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Date: 1869-06-15
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 1st Parl, 2nd Sess, 1869 at 790-798.
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INSOLVENCY ACT

Sir John A. Macdonald moved the consideration of the amendments made in Committee of the Whole to the Bill respecting Insolvency.

Mr. Geoffrion moved an amendment that the offences made criminally punishable by the Act should, in the Province of Quebec, be tried with the ordinary safeguard of trial by jury, as was provided in the Act with reference to the other Provinces of the Dominion.

Hon. Mr. Dorion supported the amendment. He said if it were proposed to abolish trial by jury with reference to these offences throughout the Dominion, the proposition would not find a seconder, and he contended that the House should not sanction the exceptional legislation to abolishing it for the Province of Quebec. He quoted from Earl Russell and other constitutional writers to show how highly the privilege of trial by jury should be prized, and how sacredly it ought to be guarded. It had been said that it was almost impossible in Lower Canada to get convictions from juries in cases of fraud. Last month two such convictions had been obtained in Montreal. There was a constitutional point also involved in this question. In the 91st clause of the Union Act, this Parliament had jurisdiction over the Criminal Law, except the constitution of Courts of criminal jurisdiction. He held that juries were part of the constitution of a Criminal Court with which the Parliament could not interfere, and cited authorities to shew that a criminal tribunal was essentially composed of both judge and jury. He concluded also that the louse in making laws for the Dominion should avoid introducing sectional differences in the legislation of the different Provinces, similar to those which had caused so much difficulty in the late Province of Canada.

Sir George E. Cartier, in French, repeated the arguments in support of the provision in the Bill which he had addressed to the House when the question was under discussion a few evenings ago. He contended that the mode of trial provided by the 148th

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clause was more in accordance with the genius and feelings of the Lower Canadian people than trial by Jury in such cases, and said, that by an Act passed by the Baldwin-Lafontaine Ministry in 1849 the fraudulent debtor might be punished by a judge without the intervention of a jury, with imprisonment not exceeding one year. As regarded the Constitutional objection, he contended that the mode of trial was a matter of criminal procedure which was distinctly within the jurisdiction of this Parliament. The Hon. Baronet repeated his argument in English.

Hon. Mr. Dorion said the Act cited was to do away with imprisonment for debt, and was a remedial measure. Its effect was principally to enable judges to remand for a certain period, debtors who were found to have been acting fraudulently.

Hon. Mr. Holton said there was but one solution of the course taken by the Minister of Militia. That hon. gentleman held his countrymen were not fit to be entrusted with the rights of jurymen. In affixing that stigma on his countrymen the hon. gentleman did them foul wrong.

Mr. Harrison said that in Upper Canada trial by jury had been taken away in cases of petty larceny, and this had been found to work so well that the Province of Ontario was disposed to extend the principle still further. He quoted an Upper Canada Act passed in 1859, by which a debtor who had concealed or improperly made away with his property might be committed to gaol for a year by a Judge or Court without the intervention of a jury.

Mr. Blake said the Act referred to was the Act to abolish imprisonment for debt in Upper Canada. The statute was passed for the purpose of declaring that the injustice and demoralization should no longer exist of imprisoning a debtor without fraud; but as a condition of the relief granted to the debtor, the judge was permitted, under certain circumstances, to award to him any imprisonment for a limited time, in place of that lifelong imprisonment to which he was formerly liable. But here they had an Act which proposed to deal with a certain class of criminal offences and to give long periods of imprisonment. If the member for Toronto thought from his experience, which was, of course, confined to Upper Canada, that the system of trying these cases without a jury would work well, why did he not propose to introduce it into Upper as well as Lower Canada? During the whole

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discussion to-day and on a previous evening he (Mr. Blake) had failed to hear any sound reason advanced why in this matter they should create dissimilarity instead of trying to arrive at a similarity in their legislation for all the Provinces of the Dominion.

The House divided on Mr. Geoffrion’s amendment, which was negatived. Yeas, 63; Nays, 76.

YEAS-Ault, Béchard, Blake, Bodwell, Bolton, Bourassa, Bowman, Burpee, Cameron (Huron), Cameron (Inverness), Cameron (Peel), Cheval, Chipman, Coffin, Connell, Coupal, Currier, Dorion, Forbes, Fortier, Geoffrion, Godin, Hagar, Holton, Kempt, Killam, Le Vesconte, Little, Macdonald (Cornwall), Macdonald (Glengarry), MacFarlane, Mackenzie, McCallum, McMonies, Metcalfe, Mills, Morison (Victoria), Oliver, Pâquet, Pelletier, Pickard, Pope, Power, Pozer, Ray, Redford, Ross (Prince Edward), Ross (Wellington Centre), Ryan (Montreal West), Rymal, Scatcherd, Smith, Snider, Stirton, Thompson (Haldimand), Thompson (Ontario), Wells, Whitehead, Willson, Wood, Wright (Ottawa Co), Wright (York, Ont. W R), Young-63. NAYS-Archambeault, Beaubien, Bellerose, Benoit, Bertrand, Blanchet, Bowell, Bown, Brown, Carling, Caron, Cartier (Sir George E.), Cayley, Cimon, Colby, Costigan, Crawford (Brockville), Daoust, Dobbie, Dufresne, Dunkin, Ferguson, Fortin, Galt, Gaucher, Gaudet, Gendron, Gibbs, Gray, Grover, Harrison, Heath, Holmes, Howe, Huot, Hurdon, Jackson, Jones (Leeds and Grenville), Keller, Kirkpatrick, Lacerte, Langevin, Lapum, Lawson, Macdonald, Sir John, McDonald (Middlesex), Masson (Soulanges), Masson (Terrebonne), McCarthy, McConkey, McDougall (Lanark), McGreevy, McLelan, McMillan, Morris, Morrison (Niagara), Munroe, Perry, Pinsonneault, Rankin, Read, Renaud, Robitaille, Ross (Champlain), Ross (Dundas), Ryan (King’s, N.B.), Shaniy, Simard, Sproat, Stephenson, Street, Tilley, Wallace, Walsh, Webb and Workman-Total 76.

Hon. Mr. Wood moved in amendment to restore the first clause of the Bill, as reported from the Select Committee, so as to provide that the Act shall apply to all persons, whether traders or non-traders, except that in the case of non-traders, there shall be no voluntary assignment under the Act. He said that in Committee of the Whole, the clause had been amended so as to give traders only the benefit of the Insolvency law, and he wished to take the sense of the House on the question.

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The House divided on Mr. Wood’s amendment, which was negatived. Yeas, 55; Nays, 77. YEAs-Anglin, Bodwell, Bolton, Bourassa, Bowell, Brown, Burpee, Cameron (Inverness), Cameron (Peel), Cheval, Coffin, Connell, Costigan, Coupal, Currier, Dobbie, Forbes, Fortier, Geoffrion, Grover, Hagar, Harrison, Holmes, Holton, Jones (Leeds and Grenville), Killam, Lawson, Le Vesconte, MacFarlane, Masson (Soulanges), McCallum, McMonies; Metcalfe, Oliver, Pelletier, Perry, Pickard, Rankin, Ray, Redford, Ross (Dundas), Ross (Wellington), Ryan (Kings, N.B.), Rymal, Scatcherd, Sproat, Stirton, Street, Thompson (Ontario), Webb, Wells, Whitehead, Willson, Wood, Young.-55.

NAYs-Archambeault, Ault, Beaubien, Béchard, Bellerose, Benoit, Bertrand, Blake, Blanchet, Bowman, Caron, Cartier (Sir George E.), Cayley, Cimon, Colby, Daoust, Dorion, Dufresne, Dunkin, Ferguson, Fortin, Galt, Gaudet, Gendron, Gibbs, Godin, Grant, Gray, Heath, Howe, Huot, Hurdon, Jackson, Keeler, Kirkpatrick, Lacerte, Langevin, Lapum, Little, Macdonald (Cornwall), Macdonald (Glengarry), Macdonald (Sir J. A.), McDonald (Lunenburg), McDonald (Middlesex), Mackenzie, Magill, Masson (Terrebonne), Mc- Carthy, McConkey, McDougall (Lanark), VcGreevy, McLelan, McMillan, Mills, Morris, Morrison (Niagara), Munroe, Pinsonneault, Pope, Pozer, Read, Renaud, Robitaille, Ross (Champlain), Ross (Prince Edward), Ryan (Montreal West), Simard, Smith, Snider, Stephenson, Tilley, Tremblay, Tupper, Wallace, Workman, Wright (Ottawa County), Wright (York, Ont., W. R.)-77.

After recess,

Mr. Tobin moved an amendment to the 32nd section, making it obligatory on Boards of Trade to appoint Official Assignees.

Sir John A. Macdonald said that the motion was a proposition to ask the Committee to amend the Clause, and not an Amendment. He would consider the matter.

Hon. Mr. Wood said that the great objection to the present Insolvency Bill was the ease with which under it debtors went into insolvency. To meet this, the Committee decided that the same obstacles should be placed on a trader to the same amount and extent to prevent him from rushing into in-

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solvency as were placed on creditors before they could put a man into compulsory liquidation. He would therefore move, seconded by Mr. Lawson, the reference of the Bill back to Committee to amend the second section, by restoring it to the same state in which it was when the Bill was referred to Committee of the Whole.

Mr. Mackenzie thought the motion out of order. The House did not know how the section referred to stood originally.

The Speaker sustained the objection.

Hon. Mr. Wood said he would move another amendment to meet the objection.

Hon. Mr. Gray thought the result of the honourable gentleman’s efforts might be to defeat the Bill. It was most important, to Lower Province members especially, that the Bill should be passed, and he hoped they would support it.

Hon. Mr. Wood, in submitting his motion, said he had no intention of defeating the Bill. He merely wished to make it as good as possible.

Sir John A. Macdonald said that if the ineasure were to pass, unquestionably hon. gentleman would have to exercise a good deal of forbearance. It had to go to the Upper House yet.

Mr. Blake was convinced that the true principle was to place obstacles in the way of a trader’s discharge from insolvency, and not in the way of his going into it.

Hon. John Sandfield Macdonald was strongly opposed to the present system altogether, believing it had resulted principally in fraud. He advocated the appointment of Bankrupt Commissioners, instead of leaving the matter in the hands of the County Court Judges.

Mr. Mackenzie would vote for the restoration of the clause, as it would tend to restrict bankruptcy in the country.

Hon. Mr. Abbott said that this would tend in some respects to restrict, but in others to increase bankruptcy.

Mr. Pope moved that all that portion of the Bill be struck out, except that portion which would have the effect of repealing the existing law, the three first lines of the 154th clause. (Laughter). The hon. gentleman sub-

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sequently withdrew his amendment, saying that he might move it at a subsequent stage.

Mr. Ferguson moved a similar amendment to strike out all the words after the word “act” in the third line of the first section, to the words “Lower Canada” in the 153rd section.

The House divided on the amendment, which was lost. Yeas, 32. Nays, 108.

YEAS-Bellerose, Bourassa, Bowman, Burton, Coupal, Currier, Dorion, Ferguson, Fortier, Godin, Le Vesconte, Little, Macdonald (Cornwall), Macdonald (Glengary), Mackenzie, Magill, Masson (Soulanges), Mills, Oliver, Pâquet, Pelletier, Pinsonneault, Pope, Ross (Dundas), Ross (Prince Edward), Rymal, Scatcherd, Smith, Walsh, Webb, Whitehead, Wright (York, Ont.)-32.

NAYS-Abbott, Anglin, Ault, Beaty, Beaubien, Béchard, Benoit, Bertrand, Blake, Blanchet, Bodwell, Bolton, Bowell, Bown, Brousseau, Brown, Burpee, Cameron (Huron), Cameron (Peel), Carling, Caron, Cartier (Sir G. E.), Cayley, Chamberlin, Chauveau, Colby, Connell, Costigan, Crawford (Brockville), Daoust, Dobbie, Dufresne, Dunkin, Fortin, Galt, Gaucher, Gaudet, Geoffrion, Gendron, Gibbs, Grant, Gray, Grover, Hagar, Harrison, Heath, Holmes, Holton, Howe, Huot, Hurdon, Jackson, Jones (Leeds), Keeler, Kempt, Killam, Lacerte, Langevin, Macdonald (Sir J. A.), (Kingston), McDonald (Middlesex), Masson (Terrebonne), McCallum, McCarthy, McConkey, McDougall (Lanark), McGreevy, Mc- Keagney, McLelan, McMillan, McMonies, Metcalfe, Morris, Morison (Victoria, Ont.), Morrison (Niagara), Munroe, O’Connor, Perry, Pickard, Pozer, Rankin, Ray, Read, Redford, Renaud, Robitaille, Rose, Ross (Champlain), Ross (Wellington), Ryan (Montreal W.), Shanly, Simard, Simpson, Snider, Sproat, Stephenson, Stirton, Street, Thompson (Haldimand), Tilley, Tremblay, Tupper, Wallace, Wells, Willson, Wood, Workman, Wright (Ottawa Co.), Young-108.

Mr. Godin then moved the amendment which he spoke of before, which was carried, The House then went into Committee, and amended the clause. The amendment was concurred in.

Mr. Magill moved an amendment to Clause 35, which had seemed to give almost unlimited powers to inspectors appointed by creditors. His amendment gave creditors

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power to oversee and revise the action of those inspectors.

The House went into Committee on the amendment-rose and reported progress. As the member for Argenteuil stated that in the Bill as originally intended there had been a clause providing that which the member for Hamilton desired but in a more complicated shape, that clause had been dropped out of the Bill as reported.

The House again went into Committee, and adopted the clause. The amendment was concurred in.

Mr. Harrison moved that the words, “In the Province of Quebec” be struck out of the 140th section, making it applicable to the whole Dominion. Under this clause every trader having a marriage contract with his wife by which he gives or promises to give or pay any right, thing or sum of money, shall register the same, if not registered within three months from execution thereof. He wished further to amend the section by providing that the registration should take place within 3 months from the passing of the Act.

Hon. Mr. Wood did not see the necessity for this clause at all. The several Provinces had each their laws relative to marriage settlements.

Mr. Harrison could not understand why that which was good in the Province of Quebec was not good for the other Provinces.

Mr. Blake argued that this was really asking the House to deal with the question of civil rights and property. The amendment was lost on a division. Mr. Blake called attention to the 20th and 21st sections, and said he wished to make the law uniform in respect to writs of attachment. If in Quebec it was safe to issue a writ of attachment on the evidence of one person before a prothonotary, there could be no reason for providing, as proposed by this Bill, that the affidavits of two persons before a Judge should be required in the other Provinces.

The amendment was lost. Yeas 62; Nays 79.

Yeas-Anglin, Ault, Blake, Bodwell, Bolton, Bourassa, Bowell, Bowman, Brown, Burpee, Cameron (Inverness), Coffin, Connell, Coupal, Currier, Dorion, Forbes, Fortier, Geoffrion, Godin, Grant, Hagar, Holmes, Holton, Kempt, Killam, Lawson, Le Vesconte, Little, Macdon-

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ald (Cornwall), Macdonald (Glengarry), Mac- Farlane, Mackenzie, Masson (Soulanges), Mc- Callum, McConkey, MeMonies, Metcalfe, Mills, Morison, Oliver, Pâquet, Pelletier, Pickard, Pope, Pozer, Rankin, Redford, Ross (Prince Edward), Ross (Wellington, C.R.), Rymal, Scatcherd, Snider, Stirton, Thompson (Haldimand), Tremblay, Wells, Whitehead, Wood, Wright (Ottawa Co), Wright (York, Ont, W.R.), Young-62.

Nays-Abbott, Archambeault, Beaty, Beaubien, Bellerose, Benoit, Bertrand, Blanchet, Brown, Brousseau, Burton, Carling, Caron, Cartier (Sir G. E.), Cartwright, Cayley, Chamberlin, Chauveau, Cimon, Colby, Costigan, Crawford (Brockville), Daoust, Dobbie, Dufresne, Dunkin, Ferguson, Fortin, Gaucher, Gaudet, Gendron, Gibbs, Gray, Grover, Harrison, Heath, Howe, Huot, Hurdon, Jackson, Jones (Leeds and Grenville), Keeler, Lacerte, Langevin, Macdonald (Sir J. A.), McDonald (Middlesex), Masson (Terrebonne), McCarthy, McDougall (Lanark), McGreevy, MeLelan, Morris, Morrison (Niagara), Munroe, O’Connor, Perry, Pinsonneault, Ray, Read, Renaud, Robitaille, Rose, Ross (Champlain), Ross (Dundas), Ryan (King, N.B.), Ryan (Montreal West), Shanly, Simpson, Sproat, Stephenson, Street, Tilley, Tupper, Wallace, Walsh, Webb, Willson, Workman.-79.

Mr. Blake said he would prefer to see the 23rd section struck out, but if it were not, would move that the words “who shall not prove himself to have been ignorant of,” be struck off the 20th line, and that the words “who shall know of,” should be inserted instead thereof. As the clause at present stood, any member of a firm who could not prove himself to be ignorant of the intention to incur the debt, was guilty of a fraud, and liable to two years’ imprisonment.

Sir John A. Macdonald could not consent to expunging the clause.

After some discussion, the House went back into Committee, and amended the language of the clause.

The Bill was then read a third time.

Hon John Sandfield Macdonald moved the insertion of a clause providing that the Act should continue in operation for three years, and until the end of the next ensuing session of Parliament, and no longer.

Sir John A. Macdonald thought it would be better to make the law permanent. If it

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did not give satisfaction it could be repealed or amended.

The amendment was lost on a division.

The Bill was then passed.