Mr. Alexander:

Thank God you are not on the committee. I do not know whether there are too many lawyers in the House of Commons. With all due respect, those lawyers who are members of the official opposition are good lawyers. Those on the other side of the House are also good lawyers. The hon. member's party has one to whom I

May 1, 1972

give some credit, the hon. member for Broadview (Mr. Gilbert).

Mr. Benjamin:

There is an exception to every rule.

Mr. Alexander:

The exception is you. I do not know whether there are too many lawyers, but what I am trying to say is that we have a high calibre of lawyer on the committee. They are intelligent and, generally speaking, non-partisan when dealing with bills such as this. When the Minister of Justice says that he hopes we will give this bill speedy passage and will bring before the committee amendments of some consequence, he can be sure the bill will receive that treatment. I have a feeling that the minister means what he says. If he is anything like the former minister of justice, we will get along quite well.

Here we have an omnibus bill amending the Criminal Code, the Criminal Code 1967 Amendment Act, the Criminal Records Act, the National Defence Act, the Parole Act and the Visiting Forces Act. In dealing with all these acts the government is attempting to remove certain offences and punishments. This is a commendable attitude because obviously certain offences should not be included in the Criminal Code, such as attempted suicide. It is high time we removed it. Generally speaking, we are dealing with social behaviour in contemporary society and occasions when governments should move in to deter conduct which Canadians as a whole find offensive and not in keeping with the type of society in which we would like to live.

As I understand it, there are some 75 clauses of significant magnitude affecting the acts to which I have just referred. Hopefully, when we are through with this bill it will become more meaningful. Hopefully, it will exhibit a need for change to rid our criminal law of an archaic climate, a law which is riddled with anomalies, one which for some time has had no new approaches and has not been responsive to the changing needs of our society.

I gave the former minister of justice credit for having indicated some time ago that the law will never again stand still. We are moving in the right direction in deliberating on this bill. As I said, this amendment will not be the panacea which we seek. The problems that all members of parliament face are difficult. However, there is a study that is being undertaken now. Perhaps we are moving too quickly with this bill, but on further deliberation I do not think we are because there are certain things that this bill will achieve and we cannot afford to wait for the conclusions of the law reform commission under the chairmahship of Mr. Justice E. Hartt. I refer to the removal from the Criminal Code of corporal punishment. It should have been removed some time ago. I think it is barbaric. It seems to me an attempt to seek vengeance upon the accused. I cannot see how corporal punishment could be a deterrent.

Today we have to face the crimes of skyjacking and air piracy which are reprehensible crimes. Surely we have to deal with them immediately and cannot afford to wait for what I am sure will be commendable conclusions and recommendations of the law reform commission. The law reform commission, in a publication entitled "Research Program I," has given some indication of the problems with which they are faced. I want to put it on the record. Perhaps hon. members do not know what they are

Criminal Law Amendment Act. 1972

attempting to do, what they are faced with and what their conclusions may be when they have finished their deliberations. I shall read from it quite extensively, though not to the point of boredom, for the benefit of hon. members who have not had an opportunity of looking at this issue. At page 12, under the heading "Aims and purposes of the criminal law" it reads:

At present there is confusion and controversy about the functions of the criminal law. Thus, the commission will study on a continuing basis the purposes to be served by the criminal law in our Canadian society. In particular, we will be concerned with: identifying the types of conduct which should be made subject to the criminal law; analysing the objectives to be attained by the imposition of criminal sanctions; finding alternative techniques for regulating conduct without resorting to the criminal law; studying the effectiveness of the adversary system; and examining the existing classification of offences and the jurisdiction of the courts.

The most important statement that I take out of this is that here is the law reform commission, which is headed by one of Canada's leading jurists, indicating that at present the criminal law is in an area of confusion and controversy about its functions. Under the heading, "General principles of criminal law" it reads:

The commission will study the general principles common to most offences with a view to their clarification and codification. Many of these principles are not now contained in the Criminal Code but are developed through statutory interpretation and judge-made law. As a result, there is uncertainty about some of the fundamental issues of criminal law. The study will include in the initial stages: the mental elements of the offence; strict responsibility; ignorance and mistake of fact and law; mental illness; intoxication; compulsion and necessity; extra-territorial extent of the criminal law; and corporate criminal culpability.

Another part of the program which the commission will delve into is described as, "The attainment of equality before the law." It reads:

The commission will study the impact of the criminal law on specialized groups within society to determine whether it is operating equitably. Special studies will be undertaken into the problems of the native offender and poverty and the criminal law.

That is a commendable program and I will deal with it a little later. Under the heading, "Prohibited and regulated conduct" it reads:

The commission will study offences now contained or that should be contained in the Criminal Code with a view to the enactment of a comprehensive code reflecting contemporary values.

I would like to so pause there, Mr. Speaker. It is too bad this type of commission has not been operating for five years so that we could have the benefit of its wisdom. I think we are a little premature in introducing this bill when we know that we now have a law reform commission which will be studying in depth this area of criminal law. But because of the necessity for passing a number of important clauses of the bill, we must move ahead with it. I continue to quote:

Some of the questions to be explored for each offence are: whether the conduct should be prohibited by law; whether the criminal process is the best technique for controlling that conduct; whether the physical and mental elements of the offence have been defined with sufficient certainty and in a rational and understandable manner; and whether the penalty set out in the statute for the offence is realistic. The matters to be studied and reported on at

May 1, 1972

Criminal Law Amendment Act, 1972

an early stage are: homicide; sexual misconduct; obscenity; contempt; conspiracy; and dishonest acquisition of property.

Mr. Speaker, what we are doing now is certainly a step in the right direction, but the problem is extremely complex, calling for more than the standing committee on justice to delve into this bill. It calls for expertise and for hearings to be held around the country, something which I understand the law reform commission will be doing so that it may have the advice not only of jurists and administrators but of other persons who are affected by the criminal law.

One of the matters the commission will be looking at is homicide. Right now, homicide and the penalty for homicide constitute a burning question. I was not here five years ago when capital punishment was debated with deep conviction by members on all sides of the House. I understand there was a free vote taken on the issue. But as I have thought of the matter over the years, particularly since becoming a member of this House knowing that we would again have to face the issue, I have always wondered whether capital punishment in fact is a deterrent and whether it is morally right.

What disturbs me is not so much the answers to those two questions but the answer to this one: Can we make a mistake? Here I am really in a quandary. I know what the pressures are. If somebody says to me, "Let us bring back capital punishment because these are the statistics," I will reply, "Everybody knows what can be done with statistics." But what is unfortunate with respect to the law as it stands is that it was supposed to have been a five-year experiment and has turned out not to be an experiment at all.

Apparently members of this House, on a free vote, decided that capital punishment should be abolished except in the case of the murder of a prison guard or policeman. What has been the result? Policemen have been slain, and I have always been asked the question, "What goes on? I thought you chaps passed a law five years ago providing capital punishment for the murder of a policeman." I really did not know the answer myself but I knew there was an answer to the question. Then I found out that the answer was that when parliament passed this law it never did away with the prerogative of the cabinet to commute the death sentence. This is what the average person does not realize. He forgets that the cabinet has power to commute the death sentence. The result is that we have a law that is not a law.

I am not trying to be partisan this evening, but here we have a cabinet going against the wishes of the elected representatives of the people who wanted a five-year experiment. That is why we are in the present quandary. That is why the Canadian people are so upset. That is why they do not know what the law really is. They apparently believe that if a policeman or guard is slain, then the killer should face the maximum penalty.

There was a debate of some significance on this question five years ago. Why in heaven's name have we not followed the law? Had we done so we might now have the solution to a very burning question, a determination of the pros and cons regarding the abolition of capital punishment. The government has left the Canadian people in a dilemma. The government should have had the compas-

sion either to wipe out the law or abide by the law as it stands. I can live with and accept the law as it stands now and, as I said before, I have to reach a happy balance between it and those who are involved with the protection of lives and property, our policemen and prison guards. As the law stands now, they will say this is discrimination. Perhaps it is. But I have to answer the question that the right hon. member for Prince Albert (Mr. Diefenbaker) this afternoon told us to ask ourselves: What if we make a mistake?

I will be very frank, Mr. Speaker. Apparently most lawyers around here have been involved as counsel in about 20 murder cases, and many give the impression that they are the greatest counsel that ever lived. I took part in only one murder trial and I do not particularly want to be involved in any more. The pressure that was exerted on me was enormous, not only with respect to my capabilities as a lawyer but because I thought that if the jury was not of a high calibre, and because of my inadequacies in going through the appeal procedure, this man might hang. I was bothered then and still am. As far as I am concerned, let somebody else who has the fortitude and strength, and who can go to bed when the case is over and forget about it, conduct murder trials. I see the hon. member for High Park (Mr. Deakon) looking at me. He knows what I am talking about. I can live with this law because it is provided that the government will move in the right direction and do what it is told to do, forget about commuting sentences.

Mr. Speaker, all countries are concerned about this problem. I shall put just a few statistics on the record. In several major countries the death penalty has been abolished by law: Argentina, Australia-Queensland and New South Wales-Brazil, Great Britain, Colombia, Costa Rica, Denmark, Dominican Republic, Ecuador, West Germany, Finland, Greenland, Iceland, Italy, Mexico-25 of 29 states-Norway, the Netherlands, New Zealand, Portugal, Sweden, Switzerland and many of the states in the United States of America. That is why we shall have to deal with this problem. I may have to change my mind six months from now, and I want help in this regard. I am not concerned about whether it is morally right or whether there is a deterrent; what bothers me is that a court and a jury may make a mistake and send an innocent man to the gallows.

In New Zealand, capital punishment was abolished in 1941. In 1951, it was reinstated and in 1956 the death penalty was again abolished although it was not formally removed from the statutes until 1961. The minister of justice for New Zealand made this statement during the course of parliamentary debates in 1961:

When we realize that the penalty for murder has changed three times in the period I have been reviewing-in 1935, in 1950 and 1957-with no effect on the figures; then surely it is plain to us that executing murderers does not achieve anything.

Be that as it may, Mr. Speaker, that is the problem we are faced with. There was one particular program within the objectives of the law reform commission that struck home. I want to spend a few minutes on it because I think it is extremely important. I refer to the attainment of equality before the courts. Most judges are impartial,

May 1, 1972

have a sense of responsibility and accept the fact that this country is a multicultural society with people of different races, creeds, colours and religion contributing to the quality of our life. But there are still some judges who for some reason or other make derogatory statements not only to the detriment of the accused but to the detriment of the group to which the accused belongs.

Mr. Speaker, I thought I was making a pretty good speech, but when I hear the noise in this House I wonder. I do not want members to stop talking while I am making a speech, but to just tone it down a little.

Hear, hear!

Mr. Alexander:

When I thought about this question, I thought we would never have respect for the law until those who are affected by the system in which we live believe they have equality before the courts. A few years ago the right hon. gentleman brought in the Canadian Bill of Rights. We are in a changing society now, the frustrated and the alienated, those who believe that this system cannot help them-

Mr. Benjamin:

Change the system.

Mr. Alexander:

We don't have to change the system to make it more meaningful and responsible to the people we represent. I do not know how the hon. member ever got into this place. I don't know what he advocates, but I think this system is a good one and until somebody can show us a better one I am for it.

Hear, hear!

Mr. Alexander:

If the hon. member has a system whereby equality of opportunity is given, a system whereby-

Mr. Benjamin:

We are still trying to get that.

Mr. Alexander:

-the individual can bring all his background into our Canadian life and freedom and be given an opportunity to pursue his legitimate goals, I wish he would stand up and tell us. If he does not have a system, he is supposed to tell the people, "We are changing the system in a meaningful way by making it more responsive to the needs of the people we represent". That is all we have to do.

Hear, hear!

Mr. Alexander:

Let me go back to what I was saying because I have a point to make. The hon. member is trying to get me confused, Mr. Speaker, but nobody will confuse me. He is not getting anywhere. I am taking more time than I said I would, Mr. Speaker, but I want to read part I of the Canadian Bill of Rights which reads as follows:

It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and following freedoms, namely:

(a) The right of the individual to life, liberty, security of the

person and enjoyment of property and the right not to be

deprived thereof except by due process of law;

(b) The right of the individual to equality before the law and the

protection of the law.

Criminal Law Amendment Act, 1972

That is the statement which I want to pursue for a few moments. When I see the problems of the blacks in Nova Scotia who have indicated that they do not have equality before the law-these are allegations which have been reported-when I read of the problems that my brothers, the Indians, the Metis and Eskimos have, the people of colour who have problems and do not believe that they have equality before the law, I believe it is enough to make us all concerned; it is enough to make us say that perhaps our judges should take a course in human relations: there is no reason why not.

Hear, hear!

Mr. Alexander:

They take a continuing course in law and sentencing and perhaps they should take a course in human relations. No man should be pointed at in a derogatory way because of his race, creed or colour. This is 1972. I hope the Minister of Justice will take this question under advisement. Perhaps they need me to teach the course; I do not know. I want it to be known that we on this side of the House and members on the other side will not stand for that nonsense. There has been too much of it in the past and I do not intend to let wrongs go unchallenged. We in the Conservative party will not sit with folded hands and let injustices come to pass. I am speaking for Canadians, period. When I see the kind of nonsense to which I have referred, I am sickened. In future, those who read Hansard will know that the members of the House uphold justice and the idea that individuals must have equal rights, opportunity and equality before the law.

As I said earlier, we cannot criticize the government for introducing this bill. We must wait until the Minister of Finance (Mr. Turner) brings down his budget one week from today, on May 8: we can blaze away then. In this bill the government has met certain responsibilities. I think it has made a legitimate attempt to improve the efficacy of our criminal law. When the bill comes before the Standing Committee on Justice and Legal Affairs it will be treated with all necessary despatch. The hon. member for Halifax-East Hants has already put that thought on record.

Mr. Colin D. Gibson (Hamilton-Wentworth):

Mr. Speaker, I am pleased to speak briefly on this bill. I was also pleased to listen to the fine speech made by the hon. member for Hamilton West (Mr. Alexander). There are times in one's political life when one feels close to brother members of parliament. This sense of closeness transcends ideologies. The present occasion is an example of that sort of spirit which has arisen in the House because, Mr. Speaker, those who believe in the rule of law cannot oppose these amendments to the Criminal Code.

The bill covers everything that happens to an accused from the time he is arrested until he is convicted and punished. The whole bill is a compromise between humanity, in some parts, and growing severity in others. It shows more humanity in crimes such as common assault where previously a person could be convicted of an indictable offence. It will no longer be possible to treat common assault as an indictable offence. A charge of common assault usually arises when someone loses his

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Criminal Law Amendment Act, 1972 cool and makes a fool of himself. A man like that will be treated with compassion.

At the same time, the bill deals more severely with assault occasioning bodily harm, the maximum sentence for which is to be increased to five years. Under the code as it is at present, cases involving extreme violence were inadequately dealt with. The maximum sentence of two years was inadequate. I think a better balance has been struck in the law, lesser penalties will be meted out for lesser offences and more severe penalties for more severe offences.

I am glad that it will be possible for one to appeal a conviction for contempt of court. It was manifestly unjust, I think, that previously a judge had the power to convict a criminal or even counsel and that the law did not give either of them the right to appeal. This appeal provision is a major step forward in our law and all will recognize it as modern and humanitarian.

The question of public mischief is dealt with. I agree with the maximum sentence of five years. The offence may also be dealt with on summary conviction. That provision is good. A court can deal with people of low intelligence by way of summary conviction. On the other hand, of course, serious cases can be proceeded with by way of indictment. All in all, I think that justice will be done as it should be done.

There is in the bill a provision that concerns jurors. It overcomes previous weaknesses in the law. Previously, a judge was not empowered to dismiss a juror unless he was satisfied that it was impossible for the juror to continue serving. He might have been suffering a great deal of pain and might not have been discharged. Now it is provided that if in the opinion of the judge there is good reason for the juror not to continue serving, the juror may be discharged and his services dispensed with.

The bill is full of humanitarian reforms. In places it patches the law; in others it makes humane provision with respect to records, whether convictions will be allowed to stand, and whether a conditional discharge will be allowed. The entire subject of the bill will be dealt with in committee. I am proud to be a member of the Standing Committee on Justice and Legal Affairs which will review these matters in detail.

I cannot refrain from speaking about the wording of section 309, printed at page 18 of the bill, dealing with possession of housebreaking instruments under suspicious circumstances. I will not go into details now, but it seems to me that under this section the court is saddled with three burdens of proof whereas one burden is usually enough. First, there is the overriding burden of proof resting on the Crown, which must prove the case beyond a reasonable doubt. Then an onus is cast on an accused, who must deal with the matter. Then an onus seems to be cast on the Crown. I think these burdens of proof should be spelled out in more detail.

Mr. David MacDonald (Egmont):

Mr. Speaker, I want to speak about two aspects of the legislation before the House which have concerned me particularly since 1967. Earlier today reference was made to the leadership given by the hon. member for Vancouver East (Mr. Winch) to the movement for abolishing corporal punishment and to

the work that the parliamentary committee did in the mid-1950s. It has taken remarkably long for those concerned with the furtherance of justice to implement previous recommendations and bring about the abolishment of corporal punishment.

The term corporal punishment is often misunderstood. When people talk about corporal punishment they think they are talking about hanging. It has nothing to do with hanging. Corporal punishment means the use of the whip or strap, an instrument of punishment previously in common use. It was imposed after criminals had been convicted of certain offences and sent to federal institutions. In recent years this form of punishment has been used less and less. Now, in introducing this law reform, the minister is merely making regular what has become standard and accepted practice. To be honest, let me say that the Minister of Justice (Mr. Lang), by including this measure in the bill is taking a greater risk than if he had introduced it two or three years ago. A growing number of people in this country think it is useful to retain this anachronistic and revengeful form of punishment known as corporal punishment.

I see my time is running out, Mr. Speaker. Later in this debate I shall say why it is important to abolish corporal punishment once and for all. May I call it ten o'clock?