May 24, 1961

PC

Norman Leonard Spencer

Progressive Conservative

Mr. N. L. Spencer (Essex West):

As one

of those who did not have the opportunity of participating in the previous debates on the subject matter of this bill, and as one who is not an abolitionist and yet proposes to support this bill, I feel I should clarify my position. I will be brief because I do not want to belabour the arguments which have been previously advanced.

I listened with intense interest to the statement of the Minister of Justice (Mr. Fulton) when he introduced the bill. I congratulate him upon the objective and lucid manner in which he dealt with this delicate and highly controversial subject of capital punishment. This legislation has been referred to by previous speakers as a first step or an advance forward. If by those expressions they had in mind the ultimate abolition of capital punishment as the penalty for murder, I feel they are unrealistic and overly optimistic. I believe that the overwhelming majority of the people of this country are now, and will remain, opposed to any such result. I hope the enactment of this legislation will not be construed as a weakening of opposition or a manifestation of a changing public opinion.

The salient feature of this bill, in my opinion, is the retention of capital punishment. It is retained as the penalty for deliberate and premeditated murder. The deterrent effect of this prescribed punishment for such crimes remains unfettered. That this punishment is the greatest deterrent, I believe, admits of no denial. Attempts have been made by resort to statistics to establish otherwise. As has been said so properly by the Minister of Justice, statistics have no convincing value. There are no statistics available of murders not committed or deterred by the severity and certainty of the death penalty. To argue that life imprisonment is an equal deterrent presupposes that the penalties of death and life imprisonment are of equal severity. This is an argument I cannot accept. I believe we do not need to do more than ask ourselves-God forbid that we should ever be placed in such a position-which penalty we would prefer.

If, as I believe, the death penalty is the more severe penalty, it must follow that it is the greater deterrent. To argue otherwise goes counter to all our beliefs over the years

and to actual experience. No one, I think, would attempt to argue that the mandatory imprisonment penalty for drunk driving has not been a greater deterrent than the lesser penalty of a fine.

This bill also provides the penalty of life imprisonment in certain circumstances. What are the circumstances? There must be an absence of deliberation or planning. It is a killing that is not deliberate in the sense of being within the contemplation of the accused. It is the type of murder which would not be prevented or deterred by the severity of the penalty. It is perpetrated without regard to the consequences and, really, without any conscious appreciation of culpability. It is the type of murder for which pleas of clemency are made and frequently granted.

This kind of murder, in this bill called "non-capital murder", warrants a lesser penalty. There is no erosion of the deterrent effect of the death penalty, and for that reason and that reason alone, I approve of the substitution of the penalty of life imprisonment for such cases. I am, therefore, in good conscience and without compromising my convictions, able to support this bill.

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Robert Jardine McCleave

Progressive Conservative

Mr. R. J. McCleave (Halifax):

My intervention will be brief, Mr. Speaker. As one who has taken part in capital punishment debates on previous occasions and who has stood against the type of bill proposed by the hon. member for York-Scarborough (Mr. McGee), I should like to have a chance to explain my vote.

I believe, sir, that when one approaches a matter of such basic morality as the question of whether or not a human being should be hanged, one really comes to a conclusion from a position of deep-rooted prejudice and then glosses that over with an intellectual process. So I was interested in my own personal reaction in reading the bill of the Minister of Justice (Mr. Fulton), to see whether or not I agreed with it right off the bat. I must say that I wholeheartedly support the bill.

By the process of dichotomy that he used to separate into distinct categories the crime where premeditation takes place over a long time-for example, most of the well-known poisoning cases certainly fit into that category -as opposed to the murder which arises in a man's heart and is accomplished on the spur of the moment, I think he has accomplished a most valuable feat of scholarship. I also think he has done much to resolve the conflict that existed in this house last year when we had a two-day debate on this subject and found ourselves to be either retentionists or abolitionists but perhaps most of us were unhappy as to the problems which were raised

and which could not be solved by being in either particular position. I therefore salute the Minister of Justice for his bill and also for his speech which I daresay will be one that will be looked at for a long time and will give this particular parliament a great stamp of authority.

The minister has pointed out that it is almost impossible to prove a negative and to ascertain how many people are deterred from crime. That thought alone should be echoed and re-echoed whenever we try to bring to such a fundamental problem as this one the mere statistical approach.

Finally, may I say this. On another, occasion in justifying my own attitude towards the retention of the death penalty, I said that severe crimes deserve severe punishment. This thought was put much more eloquently by the hon. member for Dufferin-Simcoe (Mr. Rowe) speaking in his debate last night. I endorse most of his remarks, although not all of them. It seems to me that the right to live at liberty in society is not one which exists without limits. It seeems to me that we enjoy the right to live under licence from society to ensure that we conduct ourselves properly. For these reasons I am in accord with the bill and endorse it most wholeheartedly.

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PC

Gage Workman Montgomery

Progressive Conservative

Mr. G. W. Montgomery (Victoria-Carleton):

Mr. Speaker, I do not intend to take much of the time of the house but I want to say this. I was one of those who expressed themselves strongly in the debate a year ago against the abolition of the death penalty, and if I were speaking in the same debate I would still express myself strongly in that regard. I have no difficulty whatever in supporting this bill because it retains the principle in which I believe and for which I argued a year ago. For deliberate and premeditated murder there still is the death sentence.

In some of the speeches that were made in this house yesterday, or one in particular, it was stated that we might be whipped into line and that it would be interesting to note how some members were going to vote if a vote was called. Just for the purpose of the record I wish to state that I have come to my own conclusions and that I am very happy with this bill. In my opinion, the minister in particular in his presentation of this bill and the government in the solution they have brought forward in it are going to make many people happy.

No subject before parliament has brought me more inquiries in the last two years than has the particular subject of capital punishment. I know that no one wants to go around hanging large numbers of people or trying large numbers of people for deliberate murder, if the circumstances indicate otherwise.

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By dividing the crime into categories, as has been done in this bill, the minister is going to make many people feel that a great step has been taken for those who feel that abolition is the right thing and yet it is not taking away anything from those of us who believe that the time has not yet come to do away with capital punishment for the worst crime against humanity.

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LIB

Jean-Paul Deschatelets

Liberal

Mr. Deschatelets:

Mr. Speaker, I wonder whether I might have leave of the house to ask a question of the minister?

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Some hon. Members:

No.

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LIB

Jean-Paul Deschatelets

Liberal

Mr. Deschatelets:

Before the minister closes the debate I should like to ask him a question.

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Edmund Davie Fulton (Minister of Justice and Attorney General of Canada)

Progressive Conservative

Mr. Fulton:

May I make this suggestion, Mr. Speaker? If it is the will of the house that I close the debate now, I will undertake to give the hon. member the floor for the purpose of asking me a question before I conclude my speech.

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Some hon. Members:

Agreed.

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

Progressive Conservative

Mr. Deputy Speaker:

I must inform the house that if the minister speaks he will close the debate.

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PC

Edmund Davie Fulton (Minister of Justice and Attorney General of Canada)

Progressive Conservative

Hon. E. D. Fulton (Minister of Justice):

Mr. Speaker, in making some remarks to conclude this debate I would be less than human if I did not express to all hon. members in the house my deep appreciation and gratitude for the kind remarks they have made. I think they applied not so much with regard to the speech I made, but particularly with regard to the bill which has been produced as a result of a good deal of thought and work on the part of the government. I appreciate those remarks and I can assure my hon. friends that I take them not personally but on behalf of the government. I am gratified indeed that it seems possible to say that we have produced a bill which represents not only what the House of Commons wishes to see as a solution of the problem but, I believe, a measure which the house accepts as being soundly based on legal principle and as carrying into effect the moral standards which this country desires to see in this branch of its criminal law.

The bill appears to have received verj general, perhaps almost unanimous support in principle. It must be recognized, of course, that the reasons for such support are not the same on the part of each member who has spoken. Those members who favour outright abolition of the death penalty apparently welcome the bill not only for the restriction that it actually places on the imposition of the death penalty but also because they regard it as a step toward abolition. The vast majority, however, appear to accept and approve

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the bill for what it was intended to be and what it is. It is not an abolitionist measure or a first step toward abolition but a bill for the purpose of bringing the present position with regard to capital punishment into line with present day ideas of crime and punishment and for the purpose of excluding from the imposition of the death penalty those classes of cases which, generally speaking, are not characterized by deliberations and planning and where it is felt that the imposition or execution of the death penalty ought not to be provided.

I think it must be emphasized for the information of hon. members such as the hon. member for Chambly-Rouville that this bill does not abolish the death penalty. Nothing could be clearer than that. What the bill does is to divide murder into two categories, namely capital murder and non-capital murder, and to provide that for capital murder as defined the death penalty will be retained and if a person is convicted of that type of murder its imposition by the judge will be automatic.

There have been a number of criticisms of the bill on points which I might describe as points of secondary principle. I think I should deal with some of these points now. The hon. member for Maisonneuve-Rosemont (Mr. Deschatelets) expressed the view, as I understood him, that the bill was juridically sound in the approach that it took, primarily with respect to the division of murder into two types, but was practically unsound.

In reply to that I can only say that a bill which is juridically sound should also, surely, be one which is sound in practice if we repose in the institutions which may carry it out, that is the prosecution agencies and the courts, the degree of confidence to which they are eminently entitled. When I speak of the institutions which must carry it out I refer, of course, to the crown attorneys, defence attorneys, judges and juries in whom, as was so eloquently said by the hon. member for Parkdale (Mr. Maloney) last evening, we have reason to repose the greatest confidence.

I know that juries have in the past had very great difficulties, and they may have some difficulties in future with this bill, but it is my firm belief that they will be vastly assisted by this division of murder into capital and non-capital categories. I am certain that it will be by no means impossible for a jury, when confronted with the question which will confront them under the bill, "Is it your view, gentlemen, that this was a planned and deliberate murder?", to say, "Yes, it was a planned and deliberate murder" and to convict accordingly.

I have heard no reason suggested yet as to why it would be impossible for a jury to be able to come to such a decision. But I think it is equally possible and equally appropriate that there will be other cases where when the jury ask themselves, "was this a planned and deliberate murder?", they will come to the conclusion, "No, it was not". In that case they will have no difficulty because the law is perfectly clear: They will have no difficulty in arriving at a verdict of not guilty of capital murder but guilty of non-capital murder.

The hon. member for Maisonneuve-Rosemont also appeared to see a contradiction of principle between the classification of murder into capital and non-capital on the one hand, and the question to be put to the jury as to whether they wished to make a recommendation for or against clemency on the other hand.

As I understood the hon. member, his point was that since cases of capital murder would be cases importing deliberation in one sense or another and were the cases we had singled out as justifying the death penalty, it was inconsistent in such cases to ask the jury whether they wished to make a recommendation for or against clemency.

Another hon. member expressed the same point-I think it was the hon. member for Calgary South (Mr. Smith)-in a different way; that was, that in putting such a question to the jury they would in effect be put on the spot. I do not think there is too much validity in either point of view.

As I attempted to indicate in my remarks in introducing the bill, it is a fact that however much you may try when you are writing law which must after all be a code, it is difficult, if not impossible, to take into account in the words of that code all the thousand and one circumstances and differences that make up human motivation.

Since, then, the code must be perfectly clear, as to principle it is perfectly appropriate that it should give some discretion in the place where discretion can properly be given. It is therefore perfectly appropriate to ask the jury to render their verdict on the simple question of whether or not this was a planned and deliberate murder as defined, and having done that and if they say it was, then to ask them in effect, "Gentlemen, is there in your view anything in the character and background of the accused which indicates the degree to which he might be held responsible or able to control and answer for his own acts and which, in your view, would lead you to recommend in favour of mercy?" That is all the jury

are being asked to do; they are only being asked whether they have a recommendation to make.

It seems to me clear that this is not something which imposes too great a burden, or indeed any burden at all, upon the jury because it does not ask them to make the same decision twice. It does not ask them to decide whether or not the individual should suffer the death penalty. They are asked first to render a verdict on the law and the evidence, and they do so. Then they are asked whether they, the jury of the accused's peers, who tried him, who heard the evidence, who heard the defence and who understood all the background of the case, as human beings have any recommendation to make. I think that, quite contrary to being an improper thing to ask a jury, it is a very proper question to ask.

While all these views which have been expressed in criticism or reservation are, of course, entitled to respect, I do not believe they represent a defect in the bill. Indeed I might on this very point remind hon. members that the Gowers commission, which is regarded as the finest piece of research that has been done in this field, itself actually recommended that the jury be asked to pass on the sentence and that after a verdict of guilty it should be the jury that decides whether the accused should be sentenced to death or whether a lesser sentence should be imposed.

That, I personally believe, would be to impose an improper task upon the jury. We have rejected that course and have enacted a law which in my view asks the jury to do something which they would probably be glad to do, and to do something which will be of the greatest assistance in the ultimate decision as to whether or not that particular sentence, in that particular case, under those particular circumstances, should be carried out.

Another suggestion has been made, that it is wrong that the crown should have to decide whether or not to lay a charge of capital murder or non-capital murder, and that in all cases the crown should be required to lay a charge of capital murder and then we should let the jury, if the evidence so warranted, bring in a verdict on the lesser offence of non-capital murder.

I do not believe it would be wise to tie the hands of attorneys general and their prosecuting officers in this way, because there must be a certain onus upon the crown to decide what charge to lay. I do not think it is enough just to say, "Let every case be charged as capital murder and then let the jury decide whether or not capital murder is proven".

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I do think it appropriate to impose upon the attorneys general and their crown prosecutors the obligation to decide whether the elements which the law now says must be there in order to constitute capital murder are in fact there.

Therefore it is a perfectly proper duty to impose upon them to decide whether or not to charge capital murder, and if they feel the elements are not there, then of course they must charge non-capital murder.

There were a number of other points made of an individual nature which I am quite certain will again be brought forward in committee. I should like to deal with just one other point which seemed to be of concern to a number of hon. members who took part in the debate. I refer to the point as to what will be the effect of a sentence of life imprisonment, which will be the sentence in the event of a verdict of guilty of non-capital murder.

In my view there should be no differentiation between the person who is serving a sentence of life imprisonment, as will be the case in the future, for non-capital murder and other prisoners who are serving sentences of life imprisonment. We have recently set up in this country with the unanimous approval of parliament a parole system. We have appointed a national parole board to administer that system, and it is within the discretion of that board to decide at any time and on every occasion whether or not a person undergoing sentence in our penitentiaries is a fit person to be granted parole.

It is necessary to bear in mind that an inmate out on parole has not received a remission of his sentence. He is on parole for the balance of his sentence; he is merely serving that balance outside the institution. While on parole he is subject to the supervision and the surveillance of the parole board. It is not as though he were suddenly cast adrift free of all supervision by authority.

Second, it is essential to bear in mind that he would not be granted parole until the parole board had come to the conclusion after a thorough and careful study of all the aspects of the case, whether the person concerned was a fit person to be placed on parole. In reaching such a decision the parole board will have available all details as to the man's background, reports of his behaviour while in the institution and reports of psychiatrists and others as to his general mental attitude. It is only after examining all those background criteria that the board will come to a decision.

Finally, I say that it would in my view be an intolerable and impossible situation if we were to segregate into two groups in our penal institution, on the one hand those with

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a chance of being paroled and going out, and on the other those who would literally be caged up there for the remainder of their natural lives like animals who had been permanently deprived of liberty. I do not think the house would want to see this, and even if the house did want to see it I do not believe such a situation would make it possible to maintain any sort of institution which a Christian and civilized society would regard as desirable.

I assure hon. members that there have been many cases in the past where persons condemned to life imprisonment have been released on parole or on ticket of leave as it used to be called. This is not something new which is going to develop suddenly as a result of the bill now before the house. At the same time there have been few cases, if any, where persons who have been sentenced to life imprisonment and subsequently paroled or released on ticket of leave have proven to be a menace to society. So on that point I can give the most sincere assurance that anyone in my position can give to this house, and, through the house, to the country, that there is nothing dangerous in the fact that those who will be sentenced to life imprisonment in the future come under the authority of the national parole board.

I also remind hon. members of the provision of one of the clauses in the bill, clause 15, which I shall not read at this stage but which no doubt we shall be discussing later in detail when we come to the committee stage. This clause, of course, provides that in any particular case the governor in council when commutation of a sentence of death is ordered may at the same time provide that the particular individual dealt with shall not be paroled at any time without the prior approval of the governor in council. It is possible there may be cases where it may be felt that the mental condition of the individual-perhaps the very condition which justifies the commutation-also brings about a situation where the greatest care must be exercised before allowing him to be at large again. It is this very case which we had in mind when we put that provision in the bill so that the governor in council could, in an appropriate case, ensure that such a person could not be paroled or released unless the governor in council, responsible to parliament and the country, had the opportunity to review the case before any release was authorized.

In conclusion, may I return to what I said at the beginning of these remarks, and express once again my appreciation of the response which the house has shown to this bill. As I have said, I believe the reception given it reflects the fact that the bill accords

with the moral standards which our Canadian society desires to see incorporated into our law in this difficult field of murder and the penalty for murder.

I think, also, that it is only appropriate that the country should know the extent to which this bill has, or has not, the approval of the House of Commons. Some hon. members who have spoken have indicated that they are opposed to the measure. I think in legislation of this kind it would not be sufficient if we were merely to leave it to be carried on a voice vote. I think the country would desire to know, and is entitled to know, the extent to which its elected representatives are in support of this measure and for that reason, Mr. Speaker, because I think, also, it is desirable we should have recorded the degree of unanimity with which the people's elected representatives accept and support this measure, and because it is my belief that there will be virtually complete, if not complete, unanimity, I would ask that you call for the yeas and nays on this question.

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LIB

Jean-Paul Deschatelets

Liberal

Mr. Deschatelets:

I think the minister was agreeable to the suggestion that I might put a question to him at this stage, and I wish to thank him. Many hon. members who have spoken in this debate have stated that their minds were not yet made up with regard to its provisions. My question is this: because of the nature and the importance of this bill does the minister not think it would be advisable to refer it to a special committee of the house after second reading in order to give it a more thorough study? Notwithstanding the discussion which took place this morning concerning committee work I do not hesitate to make the suggestion because of the special nature of the bill before us. The minister will remember the outstanding work done last year-

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Daniel Roland Michener (Speaker of the House of Commons)

Progressive Conservative

Mr. Speaker:

I think the hon. member knows he has not the opportunity to speak again. He seems to have made his question clear and I suggest he allow it to be answered.

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LIB

Jean-Paul Deschatelets

Liberal

Mr. Deschatelets:

That is my first request, Mr. Speaker. I have another. Should the minister not agree to refer this bill to a special committee, I would ask him to postpone the study of it in committee of the house until another date in order to permit all hon. members to make up their minds, to read the speeches which have been made and to consider the various suggestions which have been put forward from all corners of the house. I think it would be unwise to rush this bill through right now.

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Some hon. Members:

Order.

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LIB

Jean-Paul Deschatelets

Liberal

Mr. Deschaielels:

Mr. Speaker, I believe I am making a sensible suggestion. I hope the minister will give it the consideration it deserves.

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Edmund Davie Fulton (Minister of Justice and Attorney General of Canada)

Progressive Conservative

Mr. Fulton:

Mr. Speaker, as to the first suggestion that the bill should be referred to a special committee, I am not going to indulge the temptation which I must confess is very real and remind the hon. member in detail of the discussion which took place this morning.

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LIB
PC

Edmund Davie Fulton (Minister of Justice and Attorney General of Canada)

Progressive Conservative

Mr. Fulton:

I will simply say this-

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Edmund Davie Fulton (Minister of Justice and Attorney General of Canada)

Progressive Conservative

Mr. Fulton:

The hon. member for Essex East is always making unworthy remarks; I do not take any notice of this interruption.

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May 24, 1961