May 24, 1961

LIB

Paul Joseph James Martin

Liberal

Mr. Martin (Essex East):

On a matter as important as this we should not be playing politics.

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PC

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

Progressive Conservative

Mr. Fulton:

There is no doubt that a bill of this importance deserves consideration in the widest possible forum, and the widest possible committee forum we can place it in is the committee of the whole house. I am not inclined to think that with respect to a bill of this kind a detailed study by particular members, as my hon. friend has suggested to me, would be appropriate. I think the committee of the whole house is the appropriate place to have a detailed clause by clause consideration of this bill.

With regard to the second suggestion that we might defer the consideration of the bill in committee of the whole, while I appreciate the remarks the hon. member has made as to the desirability of studying the speeches made here, I do remind him that the bill itself has been in the hands of hon. members for over a week now.

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?

An hon. Member:

Not their speeches.

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PC

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

Progressive Conservative

Mr. Fulton:

The subject itself has been under intensive study and consideration by members of this house for over a year, ever since the bill of the hon. member for York-Scarborough (Mr. McGee) came up for debate in February of last year.

I know that hon. members are under considerable pressure. Members of parliament are hard-working and conscientious persons; but I doubt very much whether their consideration of these matters would be more thorough if we waited for a day, for 24 hours or for 48 hours than their consideration has been up to the present time. I sense rather, on the other hand, a desire on the part of hon. members in all quarters of the house

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to get on with the detailed consideration of the bill as early as possible in order that this excellent measure may become law at the earliest possible moment.

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PC

George Robson Muir

Progressive Conservative

Mr. Muir (Lisgar):

May I ask a question for clarification just before the motion is put? Could the minister give us some indication of how long a man sentenced to life imprisonment for non-capital murder would be expected to serve before he would be eligible to apply to the parole board for parole?

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PC

Daniel Roland Michener (Speaker of the House of Commons)

Progressive Conservative

Mr. Speaker:

I suggest the hon. member ask that question in committee. There will be ample opportunity when the relevant clause is under consideration to ask questions on details.

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PC

Grant Campbell

Progressive Conservative

Mr. Campbell (Stormont):

Mr. Chairman, I rise today to say a very few words because I have spoken at length on this matter on previous occasions. This is one occasion on which I can honestly say that I am completely and unreservedly in favour of a piece of legislation. I believe that this bill, as a compromise, represents not the lowest common denominator but the highest common factor. This is the sort of legislation, frankly, I should like to have thought of myself.

I believe that this bill is as just and reasonable as erring human beings are capable of achieving. I believe that mercy and human-itarianism are taken about as far as possible by this bill without being subversive of law and order, unless human nature is going to change which is highly unlikely. I believe this bill deserves to be, and undoubtedly will be, a model for similar legislation in other countries.

Finally, I believe that 50 years hence, long after most of us have disappeared not only from this house but from this life, this bill will reflect credit on this government and on its Minister of Justice.

(Translation):

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LIB

Jean-Paul Deschatelets

Liberal

Mr. Deschaielels:

Mr. Chairman, a moment ago, I made two suggestions to the Minister of Justice. My second suggestion was to postpone until another date the study we are now making of the bill. My request was based on reasons which seemed to me very important, since several members have pointed out in the course of their remarks that they had not yet formed their opinion on the merits of the bill.

I cannot see why the government wants to rush this bill through. It is a most important measure, and by implication, touches upon fundamental problems in our society.

I have suggested that its consideration in committee be deferred to another sitting. I think my suggestion at the time was welcomed by the majority of the members of this house.

The house is now in committee of the whole, and is dealing with section 1, which is perhaps the most important. I do not know whether the government thinks this measure cannot be improved. There is no doubt that if a few more days were allowed, several members could consider all the suggestions that have been put forward and could come back and make important recommendations.

This bill is being put forward on the initiative of the government, and no doubt the government accepts responsibility for; but if it is passed, it will become the law of the land. We want to help make it as practical as possible, and it is with that purpose in mind that I have suggested that its consideration in committee be deferred to another day. I renew my plea to the minister.

I cannot see why an attempt is being made to hurry this bill through. There is no urgency involved. Many sentences have been commuted over the past three years, and a few days more could not make that much difference. On the contrary, it would enable us to study the bill and also to consult authorities and go over some of the speeches which have been made.

I must say to the minister that I was quite disappointed and surprised at the astonishing attitude he adopted a moment ago, in refusing to give us one day or a few days before the bill is considered by the committee of the whole.

I hope section 1 will not be passed before six o'clock; I know this would give satisfaction to several members on the other side of the house, who would also like to see some improvements made to various aspects of the bill.

I therefore ask the minister to give serious thought to my request and to allow us a few days more to make a thorough study of such an important bill.

In fact, once the bill is passed by the house, perhaps the matter will not come up again for another generation. In any event, we will not be here to deal with it at that time.

Therefore, I would ask the minister to allow us at least that much more time, which I consider necessary if we want to improve this bill. We need more time to consider this important measure, and I hope the minister will grant my request, which follows the one I submitted a moment ago.

(Text):

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PC

Ernest James Broome

Progressive Conservative

Mr. Broome:

Mr. Chairman, I have not taken part in this debate up until now, although I took part in the debate on the private bill of the hon. member for York-Scarborough. I should like to say to the hon. member for Maisonneuve-Rosemont that we have had many days' debate on this whole question, but members have searched their consciences and that, having decided how they feel about this measure, they know how they will vote. No one could read the speech, for instance, of the hon. member for Parkdale without seeing the side of those who wanted revision of the law as it is. This was the side of reason, logic and common sense. On the other side of the picture we had strictly emotional appeals which would not stand up under investigation or under the experience which has been gained in other countries which have taken steps such as this one. I had on the order paper at the beginning of this session a resolution calling upon the government to take the lead in bringing in measures to amend the archaic and Mosaic type of legislation we had on the statute books before this measure was introduced.

Although I am one of those who supported the hon. member for York-Scarborough, I am one of those who believes as does the hon. member for Parkdale. I am pleased with this measure. I believe it is a real halfway house. I believe it is a long step in the right direction. In my opinion, this bill is a credit to the minister, to the staff who had the job of developing this legislation and to the government. I am wholeheartedly in support of it.

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LIB

Charles Benjamin Howard

Liberal

Mr. Howard:

At this stage I have only a few brief and general remarks to make following those of the hon. member for Maisonneuve-Rosemont and the hon. member for Vancouver South, and they are along somewhat the same lines. As to the major principle contained in the bill, I think each member

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has undoubtedly made up his mind and perhaps did so not at the time this particular bill was under debate but during previous sessions when we discussed or debated bills presented by the hon. member for York-Scarborough.

However, while one may have come to a certain conclusion with respect to the essence of the bill itself, I still think that a sufficiently large number of points of view were expressed during second reading of this bill to require some consideration and some reflection on the part of hon. members with regard to whether or not these different ideas might be contained within detailed parts of the bill itself. I am thinking of such matters as pleadings in court, functions in court, and whether or not we should alter somewhat the definitions of what is capital murder or what is non-capital murder. These are things which perhaps require some degree of cogitation on the part of members. It is for this reason that I would support the expression of view of the hon. member for Maisonneuve-Rosemont to the extent that we have possibly a day or two in which to consider and to reflect upon all of these various ideas that have been suggested, some of them differing greatly.

I know that each member has approached this problem from the point of view of his conscience and not from the point of view of whether or not the legislation was introduced by a particular cabinet minister and the natural things that follow from supporting government bills. However, I think this conscience of members should be given an opportunity, over an extra day or two, to work a little bit more. Perhaps we may then be able to come up with suggestions in the committee of the whole which the minister said is the place in which we can in the broadest possible manner assess the feeling of the public. In committee of the whole we may be able to come up with suggestions and ideas with regard to particular methods rather than suggesting those amendments on the spur of the moment. I have one amendment particularly that I should like to propose to a subsequent clause. It is something which I would rather not introduce right on the spur of the moment, as it were. I would rather think about it for a while, talk with other members about it and get their ideas on it.

I also think there is a tendency, particularly on matters such as this one, to legislate with long intervals of time elapsing between the various changes that take place in the legislation. I think it will be some time again before parliament, in a formal way, gets down to the question of considering the statute dealing with capital punishment or capital or non-capital murder, as it is referred to in this bill; it might be another ten

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years or another 15 years. It is difficult to say when we will again get to that point of time in social thought when it is considered necessary to make some other amendments. I think we want to be as sure as we possibly can now, while we are at the task, that we are legislating in a manner which each of us really thinks is the best possible way to legislate on this particular subject.

In general I am in support of the bill and the subject matters contained therein. I have expressed these points of view on other occasions, especially when dealing with the bill introduced during the previous session by the hon. member for York-Scarborough.

I support it, not because it represents what some people have called a compromise between abolitionists and retentionists-because I do not think this is a subject matter we can approach from the point of view of compromise, especially if our conscience is involved-but because I think the bill recognizes, and certainly the reflection of the government is recognition of this fact, that capital punishment is no greater deterrent to murder than is some other form of punishment, notably, in this instance, life imprisonment.

I think this bill recognizes that capital punishment in some instances is not any greater deterrent to certain crimes being committed than is the threat of life imprisonment. I maintain that this is substantially the case with respect to those types of murder which are classified as planned and premeditated where a person plans a heinous crime. One such case that comes to mind is where an individual planted a bomb on an airplane in order to kill a member of his family and thereby collect the insurance, and in the process killed everybody else on the airplane. That was a planned, premeditated and foul type of murder.

In this and other instances where murder is planned and premeditated by an individual, I submit that the threat of capital punishment is no more a deterrent to that individual than is the threat of life imprisonment. I think what that individual is thinking about, or what he convinces himself will occur, is that he can plan and carry out a murder and use his wits in such a way that he will escape detection. He has convinced himself that he will be able to do this and will be able to escape detection, arrest and conviction by the police.

I support this bill, because it recognizes the fact that in some instances the threat of capital punishment is no more a deterrent than is the threat of life imprisonment. I submit that this is true in so far as planned and premeditated murders are concerned.

I would say, however, that the retention of capital punishment in so far as concerns certain types of planned and premeditated murders will be acceptable to those who maintain that it is a deterrent; it will be acceptable to those who think in terms of the necessity for revenge; it will be acceptable to greater or lesser degrees to people in different parts of the country, depending upon the circumstances which might exist at any particular time.

Public opinion on this particular question of the necessity for capital punishment in certain cases will rise and fall as circumstances vary in a particular locale. If there is in an area a particularly fiendish individual who commits murder and the inhabitants are incensed about the murder and the manner in which it was carried out, the feeling in that area will rise and insist upon capital punishment being the proper punishment. At some other point of time, if nothing occurs in the same community, the feeling in that regard will diminish.

Mr. Chairman, I know other hon. members wish to rise and speak on this subject because I saw them rise when the first clause of this bill was called. Therefore perhaps I should not say anything more at this particular time, because it is ten or 12 minutes to six o'clock and I know other hon. members wish to participate in this debate and express their views today and keep them connected as closely as possible with the vote that took place. On later, subsequent clauses I think we could perhaps engage in a more extended debate.

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PC

Frank Charles McGee

Progressive Conservative

Mr. McGee:

Mr. Chairman, since I first became concerned with this subject a number of years ago as a result of having served on two successive murder juries I have been engaged in continuing study, discussion, argument and debate on this matter and I have come to know the retentionists' argument very well indeed.

I would not care to hazard a guess as to the number of debates outside of this house in which I have been involved, but it is a considerable number. As a person will in any discussion or any continuing argument, I have made it my business to try and probe surface reasons in the minds of those persons who are advocates of the death penalty being retained.

I have also made it my business, in travelling across this country, as I have had the good fortune to do in the last year or so, in particular visiting universities in almost every province of this country, to continue to probe the reasons offered by persons who would retain capital punishment. I think I should offer to the minister and the committee

the benefit of that experience and those discussions, which experience is perhaps unique in this committee.

It seems to me that in general the great majority of retentionists are in favour, as they have indicated in overwhelming numbers in this house today, of a limitation and a reduction in the application of the death penalty. No one, not even the most firebreathing retentionist or any hon. member of this committee, enjoys contemplating participating himself in an actual execution, in spite of the phrase commonly heard following a particular ghastly murder, "I would not mind pulling the rope myself" and other statements which have been made in a burst of emotion following such incidents.

However, it seems to me that the great majority of retentionists agree that the application of the death penalty should be reduced and limited. The statement I have heard over and over again is, "Yes, I go along with your bill, your idea about abolishing capital punishment, except in the case of", and then the person goes on to describe the one unforgive-able crime from his point of view.

I must confess that most frequently the crimes mentioned and presented to me in these extensive discussions have been those committed against children, specifically the crime of rape of a child followed by murder; the crime of kidnapping followed by murder; the crime of murder committed on an old, weak and helpless person. These are the crimes most frequently suggested as being incapable of forgiveness.

I wonder whether in describing what capital murder is and attempting to define what we mean generally-and by "we" I mean the people of Canada-should be the exceptions to the limited application of the death penalty, we should perhaps embody in the language of the law some of the descriptions applied to such crimes. The words which occur, and which have occurred in this debate and in the ones that have preceded it, are, in particular, the words "cold blooded". I am not a lawyer, but it seems to me that words have meanings; people use them for that purpose. As I say, the expression "cold blooded" has been used time and time again in this house in this and other discussions. Is it not reasonable that the law should contain what the great majority of people, according to my investigations, and in my opinion, feel to be a description of a crime to which the death penalty would apply.

Another word frequently used to qualify this degree of culpability for which the death penalty would be warranted is the word "foul". Several hon. members-I shall not mention any in particular, have used this

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word to describe what they regard as an unforgivable murder, a murder that must be punished by capital punishment.

There is another ingredient in this question of the degree of culpability which has troubled many people and which has been described as presenting the greatest problem. It is the person who clearly represents a threat and a danger to society. The argument put forward-and it was used in this debate as well as in previous debates-concerns a man sentenced to life imprisonment who kills a guard. The argument is: what has he got to lose if, ultimately, there is no death penalty. What has he got to lose by killing a guard? As I say, I have given an answer to that in previous debates as far as the abolitionist argument is concerned, but we are not discussing that today. We are attempting in this first clause to define in terms as clear and unmistakable as possible what we mean by capital murder, the type of murder which we say must be punishable by death. I am not prepared, as the hon. member for Skeena mentioned a few moments ago, to offer now an amendment containing these particular phrases and words, but it seems to me some consideration should be given to translating into the law, to writing into it, those terms which our people and our society have used and are using to describe such crimes, and I suggest again that perhaps "foul" and perhaps "cold blooded" should be added to the phrase "planned and deliberate" and that some consideration might be given to this question of whether such people clearly represent a threat and a danger to society. As I have said before on this argument concerning a person killing a guard while attempting to escape, surely if we can develop, design and bring forward such tremendously complicated, complex and technical devices as have been developed during this century we are capable of so designing a prison or place of incarceration as to reduce to an absolute minimum the threat or danger to those persons charged with the care of prisoners.

As I mentioned before having regard to the definition of capital murder-again I think the M'Naghten rules-the legal definition of insanity as compared with the medical or clinical definition of insanity, leave much to be desired. As I mentioned when speaking on second reading there is clearly room for improvement here in this notion of diminishing responsibility and I do hope we can qualify the definition of capital murder to exclude specifically those who are suffering from a diminished mental responsibility for their actions. I do not think the intention of the M'Naghten rules or any other consideration of insanity was ever to ensure that persons who are not sane should be hanged.

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These thoughts, which I should like to leave with the committee, are in no sense an attempt to push the minister over the brink. Rather, these suggestions are intended to give the committee the benefit of what a great many persons in this country are thinking. These are the thoughts of people vitally concerned with this subject. I offer these suggestions as being the ingredients which, according to my judgment, the majority of people have in mind for the one category of murder for which capital punishment will be applicable.

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PC

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

Progressive Conservative

Mr. Fulton:

I rise, not to reply to those hon. members who have spoken on the substance of the first clause so far but to deal with the question which was raised some time ago by the hon. member for Maisonneuve-Rose-mont, suggesting that discussion of the bill in committee might be deferred. I must say that when I first heard his request it seemed to me that, after all, the bill had been before the house for nine days since it was read the first time and distributed, and that all hon. members had probably made up their minds not only on the principle of the bill but also with regard to the details. I thought, therefore, it would be appropriate to continue at once to consider the bill in committee.

I must say that I was also a little conscious of the fact that there had been some criticism-though I wish to say we do not consider that criticism to be justified-that the government was at fault for not having legislation on the order paper for the house to deal with. Well, this bill has been on the order paper for nine days, and if it were the fact that there is not a great deal of other legislation presently before the house and I considered that members would have had an opportunity to consider this subject carefully and make up their minds.

These arguments could all be advanced; nevertheless, I am sure the hon. member put forward his views with sincerity and for a good purpose. For that reason I have had a discussion with my colleague the leader of the house and I may tell the committee that, having today opened up the discussion of clause 1, if it meets the wishes of hon. members opposite we should be prepared to defer further consideration of the bill in committee until next Monday.

Progress reported.

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BUSINESS OF THE HOUSE

L L

William Moore Benidickson

Liberal Labour

Mr. Benidickson:

May I ask the leader of the house whether we continue this bill or go to estimates tomorrow?

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PC

Gordon Minto Churchill (Minister of Veterans Affairs; Leader of the Government in the House of Commons; Progressive Conservative Party House Leader)

Progressive Conservative

Mr. Churchill:

Mr. Speaker, by special arrangement, which I hope is appreciated, we will take up the estimates of the Department of National Health and Welfare tomorrow; and on Friday we shall take the estimates of the Department of Justice. If there is time available on Friday or Saturday, contrary to what I announced earlier, the Department of Mines and Technical Surveys would come in ahead of the Secretary of State.

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LIB

Paul Joseph James Martin

Liberal

Mr. Martin (Essex East):

The Minister of Justice gave us no concession a while ago.

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PC

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

Progressive Conservative

Mr. Fulton:

Certainly I did.

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PC

Gordon Minto Churchill (Minister of Veterans Affairs; Leader of the Government in the House of Commons; Progressive Conservative Party House Leader)

Progressive Conservative

Mr. Churchill:

I gave the concession. The arrangement for Thursday is to help out the hon. member for Essex East.

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LIB

Paul Joseph James Martin

Liberal

Mr. Martin (Essex East):

Yes; I was not referring to the house leader; I was referring to the Minister of Justice.

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At six o'clock the house adjourned, without question put, pursuant to standing order.


May 24, 1961