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,
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-