May 24, 1961


The house resumed, from Tuesday, May 23, consideration of the motion of Mr. Fulton for the second reading of Bill No. C-92, to amend the Criminal Code (capital murder). (Translation):


PC

Louis Fortin

Progressive Conservative

Mr. Louis Fortin (Monlmagny-L'Islei):

Mr. Speaker, before I resume the remarks I was making last evening, I should like to point out that on this day, May 24, the province of Quebec honours Dollard des Ormeaux. History reports that, with 16 men, Dollard des Ormeaux prevented the Iroquois from attacking Ville-Marie and that his courage was such that it should inspire all Canadian youths. Today, I should like to urge once again the young people of my province to cultivate that hero's virtues and to develop within themselves a greater love for Canada, the better to appreciate the liberty we enjoy in this country.

At the conclusion of last evening's sitting, I was just going to criticize the suggestion made by the hon. member for Berthier-Maskinonge-Delanaudiere (Mr. Paul) to the effect that any murder should be considered as a capital murder. I was just going to suggest the contrary. However, in the meantime I had a chance to read over the hon. member's speech, and to give some thought to his suggestion and, since it is good to sleep on a problem, I am glad to say today that I fully agree with my colleague and that I, in turn, wish to suggest that any charge of murder should be one of capital murder.

Three reasons lead me to take this stand. First of all, if the charge is invariably one of capital murder and if during the trial, it is shown that the accused is not guilty of capital murder but of non-capital murder, the jury can always bring in a verdict of guilt of a lesser offense.

Second, if a person is accused of noncapital murder and if, during the trial, it becomes obvious that the crime committed is inded a capital murder, the jury would no longer be able to find the accused guilty of capital murder, and the accused would escape the prescribed penalty for capital murder.

Finally, if the attorney general is left to decide whether a person should be charged with capital murder or non-capital murder, he will then have discretionary powers which will cause him a lot of embarrassment since,

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in fact, he will then have to decide all by himself whether or not the suspect has committed a capital murder.

Therefore, I fully endorse the suggestion made by the hon. member for Berthier-Maskinonge-Delanaudiere.

In addition, I would like to say that section 642A of the present bill is causing me some anxiety also. Let us say that, after they have deliberated, the jury come to the conclusion that the accused is guilty of murder. The judge would then pass judgment and, afterwards, would ask the jury whether they bring in a recommendation of mercy. This would more or less put the jurors under a moral obligation of recommending clemency.

Furthermore, the jury would have to have another opportunity to retire and decide whether or not the accused should be recommended to the clemency of the court.

I would rather suggest that somehow the wording of section 642A be made an integral part of the summary of the proceedings which the chairman of the court is required to deliver to the jury; the chairman would conclude his remarks by a reading of section 642A. The jurors would then be in a position to discuss two points: first, the guilt of the accused, and second, assuming that the accused was found guilty, they could immediately decide whether or not he should be recommended to the clemency of the court.

The hon. member who spoke before me last night pointed out that in the presence of the parents and friends and citizens attending the trial, it would be extremely difficult for a jury not to bring in a recommendation of clemency. It does seem that in every case, even if the accused did not deserve such a recommendation, the jurors would feel bound to make it.

Mr. Chairman, there is one extremely interesting point in this bill; the provision dealing with the costs of appeals. Under the former Criminal Code, a person found guilty of murder had to hang. However, he was told that he could appeal to a higher court, but this was on the condition that he was able to pay the costs.

There has been a tremendous amount of criticism on this score. Everywhere people would say that freedom could be bought, because if a court had made a mistake, the sentence could be appealed, but the convicted person had to pay, and in many cases a fabulous amount.

So I sincerely commend the Minister of Justice for making justice available to all, both the rich and the poor.

I would also draw the attention of the house to another point in relation to section 206-(4), in which reference is made to the penalty of life imprisonment. It is stated in subsection 4 of that section that with regard to part 20, the life imprisonment sentence provided under that section is a minimum penalty. I realize that this in no way affects the exercise of the royal prerogative, which in certain cases allows the governor in council to commute a sentence; however, I think it should be clearly set out that when an individual found guilty of capital murder is sentenced to life imprisonment, the national parole board will under no circumstances have the right to commute the sentence, and that the accused having been convicted of that crime will have to serve a life term, unless the governor in council should decide to exercise the royal prerogative.

Mr. Chairman, there is one last point I should like to deal with. I refer to the jury system which was so highly commended yesterday by the hon. member for Parkdale (Mr. Maloney). I must say I am not in agreement with him. I still feel that too heavy a responsibility is placed on the shoulders of those people. The man in the street-whether he be a farmer, a worker, an accountant or even a professional-is asked to act as a juror without any training whatsoever, and without any kind of court experience; he is asked to come and decide whether or not someone is guilty of murder.

I am not a criminologist, Mr. Speaker. I do not know whether it was by inclination or through necessity, but I have always kept at a respectful distance from criminal law. Nevertheless, I know that the jury is strongly influenced by the counsel who is arguing before him. He is sensitive first of all to the deportment of the lawyer, his general behaviour and, it must be admitted, most of all to his oratory. He is also sensitive to the prestige of the lawyer and, finally, if a counsel endowed with all the qualities I just mentioned can find among the panel a juryman who exercises a certain ascendancy over his colleagues, he has won his case.

It is easy to spot the juryman who seems to be the cleverest and the most sympathetic, and then the next step which is quite simple is to say to oneself: I must convince that man and, once I have convinced him, he will take upon himself, once they are behind closed doors, to work on the other jurymen.

In short, Mr. Speaker, let us say that the outcome of the case rests solely on the judgment that one member of the jury will form, thanks to the ability of the counsel to convince him of the merits of his argument.

Many an accused is without the financial means necessary to engage a lawyer. In that case, a counsel is appointed by the court. He is usually a young lawyer whose experience of course does not compare with that of the crown attorney. He lacks the prestige and the resources of an experienced lawyer, so that he cannot exercise upon a leader in the jury the influence which the attorney can wield and it is the accused who must suffer the consequences.

Since we are discussing officially appointed counsels, may I, Mr. Speaker, ask the minister to seek a means by which a nominal amount could be made available to an accused person to permit him to be represented by counsel, when that person cannot afford to be thus represented and so that he may be given the fair and just treatment to which he is entitled.

I notice that it is almost one o'clock, Mr. Speaker, but, with the permission of the house, I would like to go on. I would be satisfied with a few minutes more. I may exceed the hour by one or two minutes but I will have finished my speech.

Mr. Speaker, I do not think that in former years such a debated and debatable question has ever been introduced in the house. It is a matter where politics have nothing to do. It means that members whatever their party must form a personal opinion. Let us do away with a partisanship which unfortunately we have, because our responsibility is great1-

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PC

Daniel Roland Michener (Speaker of the House of Commons)

Progressive Conservative

Mr. Speaker:

I am sorry to interrupt the hon. member, but it is one o'clock.

At one o'clock the house took recess.

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AFTER RECESS The house resumed at 2.30 p.m. (Translation):


PC

Louis Fortin

Progressive Conservative

Mr. Fortin:

Mr. Speaker, from the notes 1 had taken, I felt that my speech should last about 12 minutes. However, it was interrupted by two adjournments and this, of course, gave me an opportunity this morning of correcting a previous statement. However,

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I hope my speech as a whole will be fairly homogeneous once it is printed in Hansard.

Before the recess, I was telling the house that it bears a heavy responsibility. I am glad that today we do not have to decide whether capital punishment should be abolished because I, for one, could certainly not support such a step; it would be a little premature, in my opinion.

In conclusion, I should like to congratulate the Minister of Justice who, by sponsoring this bill, wishes justice to be done in the light of the circumstances under which a murder has been committed. Our laws concerning murder will thus be made more humane and, I would even say, more civilized. As stated last evening by the hon. member for Dufferin-Simcoe (Mr. Rowe), this is a step in the right direction.

To those who seek to abolish capital punishment, I will say this: Society must be protected. Moreover, I still feel that the threat of capital punishment constitutes a useful deterrent, but I will add that criminals should be executed only in extreme cases and when all possibilities of doubt have been eliminated.

In addition, to those who vigorously advocate retention of capital punishment according to the former provisions of the Criminal Code, 1 shall say this: the execution of only one innocent person constitutes a heinous crime that falls on all of society.

Therefore, let us congratulate the government who is offering us today a material improvement in the treatment of people charged with murder. However, while hoping that people under a charge of murder will benefit from our sympathy, let us not forget that they owe a debt to society and let us sympathize too above all with those who were left to mourn the death of an innocent victim.

I shall be pleased to vote for this bill, but if I had to express my opinion right now on the possibility of abolishing the death penalty altogether, I would vote against the bill, because I much prefer to be over zealous against crime than to offend the freedom and the inviolable right of any individual to life.

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PC

Robert Hardy Small

Progressive Conservative

Mr. R. H. Small (Danforth):

Mr. Speaker, last year when this debate was before the house I did not have the opportunity to speak but as I listened to the trend of the debate I noticed that those who were in favour of

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the bill abolishing capital punishment had the advantage of the first thrust of debate.

It seemed to me that all the hon. members who spoke in the debate at that time were for the abolition of capital punishment. Then, as hon. members of the house were seized with the seriousness of the matter and their responsibility in this regard, they became more interested as the debate progressed. Each hon. member, as the seriousness of this matter took possession of his conscience, felt it was his duty to talk on that particular bill.

The hon. member for Scarborough introduced the bill and this gave an opportunity to all hon. members to express their views. In my opinion it was very wise to have that debate. It brought out the various aspects of the issue and the various positions which hon. members of the house took with regard to it. It also gave the government the opportunity of being able to get the pulse of hon. members, who were likewise reflecting the pulse of Canada, on whether this bill was appropriate at that particular time.

The hon. member for York-Scarborough (Mr. McGee) who introduced the bill, the hon. member for Parkdale (Mr. Maloney) and other interested hon. members marshalled their facts as to the efficacy of the bill with great skill. They are to be highly congratulated in that they did not miss very much in their submissions. The hon. member for Park-dale is to be particularly congratulated for the eloquence of his speech on this matter. Admittedly the hon. member for Parkdale has great forensic ability, but he was also very eloquent in putting forward his argument. He was very moderate in his statements and he put forward a very convincing case. No doubt he was using the same skill that he uses in court, and it was very effective.

As the debate progressed the tension mounted; everyone was beginning to feel he should go on record, and the government wisely discontinued the debate. In so doing they were able to properly assess the sense of hon. members of the house and also, as I mentioned previously, the will of the people of Canada.

The hon. member for York-Scarborough who introduced the bill admitted when speaking last evening that it was patently plain that the motion would be defeated. But it was not a question of having the motion defeated; it was important that the house was given the opportunity of discussing this matter and having a full debate on it, because this question had come up time after time, as to whether we were following the right course in the method by which the government was handling the commutation of death sentences

and rehearing these cases. Now they have had time to study this law and they have brought in Bill No. C-92.

The Prime Minister (Mr. Diefenbaker) and the Minister of Justice (Mr. Fulton), as has been previously stated, are to be highly congratulated, along with the cabinet, on this bill. The Minister of Justice especially deserves commendation for his masterly presentation of the bill. The government has been very meticulous in setting out what the bill will accomplish, as I have said, having the benefit of the previous debate.

I think my own feelings are known on this matter but I did not have the opportunity of speaking at the time the bill of the hon. member for York-Scarborough was introduced. It would now be futile to take up the time of the house in recounting my own feelings on this matter. However, there are some things I should mention now that Bill No. C-92 is before us.

The Minister of Justice, in summing up this bill, has decided to apply, I think, what I would term the method laid down by two who are considered to be among the most outstanding authorities on law. They have been mentioned several times during the debate. I refer to Sir Edward Coke and William Black-stone. Sir Edward Coke was speaking about the execution of the Earl of Essex. I tremble to mention that name because I might make a mistake and say "the hon. member for Essex East". But this was the Earl of Essex who was up for treason at that time because of his episode against the queen.

Sir Edward Coke was talking about treason and he set out the method by which he assessed this matter. That was, that the principle of law, the rule of reason and the benefit and experience of trials should apply. I am quite sure that the Minister of Justice and the cabinet have applied the principle of law which has been set. I am sure they have also used rules of reason. Likewise they have had the benefit of long experience of trials in arriving at their decision.

For all time this bill, notwithstanding what has been said, that it is a step in the right direction, will be a bill which will not be tampered with and no attempt will be made to amend it for some considerable time. This is because it correctly reflects the feeling of the people of Canada. Because of the meticulous care that has been taken by the draftsmen of this bill there will be little need for any alteration to it in the future. To sum up the way I look at it, and the way in which I think the majority of hon. members have interpreted the feeling of our people, crimes of passion do not warrant capital punishment. Those who commit crimes that are premeditated or committed in cold blood, are the

ones who will have to stand trial in court for determination as to whether justice demands the death penalty.

A great deal was said yesterday about the law, about it being punitive and retributive. I think hon. members will find that this bill is in conformity with our love of law and our system of order, which dates from the time of Alfred. At that time the king's word, Alfred's word, was law, but he insisted on the endorsation by the people of his edicts. He knew the popular heart and was close to the common people. He did not over-rate or under-rate the average mind, because in the final analysis he knew that the power was in the hands of the people themselves; it was in their hands to adopt the law and if it was not acceptable, they would not observe it.

We pride ourselves upon the justice of our laws. It has come down through the ages. The degree of civilization of society has always been judged on the basis of its concept of justice. I listened to the hon. member for Mount Royal (Mr. Macnaughton), and after hearing him I thought I had better look up the definition of "law" and see how it was set out. I went, as usual, to a dictionary in order to find out. I found the definition expressed in these words:

All the rules of conduct established and enforced by the authority, legislation, or custom of a given community or other group: as a basic tenet of English law.

The condition existing when obedience to such rules is general; established order.

The hon. member for Mount Royal defined the word "justice" very aptly, but I thought, nevertheless, that I should look it up for myself. The entry states very plainly:

Sound reason; rightfulness; validity. Reward or penalty as deserved; the use of authority and power to uphold what is right, just or lawful.

I have here a reference to Edmund Burke who also has been frequently quoted. He said:

Justice is itself the great standing policy of civil society; and any departure from it, under any circumsance, lies under the suspicion of being no policy at all.

I think that the minister, when drafting the bill, had all these concepts in mind and that this measure will result in a continuation, and even a broadening, of the conception of justice we have been following through the years. While the minority will have their rights under this legislation, it is recognized that the majority in this country also have their rights, and the system of law as we know it with its salient features of justice is being preserved.

As I followed the debate which took place last year I was impressed by the submission made by the hon. member for Vancouver East (Mr. Winch). He set out three incidents drawn

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from his experience during his life time. He told the house about three Indians who through misfortune, met with a sad fate. Apparently some incontinent officers charged with enforcing the law made debauching exactions upon the wives of these Indians, demands which were not within the code of morals and ethics. The Indians were incensed, went after the officers, and threw two of them over a cliff. For this they were apprehended, brought before a court of justice and condemned to death. The manner of their execution was faulty and inefficient, though that in itself was not the crux of this case, but created circumstances which were such as to inevitably arouse public sympathy for the condemned men.

The case which I have just outlined is an example of what is likely to follow any attack upon or molestation of women. If the law does not concern itself swiftly and effectively with such attacks, or if it does not mete out justice, men will resort to the law of the jungle and take the law into their own hands, because under the code of law in any land, civilized or uncivilized, men will protect their women. I think hon. members will find that the law as now proposed will cover such a case as I have just mentioned, the case which was first set out by the hon. member for Vancouver East.

The hon. member related the case of a lad 21 years of age who had been apprehended after a bank hold-up and robbery during which the teller was killed. The lad was the driver of the car that got away after a teller had been shot, but though he had taken no direct part in the killing he was condemned to death and finally hanged. The hon. member did not give us an explanation why he should not have been hanged except, possibly, on account of the lad's youth. In any event, this was a cold blooded murder, and he was an accomplice to the killing. The hon. member then told of a third case where an individual who had been away for some time in another province returned home to find his best friend in the house with his wife. In the heat of passion he killed them both. The man was tried, but the death sentence was afterwards commuted. This example does, in its own way, explain exactly what the present bill seeks to accomplish. In cases of cold blooded or premeditated murder, as well as cases of rape and crimes involving sexual deviation, there would be an application after a proper trial of the full weight of the law.

This brings us to the question whether the death penalty is a deterrent or whether it has no effect at all. The hon. member for York-Scarborough made use of a quotation from a report of a learned judge in the old

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country, and this probably answers the question more effectively than I could answer it. It reads as follows:

It is certainly not a deterrent to murderers who commit suicide and one third of all murderers do. It is not a deterrent to the insane and mentally deranged, or to those who commit murder in a quarrel, or in drunkenness or in a sudden surge of passion. This type of murder amounts to 80 per cent to 90 per cent of all murders that are committed.

It is not a deterrent to the type of person who commits murder because he desires to be hanged, and these cases are not infrequent. It is not a deterrent to the person who firmly believes in his own perfect method-by poison, acid bath, and so on-which, he thinks, will never be found out.

This also, it appears to me, sums up exactly what the bill seeks to accomplish. Between 80 per cent and 90 per cent of all murders come within this category of persons who are insane or drunk, or who act in the heat of passion; they are eliminated from consideration in terms of the death penalty. We are left with the other 10 per cent who are cold blooded murderers with regard to whom society needs to take severe action. This does not involve being vindictive or punitive; it is only a matter of enforcing justice. In the same way, a person who commits a robbery knows in advance what the penalty will be if he is caught. He knows exactly what the consequences will be. The crime of murder does not, of course, come into the same category as offences against property, and when a murder has been cold blooded, or when there has been rape plus bestial conduct, the penalty is bound to reflect this difference, and people who commit such crimes come within the 10 per cent to which reference has been made, to whom the threat of a death penalty may be a deterrent.

I wish to differ from those who say that in these circumstances the death penalty is no deterrent. It is true that it is no deterrent to those in the wider category of 80 per cent to 90 per cent referred to by the hon. member for York-Scarborough. But there has been no adequate method of measuring the extent to which capital punishment does deter people from committing murder. The very fact that only 10 per cent of the crimes involving murder are committed as a result of premeditation shows that the death penalty may well be a deterrent to a lot of people-but there is no possible way of ascertaining the intention of individuals and whether or not they have been deterred, for obvious reasons. The very fact that perpetrators of murder are caught, tried and condemned to hang for their crime is evidence that the 10 per cent mentioned serve as a most effective deterrent against similar action on their part.

Reference was made to the horror attached to murder trials. Quite often sympathy is not

directed toward the victim of the murder but to the person who perpetrated the crime. The culprit was said to be suffering because of the ordeal he was going through at the trial and before the execution took place. In the early days, immediately the sentence was passed the condemned individual was taken out and executed. But because it was felt that an innocent victim may be hanged, this system was changed and sufficient time was given the convicted man to gather information and enter an appeal to prove innocence. Because of the humaneness of the justices at that time, provision was made for the gathering of evidence to launch an appeal. The result is that something which was granted as a humane action has now come to be regarded as an ordeal inspiring public sympathy because the time between the passing of the sentence and the execution has been prolonged. The result is that the relatives of the victim are considered to go through an ordeal. The relatives of the murdered individual are relegated to the limbo of the forgotten and the sympathy is always given to the person who perpetrated the crime.

Cold blooded murders have been mentioned. I will give the house a few illustrations of what has happened in the city of Toronto. I recall an individual who had been in a hold-up. Later his car was stopped by a policeman and he was asked to show his driver's licence. On the pretext of pulling out his licence he pulled out a gun and shot the policeman. The policeman died. I suppose in those circumstances it could be called a cold blooded murder. But excuses are made. Perhaps he ate something that morning which upset him, and his disposition was such that he did not feel right. He did not mean to shoot the policeman, but he did.

Just recently an officer of the law was hot on the trail of a couple of individuals who had committed some bank robberies. They were traced to a certain street. The officer pulled up his car, got out to question the men, and one of them pulled out his gun and shot the policeman in his tracks. He lived three months. He went through physical and mental torture before he died. All the sympathy was given to the individual who committed the robbery. The man who was murdered left a family deprived of his care and his promising future was prematurely finished. I suppose it could be said that the robber was not feeling right that day and he should not be looked upon as a serious offender. I could mention other cases.

I was raised in a community in close proximity to the jail where all the executions took place. My memory goes back to the turn of the century. Trial reports were

followed very closely in those days, more so than now, because of verbatim coverage. Outstanding lawyers were engaged, as was mentioned by the hon. member for Parkdale. Budding Blackstones and Cokes were given their opportunity to gain experience. We had some outstanding lawyers in those days such as George Lynch-Staunton, George Tate Blackstock, Zebulum Lash and Tom Robinette. In the future I do not suppose any of the young lawyers coming along will be deprived of the opportunity to get experience in court trials because there will always be a demand for genius. I do not think there will be fewer murders.

The point I wish to make was mentioned by the hon. member for Dufferin-Simcoe (Mr. Rowe). It is our duty to protect the citizens of Canada against the perpetrators of crime. I think the debate has been of sufficient length. As I have said, I think this bill is going to meet the purpose as I see it. However, I should try to emphasize one thing. Reference has been made to the cost of keeping those individuals in prison. Surely we are not going to measure justice in that way. We do not want to return to the vicious system of justice and law which prevailed in the olden days and to which Sir Winston Churchill has made reference and under which a person was imprisoned for a crime and the length of imprisonment was based on the status of the individual concerned. If an ordinary peasant was killed the punishment was so much; if an earl, it was so much; if it was a prince it was so much, and so on, according to the rank of the individual killed. It was a vicious and sordid system because the penalty increased according to the rank. If it was a prince, then the penalty was extremely severe. I am sure we do not want that kind of a system in this country where the penalty for murder is based on the status of the individual in the country. I do not think this country wants the sort of law under which a convicted man pays his debt to society according to a schedule of tariff tolls, as it were.

This bill sets out what the law is going to be and justice will be based on it. If the principles of this legislation are followed out there is no doubt that they will amply cover any situation. Public opinion in this country has jelled. Those who have advocated abolition of capital punishment have made certain points. No one has ever submitted proof that since confederation anyone who was innocent has been hanged for murder. Abolitionists tell you that there are many of them but they do not point out any particular case. The fact of the matter is that our system of law has been so sound 90205-6-335

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and the people are so satisfied with it that very few changes are required.

Those who are convicted of capital crimes will have the right to have their cases reconsidered on recommendation of the jury. Certain categories will be set out in the law and premeditated and cold blooded murderers will have to submit to what we call punitive justice as we know it, which course reflects the will of the majority of the people of Canada.

It is said that the people of the country are in favour of abolishing capital punishment. I question that because people have communicated with me on the matter both by telephone and by correspondence. Sometimes they are very forceful in their presentations but when they become threatening I cite to them a case that took place in my own particular area. A young girl was taken from the sidewalk on the main artery to a ravine where she was raped and bestially treated. This was done by an individual who had just been released from jail after serving a sentence for the same kind of offence. When the case was being investigated one of the detectives looked at the circumstances and said that it was Mr. so and so.

The man was immediately traced to where he was working. There was no question about who had committed the murder because the evidence was on him. He was apprehended and received the full penalty of law. When I describe such a case to individuals who are so possessed with the idea of abolishing capital punishment they invariably say that there are exceptions to all rules.

That is why this bill is sound in providing that capital punishment should be retained to take care of such cases. As I have said before, the Minister of Justice has drafted the bill on sound principles of law and reasonable rules that will operate effectively. The experience of trials in the past has been a factor in assisting the minister to bring forward what the people of Canada want. I think there will be little necessity in the future for amendment of the bill in any shape or form. The cases that have been mentioned will fit within the ambit and construction of the law and justice and the result will be better for the people of Canada because the bill takes into consideration the views that have been presented on this matter. Every hon. member has been sincere in presenting his opinion and is going to make his decision on the basis of what his conscience tells him to do. As a result of this debate I think we will come up with the best possible legislation to deal with this very serious question.

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PC

William Joseph Browne (Solicitor General of Canada)

Progressive Conservative

Hon. W. J. Browne (Solicilor General):

Mr. Speaker, for the past six months I have been closely associated with the branch in the Department of Justice that has had a good deal to do with capital cases. I know something of the care and attention that have been given in the past to the possibility of the condemned person receiving commutation through the exercise of the prerogative of mercy. I think we can all agree with the observation of the last speaker that the bill should satisfy everybody. It should satisfy those who are opposed to complete abolition and it should satisfy those, and I know it does, who have been working toward that end because there has been a change in the definition of murder as is set forth in the bill itself.

We must always remember that the chief purpose of punishment is protection of the public. Those who are entrusted with the administration of justice have a sacred duty to see that the punishment is effective in carrying out its object. The traditional punishment for murder, as it has been for treason and for piracy, has been death. For murder this is a mandatory punishment that must be imposed as soon as the person is found guilty. Until 1955 a person convicted of rape was liable to a sentence of death. We have made progress by having that eliminated.

We have now, as most countries have, an elaborate system for the detection, prevention, deterrence and punishment of crime. We have federal police, provincial police and municipal police. We have federal courts, provincial courts, municipal courts, county courts and districts courts. We have crown lawyers and defence lawyers. This whole elaborate system has been devised for the furtherance of the administration of justice. Therefore I think it is fair to say that in this country a man accused of a crime has every safeguard to see that he gets a fair and just trial.

We recognize in this country that a man is innocent until he has been proven guilty, and it has been generally accepted by the legal profession that a crown prosecutor is not out to gain a conviction but rather to see that justice is done. In the province of Quebec there is an instruction in the code for Quebec lawyers to the effect that their duty when acting as a crown attorney is not to win a conviction but to see that justice is done. In the light of these circumstances existing in the fabric of justice in this country, I think everyone has reason to be proud and no reason to fear that any injustice is going to be done to a person who is accused.

The question of capital punishment exercises more interest than any other type of punishment. It is of universal interest and people are divided on the matter. There are strong opinions such as we heard yesterday

from the hon. member for Hull (Mr. Caron) and the hon. member for Vancouver East (Mr. Winch). I think the hon. member for Vancouver East went too far, and I also think the hon. member for Hull went too far in his uncompromising attitude toward any change at all. If he looks at the matter fairly, I think he will see that the bill is a very fair one because he must recognize, as I will show later in my remarks, that in each year only a very few people are executed for murder although the number of murders is many times greater than the number of executions. Not only is this so now but it has been so for many years in Canada.

I think the hon. member who preceded me also made a true observation when he said that the debate has been a most interesting one because members have spoken sincerely on this subject about which they feel so strongly. We all know that this subject has been a matter of great interest in Canada for many years and it has also been of great interest in other countries. In 1949 a commission was appointed in the United Kingdom which took four years to develop its report. I would say that the report is a classic which every lawyer and every person interested in the question of capital punishment should try to read in full or at least in part. The commission was set up for this purpose, and I read from the royal warrant:

Whereas we have deemed It expedient that a commission should forthwith issue to consider and report whether liability under the criminal law in Great Britain to suffer capital punishment for murder should be limited or modified and, if so, to what extent and by what means, for how long and under what conditions persons who would otherwise have been liable to suffer capital punishment should be detained, and what changes in the existing law and the prison system would be required: and to inquire into and take account of the position in those countries whose experience and practice may throw light on these questions.

The commission spent four years considering this matter. They visited other countries including the United States and various countries on the continent of Europe, and they came up with this report.

In 1955 a joint committee of the Senate and the House of Commons of Canada was appointed to study the question of capital punishment and it reported on June 27, 1956. We have here today several members who served on that committee, including the hon. member for Vancouver East (Mr. Winch), the hon. member for Victoria-Carleton (Mr. Montgomery), and I believe the Minister of Justice (Mr. Fulton) served part time on it, as well as two or three other members. The work of this committee occupied three sessions and they studied the administration of the Criminal Code in Canada as it related to

this question of capital punishment. I should like to read from the first section of their report, which says:

The committee endeavoured to give consideration to all aspects of the question of capital punishment. In addition to its study of the principal issue of abolition or retention, it considered proposals for limiting or modifying capital punishment by changes in law or procedure and gave special consideration to methods of executing the sentence of capital punishment. The committee, however, expressly excluded from its inquiry any consideration of the defence of insanity and related problems-

It will be seen, therefore, that these two studies constitute the important groundwork for anyone wishing to ascertain what has been done elsewhere as well as what has been done in this country. In addition, I should like to pay tribute to the work of the officials of the Department of Justice who have been studying these reports and keeping abreast of developments in other countries. I am aware of their worth because I have been dealing with them. They are as up to date as any officials could possibly be with regard to the law relating to capital punishment.

The hon. member for Vancouver East doubted the value of capital punishment as a deterrent. We all know that it is not a deterrent in all cases because we can usually visualize circumstances in which a man, in a fit of temper, commits an offence for which he is extremely sorry immediately afterwards. I think we can easily imagine a number of circumstances under which a murder might be committed which we would not regard as a capital murder. The hon. member for Dan-forth (Mr. Small) has enumerated some murders of the type I have in mind. However, it is only common sense to conclude that capital punishment must be a deterrent for many persons. The very fact that we speak of coldblooded murder, calculated murder, is evidence of this fact. We refer to people doing something by stealth. Why do they do it by stealth? Because they do not want to be found out. How many are there who commit murder mentally, who would like to murder someone but are afraid to do so because of the punishment that might be meted out to them if they were caught?

When the hon. member for Vancouver East told us he opposed capital punishment, he did not agree with the findings of the committee of which he spoke so highly yesterday. This committee, in making its recommendations, said:

While the committee considered that capital punishment should be subjected to periodic review by parliament, it recommends that the death penalty should be retained as the mandatory punishment for the crime of murder.

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That is what we are doing. We are reviewing it here and we are introducing some modifications of the law. Under the provisions of this bill, a person who is convicted of capital murder is going to have an automatic right of appeal to the supreme court of his province. Then, if he still has any grounds for appeal, he may appeal to the Supreme Court of Canada. If he cannot afford counsel, he is usually supplied with counsel. He is being supplied with counsel today, and that situation will continue. He will also be supplied with copies of the addresses of counsel and the evidence. This is a great advance.

Some hon. members referred to the provisions of clause 13 which says:

Where a jury finds an accused guilty of an offence punishable by death, the judge who presides at the trial shall, before discharging the jury, put to them the following question:

This is a reference to the question of whether or not the jury wishes to make a recommendation for mercy. The jury is not required to do so. In other words, the jury does not have to bring in a recommendation when the judge addresses them. They may say, no, we do not wish to say anything about that or they can say, yes, we would like to recommend clemency. At the present time a jury may bring in a recommendation of clemency or they may not. In many cases they do not do so and, of course, it is said that they do not do so because they are not aware of the fact they have that privilege. This is a new procedure, and it will be interesting to see how it works out. A similar provision was recommended by the Gowers report in Great Britain. They went farther than we are going here, leaving entirely to the jury the right to make a recommendation as to whether a person should get life imprisonment or whether the death penalty should be carried out. The subject of giving the jury this discretion is dealt with at considerable length.

I should like to make an observation here in connection with the remarks made by the hon. member for Maisonneuve-Rosemont (Mr. Deschatelets), who asked why we did not follow more closely the recommendations of the joint committee. It must be remembered that the previous government did not follow these recommendations at all. There are 13 recommendations in this report, and of those 13 we have carried out nine in this bill. The ones that we have not carried out have to do with a change in the definition of murder, the degrees of murder-

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LIB

Jean-Paul Deschatelets

Liberal

Mr. Deschalelels:

Will the hon. member

permit a question? Does he not agree that if the present government have accepted eight or nine of the recommendations, they have left aside the most important ones?

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PC

William Joseph Browne (Solicitor General of Canada)

Progressive Conservative

Mr. Browne (St. John's West):

That is a matter of opinion. We are not carrying out all the recommendations, but we are carrying out nine of them. The hon. member himself recommended that one of them should not be carried out, that is the retention of capital punishment for women. If he can recommend that this one should not be carried out, why should not the government, having considered the matter carefully, select certain recommendations to be carried out? We have not approved of any change in the method of carrying out the death penalty. The commission appointed in the United Kingdom recommended that there should be no change over there, so we are following the recommendation which was made in the United Kingdom.

There is only one other point I wish to bring to the attention of the house before I sit down, and that relates to statistics. The Gowers report deals at length with statistics. As we know, statistics can be brought forward in support of both sides of a question. Unless the statistics are of the same type, unless you are certain what those statistics really mean, they are of no value. Since I became Solicitor General, I have taken some pains to try to get some statistics to indicate what is happening in Canada with regard to capital cases. I must confess it is extremely difficult. I have a table here which I should like permission to put on Hansard. When I do so, I should like to give a warning that these statistics are not complete. There are footnotes which explain the deficiencies, and they will give some idea of the disadvantage in which we are placed in Canada in trying to get statistics.

One must remember that there are federal police, provincial police, county police, district police and municipal police. There is no central office in which these statistics are collected. We do get statistics relating to convictions, of course, but it is difficult to get information on the number of murders that occur and what happens afterwards in those cases.

May I have the permission of the house to have this table printed in Hansard?

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PC

Jacques Flynn (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Progressive Conservative

Mr. Deputy Speaker:

Does the house agree to give the Solicitor General leave to have printed in Hansard at this point in his speech the table to which he has referred?

[Mr. Deschatelets.l

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?

Some hon. Members:

Agreed.

[Editor's Note: The table above referred to follows at page 5309.]

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PC

William Joseph Browne (Solicitor General of Canada)

Progressive Conservative

Mr. Browne (St. John's West):

Finally, Mr. Speaker, may I say that I believe this bill is a very valuable one. As I have said, it should satisfy those who wish the retention of capital punishment for the more heinous crimes of murder and at the same time it is a step in the direction which those who favour abolition desire.

I should like to join with all the other hon. members in congratulating the Minister of Justice on the fine presentation he gave us yesterday on this subject.

(Translation):

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LIB

Jean-Paul Racine

Liberal

Mr. Jean-Paul Racine (Beauce):

Mr. Speaker, I am, I must say, neither a criminologist nor an eminent member of the bar association, but I am nevertheless interested in this bill, as are my constituents.

This is a most important piece of legislation since it tends to make a distinction between capital murder and non-capital murder.

A moment ago, I was saying that I am not a lawyer. That means that I will never be a crown attorney nor an attorney for the defence but, some day, I may be called upon to sit on a jury. That is why I was greatly impressed by the remarks which the hon. member for Maisonneuve-Rosemont (Mr. Deschatelets) made yesterday during this debate. I should like to quote from page 5227 of Hansard:

X am under the impression that we are imposing quite a responsibility on the jury. I think all those who have some court experience will agree- and experience points in that direction-that juries feel repugnance against the death penalty and are loath to make a decision which could send a man to his death. That is why in many instances in recent years, juries have rendered verdicts inconsistent with the evidence, simply because they felt reluctant to making such a decision-and this is a human reaction for men with no court experience-and did not want to assume responsibility for a decision which would have involved loss of life for one of their fellow men.

That is undoubtedly what happens in courts of justice. The judge always asks the jury to be as impartial as possible but, under the present law, it may happen under certain circumstances, that the accused is condemned to death by the jury. Now, as prescribed by section 13, the judge must say to the jury:

You have found the accused guilty and the law requires that I now pronounce sentence of death against him (or ''the law provides that he may be sentenced to death", as the case may be). Do

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STATISTICAL DATA RELATING TO CAPITAL CASES REPORTED BY THE POLICE, COURTS AND SECRETARY OF STATE DEPARTMENT, 1951-1958, CANADA


Number of murders known to police (1) (2) (9) Number of murders solved by police (1) (2) (3) (4) (9) Number of charges of murder (5) Number of convictions Number of acquittals Number of charges reduced to manslaughter (6) Insanity Other disposition Commuta- tions (8) Executions (8)Year A B C D E F G H I J1951 100 89 52 15 30 - 7 - 2 61952 105 94 50 18 23 - - 9 3 121953 120 87 36 10 17 31 8 1 10 111954 116 96 35 15 16 40 4 - 1 41955 111 82 34 16 11 24 4 3 5 81956 123 97 24 10 7 31 6 1 8 41957 110 78 42 8 24 36 9 1 6 41958 148 94 35 19 12 23 3 1 15 21. From 1951 to 1953 inclusive, figures for Yukon and Northwest Territories are not included.2. In 1957, figures for murders known and solved by Ontario Provincial Police are not included. The O.P.P. did not report in that year. This also applies for the table for Ontario.3. In 1957 and 1958 the R.C.M.P. did not report conclusions, but did report prosecutions. The data for prosecutions have been included in column B.4. In 1958, the Ontario Provincial Police did not report conclusions, but did report prosecutions. The data for prosecutions have been included in column B.5. Figures include charges which resulted in conviction, acquittal, jury disagreement, no bill and nolle *prosequi-, but do not include charges resulting in convictions for the included offence of manslaughter (See footnote (7) ).6. Figures prior to 1953 are not available. The murder charges resulting in convictions for the included offence of manslaughter are additional to the number of charges of murder listed under the column "Number of Charges of Murder" (See footnote (5) ).7. From 1951 to 1953 inclusive, the number of murders known and solved reported by the R.C.M.P. are not broken down by provinces. Provincial totals do not equal the totals for Canada.8. Figures represent commutations and executions that took place the year mentioned regardless of the year sentences of death were imposed.9. Figures for the Quebec Provincial Police are not available. Criminal Code



Criminal Code you wish to make any recommendation as to whether or not he should be granted clemency. You are not required to make any recommendation but if you do make a recommendation either in favour of clemency or against it. your recommendation will be included in the report that I am required to make of this case to the Minister of Justice and will be given due consideration. Mr. Speaker, I can just see myself in the shoes of the jurors who, after several long days of trial, see the accused in front of them, placed between two policemen and looking rather depressed; under such circumstances -it is quite human-he cannot but inspire pity. I am sure that in many cases, the jurors will soften up, and following that statement by the judge, will recommend the accused to the clemency of the Minister of Justice. However, if we refer to the report of the senate and house joint committee on capital punishment which was published on June 29, 1956, we find that the reasons in favour of capital punishment are quite decisive and can only prompt us to favour the status quo. In fact, it is mentioned that capital punishment has a deterrent effect. I quote: The committee was deeply impressed by the support given the death penalty by those who are responsible for the administration of the law. It includes all the attorneys general of all the provinces except Saskatchewan. Second, here is what we find under the heading "Punishment": It has been argued that capital punishment is the just and appropriate punishment for murder. It has been claimed that more than any other penalty, it shows the horror felt by society towards the person who destroys life, and its repugnance for the crime of crimes. Here is another quotation: (3) Public opinion. It has been stated that public opinion in Canada remained substantially in favour of capital punishment and that it would be unwise for the parliament of Canada to abolish capital punishment against the will of the majority of Canadian citizens. Moreover, there is a section which relates to prison administration, where we find this: It has been alleged that additional administrative problems would arise in the penitentiaries, if all those found guilty of murder were imprisoned. And, under section (5), there is mention of a trend towards crimes of violence, and I quote again: In a young country in full development, like Canada, with a population of multiple ethnical origins, the need for a deterrent like capital punishment is greater. And a little further on, it says: Moreover, it has been said that hardened criminals were more inclined to resort to violence. Capital punishment would be a better deterrent, for that category of criminals, than mere imprisonment, in respect of which they are already hardened and which they are inclined to consider as a professional risk. But yet, Mr. Speaker, recommendations have been made by that committee. As the Solicitor General just said, several of those recommendations have been followed by this government. However, we should not forget that the less important recommendations have been followed, with the possibility that the more important were ignored. Among those recommendations, you have first of all: (1) Retention of the death penalty as mandatory in murder cases. (2) Retention of capital punishment for treason and piracy. (3) No change to murder definition. (4) No "degree" of murder. Despite this recommendation to avoid providing any degree of murder, we see what has happened and we can realize that this bill rather tends to make a classification, for it includes various degrees of murder. Under 5 you have: (5) No special provision for women. And as a last recommendation: (13) Abolition of hanging to be replaced by electrocution or, as an alternative, the lethal chamber. Confronted with this bill, I suggest we are entitled to wonder why the government and the Minister of Justice in particular have ignored most of those recommendations. The Minister of Justice might reply that it has nothing to do with the abolition of capital punishment, but I believe that, by passing this bill, we are progressively working towards abolition of capital punishment. I realize that under such circumstances, it may be wise to think of the criminal. But we should not forget his victim, nor those who are left behind; I refer, for instance, to the victim's widow and orphans. As for me, I admit that I am not here to protect the criminal-and such is the case of all other members whose sincerity I do not question-but to protect the victim. I was rather impressed yesterday by the remarks of the member for Dufferin-Simcoe (Mr. Rowe) who dealt with this matter in a deeply humane way. I was particularly interested in the part of his speech where he mentioned that many of our young people are now lying in cemeteries because they have fought to protect freedom and democracy. I consider this measure as a step toward the abolition of capital punishment, and this is why I shall vote against it. I heard earlier the member for Montmagny-L'lslet (Mr. Fortin), himself a lawyer, state that if the issue was the abolition of capital punishment, he would vote against it. I shall then vote against the bill and, like many others, I shall vote against abolishing capital punishment. Mr. Speaker, I must remind the house that I am much more concerned with the life of decent people than with the welfare of criminals and realizing what happened in the past in our courts, I feel that the same procedure should be maintained.


PC

Robert B. Lafrenière

Progressive Conservative

Mr. Robert Lafreniere (Quebec-Monlmo-rency):

Mr. Speaker, the question of capital punishment raises many difficulties for any individual, regardless of his experience and his qualifications.

Over the ages it was a matter which haunted the mind of man. The most brilliant brains have studied that important problem and have always come to varied and opposed conclusions. In all countries, all through the ages, everyone of those people has considered the question with utmost sincerity wondering whether capital punishment should be maintained or abolished. The same phenomenon is now observed in Canada, where we see that public opinion is almost equally divided on the issue.

Therefore, Mr. Speaker, the first citizen of Canada was right when he stated in the House of Commons in February 1960, that in 20 years of parliamentary experience, he did not think he had seen more interest on the part of the members on any other issue. That means, Mr. Speaker, that each and every member of parliament is fully aware of the tremendous moral responsibility he is assuming when he expresses his views on this delicate subject.

When speaking for or against capital punishment, not only are we playing our part as legislators, but we are also acting as judges.

If we are in favour of maintaining the death penalty, we are literally sending to the gallows thousands of human beings who in the future will commit murders. It is a painful obligation.

On the other hand, if we ask for abolition of capital punishment, we may be inviting some shady character who respects neither law nor religion, with no respect of any kind for human life, to commit crimes against thousands of our fellow men. This, Mr. Speaker, is a frightful risk which a government cannot easily take.

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Of course, we would be in a much better position to judge the situation if we knew to what extent the death penalty is an efficient deterrent against homicide. But it is absolutely impossible to know how many individuals have refrained from committing the horrible crime of murder because they were afraid of being sent to the gallows.

On the other hand, one thing is sure. There is nothing more deep-rooted and stronger in any man, in any living being than the instinct of self-preservation.

There is another, equally certain fact: the prospect of death, the unavoidable, final and irrevocable punishment, haunts and gnaws at the mind of the potential murderer if he has the least opportunity to think it over before committing his crime. This potential murderer, even before doing this horrible thing which is the taking away or one's life, knows perfectly well that in this twentieth century, with the efficient and modern means available to the law, he probably does not have one chance in a hundred to hide his crime forever and to escape the punishment which will be inflicted upon him by the authority. Thus that fear may be for him the mother of wisdom. That is why I feel that the death penalty is an efficient and strong enough preventative to stop a murderer.

It is clear, Mr. Speaker, that all human beings loathe the death penalty; I personally consider it as an extraordinary evil and do not accept it for all kinds of murders as I shall explain a little later. But even if it is an evil, we must unfortunately consider it as a necessary evil in our modern society, and I should like to see it disappear if such a disappearance did not mean a menace to public good.

I would like to be able to say: Canada has such a respect for life that it does not deliberately accept that a human being be put to death.

Indeed, it is the duty of the authorities to use all possible means to enhance to the fullest extent in the minds of men, spiritual and moral values and the concept of human dignity.

Will the abolition of capital punishment lead to that end, under the circumstances?

We must answer that question by the negative if we agree that capital punishment is an efficient deterrent against homicide and if we remember that the first and immediate duty of the state is to make the general or common

Topic:   STATISTICAL DATA RELATING TO CAPITAL CASES REPORTED BY THE POLICE, COURTS AND SECRETARY OF STATE DEPARTMENT, 1951-1958, CANADA
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S312 HOUSE OF COMMONS


Criminal Code interest prevail over personal interest, to protect the whole oi society against the murderers of tomorrow. The role of a legislator is often a hard task but, as far as this matter is concerned, we are here to protect society against criminals. That, in my opinion, is the stand which the state must take on that serious problem. Besides, such a stand is in accordance with the Christian principles which have been instilled in the hearts and minds of the vast majority of Canadian members of parliament. Indeed, this is what we read in St. Thomas Aquinas' Summa Theologica: Only he who is in charge of the community, has the power of life and death. Volume X of the Dictionary of Catholic Theology adds the following corollary: However, there is no homicide and, consequently, no sin against the divine commandment Non occides (Thou shalt not kill), when human justice formally calls for capital punishment. St. Thomas adds that, in such a case, the human authorities act as the vicar of God in matters which come under them. To that, I should like to add the following words which are taken from a profession of faith written by Pope Innocent III in the twelfth century: We declare that lay authorities may, without committing a mortal sin, pass a sentence which entails the shedding of blood, providing such sentence is motivated not by hatred but by judgment and is not decided hastily but in all wisdom. Mr. Speaker, I am very happy to notice that the principle of this bill is in accordance with the sound logic on which the state must always base its decisions, and with the fundamental principles of the church to which I belong. I must congratulate the Minister of Justice most heartily for having prepared with such devotion and understanding this bill which protects society and strictly respects the rights of individuals who are to be judged by their fellow men. An examination of section 202A reveals that the bill sets a distinction between capital murder and non-capital murder. That is the substance of the bill. The basic principle is premeditation, and that is why I was saying a while ago that I am in favour of capital punishment but that I cannot accept that the professional killer who does not hesitate to commit a murder to come into the possession of material goods, be treated the same way as the murderer whose intellectual faculties were momentarily unbalanced under the heat of madness or passion. Let us consider the case of a bank robber who prepares his deed coldly, carefully. He is familiar with all the details of the place where he will break in. He carries weapons which can mean death and, in cold blood, he decides to shoot anyone standing in his way, without any consideration for the value his victim might have for his family and the community. That is capital murder, a murder of a calculated and deliberate nature, a murder which is planned. But this is not the case for crimes of passion which are committed under violent emotional stress due to various circumstances, when, in a moment of mental aberration or insanity, a citizen who never thought of becoming a murderer or homicide, will deal a fellow man the fatal blow. The legislation before us precisely sets out the difference between capital murder and non-capital murder. Besides, it strikes us that the bill is but the logical following up, or consecration by law, of a practice established by the various governments over the years. I looked up the statistics quoted in the house in March 1960 by the Minister of Justice, covering the period from 1930 to 1959 inclusive and dealing with the number of sentences, executions and commutations. I found that during the last 30 years there have been about 608 death sentences, 210 executions and 158 commutations. Well, this bill is conceived so as to give a better opportunity of appreciating all circumstances in each particular case. To that end, there is, among others, a provision under clause 8 which lessens the danger of a miscarriage of justice for an indicted person. Moreover, the bill gives greater latitude to the members of the jury. And I approve without any reservation the remarks made yesterday by an hon. member in this house, to the effect that the jury should have legally a greater latitude with regard to the interpretation of the facts and the strictness of the law. Mr. Speaker, I now want to answer the hon. member for Beauce (Mr. Racine), who complained earlier of the situation in which a jury could find itself when, under clause 13, the judge asks them whether they wish to make a recommendation for clemency. It is quite clear that the members of the jury could find themselves in a situation where their will would lack firmness. However, in any case, I believe there is less chance of error in being generous than in being absolutely just. This is why I maintain that this clause 13 is drafted in quite a humane spirit and will allow the jury to precisely appreciate all particular cases, all the details, all the evidence which will be submitted to them. Mr. Speaker, I know that other hon. members will speak on this question and I will sum up the principle of this bill by the following words: while it is quite difficult for a state to deliberately apply the death penalty by using its powers, we must remember that capital punishment is applied by the state only against the person who has been found guilty of a crime committed with premeditation and by the use of force or trickery, or both. Of course, Mr. Speaker, I do not believe that our society is willing to set aside that evil referred to earlier, that is capital punishment. But, while waiting for Christian principles to make our society and individuals more perfect, I believe the legislator has the duty to retain capital punishment while at the same time introducing the necessary and humanitarian mitigations, according to circumstances, and this, for the best interests of society.


PC

Paul Léo Maurice Johnson

Progressive Conservative

Mr. Maurice Johnson (Chambly-Rouville):

Mr. Speaker, never before have I been so tense as I am today in rising to speak in this house.

This question of the death penalty which we are called upon to consider is so important that any member who wants to give a sincere opinion has to think it over very seriously.

No doubt, Mr. Speaker, it would be easy to rely unreservedly on the cabinet, and to say that these wise men, who have studied the question with the help of many experts and who have decided to introduce this bill must have drafted a good piece of legislation which deserves our approval and we should not question the wisdom of the decision taken.

Nevertheless, any kind-hearted man is tempted to favour an alleviation of the death penalty, but it should not be forgotten that we are here as the representatives of society and that we must reach a decision based on serious reasons and not only on pretence or feelings.

Mr. Speaker, it seems to me that the principle of Bill C-92 is hard to detect if you 90205-6-336

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look at it as a whole. In fact there are several principles involved in this bill. First of all, the amendment to section 202 of the Criminal Code by the addition of section 202A to classify murder, as defined in article 202, in two classes, that is capital murder and non-capital murder, and to classify the sentence in two categories by amending section 206: death penalty for capital murder and life imprisonment for non-capital murder.

Another principle of this bill is the amendment to section 206 of the Criminal Code which is replaced by a new section 206 exempting from capital punishment children under the age of 18 who might have committed a capital murder but under which they would be automatically sentenced to life imprisonment.

The third principle I note in this bill, Mr. Speaker, is the one whereby life imprisonment is considered a minimum penalty.

The fourth principle, it seems to me, is the necessity of having a specific charge of capital murder in order to apply capital punishment.

The fifth principle seems to be, an automatic plea of not guilty in the case of a crime involving capital punishment.

The sixth principle seems to me the impossibility of indicting an accused for noncapital murder where he has already been acquitted on a charge of capital murder.

As for the seventh principle, it involves the enlargement of the means of appeal, that is to say the appeal becomes automatic in the case of a capital murder, both before a superior court and a court of appeal, be it on law or fact, or mixed law and fact.

The eighth principle deals with the gratuitousness of the documents essential to the appeal both to the court of appeal and to the supreme court.

The ninth principle, is the suspension of execution made easier because mercy is always possible in the case of a capital murder.

The tenth principle deals with the jury recommendation. This recommendation by the jury in favour of clemency, that is the provision on that subject, does not seem very clear. It is not specified if unanimity is required, or what majority must be in favour of clemency for the judge to decide to grant clemency to the accused of capital or noncapital murder. In my opinion there is a contradiction with regard to the principle providing for a "minimum" life sentence in the case of capital murder.

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Finally, another principle of this bill is the power retained by the governor in council to commute the death sentence to life imprisonment. Here again, it seems to me, that this principle tends to destroy the principle I termed as No. 3 with regard to the minimum penalty.

Mr. Speaker, there is still a great deal to be said about every one of those principles.

I could wait until the end of my remarks to consider the first principle of this bill.

Allow me to deal right now with the principle I indicated as being the second with regard to the amendment to section 206 intended to exempt from capital punishment children under 18 years of age who have committed a capital murder. I feel that capital punishment could have been retained for those young people in cases of capital murder. Be that as it may the age should inevitably be reduced to 14 years for noncapital and capital murder alike. The reason for this is obvious. For, in our days of serious delinquency, one wonders whether it would not become dangerous to exempt young people of less than 18 years from the severity of capital punishment, when we consider the gangs of young hoodlums who would not hesitate to commit a murder and who would not take the trouble of deliberating to decide whether the act they are about to commit is a capital or a non-capital murder.

Regarding the requirement of a specific capital murder charge for capital punishment, in my opinion it makes very much sense to have these provisions in the bill, for, in the main, the bill implies a distinction as between capital and non-capital murder.

I must congratulate the minister for this amendment to the Criminal Code which makes it mandatory to enter a plea of not guilty when the offence is one punishable by death. And also for rendering impossible an indictment for capital murder when an accused has already been acquitted on a charge of non-capital murder. However, Mr. Speaker, there is something inconsistent here.

It is said that the bill will abolish the death penalty in the case of non-capital murders. In doing so, it is depriving society of an essential protection, since it is preventing it from indicting for non-capital murder a person already acquitted on a charge of capital murder. There is some danger in the fact that, once a criminal is acquitted because proof of capital murder was lacking, society will be unable to lay a new charge against him.

I congratulate the government on the decision to enlarge the possibilities of appeal. That change was long overdue. Whether we are for or against the bill should not prevent us from congratulating the government for having so enlarged the possibilities of appeal by making them automatic in the case of capital murder.

I also want to congratulate the government for having laid the principle of gratuitousness with regard to the documents necessary for appeal, whether it is before the court of appeal or the supreme court. This created a great problem, I am told, for the innocent who lacked the means to ensure their defence. A person had to disburse so much money that there was a risk of the innocent being deprived of appeal.

I also congratulate the government for having extended the possibilities of suspending the execution. As far as recommending mercy is concerned, there is a possibility of conflict, in the case of capital murder with principle No. 3 according to which life imprisonment becomes a minimum punishment.

Of course, Mr. Speaker, some will ask: What is your position going to be? Let me say first of all that I still have fresh in my memory the speaking marathon we had in this house on the capital punishment bill introduced last year by the hon. member for York-Scarborough (Mr. McGee). Some members of the House of Commons were definitely set against abolishing capital punishment. Their reasons were quite acceptable. They referred to public order and I do not have to go over that in extenso. I will merely point out the reasons I have to oppose abolition of the death penalty.

First of all, common weal has precedence over private weal. In my opinion abolition-nists are unable to differentiate the individual unjustly accused from the real culprit, when they cry for abolition of capital punishment. In short, lest an innocent be exposed to the death penalty, we should expose the life of many citizens, because the real criminal would avoid the death penalty. Society will be more adequately protected if capital punishment remains in the Criminal Code.

Allow me now, Mr. Chairman, to quote an essay published in the "Revue internationale de criminologie et de police technique", published in Geneva. I refer to page 68 of special issue No. 52, where I read:

First of all, let us lend our ear to an examining magistrate, namely Mr. Justice Grivel, of Lausanne, who was appointed to investigate the double crime of Maracon, about which the clues lead nowhere and whose author has not yet been punished.

"Should you find the culprit, asked the investigator, would you not feel that he deserves the ultimate penalty". "As far as I am concerned", begins the magistrate, "I think the crime of Maracon appears to be a crime of the gratuitous type. No human motive can be found to excuse it. If it had been committed by a sadistic or otherwise mentally perturbed individual, there would necessarily be extenuating circumstances inasmuch as the culprit would have been irresponsible". As for the death penalty itself he added: "It should be part of the law as a menace. It may cause some criminals to think twice before committing murder".

Mr. Speaker, I have heard some people state that capital punishment should be abolished for humane reasons. I am wondering whether any of them would have been able to reply to a statement such as the one I quoted of Justice Grivel. The safety of society must be the paramount consideration of the legislator when he has to decide upon the position he must take when faced with legislation such as that before us at this time.

The primary task of public authority is to enable an honest citizen to live in freedom, peace and security. In these days of organized banditry and severe juvenile delinquency, we should think twice before abolishing the state's most efficient weapon against murderers. We must protect society against criminals of the bottle and criminals of the automobile. We must also protect society against murder committed in conjunction with rape, violence and theft. We must prevent crime with accompanying violence in view of the danger of murder. We must ensure that future generations will not lose respect for other people's lives, and we must retain the deterrent effect of capital punishment.

I mentioned a moment ago that one of the principles of the bill was to divide murder into two categories, capital murder and noncapital murder. After looking at all the reasons in support of this bill, I have been unable to avoid the conclusion that the bill as drafted will indirectly lead to the total abolition of capital punishment. Despite all the precautions which have been taken, it still leads to the abolition of the death penalty.

Now I am opposed for the time being to the abolition of capital punishment, whether directly or indirectly. I just gave various reasons for which capital punishment must be maintained.

Why am I in favour of a complete retention of capital punishment at this time? Not because I refuse to see that there are some murders which are not premeditated, but because, when weighing the advantages and disadvantages of this legislation with regard to public order, I consider that we are going too fast.

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Criminal Code

To sum it up, I have not been convinced that Bill C-92 in its present form, contains any principle affecting the retention of capital punishment which my conscience can accept.

I humbly maintain that the terms of the bill would directly lead, in the very near future, to the effective, pure and simple abolition of the death penalty, which I cannot accept for the various reasons given by many fellow members during the discussion of the bill introduced by the hon. member for York-Scarborough in the 1960 session and which it would be too long to reiterate at this time.

Our civilization has not yet attained the degree of maturity required for abolishing capital punishment.

The United Kingdom and other countries may perhaps abolish capital punishment. The United Kingdom, being an island and therefore sheltered against American gangsterism, the mafia and other criminal organizations where murder is the current practice, may perhaps abolish capital punishment. We have, perhaps, in England, the most disciplined people in the world, but we certainly may not say the same of the American people. It is unfortunate, but we have to admit it.

In conclusion, Mr. Speaker, may I quote an excerpt from an article by the French author, Frangois Mauriac, which was published on page 77, in the Petit Journal of May 7, 1961. I am sorry, Mr. Speaker, not to be able to quote the text from its original source, but I shall just read what I find in that paper clipping. The article was published under the following title:

The views of Frangois Mauriac... Abolish capital punishment?-First, let us be worthy of it.

And the author adds:

Abolish capital punishment? To what end? Capital punishment, if it were eliminated from the texts, would still prevail in our way of life. Even if it were erased from every legislation where it still exists, innocent people would nevertheless be legally slaughtered, human beings would die everywhere in the world from want and exhaustion. Martial law and special powers would, anyhow, restore capital punishment, extending it to innocent people, whenever politicians would think it fit.

The issue of capital punishment is only brought up again to give one an illusion of still belonging to a community worthy of dealing with and settling this issue, and in order to escape the unbearable evidence that every notion of justice has been obscured within us from year to year, and more particularly during the last two decades. I am afraid that discussing capital punishment will dispense our highminded people from dealing with more urgent problems. This is pretending to believe that we belong to a world where the life of a human being, whatever the colour of his skin, remains sacred.

Criminal Code

Abolishing capital punishment should be the ultimate aim of a law which no military or civilian police force would ever have the power to break. We know how things are today. A respect for the life of even those who are guilty of the greatest crimes-what sophistication for the sort of people we have become. How very fastidious. We could only attain that end after a successful effort of regeneration which we did not even start. Before abolishing capital punishment, let us therefore wait until we are worthy of it-

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Topic:   S312 HOUSE OF COMMONS
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May 24, 1961