DISCOURS DE M. FITZPATRICK

The prosecution having declared their case closed, M. Fitzpatrick addressed the court.

Mr. Fitzpatrick. — May it please the court : At the request of the counsel who are associated with me in the case, I beg leave to renew the application which I made at the time of the arraignment of our clients, and which application I then understood was kept in abeyance by Your Honors : that the Crown should be called upon to elect between the two charges contained in the two counts of this indictment, before we are asked to proceed with our évidence.

In renewing this application, I shall not trouble the Court with a répétition of the références to the différent authorities which I had the honor to put before you in the hrst instance. I présume Your Honors hâve got a note of them.

I désire, in addition, to ask the court to take the responsibility of

saying, as matter of law, that there is now before this court évidence sufficient to justify Your Honors in calling upon us to offer any évidence whatever under the second count of the indictment, and I ask Your Honors also to say, as matter of law, that the crime of conspiracy to defraud, eharged in the second count of this indictment, lias been made out prima facie to the satisfaction of Your Honors by the Crown.

The charge, in the second count of the indictment, is to the effect : That the Honorable Honoré Mercier and Ernest Pacaud, in the year 1891, did unlawfully combine and conspire together by divers false pretences and divers means and de vices to unlawfully obtain and acquire to and for themselves of and from a certain institution in the city of Québec, called the Caisse d'Economie, a large sum of money, to wit, the sum of $60,000, of the moneys of the said institution with intent to cheat and defraud the said institution thereof.

The law which governs cases of this sort may, I think, be safely stated by me to be practically undefined and undefinable. Your Honors will find that the scope of the law of conspiracy has been extended by successive générations of judges from the time that we nrst find it in the Statute of Edward I, until it tinally reached its culminating point in the extraordinary doctrine laid down by Judge Fitzgerald in the " No Rent Manifesto " case in Ireland, and by Recorder Bompas in the " Trades Union " cases in England.

In conséquence of those judgrnents and of the abuses which crept into the administration of justice, the whole subject of the law of conspiracy was brought up for discussion in the English House of Commons, and there a lengthy debate was had on a resolution introduced asking the Government to define the law of conspiracy in such a way as to make it cease to be what it had become, a standing menace to the liberty of the subject. Your Honors will find that debate, — and I think it interesting to read — in the English Hansard Debates of 22nd Mardi last. The whole subject of the law of conspiracy is there discussed, from a légal standpoint by the first légal minds of England, and from a political standpoint by the foremost statesmen of the Empire. Nothing, however, appears to hâve resulted from that debate, except to draw the attention of the public to the ridiculous extrêmes to which the doctrine of conspiracy had been pushed. To such extrêmes has it been carried that a dull and passionless légal text writer like Roscoe mentions cases in which a charge of criminal conspiracy may be maintained, and then says that the vagueness of the définitions leaves in the hands of the judges to déclare it to be a crime to do almost anything which the judges regard as a moral wrong, or politically, or socially dangerous.

I state ail thèse things simply to put before Your Honors my appréciation of the duty which you are called upon to perform in this case and to enable Your Honors to understand that, if you hâve great latitude in the interprétation of the law of conspiracy, there is the

corresponding responsibility which attaches to the exercise of your discretionary power

For the purposes of this case, however, I am willing to accept the définition of conspiracy as it was given to us by the leading counsel for the Crown, when he opened his case to the Jury.

My learned friend, Mr. Stuart, said that conspiracy might be defined as " the unlawful combination of two or more persons to do " an unlawful act, or ta do an act lawful or indiffèrent in itself by " unlawful ineans." This is the définition to be found in the 3rd volumes of Russell on Crimes.

An indictement for conspiracy must show, and the proof must establish at least, an unlawful agreement for an unlawful purpose or to effect a lawful pupose by unlawful means.

The unlawful combination is therefore the gist of the offence, that is to say, there must be an unlawful agreement between two or more persons ; and unless that unlawful agreement has been proved to the satisfaction of the Court to hâve existed between the persons hère charged, until the foundation of the whole charge is made out> we urge that yours Honours should not allow the case to go to the Jury. The Queen and Taylor 25 Law Times N. S. p. 75.

The indictment hère charges that the Défendants. Mercier and Pacaud, did fraudulently combine to obtain of and from Her Majesty by false pretences the sum of $60,000, and alternatively they are charged with having conspired to defraud the Caisse d'Economie of the same sum of money by means of the same false pretences.

The fraudulent combination is therefore limited to the two défendants. The unlawful object which they are charged with having: sought to obtain is stated to be the obtaining $60,000, the monies of the Bank and of the Province, the means used, false pretences.

Let us now go over the évidence of the Crown to see if that fraudulent combination, that common design which is the root of the charge, has been proved to hâve existed between the two Défendants. In the first place we hâve it established that in the year 1887 the Administration, which had just then corne into office, deemed it necessary in the public interest to establish a central s tationery bureau through which the différent public offices would be supplied with such stationery as they required. A contract was then prepared by which a Mr. Langlais, a stationer, in good crédit and in a large way of business in Québec, and who had been in the habit of supplying the public offices since 1873, was given the exclusive right to supply this Bureau for ten years. The contract was. not finally executed then, for some reason which is not made per1 fectly clear, but Langlais continued his efforts to get the contract, had différent interviews with the members of the Government, urging upon them both verbally and in writing the advantages to b*e derived from the establishment of a central bureau and from the awarding of such a contract to a single individual by which the

Government woulcl get the benefit of wholesale priées, and nnally, after negotiations extending over ail thèse years, the contract now in question was <*iven in February, 1891. I need not for the purposes of my présent argument go into further détails of the negotiations which led up to the awarding of the contract. Upon receipt of the letter notifying him that the contract was tinally given to him, Langlais wrote the Prime Minister, asking that the Government should in some way facilitate lus tinancial arrangements, and in answer received the two letters of even date with the contract (23rd February, 1891) and so frequently called in thèse proceedings letters of crédit. Armed with the contract and the two letters, Langlais applied to the Caisse d'Economie for an advance of money and the Président of the Bank agreed to advance him $56,772, taking as collatéral security for the loan the contract and the two letters which were endorsed over to the Bank. The chèque by means of which the loan was made was cashed at the Union Bank by Langlais, who gave $50,000 to Pacaud as a subscription to the gênerai Dominion Election Fund and applied the balance of 86,772 to his own private purposes. Langlais since the contract was awarded has furnished goods there under to the amount of 88,000.00 thereabouts, for which he has not been paid and the Governement has not paid any portion of the $60,000. The Caisse d'Economie is a creditor of Langlais for the amount of their advance to him, and he having become insolvent the Bank has filed a claim on his estate and ranks as a creditor for 860,000.

I will now again repeat : the charge is that Mercier and Pacaud — not Langlais &: Pacaud, — not Langlais & Mercier — but Mercier *fe Pacaud obtained from the Bank $60,000 by false pretences. I urge in the first place, that the action of the crown in omitting Mr. Langlais from the charge, treating him as innocent and putting him in the box, is practically an acquittai of the défendants. For how can there be a conspiracy to defraud either the Crown or the Bank to which Langlais is not a party ? The contract as it is called was made with him, the letters of crédit handed to him and drawn in his favor, the money obtained from the Caisse d'Economie by him, and by him in part handed over to Mr Pacaud. Under the circumstances no conspiracy is conceivable of which he was not necessarily a promoter. Let me now ask my learned friends who proscecute for the Crown to point out to Your Honors that portion of the évidence which shows or tends to show, the existence of a combination between Mercier and Pacaud that in any way assisted in or contributed to the obtaining of this sum of $56,772. Is there any évidence which your Honors can recall to establish that on the 23 February, 1891, or at any time previously Mercier in any way directly or indirectly came into contact with the Bank or its officiais ? Is there any évidence to show that- Mercier and Pacaud met on that day. or that they at any time came together to combine, to agrée, or to in

any way discuss the question of obtaining this sum or any sum either f rom the Bank or f rom the Province 1 I admit what my learned friends will probably contend that it is not necessary for the Crown to prove any direct concert or even any meeting of the conspirators, as the actual fact of conspiracy may be collected from the collatéral circumstances of the case — and " if two persons pursue, by their acts, the same object by the same means, one performing one part of it, and the other another part of it, so as to complète it, with a view to the attainment of the object they are pursuing, the jury are at liberty to draw the conclusion that they hâve beenengaged in a conspiracy toeffectthat object. The évidence shows that the only act done by Mercier which can be in any way construed as contributing to attain the unlawful object which he and Pacaud are alleged to hâve been pursuing, is the signing by him as Prime Minister of the contract and two letters. Such being the case, if Mercier has not, in conséquence of his connection with thèse letters become criminally liable, the charge must fail as to him and in that event Pacaud jnust also be acquitted, as the nature of conspiracy requires that more than one person should be concerned in it. Your Honors will remember that in signing thèse letters Mr Mercier did not act in his individual capacity ; on the contrary he is careful throughout the whole transaction to assume his officiai position as head of the Government. In the first of the séries of letters Mercier says that, after having consulted his colleagues, he, as their officiai head, conveys to Langlais the information that they (the Executive Council) hâve finally awarded him the contract which he had worked to obtain during four years. On receipt of this letter Langlais replies, saying that to enable him to exécute his contract he will require some financial accommodation from the Bank and asks Mr Mercier tosay if the Government can help him. The Prime Minister again replies officially. Let us now read the letters. (Those letters are printed in Mr Languedoc's opening speech.) On their face thèse letters bear no appearance of criminal wrongdoing, and as I will hâve occasion to argue later, they are consistent with a due regard for the best interests of the Province. But let us first see if, in conséquence of his connection with thèse letters, criminal responsibility attaches to Mr. Mercier. When as Prime Minister be signed thèse letters, did he do a lawf ul act, and if so can he be held responsible it they were subsequently used for an unlawful purpose with ou t his knowledge 1 Common sensé and justice require that " a man should not be made answerable except " for the natural or probable resuit of his own act " Bramwell B., in R. vs. Horsey 3 F. & F. 287. If in signing thèse letters the Prime Minister did that which he had the right to do or at least did an act which of itself did not carry with it criminal liability, then it must be assumed that this act légal or indiffèrent became corrupt and legally punishable because of some circumstance which preceeded or

M, DUNBAB

accompanied it. There is an undoubted principle of English law which says that the presumption of wrongdoing can always be rebutted by proof that the person who did the act could not know that it was wrong or could not help it. Hère the Executive Council of the Province, after full délibération, decided to award Mr. Langlais the contract for Stationery and of this he is informed by a Jetter signed by him who was then Prime Minister of the Province and Président of the Executive Council.

And why should he be criminally responsible for his action in this matter to a greater extent than his colleagues ? Further should it not be open to him to show as a matter of justification that so far »s he is concerned he acted throughout merely as the mouth pièce or the agent of the Executive Council and against his own bette r judgment ? Yet this we are precluded from doing because the law says that the proceedings of the Executive Council are State secrets which the ministers are bound by oath not to divulge. Then Mr. Mercier is placed in the anomalous position that he is proceeded against criminally by the Crown for an act done by him in his officiai capacity, as one of the advisers of the Crown, and he is told that he cannot prove the justifying or extenuating circumstances under which the act was done, because he and his colleagues are debarred from doing so by the terms of their oaths as members of the Executive. This of itself is sufficient to show the injustice, not to say, the absurdity of the présent proceedings. Further more I submit that, for such an ofScial act, Mr. Mercier is not liable to ordinary criminal prosecution. In Bishop's criminal law, paragraph 462, there is tne following passage : — " It is sufficiently settled that legislators, the judges of our highest courts and of ail the courts of record, acting judicially, and probably such of the high officers of the government as are entrusted with responsible discretionary duties, are not liable to ordinary criminal prosecution like indictment for officiai misdoings, however corrupt." Same doctrine will be found in May's Constitutional History of the British Empire. We are without other précèdent to guide us, because I cannot admit that the King vs Bembridge, 3 Douglas, reports 327, or the Queen vs Valentine Jones, 31, State Trials, are at ail cases parallei to this.

Let us now examine the letters. It should be unnecessary to refer to that first written further than to say that on its face it is perfectly unobjectionable — it purports to be the évidence of a contract entered into between the Provincial Executive and Langlais after négociations extending over a period of four years. This contract would undoubtedly hâve been profitable to Langlais and to the government, as the Crown itself has already proved. Theretofpre eacli department purchased its stationery at retail rates and as suited the sweet will of the departmental employées. Assuming, as we must assume until the contrary is proven, that this contract would hâve been honestly executed, that the quality of the materials would hâve

been unobjectionable, the Crown would hâve had the benefit of thecurrent wholesale rates, which meant t.o the province a saving of 25< p. c. per annum on purchasesamounting toabout $100,000. Langlais would hâve been benefitted by reason of his large sales to the government, and subsidiarily in purchasing for his gênerai business. If the matter had ended hère, could anything hâve been said or complained of 1 Let us now see if, by his subséquent conduct, M. Mercier has incurred crirainal liability. Much misconception exists as to the nature of the two letters above quoted in full, and which hâve been very improperly called throughout ail thèse proceedings " letters of crédit." Langlais in his first letter written to the Prime Minister after he had received officiai notification that the contract was awarded to him, says in substance : what amount can you advance me to assist me in financing for my contract and whencan you make the advance 1 To this the Prime Minister replies : in view of the fact that the average purchases hâve heretofore amounted to $100,000 annually, I say the government will pay you in six months $30,000. To this Langlais replies that the amount is insufficient, and asks that it be increased to $60,000. Mercier says that he cannot do this, but that he has no objection to say that in twelve months the amount of goods to be f urnished by Langlais will exceed $60,000, and that in conséquence the Government will pay that sum in twelve months from the lst of Mardi then next. iâubstantially, the four letters which bear more directly on the advance of $60,000 may be summarised thus : Langlais asked the Prime Minister to say how much would be due him under his contract with the Government in six and twelve months from the first of March then next, and the Prime Minister replies, as our average annual purchases hâve heretofore amounted to about $100,000, we should owe you, if your contract is honestly executed, about $30,000 in six months, and $30,000 more in twelve months. Was this estimate absolutely correct? Furthur, in so far as the Bank is concerned, where is the deceit, where are the false pretences ? There is an elementary constitutional doctrine, with which every one is familiar, that no money can leave the public treasury except by vote of Parliament. Thèse letters are signed by Mercier as Prime Minister and they are addressed to Langlais ; thus every body had full notice that Mercier was acting as Prime Minister within the scope of powers defined by law, and, shown to a bank thèse letters amounted to nothing more than a déclaration by the head of the Government that Langlais had obtained the contract for the supply of the stationery to the Government for four years, and that if this contract was executed there would be due to him there under $30,000 at the expiration of six months, and $30,000 more at the end of twelve months from the first of March, 1891. It must be further borne in mind that at that time the Législature had by regular vote placed at the crédit of the Executive the contingent funds out of which the expenditure for the

• supply of stationery for the fiscal year then current was to bemade : so that at most thèse letters could only be construed as an appropriation by the Executive of f unds regularly voted to the spécifie purposes for which they were originally intended, and they did not in any way bind the crédit of the Province for the future. This brings me to the considération of the charge against Mercier and Pacaud contained in the first count of the indictment, to the effect that they had conspired together to defraud the Crown of $60,000 of the Crown's money — My contention is that no conspiracy such as charged in this count has been either shown or could possibly exist. Where are the funds out of which the Crown was to be defrauded 1 Apart from moneys assigned specifically by the Législature, the Crown hère has no resources. The arrangement impugned, the joint action of Mr. Mercier his colleagues, could only prove binding on the Crown when the necessary funds were voted by the Législature to carry it out, and so with the so-called letters of crédit. No lawyer can possibly prétend that they could for a moment bind the Crown, except as stated above for moneys already voted, unless ratified by the Législature and funds provided by it to meet them, or that they were intended by Mr. Mercier to imply more than a promise on his part to ask the Législature to vote each year the necessary suras to enable the Government to meet the expenditure necessitated by the contract, if in the meantime the contract was faithfully carried out by Langlais. This was ail he had power to do. In what then does the alleged conspiracy consist 1 In Mr. Mercier's binding himself to ask the Législature to approve the arrangements with Langlais, and to vote the moneys to carry them out. But this necessarily involved an act of Parliamant — for every vote is based upon statute, introduced as message from the Governor, passed by both Houses, and accepted by him. Till that was done,. the Crown was never vested with a dollar in this Province, out of which it could be defrauded as suggested. So that the charge as expressed on the face of the indictment is a conspiracy to defraud the Crown out of funds which it never possessed. If, on the other hand, that which Mr. Mercier agreed to do had been done, the act passed, the appropriations to Langlais voted and the money vested in the Crown for that purpose, then the payment over to Langlais or his assigns would hâve not only been légal but obligatory. How then can this Court find that there was a conspiracy to obtaiia money, which could only hâve been obtained und'fer the sanction of an authority whose will cannot be questioned ? While we admit that, under the law of conspiracy there may be a fraudulent combination, sufficient for the crime, in the attempt to do an act criminal in itself, but impossible of performance, there can be no conspiracy to do an act, which, as in the présent instance, must, if done, necessarily be légal.

In conclusion, I beg contidently to express the hope that, both on

the facts as proved by the Crown witnesses and the law as I hâve expounded it, your Honors will see your way to dismiss the défendants, and so discourage the first attempt to introduce into this country, on the change of an Administration, the disastrous system of the prosecution of fallen political opponents.