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 ïŹrst 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 ïŹrst 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 chieïŹy 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 aïŹord 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 inïŹnitely 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. CurrierâIf 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.
678 COMMONS DEBATES
June 9, 1869
Mr. CurrierâIf 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)âIf 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. MackenzieâNo divorce between a man and his debts
(laughter).
Mr. DufresneâYes, 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 ïŹrst 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. SmithâDoes 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 nonâtraders,
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 ïŹnd 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 ïŹrst 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.âbut 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.
Mr. BlakeâBut 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 thisâthat 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 ïŹrst 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
ïŹrst 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 nonâtrader
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
questionâshall 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,
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 Billâholding 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 conïŹned to traders only over all
the Do
686
COMMONS DEBATES
June 9, 1869
minion. This would give a law on which all were agreedâa 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. BlakeâHow does the 1st clause read now?
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 SandïŹeld 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. SandïŹeld 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-ïŹve years our
laws had been far too much in favour of the debtor, rather than of the
creditor. In England, the ïŹnger 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
afïŹdavit of one credtior should be sufïŹcient 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.
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.
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 SandïŹeld 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 thereâand these were commercial
casesâtrial 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 ïŹve 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. 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
âif 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 ïŹrst. 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.
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