May 24, 1961 (24th Parliament, 4th Session)


Robert Hardy Small

Progressive Conservative

Mr. R. H. Small (Danforth):

Mr. Speaker, last year when this debate was before the house I did not have the opportunity to speak but as I listened to the trend of the debate I noticed that those who were in favour of

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the bill abolishing capital punishment had the advantage of the first thrust of debate.
It seemed to me that all the hon. members who spoke in the debate at that time were for the abolition of capital punishment. Then, as hon. members of the house were seized with the seriousness of the matter and their responsibility in this regard, they became more interested as the debate progressed. Each hon. member, as the seriousness of this matter took possession of his conscience, felt it was his duty to talk on that particular bill.
The hon. member for Scarborough introduced the bill and this gave an opportunity to all hon. members to express their views. In my opinion it was very wise to have that debate. It brought out the various aspects of the issue and the various positions which hon. members of the house took with regard to it. It also gave the government the opportunity of being able to get the pulse of hon. members, who were likewise reflecting the pulse of Canada, on whether this bill was appropriate at that particular time.
The hon. member for York-Scarborough (Mr. McGee) who introduced the bill, the hon. member for Parkdale (Mr. Maloney) and other interested hon. members marshalled their facts as to the efficacy of the bill with great skill. They are to be highly congratulated in that they did not miss very much in their submissions. The hon. member for Park-dale is to be particularly congratulated for the eloquence of his speech on this matter. Admittedly the hon. member for Parkdale has great forensic ability, but he was also very eloquent in putting forward his argument. He was very moderate in his statements and he put forward a very convincing case. No doubt he was using the same skill that he uses in court, and it was very effective.
As the debate progressed the tension mounted; everyone was beginning to feel he should go on record, and the government wisely discontinued the debate. In so doing they were able to properly assess the sense of hon. members of the house and also, as I mentioned previously, the will of the people of Canada.
The hon. member for York-Scarborough who introduced the bill admitted when speaking last evening that it was patently plain that the motion would be defeated. But it was not a question of having the motion defeated; it was important that the house was given the opportunity of discussing this matter and having a full debate on it, because this question had come up time after time, as to whether we were following the right course in the method by which the government was handling the commutation of death sentences

and rehearing these cases. Now they have had time to study this law and they have brought in Bill No. C-92.
The Prime Minister (Mr. Diefenbaker) and the Minister of Justice (Mr. Fulton), as has been previously stated, are to be highly congratulated, along with the cabinet, on this bill. The Minister of Justice especially deserves commendation for his masterly presentation of the bill. The government has been very meticulous in setting out what the bill will accomplish, as I have said, having the benefit of the previous debate.
I think my own feelings are known on this matter but I did not have the opportunity of speaking at the time the bill of the hon. member for York-Scarborough was introduced. It would now be futile to take up the time of the house in recounting my own feelings on this matter. However, there are some things I should mention now that Bill No. C-92 is before us.
The Minister of Justice, in summing up this bill, has decided to apply, I think, what I would term the method laid down by two who are considered to be among the most outstanding authorities on law. They have been mentioned several times during the debate. I refer to Sir Edward Coke and William Black-stone. Sir Edward Coke was speaking about the execution of the Earl of Essex. I tremble to mention that name because I might make a mistake and say "the hon. member for Essex East". But this was the Earl of Essex who was up for treason at that time because of his episode against the queen.
Sir Edward Coke was talking about treason and he set out the method by which he assessed this matter. That was, that the principle of law, the rule of reason and the benefit and experience of trials should apply. I am quite sure that the Minister of Justice and the cabinet have applied the principle of law which has been set. I am sure they have also used rules of reason. Likewise they have had the benefit of long experience of trials in arriving at their decision.
For all time this bill, notwithstanding what has been said, that it is a step in the right direction, will be a bill which will not be tampered with and no attempt will be made to amend it for some considerable time. This is because it correctly reflects the feeling of the people of Canada. Because of the meticulous care that has been taken by the draftsmen of this bill there will be little need for any alteration to it in the future. To sum up the way I look at it, and the way in which I think the majority of hon. members have interpreted the feeling of our people, crimes of passion do not warrant capital punishment. Those who commit crimes that are premeditated or committed in cold blood, are the

ones who will have to stand trial in court for determination as to whether justice demands the death penalty.
A great deal was said yesterday about the law, about it being punitive and retributive. I think hon. members will find that this bill is in conformity with our love of law and our system of order, which dates from the time of Alfred. At that time the king's word, Alfred's word, was law, but he insisted on the endorsation by the people of his edicts. He knew the popular heart and was close to the common people. He did not over-rate or under-rate the average mind, because in the final analysis he knew that the power was in the hands of the people themselves; it was in their hands to adopt the law and if it was not acceptable, they would not observe it.
We pride ourselves upon the justice of our laws. It has come down through the ages. The degree of civilization of society has always been judged on the basis of its concept of justice. I listened to the hon. member for Mount Royal (Mr. Macnaughton), and after hearing him I thought I had better look up the definition of "law" and see how it was set out. I went, as usual, to a dictionary in order to find out. I found the definition expressed in these words:
All the rules of conduct established and enforced by the authority, legislation, or custom of a given community or other group: as a basic tenet of English law.
The condition existing when obedience to such rules is general; established order.
The hon. member for Mount Royal defined the word "justice" very aptly, but I thought, nevertheless, that I should look it up for myself. The entry states very plainly:
Sound reason; rightfulness; validity. Reward or penalty as deserved; the use of authority and power to uphold what is right, just or lawful.
I have here a reference to Edmund Burke who also has been frequently quoted. He said:
Justice is itself the great standing policy of civil society; and any departure from it, under any circumsance, lies under the suspicion of being no policy at all.
I think that the minister, when drafting the bill, had all these concepts in mind and that this measure will result in a continuation, and even a broadening, of the conception of justice we have been following through the years. While the minority will have their rights under this legislation, it is recognized that the majority in this country also have their rights, and the system of law as we know it with its salient features of justice is being preserved.
As I followed the debate which took place last year I was impressed by the submission made by the hon. member for Vancouver East (Mr. Winch). He set out three incidents drawn
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from his experience during his life time. He told the house about three Indians who through misfortune, met with a sad fate. Apparently some incontinent officers charged with enforcing the law made debauching exactions upon the wives of these Indians, demands which were not within the code of morals and ethics. The Indians were incensed, went after the officers, and threw two of them over a cliff. For this they were apprehended, brought before a court of justice and condemned to death. The manner of their execution was faulty and inefficient, though that in itself was not the crux of this case, but created circumstances which were such as to inevitably arouse public sympathy for the condemned men.
The case which I have just outlined is an example of what is likely to follow any attack upon or molestation of women. If the law does not concern itself swiftly and effectively with such attacks, or if it does not mete out justice, men will resort to the law of the jungle and take the law into their own hands, because under the code of law in any land, civilized or uncivilized, men will protect their women. I think hon. members will find that the law as now proposed will cover such a case as I have just mentioned, the case which was first set out by the hon. member for Vancouver East.
The hon. member related the case of a lad 21 years of age who had been apprehended after a bank hold-up and robbery during which the teller was killed. The lad was the driver of the car that got away after a teller had been shot, but though he had taken no direct part in the killing he was condemned to death and finally hanged. The hon. member did not give us an explanation why he should not have been hanged except, possibly, on account of the lad's youth. In any event, this was a cold blooded murder, and he was an accomplice to the killing. The hon. member then told of a third case where an individual who had been away for some time in another province returned home to find his best friend in the house with his wife. In the heat of passion he killed them both. The man was tried, but the death sentence was afterwards commuted. This example does, in its own way, explain exactly what the present bill seeks to accomplish. In cases of cold blooded or premeditated murder, as well as cases of rape and crimes involving sexual deviation, there would be an application after a proper trial of the full weight of the law.
This brings us to the question whether the death penalty is a deterrent or whether it has no effect at all. The hon. member for York-Scarborough made use of a quotation from a report of a learned judge in the old

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country, and this probably answers the question more effectively than I could answer it. It reads as follows:
It is certainly not a deterrent to murderers who commit suicide and one third of all murderers do. It is not a deterrent to the insane and mentally deranged, or to those who commit murder in a quarrel, or in drunkenness or in a sudden surge of passion. This type of murder amounts to 80 per cent to 90 per cent of all murders that are committed.
It is not a deterrent to the type of person who commits murder because he desires to be hanged, and these cases are not infrequent. It is not a deterrent to the person who firmly believes in his own perfect method-by poison, acid bath, and so on-which, he thinks, will never be found out.
This also, it appears to me, sums up exactly what the bill seeks to accomplish. Between 80 per cent and 90 per cent of all murders come within this category of persons who are insane or drunk, or who act in the heat of passion; they are eliminated from consideration in terms of the death penalty. We are left with the other 10 per cent who are cold blooded murderers with regard to whom society needs to take severe action. This does not involve being vindictive or punitive; it is only a matter of enforcing justice. In the same way, a person who commits a robbery knows in advance what the penalty will be if he is caught. He knows exactly what the consequences will be. The crime of murder does not, of course, come into the same category as offences against property, and when a murder has been cold blooded, or when there has been rape plus bestial conduct, the penalty is bound to reflect this difference, and people who commit such crimes come within the 10 per cent to which reference has been made, to whom the threat of a death penalty may be a deterrent.
I wish to differ from those who say that in these circumstances the death penalty is no deterrent. It is true that it is no deterrent to those in the wider category of 80 per cent to 90 per cent referred to by the hon. member for York-Scarborough. But there has been no adequate method of measuring the extent to which capital punishment does deter people from committing murder. The very fact that only 10 per cent of the crimes involving murder are committed as a result of premeditation shows that the death penalty may well be a deterrent to a lot of people-but there is no possible way of ascertaining the intention of individuals and whether or not they have been deterred, for obvious reasons. The very fact that perpetrators of murder are caught, tried and condemned to hang for their crime is evidence that the 10 per cent mentioned serve as a most effective deterrent against similar action on their part.
Reference was made to the horror attached to murder trials. Quite often sympathy is not

directed toward the victim of the murder but to the person who perpetrated the crime. The culprit was said to be suffering because of the ordeal he was going through at the trial and before the execution took place. In the early days, immediately the sentence was passed the condemned individual was taken out and executed. But because it was felt that an innocent victim may be hanged, this system was changed and sufficient time was given the convicted man to gather information and enter an appeal to prove innocence. Because of the humaneness of the justices at that time, provision was made for the gathering of evidence to launch an appeal. The result is that something which was granted as a humane action has now come to be regarded as an ordeal inspiring public sympathy because the time between the passing of the sentence and the execution has been prolonged. The result is that the relatives of the victim are considered to go through an ordeal. The relatives of the murdered individual are relegated to the limbo of the forgotten and the sympathy is always given to the person who perpetrated the crime.
Cold blooded murders have been mentioned. I will give the house a few illustrations of what has happened in the city of Toronto. I recall an individual who had been in a hold-up. Later his car was stopped by a policeman and he was asked to show his driver's licence. On the pretext of pulling out his licence he pulled out a gun and shot the policeman. The policeman died. I suppose in those circumstances it could be called a cold blooded murder. But excuses are made. Perhaps he ate something that morning which upset him, and his disposition was such that he did not feel right. He did not mean to shoot the policeman, but he did.
Just recently an officer of the law was hot on the trail of a couple of individuals who had committed some bank robberies. They were traced to a certain street. The officer pulled up his car, got out to question the men, and one of them pulled out his gun and shot the policeman in his tracks. He lived three months. He went through physical and mental torture before he died. All the sympathy was given to the individual who committed the robbery. The man who was murdered left a family deprived of his care and his promising future was prematurely finished. I suppose it could be said that the robber was not feeling right that day and he should not be looked upon as a serious offender. I could mention other cases.
I was raised in a community in close proximity to the jail where all the executions took place. My memory goes back to the turn of the century. Trial reports were

followed very closely in those days, more so than now, because of verbatim coverage. Outstanding lawyers were engaged, as was mentioned by the hon. member for Parkdale. Budding Blackstones and Cokes were given their opportunity to gain experience. We had some outstanding lawyers in those days such as George Lynch-Staunton, George Tate Blackstock, Zebulum Lash and Tom Robinette. In the future I do not suppose any of the young lawyers coming along will be deprived of the opportunity to get experience in court trials because there will always be a demand for genius. I do not think there will be fewer murders.
The point I wish to make was mentioned by the hon. member for Dufferin-Simcoe (Mr. Rowe). It is our duty to protect the citizens of Canada against the perpetrators of crime. I think the debate has been of sufficient length. As I have said, I think this bill is going to meet the purpose as I see it. However, I should try to emphasize one thing. Reference has been made to the cost of keeping those individuals in prison. Surely we are not going to measure justice in that way. We do not want to return to the vicious system of justice and law which prevailed in the olden days and to which Sir Winston Churchill has made reference and under which a person was imprisoned for a crime and the length of imprisonment was based on the status of the individual concerned. If an ordinary peasant was killed the punishment was so much; if an earl, it was so much; if it was a prince it was so much, and so on, according to the rank of the individual killed. It was a vicious and sordid system because the penalty increased according to the rank. If it was a prince, then the penalty was extremely severe. I am sure we do not want that kind of a system in this country where the penalty for murder is based on the status of the individual in the country. I do not think this country wants the sort of law under which a convicted man pays his debt to society according to a schedule of tariff tolls, as it were.
This bill sets out what the law is going to be and justice will be based on it. If the principles of this legislation are followed out there is no doubt that they will amply cover any situation. Public opinion in this country has jelled. Those who have advocated abolition of capital punishment have made certain points. No one has ever submitted proof that since confederation anyone who was innocent has been hanged for murder. Abolitionists tell you that there are many of them but they do not point out any particular case. The fact of the matter is that our system of law has been so sound 90205-6-335
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and the people are so satisfied with it that very few changes are required.
Those who are convicted of capital crimes will have the right to have their cases reconsidered on recommendation of the jury. Certain categories will be set out in the law and premeditated and cold blooded murderers will have to submit to what we call punitive justice as we know it, which course reflects the will of the majority of the people of Canada.
It is said that the people of the country are in favour of abolishing capital punishment. I question that because people have communicated with me on the matter both by telephone and by correspondence. Sometimes they are very forceful in their presentations but when they become threatening I cite to them a case that took place in my own particular area. A young girl was taken from the sidewalk on the main artery to a ravine where she was raped and bestially treated. This was done by an individual who had just been released from jail after serving a sentence for the same kind of offence. When the case was being investigated one of the detectives looked at the circumstances and said that it was Mr. so and so.
The man was immediately traced to where he was working. There was no question about who had committed the murder because the evidence was on him. He was apprehended and received the full penalty of law. When I describe such a case to individuals who are so possessed with the idea of abolishing capital punishment they invariably say that there are exceptions to all rules.
That is why this bill is sound in providing that capital punishment should be retained to take care of such cases. As I have said before, the Minister of Justice has drafted the bill on sound principles of law and reasonable rules that will operate effectively. The experience of trials in the past has been a factor in assisting the minister to bring forward what the people of Canada want. I think there will be little necessity in the future for amendment of the bill in any shape or form. The cases that have been mentioned will fit within the ambit and construction of the law and justice and the result will be better for the people of Canada because the bill takes into consideration the views that have been presented on this matter. Every hon. member has been sincere in presenting his opinion and is going to make his decision on the basis of what his conscience tells him to do. As a result of this debate I think we will come up with the best possible legislation to deal with this very serious question.

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