peel said, it was never intended to change the position of the non-trader from that then prevailing in Upper Canada. The fact was, that if non-traders were to come under the operation of the 15th clause the Bill would simply be converted into a summary process of forcing a man to pay his debts, and such a thing was never contemplated by the Committee.
After recess,

ENFRANCHISEMENT OF INDIANS

Hon. Mr. Langevin moved the consideration of the amendment to his Indian Bill from the Senate. Carried. Second reading to-morrow.
Twelve clauses of Sir John A. Macdonald's Criminal Bill were reported from the Senate, with amendments, which were read a first time.

INSOLVENCY LAW

The House then went into Committee on the Insolvency Bill, Mr. Harrison in the chair.
Hon. Mr. Abbott, on resuming the debate, said this Bill provided a number of exceptional remedies in favour of the trader, which could not apply in the case of the non-trader. If further legislation were needed, let each Province legislate regarding non-traders for itself. Both as regarding debtor and creditor there was no reason for including non-traders in the Bill. The creditors do not require the excessive remedy, and the debtor shall not be allowed to take advantage of the provisions extended to traders. He would rather see the amendment adopted and place a limit than extend such a provision to the whole Dominion.
Mr. D. A. Macdonald did not see that the Bill ought to be passed. The disastrous state of trade which was held to make this measure necessary was owing chiefly to the greed of Montreal merchants in pushing their goods off in every direction.
Mr. Workman said he was tired of that style of argument. It was absurd; he could not understand it.
Mr. D. A. Macdonald said he withdrew the charge, as far as the honourable gentleman himself was concerned.
Mr. Street could not see why the non-traders should not, under certain circumstances, be entitled to ask the relief which this Bill proposes. At the same time, the resolutions imposed by the Committee were, in his (Mr. Street's) opinion, good ones.
Mr. Chipman said that in Nova Scotia they had an Insolvent Debtor's Act, administered by a Board of Commissioners, whose services were obtained without fee or reward. Their work was well done, and therefore he was not disposed to vote for the present Bill. He objected, too, to the exceptional legislation to be imposed under this Bill—holding that the law should be made for all, or not at all.
Mr. Bodwell replied to the arguments against his amendment, averring that they were nearly all offered in the interest of the wholesale merchants and creditors. In support of his amendment, he instanced the numbers who speculated largely in oil lands not long since, and contributed largely to the prosperity of the country. Should such men be prevented from taking advantage of the provisions of the Act? There were many such cases, and he failed to see that any case had been made out against the non-trader.
Sir John A. Macdonald said that from the great variety of laws in the Provinces on this subject and from the difference of opinion advanced during the debate, it was clear, if they wanted an Insolvency Bill this session, the only way to get it would be by accepting the proposition that the Bill be confined to traders only over all the Do 686 COMMONS DEBATES June 9, 1869 minion. This would give a law on which all were agreed—a measure for the relief of traders and traders only. There was a good deal of force in the argument advanced by the member for South Oxford that the law should be general, but lest the bill should not become law this session it was best to modify it by making it applicable to traders only. Next session, on a fair representation from any one Province, the law could be extended so as to meet their case. (Hear, hear.)
Mr. Bodwell's amendment was then put and lost, and Mr. Ross's carried.
The clause as amended was carried.
Mr. Blake—How does the 1st clause read now?
The Chairman—This Act shall apply to traders only.
On the second clause, which provided for assignments,
Mr. Blake objected to a section of it which interfered with voluntary assignments. It was not well, he thought, to interpose any obstacle in this direction. He would rather place restrictions on the discharge of the debtor than raise any obstacles to his making an assignment. In this respect he much preferred the Bill as it originally stood.
Hon. John Sandfield Macdonald said there should be some provision for punishing parties who did not make an assignment when they ought to do so, and he read a letter from a distinguished Judge, who expressed his concurrence in the views he (Mr. Sandfield Macdonald) had expressed at the second reading of the Bill as to the outrageously easy manner in which fraudulent debtors were allowed to whitewash themselves, and said that for the last twenty-five years our laws had been far too much in favour of the debtor, rather than of the creditor. In England, the finger of scorn was pointed at the man Who defrauded his creditors. Here, he was considered a very clever fellow, and the law gave him every facility. He contended that some other machinery should be provided for carrying out the law than had hitherto existed, or this law would be as inoperative as any of its predecessors.
Hon. Mr. Abbott pointed out that it would involve great expense to establish special Courts of Bankruptcy Commissioners. He believed that in Lower Canada the Judges had performed the duty of suspending certificates, where such a course was called for.
Hon. Mr. Wood said the arrangements of the bill prevented no honest man from making an assignment, while they offered at least some small obstacle in the way of a dishonest man doing so.
Mr. Blake argued that no barrier should be interposed in the way of a debtor going into insolvency when unable to meet his engagements. He, therefore, moved to strike out the words in 2nd clause which required consent of a certain proportion of the creditors to a voluntary assignment.
The amendment was agreed to, and the clause as amended was carried.
Clauses 3 to 13 were agreed to, the words in section 1 "being a trader," being struck out.
Clauses 15 to 19 were agreed to.
Clause 20 being moved, allowing certain proceeding to be taken in the Province of Quebec on an ex parte affidavit of one creditor,
Mr. Blake asked why a different amount of evidence should be considered sufficient in Quebec from what was necessary in other Provinces.
Hon. Mr. Abbott explained the origin of the distinction. In 1864, when it was proposed with regard to the provisions as to intent to defraud, that an ex parte affidavit of one credtior should be sufficient to warrant proceedings, it was urged on behalf of Ontario, that this was a very arbitrary proceeding, and it was agreed that as regarded Ontario the evidence of two witnesses should be necessary. In Quebec, however, they had not been unaccustomed to that sort of thing, and they had found no injury result from it.
Mr. Blake urged that there should be uniformity, and that the evidence of one witness should not be sufficient in one Province to put a debtor in liquidation, when in the other Provinces the evidence of two witnesses was required.
Sir George E. Cartier said the principle in question had long been in operation in Lower Canada and no abuse had resulted. If two affidavits were required, the proceedings in bankruptcy would be more formal than anything else. If hon. gentlemen desired the assimilation of the laws he could assure hon. members from the other Provinces that no inconvenience would follow the adpotion of the Lower Canada plan.
Hon. Mr. Abbott contended that on account of the difference in the systems of the various 688 COMMONS DEBATES June 9, 1869 Provinces, it would be convenient to maintain this difference of procedure.
Mr. Blake thought it was more than a difference of procedure that one witness should be required in Quebec and two witnesses for the other Provinces. This anomaly should be swept away, and the law made uniform for the Dominion.
Sir George E. Cartier thought the other Provinces might perhaps dispense with one of the witnesses, but he believed his hon. friend (Mr. Abbott) had acted cautiously in not interfering with the existing systems of procedure.
The clause was agreed to.
Clauses 21 to 28 were agreed to.
Hon. Mr. Abbott moved an addition to the 29th clause, providing that if no creditors were present at the meeting to appoint an assignee, the Judge might appoint one.
The clause as thus amended was agreed to.
The remaining clauses to 155 having been carried the Committee went back to the 60th clause.
Hon. Mr. Wood desired an amendment to the latter part of the clause, which he said was not worded properly. He wished to make it clear that the provision of the Act did not affect any lien created by the seizure by the Sheriff.
Hon. Mr. Abbott said he thought the suggestion a good one.
After some further discussion the clause was passed without amendment.
Some discussion took place on the 148th clause, which provides that all offences punishable by the Act with imprisonment, shall be tried by the Court of Queen's Bench without a jury.
Hon. John Sandfield Macdonald protested against one mode of trial being provided for Quebec and another for the other Provinces.
Sir John A. Macdonald said that symmetry to a certain extent was desirable; but if there was anything to be complained of in the absence of trial by jury in Quebec, it was for the 65 members representing that Province to complain, and not for a member from Ontario.
Hon. John Sandfield Macdonald said his complaint was that the gentleman in charge of the Bill (Mr. Abbott) was not introducing a new principle into the legislation of Lower Canada. The principle was one recognized in the Consolidated Statutes of Lower Canada.
Hon. Mr. Holton was in favor of uniformity in this as in other matters of legislation, and he should be surprised if the Minister of Militia would declare that the feelings of any portion of the people of Lower Canada would be outraged by having the privilege of trial by jury secured to them in proceedings under the insolvency law.
Sir George E. Cartier said there was nothing the people of Lower Canada disliked so much as the failure of justice or that frauds should go unpunished. In commercial cases trial by jury could be demanded, but out of 1,200 or 1,500 cases in a year trial by jury was not demanded in more than 25 cases. They preferred that cases of this kind should be tried by the Judge, believing that frauds would thereby be more effectually punished.
Mr. Blake said the correct deduction from the premises of the Minister of Militia that the people of Lower Canada abhorred fraud would be that they should be entrusted with the power of trying cases of fraud. He dissented from the doctrine of the Minister of Justice, that only the members from Lower Canada should discuss this clause. He (Mr. Blake) held it was a matter of consequence to the whole Dominion that there should be uniformity in the laws. This clause not only introduced dissimilarity between the procedure in Quebec and the procedure in the other Provinces, but it introduced dissimilarity between the mode of trial of criminal cases in Quebec under this Act, and the trial of other criminal cases in that Province in which a jury was required.
Mr. Morris denied that there would be a dissimilarity in the mode of trial of similar classes of cases in Lower Canada. In commercial cases there—and these were commercial cases—trial by jury was not demanded in more than three cases out of a hundred. In Ontario last session, the practice of Lower Canada as to the trial of commercial cases had been adopted.
Hon. Mr. Irvine said in the Quebec district there were not more than four or five jury trials in commercial cases in a year, and he had been surprised to hear that there were so many as had been stated in the Montreal district. It was not in accordance with the feelings of the people of Quebec that there should be trials in such cases. The petty jurors were taken from a class who would be inclined to 690 COMMONS DEBATES June 9, 1869 treat cases of this kind with leniency; and if trial by jury were provided for these cases, a conviction would be very rarely secured. If they gave the offender trial by jury, they only gave him a strong chance of escaping.
Sir John A. Macdonald thought the member for Durham now had an answer when it was shown that there was a sufficient reason why the system of trial by jury in these cases should not extend to Quebec.
Hon. Mr. Chauveau, in French, supported the clause.
Hon. Mr. Gray said the difficulty referred to by the Solicitor General of Quebec, of getting jurors in that Province who would faithfully do their duty in the administration of the criminal law, did not exist in New Brunswick, and he should not be very sorry that for the sake of symmetry his Province should be deprived of the right of trial by jury. If, however, the state of the administration of Justice in Quebec was such that there would be no security for the punishment of fraud without the provision, he was prepared to allow an exceptional provision for that Province.
Mr. Geoffrion, in French, expressed his dissent from the position of the Solicitor General of Lower Canada, that it was impossible to get justice from juries in that Province. He thought the right of trial by jury was prized in Lower Canada as well as in the rest of the Dominion.
Hon. Mr. Chauveau made some remarks in reply to Mr. Geoffrion and vindicated the character of the jurors of Quebec, whom he held to be just as capable of rendering justice as those of any other Province.
Mr. Blake said the Premier of Quebec was quite at variance with his colleague, the Solicitor-General. The latter honorable gentleman had given an answer to his question why there ought to be a variation, when he said the class of jurors was such that trial by jury would result in a failure of justice. But if the view of the Premier of Quebec was correct the variation rested on a mere whim and caprice, and his question remained why they should deprive British subjects who resided in Lower Canada of their birth-right, trial by jury, which was accorded to all Her Majesty's subjects in the other Provinces. If, however, the view of the Solicitor-General was correct —if the jury system in Quebec was in such a state that these things could not be tried before juries, then men's lives were not safe in the Province of Quebec. (Hear, hear.) If juries could not be entrusted with cases of this kind, they could not be trusted with cases in which men's lives were at stake. It was a state of things which this Parliament could not correct, but the Legislature of Quebec, under the direction of the Solicitor-General, ought to correct it. If corrected, the reason f0r the anomaly would cease, and this Parliament should not legislate in a wrong direction and enact an anomaly 0n the assumption that the Legislature of Quebec would not do its duty. On the contrary, they should legislate on the assumption that the Quebec Legislature would do its duty and correct its jury system.
Sir George E. Cartier would give not merely reasoning but authority for the position he had taken, In 1849, under the Baldwin-Lafontaine administration, it was a law enacted by the Parliament of Canada that in the case of fraud and misconduct power was given to the Judge in Chambers to imprison any fraudulent debtor for a term not exceeding one year, in a matter not amounting to $80. This was authority which ought to be satisfactory to the member for West Durham. No offence was taken by Lower Canada regarding that law, but on the contrary he had recently got an extension of it to make it more rigorous. This present measure provides that a party in a similar case is to be tried before the Court of Queen's Bench. The present measure was therefore an amendment of the old law. The term of punishment was extended to 3 years under this Act; but the punishment was the same and there was the advantage that the decision, instead of being by one man, would be by a full Court.
Hon. Mr. Holton thought the Minister of Militia had not met the point raised by the member for West Durham. It was declared that in cases such as these a man was not entitled to trial by jury, but was to be tried by the Judge, because, according to the Premier of Lower Canada, the Solicitor-General for Lower Canada and the Minister of Militia, the people of Lower Canada are not to be trusted with the trial of these cases though the other Provinces are. At a time when the Government are proposing to assimilate the laws of all the Provinces they dissimilate this.
Hon. Mr. Irvine said his argument had been misinterpreted. He never said that the juries of the Province of Quebec were an exception to any part for this duty. He had maintained, and still maintained, that this was a class of cases which ought not to be submitted to juries in any Province.
Hon. Mr. Chauveau denied that there ought to be absolute uniformity of Legislation for
692 COMMONS DEBATES June 9, 1869
the Dominion. He objected to such absolute Irvine-Democratic rule. It was a doctrine which would not suit any Province. Much wiser was it to keep to the views of the Minister of Justice, and not force on any Province, hastily, any measure to which they were averse. As to the question itself, he did not over like the arrangement at first. Still, he saw good reason for the arrangement proposed; as there were matters to be decided which one man, well versed in accounts, might more equitably decide, than twelve men selected at random. If the system did not suit one or the other Province, let them allow those to have it who wished it.
Hon. Mr. Abbott stated that this 148th clause had been passed some time ago, and discussion on it had been irregular.
The Committee rose, and reported the Bill as amended. Report ordered to be read tomorrow.
The House adjourned at 12.35.

Source:

Canada. House of Commons Debates, 1869. Edited by P.B. Waite. Ottawa: Queen's Printer, 1975. Original scans accessible at: http://parl.canadiana.ca/.

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Selection of input documents and completion of metadata: Gordon Lyall.

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