June 28, 1944 (19th Parliament, 5th Session)


John George Diefenbaker

Progressive Conservative

Mr. J. G. DIEFENBAKER (Lake Centre):

Mr. Speaker, in connection with this bill, which has to do with a number of amendments to the criminal code, an opportunity is given to make some reference to amendments to the criminal code and the necessity for such amendments being made at this time. Each session there is an annual piecemeal introduction of amendments to the criminal code, and the accumulation of these suggestions for amendments show the necessity for a complete revision of the Criminal Code of Canada at the earliest possible time, such revision to be based on the changing and changed conditions 100-271
through which we have passed and on the changes which have taken place in public opinion since the last revision of the code, also by reason of the scientific advancements that have taken place since the time of Sir John Thompson, who in a revision some fifty years ago codified our criminal law.
I suggest, Mr. Speaker, that the time has come for consideration by this house and by the Minister of Justice in particular of a revision of the criminal code in its entirety in order to bring it up to date and in order to remove the results of conflicting judicial interpretations which have been given on the various sections as well as anomalies that appear in many sections of the code.
All admit that the criminal code should be revised, and I .rise for the .purpose among other things of placing before the Minister of Justice the suggestion that there should be set up by parliament a committee composed of outstanding representatives of the law, and others, particularly of members of the bar, so that they may hear evidence from jurists, scientists, penal workers and psychiatrists to the end that there shall be a body of evidence available to enable the criminal code to be brought up to date.
Having regard to the fact that these amendments before us have to do with the revision of penalties I should like to suggest that something be done with regard to amending the criminal code in order to remove the situation that prevails to-day in that there is a mandatory penalty of death for all convicted of murder. That penalty has been changed in other parts of the empire. As a matter of fact -I am not at the moment entering into any discussion of the merits or demerits of capital punishment-in 1941 capital punishment was done away with in New Zealand, as was flogging and whipping as punishments for certain crimes. The trend recently has been to ameliorate the harshness of the criminal code, and I believe that provision should be made for the removal of the penalty of death so far as youths of eighteen years of age are concerned. In Great Britain that has been the law since the Children and Young Persons

Criminal Code

Act was amended in 1932 providing that the sentence of death shall not be pronounced or recorded against any person under the age of eighteen years. Only recently there was an example of the horror felt by the people as a whole when in the city of Montreal an outstanding jurist, following conviction by a jury, had to impose mandatory sentence of death upon a fifteen-year old boy. True enough, everybody realized that the sentence would not be carried out, and as a matter of fact, shortly after the trial of a confederate, the sentence was commuted, as has been the case for many years, because po person under the age of eighteen has been executed for murder, the sentence in every case having been commuted.
There is reason why these severe sentences should be removed from the code. As the Minister of Justice has stated, experience has shown that when mandatory sentences are out of line with what public opinion ragards as proper in the particular case, justice is defeated; for juries, realizing that there is no other way, in many cases, to avoid the rigours of the law, bring in a verdict of "not guilty" or a verdict for a lesser offence. No matter what may be said in regard to the jury system, one salient fact stands ou,t, namely, that throughout the years juries have been the protectors of the people against unfairness, harshness and the rigidity against change which have too often characterized law makers who are behind advancing public opinion.
I suggest too that provision should be made whereby the right of appeal to the Supreme Court of Canada should be made available in criminal cases from the appeal court in the various provinces. One of these sections has to do with the matter of appeal, but it does not face the problem of the right of appeal on the part of the individual. Too often, as the law stands to-day, the right of appeal to the Supreme Court of Canada, by a person in search of justice, is circumscribed within such narrow limits that many who would otherwise appeal are denied the opportunity to do so.
One of the important things in connection with the administration of the criminal law is that not only should a man receive justice out that he should believe that in fact he is receiving justice, and I believe that in that regard all possible injustice would be removed if the minister would consider the enlargement of these provisions.
I believe that in the administration of the criminal law we should seek not only to punish but to reform. As the law is to-day, any youth of sixteen or over who commits a
serious offence is sentenced to a penal institution. We have no institutions similar to those in the United Kingdom. In that regard we are far behind in the administration of our penal system. Many of the outstanding recommendations, most, if not all of what the royal commission on penitentiaries recommended in 1937, remain recommendations that have not been carried into effect.

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