When the debate was adjourned, I was dealing with amendment No. 172 which provides for a right of appeal from the sentence of a court-martial. I had explained that the right suggested in this amendment was a right that has been clamoured for by many armies for quite a long time. Since the last great war, the right has been conceded in Britain and officers and soldiers there have the right of bringing appeals to the Court of Criminal Appeal in England on points of law. I do not know how many appeals have been heard, but I think the number of appeals heard in Britain, since this right was provided, has been very small. There is no question, and cannot be any question, of an abuse of the procedure, because the right of appeal is limited to a matter of law, and, so far as my amendment is concerned, it could apply only where the sentence was one of imprisonment, penal servitude or death, and the appeal is not against the sentence but against the conviction. In England, they have that appeal on a point of law.
When I put down the amendment, I thought the Minister would have considered it and that, as he kept up with modern development in Canada in regard to punitive provisions in relation to matters of pay, he would have adopted this new and long-sought after provision of the right of appeal which has been adopted by the English Parliament. The provision cannot be abused, as I say, so there can be no objection to it on that score. It is a valuable right—it is, in fact, an essential—that, where one has punishment of the nature provided in this Act, the conviction which gives rise to the punishment should be subject to examination by the Court of Criminal Appeal, and it is significant that when we had the Special Criminal Court, a court composed of military officers, which had very extensive powers granted to it by legislation and under the Constitution, a right of appeal to the Court of Criminal Appeal existed and was frequently availed of. There were many cases in which the Court of Criminal Appeal found that the Special Criminal Court, composed, as it was, of military officers, were wrong in their conception of the law and on a number of occasions quashed the convictions of that Special Criminal Court.
Where we have all this haggling and baggling with principles of justice, as we have here—quashing convictions that are found to be absolutely illegal and ordering the accused to be tried again and substituting one punishment for another—we certainly should have a right of appeal to the Court of Criminal Appeal. Bad as this particular Bill is in its draftsmanship, it would be very signally improved if it included a provision such as I suggest. I do not for one moment suggest that the form of words I have put down is the best to provide for the appeal, but if the principle of the appeal was conceded, the Minister would have the services of the parliamentary draftsman in putting in acceptable form the provision that there should be an appeal.
The Court of Criminal Appeal, as we know, is a court constituted of the Chief Justice or President of the High Court and two other judges of either the Supreme Court or High Court. It is a court which is constituted when any appeal is pending, and which hears very carefully the submissions made to it and which examines all the authorities laid down by itself from time to time and the principles of criminal law that have been laid down over the years and have been accepted as applicable to this country. Where an individual, whether a soldier or an officer, has been convicted of an offence which involves very serious punishment—imprisonment, penal servitude or death—I think it will be agreed that he should have the right to have his case considered if he thinks the court of trial has dealt with him illegally.
If the right existed in relation to some of the matters which we discussed on a previous section, as to the Minister ascertaining whether the proceedings of a court-martial are illegal, the Court of Criminal Appeal in a very short period would decide whether they were illegal or not. It is better in the interests of justice that there should be that immediate examination, where an accused person feels he has been treated unjustly, unfairly or improperly by the court-martial which tried him.
It is surprising that a Deputy should have to advocate this right of appeal for an accused person in the circumstances set out in the amendment. There should be no question whatever about it and I am anxious to know what objection the Minister can have to this right of appeal, what objection can he have to it on legal principles? What objection can he have to it on the grounds of justice? Does he think that a soldier or an officer who feels he has been illegally convicted should be deprived of the right of going to the highest tribunal in the country to have his conviction examined and, if illegal, set aside? What objection can there be to the procedure?
I am very anxious to hear from the Minister why he did not avail himself of the machinery of appeal that has been established in Great Britain. I read recently in the newspapers that, in Germany, where provision is being made at the moment for the creation of an armed force, where amendments to their own Constitution have been made and where certain laws in respect of the new military force have been under consideration this question of appeal from the verdicts of military courts-martial has also been very favourably considered. It does seem to me that in any country that considers itself in the van of civilisation there should be the right of appeal against a conviction carrying with it the grave and serious penalties that this military code provides.
The right of appeal against conviction is a right that has been established over a long number of years in the case of ordinary criminal offences. That right of appeal has been established at the insistence mainly of lawyers but at the insistence of citizens who believed it was the fundamental right of an accused person to have a case re-examined by a higher tribunal if they felt they were dealt with unfairly and unjustly. There has been rapid progress in regard to that conception of appeal. Anyone who reads our own history will find that it is not many years ago when an accused person in Green Street courthouse who had been sentenced to death was executed within a matter of hours. No right of appeal whatsoever was granted.
I am perfectly certain that in those days there were judges and civil servants who opposed very vigorously that the right of appeal should be granted to an ordinary citizen. One has only got to read the defences that were conducted by John Philpott Curran to realise the sort of summary procedures that were carried out in those days where trials lasted right over midnight into the early hours of the morning, sentences of death imposed and the accused trandled off to Thomas Street or somewhere else to be hanged, drawn and quartered.
There were people in those days who believed that was the right thing to do and that the accused person should have no right of appeal. It astonishes me that that same old idea lingers on in, perhaps, the most conservative part of this country—the Department of Defence. In the early stages I said they were stretching out into new continents to avail of their experience for the purpose of executing for more offences than the old Acts provided, but when it is a question of this fundamental right of appeal against improper conviction we find them away back in the dark age of the 18th century when no right of appeal would be given.
I regret very much that I should have had to spend any time on this matter. I regret very much that the conception of appeal was not accepted. If it was there would be no trouble whatsoever in the machinery or in agreement on the form of words that would bring this about. I will be very interested to hear the Minister's defence of maintaining the military code without the right of appeal, particularly where there are so many instances already in this Bill of interference with what has up to the present been considered rights of the citizens and rights of the individual.