May 23, 1961

PC

Paul Raymond Martineau (Parliamentary Secretary to the Prime Minister)

Progressive Conservative

Mr. Martineau:

Mr. Speaker, I cannot accept them as such in view of the fact that I have not studied them with the dedication the hon. member for Vancouver East (Mr. Winch) has. I present these figures in an effort to establish that one can either make a case for or against capital punishment by the use of statistics. Certain learned individuals have made such cases, by figures, showing that capital punishment does act as a deterrent under certain circumstances.

We have the opinions of professional individuals who are dedicated to the hunting down of criminals. I refer to the commissioner of police for London, who testified before the royal commission, to which I have referred, giving examples establishing the deterring effect of capital punishment. That individual referred to a certain group of hoodlums. One of the members of that group was apprehended, convicted of murder, and sentenced to hang, but that sentence was commuted. That group continued its operations in the same way, perpetrating crimes of violence, including murder. Subsequently two members of that band were arrested, convicted of murder, sentenced to hang, and the sentences were carried out. Following their execution that band of hardened criminals discontinued its operations. It is the considered opinion of that man, whose life work has been devoted to dealing with crime in the largest city in the world, that capital punishment is a deterrent to murder, and I suggest his opinion should carry some weight.

In the debate on capital punishment in the United Kingdom House of Commons of February, 1955 the home secretary gave various reasons why that government was opposed to the outright abolition of capital punishment. One reason he gave in support of the government's rejection of abolition of capital punishment was the evidence of many experienced persons that the death penalty was

a unique deterrent to the professional criminal. I think that is a very forthright indication of the nature of the evidence placed before the commission, which spent years investigating the matter.

In Canada we have officers of the law charged with the enforcement of law and order, who have come to this same conclusion. I refer, as an example, to the opinion of the former commissioner of the Royal Canadian Mounted Police, Mr. Nicholson, who during an interview conducted by a reporter of the Ottawa Citizen, and reported in that paper in February 25, 1960, is reported as having said:

It would not be an exaggeration to say the criminal fraternity generally would welcome abolition of capital punishment.

Therefore a strong case has certainly been established for the value of capital punishment as a deterrent. There is another thing to remember in discussing deterrents. One must keep in mind the kind of offence which now will be punishable by death. It is the deliberate type of murder; it is murder planned by stealth, cunningness, and all the sordid details that go with the commission of crime. It is precisely these people, Mr. Speaker, to whom the fear of capital punishment, the spectre of capital punishment, will be the most frightening. When they put into the balance or on the scales the pros and cons which would move them to commit their crime there is, I submit, a heavy weight against the commission of the crime when they know that swift and certain justice will follow in the form of execution by hanging. I think this cannot be denied. Even if after coming to the deliberate decision to commit crime and setting out on that sordid mission of murder, when everything else, every other feeling of human decency has failed, I still think that on the road to committing that crime prospective murderers will see the road sign which reads "To the gallows", and many may, even at that late hour, be deterred and not commit the crime of murder which they propose. That is why we cannot treat the commission of murder as a statistic because statistics are silent on the hidden motive that determines criminal offences.

With all the respect that is due to the hon. member for Vancouver East, who certainly was most sincere in his expose of his thesis, I still heartily and fully agree with the Minister of Justice who states that statistics are not reliable because there are no statistics on crimes which are not committed.

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Subtopic:   REVISION OF PROVISIONS RESPECTING DEATH PENALTY
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PC

Frank Charles McGee

Progressive Conservative

Mr. McGee:

Will the hon. member permit a question. Is the hon. member aware that

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Commissioner Nicholson, whom the hon. member quoted a moment ago, on a recent television panel discussion modified the statement which was attributed to him with respect to the application of enforcement; by that I mean the certainty of apprehension rather than the punishment itself.

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PC

Paul Raymond Martineau (Parliamentary Secretary to the Prime Minister)

Progressive Conservative

Mr. Marlineau:

I thank the hon. member for York-Scarborough for his explanation which I accept, but if words have any meaning, when Commissioner Nicholson said "It would not be an exaggeration to say the criminal fraternity generally would welcome abolition of capital punishment" he meant just that; that the criminal would feel a lot safer in this country if capital punishment was no longer in force.

What else will this bill do, Mr. Speaker? I am absolutely convinced that it will reduce the incidence of crime that will be described and charged in an indictment having to do with a capital offence. I agree with the hon. member for Vancouver East that it is the trend of modern criminology and also the trend of the times, but the bill does retain the essential distinction between the deliberate, the planned and the non-deliberate, nonplanned murder. It creates a new substantive offence of non-capital murder.

I believe it was the hon. member for Maisonneuve-Rosemont who said that this might cause a certain amount of difficulty for the crown attorney who must draft the indictment and decide whether a capital indictment will be laid. Certainly, it places a great responsibility on the prosecution office. I am sure the hon. member for Maisonneuve-Rosemont knows that the district crown attorney is not alone in determining what type of indictment or accusation will be laid. He must consult the attorney general's department. They have a staff of experts to deal with criminal prosecutions. I am sure also that in cases where there is any doubt in the mind of the crown attorney or of the provincial attorney general, or of his department, they will rather opt for the non-capital offence than the capital offence. This is normal criminal procedure and is entirely in line with the great principles that we adhere to in this country in the matter of justice, and especially criminal justice: The cases where it will be possible, first of all to lay a capital indictment; second, the cases, where it will be imposed; and, third, the cases where once imposed the sentence will be carried out, must be reduced to the absolute minimum. I say this well knowing that the application of this law may not be easy.

As a matter of fact, there is-and I am sure the Minister of Justice has thought of this question-the serious matter of the proof of

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the offence. How are we going to prove that such and such a murder was a deliberate, planned murder? In how many cases is the planning done in the mind of the criminal and his deliberation is not known by anyone but his own secret soul? This is a very serious difficulty with which the law officers will be faced. But at the same time it is a recognized principle of law that difficulty of proof must not deter a legal principle. Today we are establishing new offences, the substantive offence of murder and non-capital murder, and it will be up to the law officers to apply the law with the greatest amount of care that lies within their competence.

Moreover, this bill which reduces first of all the number of cases where a capital offence may be laid, also places an intricate legal machinery at the disposal of and to the advantage of the man accused of a capital offence. Quite a bit of this is an innovation; some of it is an amplification of existing measures laid down as a safeguard for the man accused. They assure that he will have an absolutely fair trial and every possible means of defence will be placed at his disposal.

For instance, Mr. Speaker, when the present bill becomes the law of the land no person accused of a capital offence will be able to plead guilty. This surely is a reasonable enactment and disposition. When one faces such a serious offence as capital murder one's mind may very often not be too clear. One is under heavy tension and it may be that owing to despondency or other reasons a person accused of capital murder may plead guilty to an offence that he did not commit. This danger is eliminated. An accused man is not permitted to plead guilty to such an offence.

There are other safeguards provided. The law will now call for an automatic appeal of the case when an accused has been found guilty of murder. There is an automatic appeal from the court of first instance, to the provincial court of appeal. This is a reversal of the former legal disposition. An accused did have that right but he had to take the initiative in exercising it. Under the present legislation the initiative will no longer be that of the accused. The choice will no longer lie with the accused but rather the crown will take the initiative of lodging an appeal. The accused will be furnished free of charge with a transcript of evidence and other legal documents necessary to prepare his defence adequately.

Once the provincial appeal court has disposed of the case there is now an appeal as of right to the Supreme Court of Canada on all matters of fact, law, or mixed fact and law. That is another safeguard. Again, when

the jury has found an accused guilty of capital murder it is the duty of the judge to ask the jury then if it recommends clemency in the particular case. The hon. member for Vancouver East was not sure whether such a provision would be better than the existing legislation in that regard. He felt that it was almost indecent to ask a body of men who have just condemned a man to pay the supreme penalty whether they recommend clemency. But, Mr. Speaker, under the existing law juries can and very often do recommend clemency for a man whom they have just convicted of a capital offence.

I am sure that the reason this enactment is in the present bill lies in the experience that many lawyers have had. I know I have had it myself. After a jury has convicted a man of this offence and has been discharged, the jurors will come and say to the lawyer that if they had only known they would have recommended clemency. This clause makes it impossible for a jury to fail to recommend clemency because of an oversight or because of a misapprehension of their position in that regard. To my mind this is an additional safeguard in favour of the accused person. By this bill, we are providing all these safeguards.

A new offence is created which will reduce the number of cases where murder will be punished by hanging. This whole procedure is all in favour of the accused and will tend to reduce the number of cases where the sentence of death will be carried out.

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Subtopic:   REVISION OF PROVISIONS RESPECTING DEATH PENALTY
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PC

Eldon Mattison Woolliams

Progressive Conservative

Mr. Woolliams:

Would the hon. member mind answering a question? Is it not a fact that over the years it has been his experience and the experience of others that the very thing he is now discussing has differentiated between those people who have received clemency and those who have not? That is the crux of the bill. Whether it is this government or former governments, over the years that is the very thing that has differentiated between those people who have received clemency and those who have not.

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PC

Paul Raymond Martineau (Parliamentary Secretary to the Prime Minister)

Progressive Conservative

Mr. Martineau:

That may be so. I think the hon. member should bring out the details of his argument. It is a point most worthy of the consideration of the house.

I should like to deal with another matter for a minute or two. I was struck by a word that the hon. member for Vancouver East used in his speech. He said that capital punishment was so "irrevocable", and indeed it is irrevocable. That is why we must go so slowly in imposing it and in carrying it out. I also think it is against the trend of the times. But did the hon. member ever stop to consider that the death meted out to the victim of the murderer is also irrevocable?

The gravity of the offence, the irrevocable nature of the murder that is committed, the irrevocable loss of the innocent person who is going about his business and suddenly has his life snuffed out are factors that must also be recognized.

I know that the hon. member will perhaps say that I am advocating revenge and am treating the matter on an emotional level. No, I am not, and I do not think that should be the primary consideration. At the same time, however, society being what it is, we must deal with murder with the most energetic and vigorous means at our disposal. I know that the adherents of abolition will say that capital punishment is a survival of the dark ages and we should get rid of it. Yes, get rid of it, Mr. Speaker, but murder may also be a survival of the dark ages. There is absolutely no pleasant way to deal with murder much as we in our polished twentieth century society would like to forget these things, much as we would like to forget that murder does exist and to forget that it is the duty of society sometimes to protect itself and to impose capital punishment on rare occasions. Certainly we would like to banish all that but, still and all, murders do occur and they must be dealt with with mercy but also with justice because in the last analysis justice is the basis of our society.

That is about all I wish to say on the question of murder and its punishment. I sometimes think of the words of Shakespeare when he describes murder as "murder most foul". In speaking of Macbeth Shakespeare says at one point: "Now does he feel his secret murders sticking on his hands".

These are things that this house is seized with today, and that is why I must commend the Minister of Justice for bringing in this bill which is a step forward, a step in the right direction. It gives to the man accused of murder all the safeguards necessary for his protection. It treats him with clemency, treats him with mercy, but also maintains through justice that equilibrium without which society cannot function. The minister has certainly gained the great respect not only of the house but I am sure of the great bulk of our population in that he has recognized the exigencies of a modern society tempered with mercy but based on justice. He has found a middle path between the two.

This morning when the Minister of Justice made his opening statement on this bill he referred to the history of our western civilization in the matter of dealing with capital punishment. He referred to the days of King Henry VIII when, I believe, some 70,000 persons were executed. He referred to the days of Robert Peel when over 200 offences were

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capital offences. Today, we are again limiting the number of offences punishable by death. We are, therefore, following along the line of progress but we are not disrupting the essential functions of our democractic society. I support this bill, therefore, and once again I congratulate the minister and all those who have worked to bring about the introduction of this measure. I feel sure it will receive the support of a vast number of our population.

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CCF

Harold Edward Winch

Co-operative Commonwealth Federation (C.C.F.)

Mr. Winch:

May I ask a question of the hon. gentleman? Did I understand him to say that his interpretation of the bill is that those who cannot afford it will have the best possible assistance in their defence? Does that mean that a chap like Mr. Branca, Q.C., or Arthur Maloney, great criminal lawyers, will be made available for the defence?

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PC

Paul Raymond Martineau (Parliamentary Secretary to the Prime Minister)

Progressive Conservative

Mr. Martineau:

No, I did not say any such thing. I stated that the transcript of the evidence and the other records that are necessary in order that the accused may establish his appeal and his defence will be delivered free of charge to the accused. I did not go further than that. If I gave that impression, I should like to correct it.

Mr. H. W. Her ridge (Kootenay West): Mr. Speaker, I rise to briefly express my views on this very important question and this very important bill. There is no necessity for me to take the time of the house by repeating the excellent arguments put forward in support of the principle of the abolition of capital punishment because they have been well stated by the hon. member for Vancouver East (Mr. Winch) and other members in this house. I presume all members of the house know that it is part of the policy of the C.C.F. to work for the abolition of capital punishment.

I listened with great interest to the minister's very well prepared statement of the history of legislation in connection with capital punishment and the efforts of various persons, organizations and members of legislatures to modify the legislation which imposes capital punishment. Throughout the years I have noticed with interest a growing public awareness of the importance of this question. I think that, as is the case with all reform measures and proposed amendments to legislation, we have to give credit to the pioneers who took a stand on this question when it was not by any means as popular to do so as it is today, particularly 40 or 50 years ago.

My attention was first drawn to the subject by the father of the hon. member for Vancouver East, who was then the member for Vancouver East in the provincial legislature. I had been brought up in a very traditional sort of way to accept the conventional attitude toward life and crime by my Liberal father

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and my Conservative mother. I heard the father of the hon. member for Vancouver East speak on this subject in 1932. At that time I did not agree with him entirely, but his speech did cause me to give the subject some consideration. Since then, I have read a considerable amount on this subject. I have listened with interest to the debates in the provincial legislature and in this house and I have discussed the matter with a number of people.

I was particularly impressed with the standard of debate on the bill advanced by the hon. member for York-Scarborough (Mr. McGee), on both sides of the question. I was particularly taken with the argument put forward by the hon. member for Parkdale (Mr. Maloney). In addition to the debate in this house, there has been quite a stirring of opinion in the country. I think the last debate we had on this question did create a great deal of interest in the country. There are certain organizations that have worked for years for an amendment to the law, particularly the Society of Friends, organizations of that type, and many in all churches. There have been editorials in the newspapers and articles in magazines and the wardens of penitentiaries and other officers have given their opinions to various parliamentary committees. The welfare council of Canada and other welfare organizations on a provincial scale have also given this question serious consideration and expressed their opinions by resolutions and by correspondence.

I noticed after the debate in the house on the bill introduced by the hon. member for York-Scarborough, there was a big surge of interest in this subject in the press, in letters to the newspapers and I think generally speaking in the correspondence members received from organizations and individuals. I think that is a very healthy state of affairs and does indicate the value of focusing attention upon moral questions by debates in this house.

I think we must express our thanks to the member for Vancouver East and to the member for York-Scarborough for initiating these debates in recent years, and to all those who took part in these debates on both sides of this important issue. It is clear, even from the literature I have read over a period of years, that the attitude of organizations and writers is different today from what it was 30 or 40 years ago. We are in a changing society. This measure indicates there is a change in the public conscience on these questions and concern as to whether we have been doing the right thing by those who are unfortunate enough to commit crimes of this nature. I think to some extent the whole

of society is responsible. No man is an island. We are all partly responsible for the crimes of an individual.

In my opinion, and I have thought a lot about this subject, I do not believe you can prove the arguments on one side or the other through the use of statistics. I have read the statistics very carefully and when you finish dealing with the statistics, you are pretty well on balance; you are where you started. In my opinion, this is a moral question. This is a matter of opinion on the moral question: Has the state the right to take a person's life? The members of this group believe that the state, in a Christian civilization, does not have the right to take a person's life. There are those who just as conscientiously take the opposite view.

This bill has been introduced because of the government's awareness of the growing public conscience with respect to this type of legislation. Those who support the abolition of capital punishment have a great deal of credit coming to them for creating public opinion and a public climate that has caused the government to take this progressive step. Like the hon. member for Vancouver East, I believe this a forward and progressive step. This amending legislation, makes our Criminal Code somewhat more humane. To that extent we welcome it and support it.

When reading the bill and looking through my files, Mr. Speaker, I found a copy of The Bulletin issued by the Anglican Church of Canada. I might mention the fact that I am an Anglican supposed to have Unitarian tendencies and be attracted to some aspects of pantheism. In any event, I am very much interested in what my church has to say on these questions.

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PC

Robert Hardy Small

Progressive Conservative

Mr. Small:

High or low?

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CCF

Herbert Wilfred Herridge

Co-operative Commonwealth Federation (C.C.F.)

Mr. Herridge:

I had better explain, Mr. Speaker. I do not want to be misunderstood. I felt obliged to say that I was an Anglican. When I was a boy the Anglican church was supposed to be the Tory party at prayer. However, I want to remind hon. members that in quite recent years we have had an archbishop of Canterbury who believed in socialist principles, so we are well in the vanguard of reform nowadays.

I wanted to refer to this excellent bulletin on capital punishment. It deals with all aspects of it. The question has been given very careful consideration by a committee under the chairmanship of Rev. W. W. Judd of the council for social service of the Anglican church. I was taken with two paragraphs which I intend to read and which I think are particularly appropriate in view of the minister's decision to introduce this legislation. I read paragraph 1:

When one man deliberately murders another, the problem arises with the government and parliament as to what is to be done about it, and with him, in the interests of public safety, peace, order and good government. It is not a problem that can easily be solved simply by facts, reason, and argument.

We all realize that from the debates and discussions in this house. The paragraph continues:

Experience shows that it ultimately boils down to a question of opinion; opinion based on good understanding of all the facts and considerations, with good judgment, but involving also feeling, sentiment, and conscience.

Each person must make his decision with regard to his attitude towards this question on the basis of his own conscience.

On a later page in this copy of The Bulletin I read a reference to the Canadian Welfare Council which I thought was particularly appropriate after reading the terms of this bill:

The Canadian Welfare Council in a brief to the joint committee on the revision of the Criminal Code, makes the following policy statement, "The Canadian Welfare Council expresses approval of the abolition of the death penalty in principle, and recommends as a first step, the abolition of the mandatory death sentence." Their statement concludes with these words, "We believe that the adoption of this recommendation would lead to a gradual reduction in the use of capital punishment and provide an opportunity to note the effects on the rate of murder. We are fully confident that before too many years have passed the desired goal-complete abolition of the death penalty-would prove feasible."

I trust that the hopes of the Canadian Welfare Council as expressed in this resolution will be realized within a few years after this bill becomes law. That is why I am quite prepared to say it is a progressive step in the right direction. We support it on that basis.

One thing I regretted as did the hon. member for Vancouver East is this. I may say that although I am on the left wing of the party and he is on the right wing, we agree on a great number of questions. However, he mentioned the fact that he regretted that in the bill there was no mention of a change in the method of execution or of taking a person's life. We in this group are of the opinion that our present method is barbarous in the extreme. We regret that the bill does not include some revision or amendment of the present practice in that respect.

There is one other matter I want to mention before taking my seat, and I know I am speaking in the presence of persons learned in the law. When I look over at the other side and see the hon. member for Edmonton West (Mr. Lambert) looking at me I am deeply conscious of my lay status, shall I say, when it comes to this type of legislation. But on occasion

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I have been impressed and concerned with the complete lack of knowledge of the law and of understanding of the purpose and function of juries by persons called to serve on juries. It is not their fault. I have seen called to serve on a jury men who, because of their limited experience-they maybe live in isolated places-or because of their lack of opportunity had not the foggiest idea of what the jury stood for or what its real purpose and function was in a democratic society in giving effect to the principles of justice found in our legal codes. In talking to some of these men I could see that they were persons who, without this knowledge would be easily influenced by persuasive counsel. Mind you, that is a very serious matter when a jury is considering such crimes as murder and other serious offences under the Criminal Code.

I have felt for a long time-and I mentioned this matter once before in the house some years ago-that something should be done to correct this situation. I wonder whether the Minister of Justice for Canada could give some lead in that direction to the provinces. I presume that the primary responsibility would be that of the attorneys general of the provinces. I think there should be published some form of simple manual that deals with the history of the jury system, its purpose in our society, its function and its procedures and which possibly contains some elementary instruction on the rules of evidence and how to deal with these complicated questions and provides information on the status of the jury, its importance and its prestige in our society. I have talked to men who have served as jurors on a few occasions-and I am not saying that this frequently happens-who were quite unconscious of the serious and important function they were going to perform as members of a jury considering a very serious charge. I think something should be done in that connection.

When the minister concludes this debate I wish he would give to the house his opinion on whether something can be done under his direction or at his suggestion-I do not want to suggest "under his direction" to the provinces-to the attorneys general of the provinces or possibly the matter could be discussed by the Minister of Justice with tlu attorneys general of the provinces when they meet. I think they have a meeting annually in connection with uniform legislation or something of that sort. Possibly the bar association could give some consideration to the matter. I know that I am floundering here, Mr. Speaker, because I am a bit out of my depth. However, I have often felt that something could be done to improve the present

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situation by providing a somewhat easily read simple manual along the lines I have suggested.

That is all I have to say at the present time. I intend to make a few comments when we are discussing the various clauses of the biU.

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PC

Terence James (Terry) Nugent

Progressive Conservative

Mr. Terry Nugent (Edmonton-Strathcona):

Mr. Speaker, I think when the House of Commons passes the bill before us this evening the system of justice in Canada will have taken a long stride forward. In fact I believe, bearing in mind that the administration of justice is perhaps the strongest indication of the state of civilization of a nation, civilization in Canada is taking with this bill a very long step forward.

It may be that, being one of those who has put the sanctity of human life so high that I am in favour of the complete abolition of the death penalty, I am perhaps looking with too much enthusiasm on this amendment to our present rather stringent law.

However, I do feel I am completely correct when I invite all my hon. friends to look at the process of civilization and to study history down through the ages. I am sure they will find that the more civilized the nation, the fewer are the crimes for which their citizens may be put to death.

It is true that in this bill we do not say that some crimes are now out of the death penalty category, but the division we have made amounts to the same thing. I suggest that the question of whether or not the death penalty should apply in Canada involves not just a purely legalistic study of the problems involved; it is not a matter of logic, of cause and effect which can be determined with mathematical certainty. What we must do is satisfy the conscience, the feeling as well as the common sense of hon. members of this house and Canadian citizens generally.

I do suggest that a logical approach, a study of cause and effect is perhaps going to be guided most by statistics; by a good look at what has been done in other countries and what is the effect of the removal of the death penalty in those systems where it has prevailed for some considerable time and where the degree of civilization is in other respects analogous to our own.

I will not attempt this evening to give the house any breakdown or go in detail into these facts and figures. We have had in this house a very thorough discussion along these lines. The hon. member for Parkdale (Mr. Maloney), for instance, has given us a very inspiring address on this matter as well as the considerable benefit of his own vast experience as one of Canada's leading lawyers. Along these lines we have had the very hard

[Mr. Herridge.l

work and dedicated service of sponsors of various bills, including the hon. member for York-Scarborough (Mr. McGee). We have been besieged, I might say, with statistics which perhaps in some instances are as much confusing as enlightening.

One thing that has impressed me above all in the arguments that have previously been heard, which we have heard repeated in the house today and which causes me considerable anxiety-I almost said "anger"- is the argument put forward by those who are in favour of the death penalty and who continue to misquote abolitionists by saying, "It is argued that the death penalty is not a deterrent".

Mr. Speaker, I have not heard such an argument in this house. I do not believe part of the argument used by any of us who believe in the abolition of the death penalty is that the death penalty is not a deterrent. We merely state that life imprisonment is also a very strong deterrent. We are not convinced that statistics show that the death penalty is any greater deterrent or that its removal and substitution by life imprisonment has caused any significant change, in so far as we can see, in the number of capital crimes.

I should therefore preface the first part of my few remarks on this subject by saying I am grateful that we have taken such a step forward in justice and in civilization as to reduce the number of crimes that we may punish with the death penalty.

I look forward to our next step, when we may give full scope to our Christian and humane feelings and realize that there should be no death penalty; that in a civilized society putting to death any member of society it is merely, to that extent, recognizing its own failure to provide sufficient guidance to that person, or failing that person to some extent.

As we find ourselves more and more civilized we must admit that we hold a greater duty to our fellow man and I hope our failure, however slight it may be, will not be reflected in taking away his life so long as we can point to one iota of guilt on our own part for his offence.

I think the bill before us today reflects two or three principles that we who have had some practice, at least, in criminal law must recognize. First, a look at those offences which have been made non-capital shows that here are those offences which have given most trouble to judges and juries. Here are listed the categories of cases where trial judges I am sure would inform us they have found, in so far as they are concerned, that the crown had proved guilt beyond reasonable doubt; it was legally necessary for a jury

to bring in a verdict of guilty but the jury for some reason returned a verdict of not guilty.

I suggest that on looking over this list of cases it will be found that the jury has always failed to find that degree of moral guilt which would give them the necessary backbone, shall we say, to bring in a verdict of guilty when they knew it would result in the death penalty and when they felt the accused should not be put to death.

I think, further, that consideration of the breakdown of the bill before us now proposed by the government will show that by and large those non-capital cases cover most of those cases where the cabinet has commuted the death sentence to life imprisonment. I am not saying they will all be found there, but I do believe that taking the two considerations into effect; the unwillingness of juries and the results of consideration by cabinets over the years; practically all cases of non-conviction where there should have been conviction and commutations which have been handed down, would fall within these categories.

I suggest that perhaps we may have been one step further forward if we had given juries the right to consider each particular case a little further. Rather than leaving it to the crown to determine whether a particular case is or is not a non-capital case, perhaps we should have given the jury the right to decide this matter. If we had left upon the jury, the avenue of discretion in each case, or perhaps only in respect of those reserved capital cases, of considering the evidence brought before it, allowing it to present its own opinion regarding the capital or non-capital aspects of the case, I suggest we would have been further ahead with the jury system today.

These juries are, after all, selected from men and women of each constituency. They understand the circumstances existing in communities across the length and breadth of this country. It may be true to say that justice is rough and ready in one area while refined in another, but surely the individuals resident in those varying areas have a better appreciation of the circumstances involved, in respect of justice as it is found in those areas. I suggest that no more competent individuals will be found than the ordinary citizens of this country; the individuals who form our juries, who in turn decide whether an offence is of a capital nature against society, as society knows it.

In brief, I suggest that society, as we know it should regard a capital offence against itself not as a matter applying to the whole of Canada but, to a great extent, a matter of local application, which is familiar to those

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individuals who have lived, worked, played, and perhaps sinned in that locality. I cannot foresee a detraction in any way from our system of justice as the result of our stating that a different result may follow a different set of facts in different areas of this country. I suggest that we have not, as yet, invited juries to give proper and sufficient consideration to the facts presented to them.

Perhaps I may be permitted to discuss the question of capital punishment itself for a moment or two. We have relegated a certain number of crimes to that area which involves the punishment of death. I have mentioned that it is my belief and experience that many juries unwillingly acquit accused individuals of murder because of the knowledge that the death penalty will be imposed. If life imprisonment ' is substituted for the death penalty in cases of murder. I suggest that we will probably find many individuals inclined to acquit because the imposition of that penalty is against their belief, and may even be more repugnant to them. I know that statistics compiled by officials of various states of the United States, which have abolished capital punishment and adopted in its stead imprisonment for life as the penalty, show an increase in the incidence of capital offences. In view of this fact I am unable to understand the emphasis placed, by this present bill, on the deterrent effect of capital punishment. We have, in support of the deterrent to hardened criminals, only statistics showing an increase in the incidence of murder in those states which have retained capital punishment, while at the same time, in those areas which have actively attempted to abolish the death penalty, there has been little or no perceptible change. I am convinced that statistics will show that hardened criminals, who have been incarcerated, realize that this is the most effective form of punishment. I suggest, therefore, it is not the fear of death that has persuaded these individuals to refrain from committing murder, but perhaps the fear of life imprisonment itself.

It has been suggested that the abolishment of capital punishment in cases of murder, and the substitution therefor of life imprisonment, will increase the number of murders. Several of my laymen friends this afternoon, who are not lawyers, have suggested this possibility. I can perhaps understand their point of view, that juries should be instructed to a greater degree in respect of the application of the law regarding the imposition of capital punishment. However, I am unable to conceive of any case in Canada where the judge involved failed to make the jury fully aware

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of the fact that it was the jury who were judge of the facts but must accept the court's instruction as to the law.

I do not understand the reasoning behind the suggestions of some hon. members regarding extra instruction, of this type, on the part of judges to juries in the proper handling of their duties. On the contrary, I suggest that what is needed is a common sense approach, so that the facts may be brought before the jury made up of ordinary citizens of this country who hold the lives of men in their hands.

Most of us in this house are aware that these individuals often hold our political lives in their hands yet find, when we are victorious, that we can trust their judgment. If we find we cannot trust their judgment regarding right and wrong, surely we should abolish the jury system completely. If we find we are unable to trust these individual citizens of Canada to that extent, surely we cannot trust democracy itself. My suggestion regarding instructions to juries in respect of that category of crime involving capital and noncapital offences involves the principle that if a jury is capable of electing a man who will partake in the making of laws, surely it is capable of understanding how to administer them. When we are only capable of putting our thoughts into words which we hope will embrace the broad general situation, and on which they must vote to elect their members surely those voters acting as jurymen are capable of deciding whether or not a particular set of circumstances falls within the principles embodied in the law.

I should like to conclude my remarks, Mr. Speaker, by reassuring the Minister of Justice (Mr. Fulton) that I am entirely in favour of the amendments embodied in this bill, although I must say, as a lawyer, that as a result of the passage of this legislation I anticipate more convictions than have taken place to date, perhaps as a result of the fact that juries may no longer be reluctant to convict because of the knowledge that the death penalty is inevitable. I do believe, however, that justice will be better served under this law than heretofore. I believe there will be fewer lawyers who will see their clients hanged while entertaining lingering and serious doubts as to their guilt.

Perhaps hon. members will forgive me if I make reference to a particular case, and I hope the hon. member for Parkdale (Mr. Maloney) will overlook my mentioning his name in saying that he, as a prominent lawyer, will have reason to support me in this suggestion. Recently there was the Coffin case and in the province of Alberta the Cook case; I feel I am safe in saying that defence counsel was in doubt as to the guilt of the

accused in these cases, although they were both hanged. It is not necessary for a lawyer to believe in the innocence of the accused or even to have serious doubts about his guilt. However, individuals have been hanged while outstanding barristers have had reservations as to their guilt, and this fact alone should weigh heavily on the conscience of us all. It is, of course, only right to say that we all have great confidence in our system of justice, but it is very callous to say that we are perfectly willing to place our trust, in respect of the guilt of individuals, in our own infallibility.

This is what has happened. Hon. members know eminent counsel who have serious doubts about the guilt of people who have been hanged. I hope hon. members will understand that I am happy to know that we will have fewer hangings, and hon. members will also understand why I look forward to the day when we shall have none.

Topic:   CRIMINAL CODE
Subtopic:   REVISION OF PROVISIONS RESPECTING DEATH PENALTY
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LIB

Osias.-J. Godin

Liberal

Mr. O. J. Godin (Nickel Belt):

Mr. Speaker, I rise to place before the house my few remarks concerning what I consider a most important social problem. I refer to the abolition in some form of capital punishment in this country. It is my intention to be brief. I should like to pay tribute to those hon. members who in the course of this debate, as well as in similar debates in the past, have expressed important opinions on this matter. On this issue of capital punishment, and possibly on other major issues which have been discussed by the citizens of this country I must say that in spite of all that has been said in this house I have not materially changed my opinion on the matter. The history of the study of capital punishment in the world and of its abolition in certain countries is a long one and I must say a confusing one. Especially is this so if one were to use the study to make up one's mind as to what should be done in this respect in our country.

I do not find that in the month of May, 1961, the problem of capital punishment is an urgent national problem. I say to the Minister of Justice that we may find the consequences of this legislation important but I do not find that a bill of this kind is occupying the minds of the Canadian people to any great extent. If the business of the house permits it and if time is set aside to discuss this legislation, then I am prepared and most anxious to express my views on the matter.

Since this matter was brought up indirectly by the endeavours of and the promotion given to the problem by the hon. member for York-Scarborough (Mr. McGee) in presenting his private bill, and also by similar bills which have appeared on the order paper, we have

received many memoirs. The efforts of the hon. member and others have undoubtedly prompted Canadian citizens, organizations and especially churches-I appreciate their contribution very much-to forward their views and memoirs and to express opinions on the matter.

I am not speaking for members on the government side of the house; I speak with a free mind and what I say is my own opinion. However, I accept the responsibility of representing the many thousands of people of my riding of Nickel Belt, and I feel that hon. members in making their decisions must take into consideration the opinions, the wishes and the standard of life of Canadian citizens as a whole, and especially that standard which they would like to see implemented in Canada. In coming to the opinions which I am about to express I felt it was necessary to pay as much attention as possible to public opinion on this matter. I will not give statistics to which many hon. members have made reference; they are not always helpful. I will save much of the time of the house by not referring to the many documents which we have and which relate to this matter. However, I should like to emphasize that in speaking about statistics one thing must be kept in mind. Most of them pertain to the deterrent aspects of capital punishment.

I am afraid, Mr. Speaker, as I view those tables and cumulative figures, they mean very little to me because the statistics which we would like to have on this problem of deterrents are not available. In other words, I refer to the punishment which deters the commission of a crime. This deterrent is based primarily on the fact that the crime will not be committed. Therefore, throughout history there has been no way of knowing of the possible cases of murder which may have been prevented owing to the punishment which was attached to the commission of the crime. We find differences in statistics over the decades. We can make a study and in some way we can find a relation to world problems, and to wars which have occurred from time to time, connected with the commission of the crime of murder. But in no instance can one prove through statistics that the punishment has or has not minimized the commission of the offence.

I am of the opinion, as I have looked into this matter, that surely there must be a way of doing away with certain anomalies in the Canadian Criminal Code today. I would like to ascertain whether our courts are equipped to deal with this problem. As it is today, practically every case is brought to a final conclusion by the cabinet of this country.

I believe the Canadian people feel that there are types of crimes for which such a

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severe punishment as hanging is not absolutely warranted. Therefore, I would be prepared to approve of and support the general principles of this bill. However, Mr. Speaker, I have certain reservations as to how these principles can be implemented. I shall avail myself of the opportunity of discussing detailed problems concerning the bill when we are in committee of the whole.

On the whole this bill enunciates two principles. First, it distinguishes between the more culpable types of homicide which would require capital punishment and other types which would not. In this sense it does away with the problem with which our courts were faced in the past, namely in all cases to make a straightforward decision. As one discussed this matter with juries and judges in the past, one came to the conclusion that this position did not satisfy men placed in authority who were required to pass judgment in cases involving a sentence of capital punishment. Therefore I feel that the bill brings about this distinction as a major principle and gives to the crown and the courts the opportunity-I do not like to use the word "elasticity" in this instance- to use judgment in distinguishing the gravity of the offence of murder committed.

I realize that we are being asked to bring about a change in the way we will from now on punish those guilty of this most grave offence. There are only 265 members of the House of Commons and on behalf of the 18 million people of Canada we will make that decision. It is thus that parliament operates and undoubtedly, as with other difficult problems, the house must make this decision for itself and for the people.

In discussing this matter I should like to indicate how much I appreciate the documents that have been forwarded to me by many people. As the hon. member for Kootenay West (Mr. Herridge) did a moment ago, I should like to express my appreciation of the most complete memorandum forwarded to members of parliament by the Anglican Church of Canada. It is a most detailed report and it indicates how the council of that church divided on the question. If I recall the figures correctly, 58 voted in favour of the abolition of capital punishment and 40 were opposed. Undoubtedly the result of the vote was forwarded to us to give members of parliament the most detailed information as to the decision of that group. (Translation):

Mr. Speaker, I had also the opportunity to read some French literature on that subject, and I should like to read to the house a bulletin from the Roman Catholic church of Canada, released at the time this subject was being discussed here.

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I saw in Le Droit for Thursday, February 18, 1960, the following official statement from the Canadian Catholic Conference. That statement was published on the front page of the newspaper, and I should like to read an important paragraph which sums up the views of that group:

In a bulletin published Wednesday, the Canadian Catholic Conference stated that the traditional teaching of the church is that the state has the right to impose the death penalty.

Needless to say, Mr. Speaker, the article does not go into details, nor does it give an opinion on the matter which awaits now and awaited then a decision from the government. Nevertheless, the article explained the general attitude of that institution toward the problem which is being discussed.

(Text):

Before I finish I must state that for a long time I have felt that too many sentences have been commuted as a result of appeals to the cabinet. I should like to refer to a graph appearing in a Canadian Press article in Le Droit of Monday, March 28, 1960. From reading the article I presume it was published because of the debate that had taken place in the House of Commons having to do with the punishment of murder in Canada. The graph outlines the number of murders and commutations of sentences in Canada in the period from 1930 up to and including 1959. Possibly because of the situation immediately after the war in Canada the number of murders, as a layman like myself can plainly see, increased greatly beginning around 1945 while at the same time commutations of sentences also increased. As we reach the year 1959 we see from the graph that the two lines representing murders and commutations are widely spread apart whereas in 1930 they were very close to one another.

In supporting the bill I must say, having in mind all the opinions expressed, that it is my honest belief that justice must be applied equitably having regard to all the circumstances. I am not too sure that the bill provides the complete remedy for that problem. That matter will undoubtedly be discussed in committee. However, I do think that the bill does make an effort to accomplish this end.

I recall that when I was at school I learned a principle that I appreciated very much. It was a Latin phrase I learned from my teacher, "In medio stat virtus", which means that the middle course is possibly the one nearest to what is right. Having regard to our Canadian way of life today, we believe

fMr. Godir.l

that a remedy should be sought, but I am not one of those who would like to see capital punishment disappear altogether. Inasmuch as this matter was brought before parliament by a private member, I find it odd that the government, in this year in which it was going to solve so many economic problems, has brought before the house a bill which undoubtedly reflects the opinion of members who have spoken.

I cannot bring myself to believe in the complete abolishment of capital punishment. The letters I have received from many citizens indicate to me that the people of Canada are still prepared to distinguish between the man who follows the law and the man who disobeys the law. There must be that distinction, particularly when it is a case of taking someone's life by murder. The Canadian way of life is not that of a soft society in which people are tempted to say that although a man has not conducted himself properly other forces are to blame and therefore no distinction should be made between him and the person who follows the rules and regulations of society in every way. Therefore I am absolutely opposed at this time to the complete abolishment of capital punishment. I cannot perceive what may be the Canadian way of life in the future and the outlook on capital punishment. It may be that 50 years from now our society will have become very soft and may not think such punishment to be practical. As I know our Canadian way of life today, I feel sure our society is a strong one and not a soft one. It is not one which is prepared to do away with severity in distinguishing between those citizens who follow the rules and those who disobey them.

I am pleased to support the proposed bill which brings about certain required changes in those sections of our Criminal Code which deal with murder and capital punishment. As I have said, I am prepared to support the bill, and I trust that hon. members will give us more information on this subject as they speak tonight. I must say, too that although at the outset of my remarks I said I had listened to debates on this subject for the last few years and had not changed my position materially, I must state that this is not the result of any lack of desire to see the other person's point of view. I shall be pleased to continue to listen to the arguments advanced by other hon. members and I shall keep an open mind on the subject. If it is possible to change my opinion, I will certainly change it.

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Subtopic:   REVISION OF PROVISIONS RESPECTING DEATH PENALTY
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PC

Arthur Edward Martin Maloney

Progressive Conservative

Mr. Arthur Maloney (Parkdale):

Mr. Speaker, I will only say a few words because I know there are other hon. members who

are anxious to speak on this important piece of legislation. As I participate in the debate tonight, I cannot help but call to mind the arguments advanced in this house on February 18 and February 25, 1960, when we debated the bill so eloquently and so skilfully presented at that time by the hon. member for York-Scarborough (Mr. McGee). I recall very well the excellence of his argument and the excellence of the speech of the hon. member for Vancouver East (Mr. Winch) who spoke in support of it. I recall, too, the excellence of the speeches delivered by the hon. member for Calgary South (Mr. Smith) and the hon. member for Vancouver-Kingsway (Mr. Browne) who spoke against it. I remember the ardour and the emotions that those speeches and the other speeches evoked in the persons who participated in the debate.

I feel that the debate that is taking place today is the culmination of a long effort by the pioneers in this field, of many distinguished members of this house, including Mr. Thatcher, the member for Vancouver East and the member for York-Scarborough. I feel that in this piece of legislation the government has very sensibly and very carefully incorporated what was obviously the thinking of the public as expressed in the debate at that time by the various members of parliament who participated in it.

This is really, in my opinion, a very historic day in Canada. I recall that on the occasion of the debate in February, 1960, the attendance in the house was good and I particularly recall how crowded were the galleries as the citizens of Canada listened so intently to the speeches that were given then. Today is really an historic day. I regret that more members of the public are not here to share in its importance. I think we have reached a real milestone. The administration of justice in Canada has been advanced today by the presentation of this bill in a way that is of far-reaching importance.

I want to extend my congratulations to the government, particularly to the Prime Minister (Mr. Diefenbaker), to the Minister of Justice (Mr. Fulton) and to the Solicitor General (Mr. Browne), because after all those are the members of the government primarily responsible for the subject matter of this bill and for the way in which this matter has been brought before parliament. I will not forget in a long time the magnificent speech that was given this morning by the Minister of Justice. It will go down in the history of this country as one of the really important contributions to parliamentary debate in Canada. I am sure he must feel proud to know that in his capacity as Minister of

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Justice he has occupied the position of presenting a bill of such great importance in the history of our country, a bill which is imaginative and realistic.

This measure is not, as some members have said, an important step in the right direction or a first step in the right direction. I was looking last night for a means of describing how important an advance it is in the development of our criminal law. At that time I had the pleasure of meeting the well known and popular young columnist from the Ottawa Journal, Timothy Burke. I told him what was going through my mind. I told him I thought this was far more important than a first step, and I should like to find language that would be adequate to describe how important an advance in our criminal law it was. He told me the expression for which I was groping was that it was a seven league stride. This is indeed what it is. This is far more than just a first step in the advancement of criminal law in Canada.

There were some members who participated in the debate so far who expressed some doubt about the degree of support the measure would receive from various elements in the country. Speaking on behalf, I think I can say without any hesitation, of the entire bar of Canada in the practice of criminal law on the defence side, I think I can assure the government that the bill would receive their universal support. I think that the members of the bar who practise in that area of the criminal law express views that are entitled to the respect and consideration of this house.

There are those who will find it difficult to reconcile the fact that somebody like myself and the hon. member for York-Scarborough, who have expressed such strong views and have advocated so long the abolition of the death penalty, could now support this measure. I do not unsay a single word I have uttered in that respect over the years. Nor do I recall a single syllable that I spoke in this house on February 18, 1960. I

firmly believe that the death penalty is absolutely useless and that it has no more deterrent effect than a sentence to life imprisonment would have. On the other hand, I have always felt, and particularly so since the debate took place in February, 1960, that abolition lacked that basic public support which is required if laws of abolition are to be successful. There is no law that is more peculiarly required to have public support than a law abolishing the penalty of death. I believe in abolition, but I believe it must be effective abolition and it cannot be effective abolition without the support of the public, and of a great majority of the public.

I recall that last summer, I think it was late in June, there was an outbreak of capital

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crime in the city of Montreal. As I recall it, there were some 11 murders in approximately eight or nine days. I often thought to myself that if the bill presented by the hon. member for York-Scarborough had ever become law, every one of those crimes would have been attributed to the new law of abolition and we would now be confronted with a campaign to restore the death penalty. If the death penalty is to be effectively abolished, therefore, there must be public support. It is not sufficient to appeal to the government to bring about abolition. What the people who favour abolition, who sincerely believe in the wisdom of abolition, have to do is to create in the public an awareness of the futility of the penalty of death. Public support is an essential element of abolition.

What impresses me so much about the present legislation is the transfer to the jury of the obligation to decide whether or not an individual should be sentenced to death. As someone who has practised in the criminal courts for some 17 or 18 years now, I may say that my confidence in the jury system, my confidence in the integrity of the jurors, my confidence in their ability to somehow or other ultimately arrive at the right result in every case that comes before them increases day by day. I have faith that when they, as the representatives of society, are confronted with the issue of deciding whether or not the sentence of death should be passed, they will somehow or other arrive at the right decision. Of that I am sure. There are those who say-and I agree with them-that the new law will greatly reduce the number of occasions when individuals charged with murder will be convicted of capital murder; that is under the new law. Of that there can be no doubt, and that is exactly as it should be.

I was particularly pleased to see that, even in cases of murder where there has been a conviction, before sentence of death is passed the jury will be asked whether it is their desire to recommend clemency. That is a very forward step. That matter created a good deal of injustice I always found in the past. There were many juries who did not realize that they had any right to make such a recommendation or that there was any custom that would permit them to make any recommendation of mercy. However, I always felt that in these capital cases there were many juries in the past who would have recommended mercy had they been aware of the fact that it was within their province so to do.

This legislation will lend some standardization to that procedure in the future. In the past certain inferences were drawn from the failure of a jury to recommend mercy; and

often juries which refrained from doing so, as I have indicated, did so because they were unaware of their right so to do or of the fact that a practice had grown up permitting them so to do if they so wished.

One feature of that aspect of the new bill which causes me a little bit of concern, and which I perhaps could mention more appropriately at the committee stage, is whether or not a majority recommendation from the jury with respect to clemency would be accepted. It occurs to me that perhaps not only should a recommendation of mercy be permitted by the entire jury but that if any member of the jury or any part of the jury desires to make such a recommendation it should, under the authority of that section, be forwarded to the Minister of Justice.

I am also very glad to note that under the new bill there is no interference with the present power of commutation and that there is no curtailment of the right of the governor in council to review every capital case in which the sentence of death has been passed. That is a power that should never be given up. I have in mind at the moment particularly the cases of individuals who are at present under sentence of death in Canada. I do not know how many there are; I imagine there are some 10, 11, or 12. It strikes me- and I say this with the greatest possible respect-that the government should consider the advisability of commuting every one of those sentences. It seems to me that under the present state of the law, or at least under the state of the law as it will be when this bill is enacted-as I so much hope and expect it will be enacted-a jury will be asked whether or not it will recommend clemency. It seems to me that the government, in reviewing the sentences of those who are at present under sentence of death, would be required to ask itself this question: What would the jury have done in the case now before us had this provision of the law been effective before today? There being some doubts as to what the answer of the jury might have been had that question been presented to them in such cases, it seems to me that very careful consideration should be given to the advisability of commuting every one of those sentences of death which have been imposed and which have not yet been carried out as of today.

Also, in the case of killings that result in the course of the commission of a felony, I should like to see either some consideration given to an amendment to the present bill or careful and discreet use of the power of commutation in order to make sure that the capital penalty is not exacted in any case in which death resulted, even in the course of the commission of a felony, in circumstances

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that were accidental. That situation is not uncommon. The Rowe case in London, Ontario, a few years ago is an illustration of a death which resulted in the course of the commission of a felony but which was committed in circumstances that were unintentional and accidental. I should like some thought also to be given to the applicability of the sentence of death to accidental killing perpetrated, even though it may have been in the course of the commission of one of the felonies enumerated in what is now section 202 of the Criminal Code.

I was very much impressed to see the appeal procedures that are provided under the new bill. There is an automatic right of appeal to the court of appeal of the province. This does not represent much change from the present practice. However, the present bill greatly enlarges the jurisdiction of the Supreme Court of Canada. It gives that court jurisdiction to review something that it never has the right to review up until now. I refer to issues of fact in a case of this sort. Up until now the Supreme Court of Canada had jurisdiction only where a question of law was involved in respect of which that court had given leave or in respect of which there had been a dissent in the provincial appeal court whose decision was under review. This additional safeguard I think is further evidence of the desire of the government to see to it that, before any human life is exacted, no safeguard be overlooked.

The present law is a great improvement on the present English law which makes distinctions that have been absolutely unworkable. For example, it is capital offence in England to kill your victim by shooting, but it is not a capital offence if you were to kill him by some slow process of torture that would not amount to shooting. The law in England has proved to be unworkable. The law presented by the government today has avoided any of the unworkable features of the law at present applicable there.

I was hopeful that this debate would proceed in a way that would be non-political. It has been characteristic of this house and of every legislature of the commonwealth, to the best of my knowledge, that debate on the subject of the penalty of death and other related subjects should avoid the characteristic of political controversy. By and large, I think that we have suceeded so far today in the house in following the same pattern. One or two of us have overstepped the line a bit, in my opinion, but I should like to think that hon. members who speak from now on will, regardless of their political affiliations,

approach this bill with that non-political outlook that I think it requires if it is to be effectively discussed and voted upon in this house.

I conclude then by saying that I admire the government for the courage it has shown in what it has done and for the excellence of the legislation it has presented and that I look forward to the day when the public of Canada, schooled in the needlessness of the penalty of death, will agree some day there should be presented a bill that will bring about its complete abolition.

(Translation):

Topic:   CRIMINAL CODE
Subtopic:   REVISION OF PROVISIONS RESPECTING DEATH PENALTY
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PC

Martial Asselin

Progressive Conservative

Mr. Martial Asselin (Charlevoix):

Mr. Speaker, before I start my speech, I should like to offer my most hearty congratulations to the previous speaker. Indeed, I am sure that the house had long been waiting to hear that learned speech which revealed the ability and skill my colleague has naturally acquired during his professional practice before the courts where he devotes his energy and talents to the defence of criminals. I wish to tell him how I appreciate his contribution to this debate.

During the debate on capital punishment last year, I had occasion to state my feelings on the necessity of a bill to abolish capital punishment and I mentioned various psychological, legal and sociological considerations in support of my argument.

I stated at the time, that in trying to set aside all possible motives for the retention of capital punishment, one should not ignore the miscarriages of justice which are always possible under our judicial system. If society has the right to punish criminals, it also has the duty of rehabilitating them and of playing to the fullest extent this long established humanitarian role.

I am glad that the Minister of Justice (Mr. Fulton) is bringing in today various amendments to section 202A of the Criminal Code to give a more adequate definition of the various degrees of guilt on the part of those who are accused of murder. In my opinion, such a definition comes at a most opportune time, when the people of Canada have been following with great interest the debates held here last year on this crucial matter. I feel that the public has given so much thought to this matter over the last few years, that, today, people from all corners of Canada look to our legislators for definite leadership with respect to that most important problem.

How many people who have been brought before the courts, could have benefited by the

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interpretation of section 202A as it is amended today if the judge had been free to explain to the jurors the various degrees of homicide?

In my opinion, the definition of capital and non-capital murder is well timed. How often in the past have we experienced difficulty when we tried to obtain from a judge an adequate definition in order that the criminal intent of the individual indicted of non-capital murder be determined. The definition which the minister was kind enough to explain to us this morning is consistent, I think, with the continued evolution of our court jurisprudence on such a vital matter.

Some judges have in the past attempted to show jurymen that there was an important difference between the responsibility of a person committing murder under emotional impulse or extreme anger, and that of the person who has coldly deliberately arranged all the actions leading to murder. By giving this definition of capital and non-capital murder, the Minister of Justice indicated clearly an evolution of our jurisprudence which could greatly contribute to prevent misinterpretation of the actions of the man who has to answer before his peers for a charge of murder. The step taken by the government today deserves commendation because, as I say, it shows courage.

It is good that, at times, our system of justice be revised so as to clearly define the intentions of those responsible for giving our courts principles defining the whole subject of human existence and individual freedom. It was suggested this morning that the new definition of murder would place a tremendous responsibility upon the jury. Is it necessary to remind hon. members that, in the context of our present judicial system, the jury is master of the facts and must return its verdict according to the evidence before the court. The jury has always had the advantage of receiving charges from the judge not only in matters of complex legal details, but of interpretation of facts, as indicated in our jurisprudence.

Briefly, let us say that from the evidence he can bring out certain important points in the evidence and ask the jury to consider them attentively before reaching a verdict. This specific definition of capital and noncapital murder will dispense the trial judge of having to elaborate a definition so as to differentiate between manslaughter and murder.

The bill which was submitted today will ease the task of our judges and definitely confirm our jurisprudence on this very important matter.

The member for Maisonneuve-Rosemont suggested this morning that all jury decisions on homicide ought to be reviewed by three judges. I refer him to section 8 which says:

In every case where the death penalty has been Imposed, on any ground of law or fact or mixed law and fact, an appeal against this sentence is granted the accused.

I feel, Mr. Speaker, that this is a satisfactory answer to the suggestion made by my hon. friend that the sentence of the jury should be revised by three judges, if, as provided by the amendments now introduced, automatic appeal is available to the accused, in such a way that the sentence be revised by judges of the appeal court on the grounds of fact as well as law.

It was mentioned this morning that women should be exempted from capital punishment. I would agree in the case of non-capital murder, but not in the case of capital murder, because such an exemption would allow certain accomplices to use women to commit the crimes they are contemplating, since women would be exempted from hanging even for capital murder. I would also have liked to see the bill now before us authorize the crown to subject every individual accused of qualified murder to a medical examination, because psychoanalysis tends more and more to prove that criminals are mostly unbalanced people who, when they commit a crime, are unable to give their full consent to their act. We know that there must be, in our country, an element of proof when we decide to have an indicted person acquitted on the ground of mental illness. It must obviously be proved that at the moment of the crime, the accused was not sufficiently in possession of his mental faculties to determine the gravity of his action and be responsible for it. Now we know, Mr. Speaker, that psychiatrists will try to determine, by means of deduction and thanks to an examination of the accused after the crime, that the said individual was mentally not fully responsible when committing the crime, so as to be able to determine that his action might constitute a criminal offence, i.e. the mens rea and the actus reus. I therefore believe that the crown should be first of all asked to subject all persons accused of murder to a serious medical examination.

Like the hon. member for Maisonneuve-Rosemont, I am opposed to the system of

hanging which still prevails in this country. To my mind, it is obsolete and repulsive. It is time, Mr. Speaker, to change that primitive method for the electric chair or the gas chamber, and I hope that the minister will be able to tell us in committee whether the government would consider changing a method of execution which is objectionable to whoever has even the slightest notion of humanity.

I am therefore happy, Mr. Speaker, to support the bill before us. This is a necessary evolution of our legal system and I trust that the years will prove the government right, because I think that the consequences of this legislation will help those who are responsible for the administration of law give the indicted criminal every possible guarantee of a fair trial, and protect him as much as possible against all prejudicial contingencies.

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PC

Frank Charles McGee

Progressive Conservative

Mr. Frank McGee (York-Scarborough):

Mr. Speaker, before offering my congratulations to the minister on the measure he has placed before the house I should like to thank him and other hon. members for their very generous references to the measure I placed before this house last year.

When introducing his bill today the Minister of Justice (Mr. Fulton), as other hon. members have noted, gave a fascinating and comprehensive review of the background and the movement over the years toward the abolition of capital punishment in this country, the United Kingdom and the United States. The minister was being unduly modest when he stated that he had sought to avoid the kind of result occurring from many of the decisions that have been made. There are references to that position in the homicide act of 1957 in England. This measure, which the minister has brought forward, is far more intelligent and far more difficult to assail from a political point of view. He has avoided many of the pitfalls in this bill.

When I placed before this house my bill on the abolishment of capital punishment I advanced five arguments in support of it. Of course, the first was the proposition that capital punishment is not and cannot be demonstrated to be a unique deterrent. Accompanying that proposition was evidence which shows that many countries and jurisdictions have found an acceptable alternative, the deterrent of life imprisonment. This bill, as

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proposed, does not refer to that proposition except in respect of the realm of public opinion, in respect of which I will speak in a little more detail later.

The question of morality in regard to capital punishment has been discussed, particularly that aspect of capital punishment which involves the degeneration and demoralization of all those individuals who are directly or indirectly connected with it. There is, of course, the record of the curious reverse effect of justice, in that juries have increasingly been reluctant to bring in verdicts which might result in the hanging of an individual. I feel this situation will be substantially corrected by measures contained in this bill, and in this respect, I congratulate the minister.

The most obvious objection to capital punishment is the irrevocable result. I will not reiterate, at this time, my statements in respect of this factor, but will only point out the additional safeguards contained in this bill, which will reduce the possibility of an unfortunate yet conceivable error in hanging an innocent man.

This proposed bill includes reference to the age limit at which an accused and convicted murderer can be hanged. It is one aspect which I feel is very acceptable, and which has been anticipated by many hon. members. This will remove the possibility of a situation existing where a judge would be required to sentence a 14 or 15 year old child to be hanged, when everyone, with the exception perhaps of the child, would be aware that the sentence would not be carried out.

There has also been considerable discussion regarding methods of execution; whether an individual should be hanged, electrocuted or put to death in the gas chamber, and whether the recommendations of the joint committee should have been incorporated in this bill. In this regard I mentioned in a speech made earlier this session that the method of execution is somewhat aside from the issue involved. I would suggest those individuals who favour the retention of the death penalty as a deterrent are somewhat inconsistent. They feel the death penalty should have menacing overtones. If that adds to the deterrent, then surely they must be in favour of hanging convicted individuals.

An aspect of this subject which I hoped would be dealt with in this bill has regard to the question of insanity. In that area, I suggest, there is much left to be desired. The hon. member for Charlevoix (Mr. Asselin) put forward a suggestion in which I think there is merit. I would follow his suggestion that perhaps a partial solution to the problem would be the embodiment of a principle of Scottish law regarding the diminished mental responsibility in respect of some murderers.

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As one who is untutored in the law, I feel it would be relatively simple to add a clause defining non-capital murder to include those cases where evidence of diminished mental responsibility is apparent. I should be grateful to other hon. members in the medical and legal professions, more learned than I, for assistance and guidance in this connection.

To return to the question of public opinion, the minister made reference to the fact that in 1947, and again in 1950 the Canadian institute of public opinion made two inquiries with almost identical results, in that 68 per cent were in favour of retaining capital punishment, and 23 per cent were in favour of life imprisonment. I pointed out earlier in this session that a more recent poll was conducted last year, and I feel the results of that poll should form part of the record of this debate. The results of that Gallup poll are; 51 per cent in favour of the retention of capital punishment, 41 per cent in favour of abolition of capital punishment, with 8 per cent of no opinion.

The matter of deterrence was dealt with by the minister. He made reference to the Gowers royal commission held in England. The minister's statement in respect to this commission had reference to the fact that no statistics existed concerning the number of murders which are not committed. This same point was raised during debate last year, as well as this year. Sir Ernest Gowers, following his chairmanship of that royal commission, wrote a book from which I have quoted during earlier debates. His book indicated that at the beginning of that commission's hearings he was a retentionist, but at the end of the hearings he was an abolitionist. I feel the epilogue to that book has relevance to the statement made by the minister, and I should like to quote a portion of it. The portion in which I am interested, and which I feel has relevance, reads as follows:

There remains the argument that without the uniquely deterrent value of capital punishment more murders would be committed. This is the only serious utilitarian argument in favour of capital punishment, and the one on which throught-ful supporters of it almost wholly rely. It is also the argument that can be put most readily to the test of evidence in the proper sense of the word; and, as we have seen, such evidence as there is goes to show that the abolition of capital punishment does not in fact have this result.

The minister's statement in support of retention of the death penalty as such, was something less than an argument to that effect, and leans, I notice, very heavily on the matter of public opinion. This is, of course, as it should be. This reference occurred on a number of occasions. The minister suggested that the bill should broadly reflect and support public opinion. He goes on later to say:

We have taken account of the fact that the country, as reflected in the house, favours retention of capital punishment.

That certainly is so. Earlier this afternoon the hon. member for Fort William (Mr. Badanai) said that a free vote on the question of abolition or no abolition was required to test public opinion both in the country and in the house. With the greatest respect for the hon. member who supported my bill last year, I would suggest to him that he at that time, or even now, should have made an individual sampling of this house, as I have done, not only in analysing the debates but in discussing the matter with private members, and he would have found beyond any shadow of doubt whatsoever that a bill such as the one I proposed last year would be defeated and decisively so. It would be putting one's head in the sand to think that an alternative result would be obtained.

The minister went on to say:

-and have produced a bill which represents our views of what is the kind of law by which Canadians would wish to be and should be governed.

A later reference reads as follows:

In our view, Canadians properly attach so high a value to the sanctity of human life, that the law which translates this feeling into effective form should provide the maximum sanction for its deliberate breach, and no other penalty would be considered adequate.

Again the reference to the public view. Then, later, in the next paragraph we find this:

-this bill reflects the view that Canadians are not prepared to accept the abolition of the death penalty.

There is at least one more reference to the public in the concluding remarks of the minister where he said:

We submit this bill, then, Mr. Speaker, in the belief that the protection of society demands that one who deliberately commits murder should be liable to the death penalty, and that this reflects the views and demands of Canadian society.

I agree, Mr. Speaker, with the point very tellingly made by the hon. member for Peace River (Mr. Baldwin) and the hon. member for Parkdale (Mr. Maloney) that it would be folly now to move considerably ahead of public opinion in this matter and bring down a bill which would abolish capital punishment only to have an aroused and disturbed public opinion force the restoration that other members have suggested. In such an eventuality the cause of ultimate abolition would be set back at least 25 years.

As I have said, the minister, having properly emphasized the essential ingredient and importance of public opinion in this matter, must certainly appreciate the degree to which public opinion has altered in this regard. In the figures he mentioned the abolitionist

group in Canada stood at 23 per cent a relatively few years ago. Last year that figure had risen to 41 per cent, and there is little doubt in my mind, Mr. Speaker, that ultimately this opinion, which has grown substantially in the last few years, will continue to grow and will pass into the majority opinion suggested a few minutes ago by the hon. member for Parkdale. I will, and I know this is true of every abolitionist, do everything I can to hasten the arrival of that day. I would hope also that the careful and repeated reference to public opinion on the part of the minister in presenting this bill will also be repeated when public opinion favours abolition, as I am certain it will do.

Last year the hon. member for St. Jean-Iberville-Napierville (Mr. Dupuis) made this statement in the concluding part of his remarks:

Let me emphasize one truth: Vox vopuli, vox Dei. The voice of the people is the voice of God. If you want to know what God thinks, ask the people and you will know.

I think that when the people are asked in a relatively few years what their opinions and views are, there will be a decisive reply to the effect that capital punishment should be abolished. Many hon. members who have participated in the past and at the present time in the drive to abolish capital punishment have described this bill as a milestone and an important step forward. It has been described also, Mr. Speaker, as a measure which tempers justice with mercy, and mercy with common sense. It will, I know, receive the support of all hon. members in this house ultimately interested in the abolition of the death penalty, and it will serve as an example in the political history of our country of an outstanding case where effective government leadership has led toward an essential ultimate goal.

(Translation):

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PC

Rémi Paul

Progressive Conservative

Mr. Remi Paul (Berlhier-Maskinonge-De-lanaudiere):

Mr. Speaker, last year the hon. member for York-Scarborough (Mr. McGee) sponsored a bill which captivated public opinion at the time. After two days of debate, a considerable number of members stood up against the abolition of capital punishment while a lesser number stated their support of such a move. I think that all those who had the opportunity of expressing their views last year were inspired by a common spirit, a sincere wish to improve the situation according to the people's desires. I took part in that debate and I expressed my opposition to the bill sponsored by the hon. member for York-Scarborough. My reason for taking that stand was to protest against the freedom which the bill was going to give to 90205-6-333

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the most hardened criminals, the most repulsive killers while, on the other hand, I was in favour of any legislation which would show true humanitarian sympathy to anyone who, in a moment of mental weakness, would have committed a murder.

Even though they took opposite stands, I think everyone aimed at the same thing, that is to bring the people of Canada to express their opinion on a problem on which parliament's attention has been focussed for forty years. The only difference between the two groups was the means they were suggesting to achieve that end.

Indeed, if one takes a retrospective glance at the various bills which were introduced in this house, one will see that as far back as in 1912, the hon. member for Montreal-St. James, Mr. Wilde, moved that capital punishment be abolished. I suppose that idea had not yet made its way or perhaps events were not as favourable then as they are today with respect to the amendment now introduced by the minister. Be that as it may, I feel it is every member's duty to congratulate the minister on the bill he is introducing for our consideration today.

However, even though I do not wish to play politics with this matter, I think that each and everyone of us should explain this legislation and publicize the excellent speech the Minister of Justice (Mr. Fulton) made in the house, this morning. In my opinion, this question of the abolition of capital punishment is far too important for us to make a political football out of it to achieve personal ambitions or popularity when human lives are at stake. If, on the one hand, the state considers the fate of the murderer who must pay a debt to society for the crime he has committed, on the other hand society must also consider the needs of those who are deeply affected by the passing of the human being whom the murderer has just killed.

I think this bill is timely, because it constitutes a link between two schools of thought which are looking forward for an improvement which modem times, the evolution of thought and systems demand and which has become imperative.

As far as I am concerned, I shall support the bill because I think, in my humble opinion, it corresponds to the feelings I expressed last year when I took position against the bill introduced by the hon. member for York-Scarborough, because I wanted, so to speak, to have truth strike a middle course.

However, in considering the bill closely, I note some interpretations which I think doubtful. I may be wrong, but on the other

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hand, after a serious reading of the various sections of this bill, a question comes to my mind which I shall put to the minister.

The explanatory notes opposite section 1 indicate that the definition itself of murder remains unchanged. When we read the definition of a culpable homicide in section 201, paragraph (a), subparagraph (ii), we find that:

Culpable homicide Is murder

(a) where the person who causes the death of a human being

(ii) means to cause him bodily harm.

Now, if you read the exact wording of section 202A, you see that the difference between a capital and a non-capital murder is based on the intention of the person who commits the crime. What is the possible distinction between the actual definition of the murder and the definition to be found in section 202A, subsection (2)?

I wonder whether the Minister of Justice, when the bill is considered in detail, could not define more accurately the wording of the bill by adding, for instance, the following words: Murder is capital murder, in respect of any person, where it is-and perhaps it could be mentioned-arranged, decided, planned and deliberate. That way, there would be no doubt as to the category of the murder.

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PC

Daniel Roland Michener (Speaker of the House of Commons)

Progressive Conservative

Mr. Speaker:

Order. The distinction between murder and capital murder is, of course, an important principle of the bill, but when the hon. member referred to clarification in committee I think he was quite right that the details of distinction and definition might better be left to the committee stage.

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PC

Rémi Paul

Progressive Conservative

Mr. Paul:

I endorse your remarks, Mr. Speaker, but on the other hand, I feel that during the discussion of this bill, we must point out matters which, in our opinion, are significant in order that this legislation which is extremely important and has been discussed for several years, might achieve as fully as possible the purpose for which it was designed.

For instance, under the amendment to this act, a person committing a capital murder will now be liable to imprisonment for life.

The hon. member for Maisonneuve-Rose-mont (Mr. Deschatelets) wondered this morning whether life imprisonment really means for life.

The bill also provides that a murderer under 18 would be exempt from a capital

murder charge. As for me, by reason of the evolution of our young people today, and of the many crimes committed by juvenile delinquents, X wonder whether that age limit should not be brought down to 16 or 17.

Nevertheless, I heartily endorse the bill in its present wording, but it might be wise to consider the advisibility of reducing the age of 18 years to that of 16 or 17.

In order to ensure that the law will be properly applied, I also wonder if the attorney general and the crown attorneys should not automatically lay a charge of capital murder when it is proven at the hearing that the crime, by the way it has been prepared and perpetrated, would justify such a charge. When such a charge has not been laid, the accused would have committed a capital murder but would not have been charged accordingly, for then it would not be anymore a specific crime.

The act, as it is submitted to the house, protects any person accused of murder, in order that only genuine murderers be hanged; when the murder has not been premeditated or is accidental, the penalty is life imprisonment.

Under 13, the trial judge may ask the jury if it wishes to recommend the murderer to the clemency of the court. I think this clause places the jury in a difficult position. Anyone who has some experience of murder trials knows very well what a strain it is for those who have to try one of their fellow men. After being shut in and kept apart from the others for three, four, five and sometimes ten days, their nerves are shattered and it is with much difficulty that they return a verdict which up to now involved, in most cases at least, capital punishment.

Then, before passing sentence, many a time before the relatives and the friends of the accused, the judge would ask the jury: Do you wish to recommend the murderer to the mercy of the court? If so, I shall report accordingly to the Minister of Justice.

Not a single juryman would have the courage to oppose mercy towards the murderer, and either through fear or embarrassment, the judge's request will be granted. Would it not be easier for members of the jury when the presiding judge is addressing them to be enlightened on the advisability of returning a verdict which might include certain considerations for clemency.

Therefore, this recommendation of mercy that the jury would have to make to the court in favour of the accused would have been carefully considered and decided upon

under more human and less embarrassing circumstances than those that a jury will be faced with after having convicted an accused of capital murder.

They should normally object to mercy, by refusing to reply on behalf of the accused to the question that the judge presiding over the hearing would put to them.

I respectfully submit that such procedure puts the jury in a difficult position, and I wonder whether charges along those lines made to a jury before it retires to consider its verdict would not afford all murderers the same advantages and protection.

The minister will no doubt give us information as to the possibility of defining as a capital murder a second crime committed by an accused.

Let us suppose for a moment that an accused convicted of non-capital murder and sentenced to life imprisonment is released after 15 or 20 years and commits another murder.

In order to protect society, should we not then automatically define as capital murder that second murder committed by such a person?

This morning, the hon. member for Maison-neuve-Rosemont (Mr. Deschatelets) seemed to plead for the fair sex, and invited the house to adopt an amendment to the act so that women be exempt from hanging.

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LIB

Jean-Paul Deschatelets

Liberal

Mr. Deschaielets:

It is one of my weaknesses.

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PC

Rémi Paul

Progressive Conservative

Mr. Paul:

Maybe he was inspired by sympathy, maybe it was love for the fair sex-

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LIB

Jean-Paul Deschatelets

Liberal

Mr. Deschaielets:

It could be, for that matter.

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May 23, 1961