May 23, 1961

CCF

Harold Edward Winch

Co-operative Commonwealth Federation (C.C.F.)

Mr. Winch:

Mr. Speaker, as you know I will follow Your Honour's ruling at all times as closely as humanly possible. You will understand, however, in view of the fact that there were many quotations and references to the report of the joint committee of the Senate and the House of Commons in respect of capital punishment by the minister and by previous speakers, during which time no question was raised nor objection made, that I therefore felt I was entitled to refer to the subject in a similar way.

Criminal Code

I must say I am disappointed that the Minister of Justice, after reading the evidence and recommendations contained in the report of the joint committee of the Senate and the House of Commons, did not see fit to change the method of carrying out capital punishment. It has been my impression that hanging and electrocution are not the best methods of carrying out this punishment, because both methods disfigure and desecrate the body and are unnecessarily inhuman. On the other hand it is my understanding, having read the evidence of that committee, that the lethal chamber neither disfigures, desecrates nor is inhuman.

Mr. Speaker, I do not intend to go further with this subject, because I always like to stay within your good graces in the event that I become badly out of order on occasion. I have been very interested in this subject for a quarter of a century, and I am sure my views are known by all hon. members of this house in view of the statements I have made on a number of occasions during the past eight years. I do not intend at this time to reiterate them, but would only say at this stage that it is my hope that what I have said will indicate my continuing opposition to capital punishment.

I feel that capital punishment is unchristian, inhuman and cannot be justified on any basis of statistics or law, and is strictly a method of revenge and retribution. I regret that Bill No. C-92 has not accepted the challenge of the modern trend of penology by abolishing capital punishment.

I should be less than fair if, for that reason, I did not say that I appreciate the extent to which the bill does recognize the problem and represents the government's analysis of the situation in an attempt to encompass the feeling of society in a manner which will be acceptable as a step forward. I suggest this is the first major step forward that has been taken in this country toward a stage of decency when the laws of society will be applied to protect society without the necessity of taking human life.

Topic:   CRIMINAL CODE
Subtopic:   REVISION OF PROVISIONS RESPECTING DEATH PENALTY
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PC

Gerald William Baldwin

Progressive Conservative

Mr. G. W. Baldwin (Peace River):

Criminal Code

trial court to the provincial appellate tribunal and thence to the Supreme Court of Canada. Consequently there will be three opportunities for trained and experienced members of the judiciary to examine into the facts in respect of which the charge is laid, to formulate an opinion and to give to the accused the benefit of their experience and knowledge.

The other point to which I wish to refer is clause 13, which has already been mentioned by the minister and the other two speakers. I also approve of this clause. It gives statutory recognition to what heretofore has only been a custom under which a jury, compelled by the law and by the facts involved to find the accused guilty, has yet felt that the circumstances justified it in making a recommendation for mercy. The very fact that the House of Commons and ultimately parliament, I hope, has recognized this principle will mean that it will be accepted in the minds of members of the cabinet that such a recommendation should be given some consideration.

I had the experience many years ago of defending a young boy who was 19 years old when he was tried. He had lived a sheltered and happy life with his mother. He had never been away from home. He lived on a farm, and whenever there was any of the usual slaughtering of animals to be done he so disliked the thought of blood being shed that he would absent himself from the farm on such occasions. On one occasion when he was 18 he left the farm and in a period of four days committed five grave breaches of the Criminal Code, including murder, under circumstances for which there could be no possible defence. The only defence I attempted to introduce was that of insanity. It was established that he had the mentality of a boy 10 or 11, but he could not be brought within the four corners of the narrow, legal definition of insanity which would have meant that there could have been a finding of not guilty.

He was found guilty, and I recall the sentence well. The case was heard in a frontier town in a theatre filled with people. When it was time for sentence to be passed the boy was sobbing. He was held up by policemen on either side as the judge pronounced the sentence of death. I remember speaking to him as he went away and assuring him that I would petition for commutation. The jury intimated to me afterward that they would have liked to bring in a recommendation for mercy. They felt they could not do other than find him guilty on the strength of the charge made by the

learned trial judge, but they certainly believed that there were circumstances with respect to the boy's background and mental condition which indicated to them that his life should not be taken. But because that was not done the sentence was carried out, and it was one case where I felt that the death penalty never should have been carried out.

It is in circumstances of that kind that clause 13 may well come into effect. I hope what I have said will to some extent resolve the doubts of the hon. member for Vancouver East, and that the important and forward looking clauses of the bill will receive the commendation of the house.

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Subtopic:   REVISION OF PROVISIONS RESPECTING DEATH PENALTY
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LIB

Hubert Badanai

Liberal

Mr. Hubert Badanai (Fort William):

Mr. Speaker, a year ago last February the hon. member for York-Scarborough introduced Bill No. C-6, an act to amend the Criminal Code to abolish capital punishment. This bill, unlike most private bills, received a great deal of publicity throughout the country, with the result that the debate was allowed to be resumed on a subsequent date.

Notwithstanding the arguments advanced by several speakers during that debate for the retention of the death penalty, the minister's excellent address today, which merits commendation for its clarity, and what has been said by those who have since taken part in this debate, my view on the question has not changed. This divergence of opinion is the very essence of our democracy. I respect those whose views differ from mine on this matter as well as on other subjects, regardless of party politics.

I was one of those who participated in the debate last year and expressed myself in favour of abolition except in cases of treason in time of war. The widespread interest shown by the people has no doubt influenced the government to bring in the amendments to the Criminal Code now before us. This bill, of course, is not the one we discussed last year but a modification of the present code in recognition of the need for a change to a more realistic concept in dealing with people charged with murder.

Those who still favour the retention of the death penalty for crimes involving murder believe that death is the only effective deterrent against murder. I wish to read an extract from the report of the royal commission on capital punishment which was established in Great Britain in 1949 and, incidentally, was referred to by the minister in his opening remarks. The extract reads as follows:

Capital punishment has obviously failed as a deterrent when a murder is committed. We can number its failures. But we cannot number its successes. No one can ever know how many people

have refrained from murder because of the fear of being hanged. For that we have to rely on indirect and inconclusive evidence. We have been told that the first thing a murderer says when he is arrested is often, "Shall I be hanged", or "I did it and I am ready to swing for it", or something of that kind. What is the inference to be drawn from this? Clearly not that the death penalty is an effective deterrent, for he has not been deterred; nor that he consciously considered the risk of the death penalty and accepted it; still less that the death penalty was not so effective a deterrent as some other punishment might have been. The true inference seems to us to be that there is a strong association between murder and the death penalty in the popular imagination.

Mr. Speaker, this illuminating conclusion was arrived at after not days, not months but years of dispassionate study by the foremost criminologists and legal minds of England. I agree with the minister when he said this is an area of sentiment and passion in which people rely not on statistics but rather on reaction when confronted with arguments for or against what shall be just retribution. While I respect the views of those who hold the opinion that the death sentence is a restraining force against murder, the experience of many nations, and of some states to the south, is such that it does not bear out this contention.

For example, Luxembourg has had no death penalty since 1822; Belgium since 1863; Portugal since 1867; The Netherlands since 1870; Italy since 1890. The death penalty was restored in the latter country during the fascist regime, but it was again abolished in 1948. Norway has had no death penalty since 1905; Sweden since 1921; Denmark since 1930; Switzerland since 1942. There are a dozen states south of the border that have no death penalty, and this is not a complete list by any means.

I should like now to quote from the report of a British select committee appointed by the government of that country to study and report on the subject. This study was made in 1930, and I should like to quote from the report:

Our prolonged examination of the situation in foreign countries has increasingly confirmed us in the assurance that capital punishment may be abolished in this country without endangering life or property or impairing the security of society.

The Ottawa Citizen, in an editorial dealing with these proposed amendments, had this to say:

The most that can be said of the federal government's move to restrict use of the death penalty in murder cases is that it is a step in the right direction. Because the government is not prepared to recommend outright abolition of the death penalty the proposed Criminal Code amendments raise the prospect that a strain will be placed on certain links in the system of justice.

The government bill introduced in the House of Commons by justice minister Fulton divides murder cases into "capital" and "non-capital" categories.

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The death penalty would be imposed in cases of calculated murder committed during a crime of violence. The measure provides a mandatory life imprisonment sentence for those convicted of non-capital murders. To be convicted of capital murder the suspect must be specifically charged with that offence.

Britain, sir, provides statistics of the trends of crimes in that country. While larceny, housebreaking and similar crimes have been on the increase, Britain's murder rate has remained almost stationary for the past 50 years, notwithstanding the increase in population. One third of all murder suspects commit suicide before they are brought to trial. The great majority of those convicted of murder are between 15 and 34 years of age. These are among the facts brought out in the past month during an analysis of murder which is being used by both sides in the British controversy over capital punishment.

Other interesting findings were that the overwhelming majority of murder victims are either related to or well known by their murderers, and the largest group of killings takes place within the family with murders of wives by husbands and children by fathers leading all others. Few murders are coldly plotted and premeditated. Of those charged with murder, 36 per cent are sufliciently abnormal mentally to plead either insanity or diminished responsibility. Sexual crimes, played up as one of the 10 most predominant causes of murder, accounted for only two dozen murders out of the 471 committed in Britain during the last three years.

The study to which I have referred concludes with this statement, and I quote:

A woman or child is less likely to be killed by a stranger following a sexual assault or even where there is no sexual offence than at the hands of a blood or other close relative.

This conclusion should clearly indicate that the general ideas held by people on murder need to be brought up to date. Indeed, in all fairness, the government should have appointed a committee of competent criminologists to make a parallel study of murders and crimes in Canada before introducing this legislation. It is true that a parliamentary committee composed of the Senate and commons, did sit through three sessions of parliament. However from all accounts, the report of their findings did not include an analysis similar to the one which was made in Britain.

The Minister of Justice (Mr. Fulton)-I give him full credit-is to be complimented for the very comprehensive presentation he made in the introduction of this bill. However, I do not share his conclusions entirely, although he did advance one step toward eventual abolition. I have said that the study of crime and murder in Britain revealed that

Criminal Code

comparatively few murders are coldly plotted. I would assume the same situation would apply to murders committed in Canada. In effect, this legislation with which we are now dealing would indicate that a premeditated murder would automatically mean the imposition of the death sentence on the murderer, assuming that he was sober when he committed the killing. If it could be proven that he was drunk when he committed the murder, then he would not be sentenced to the gallows but to life imprisonment.

The danger as I see it is this: A potential murderer, knowing the consequences of murder committed while sober, would probably decide to get drunk, commit the murder and get off with a prison sentence. This appears to show up a loophole for some murderers to escape the death sentence. One aspect of this legislation which needs clarification is the case of a convicted murderer sentenced to life imprisonment. Will this really mean imprisonment for life or will he be eligible for parole after a number of years? According to the bill, the fate of this person would be decided by the cabinet. The parole board will lose its job and the Minister of Justice will set himself up as the arbiter in deciding how many years will be chopped off the life sentence.

This is one of the worst features of this legislation. The fact that anyone could be kept in prison, at the pleasure-if you please -of any government, would too greatly resemble the power of a dictatorship. Those of us who believe in abolition would substitute life imprisonment for murder without the benefit of parole at any time. In other words, the real deterrent would constitute confinement behind bars until natural death released the prisoner.

The danger of executing an innocent person is also an important factor which should be evaluated because here we are dealing with a risk of no mean proportions.

Let us consider the case of a man by the name of Evans who was hanged in London for the murder of his wife and child in 1949. Five years later a fellow by the name of Christie living in an apartment in the same house was arrested and convicted of having murdered several women, including Mrs. Evans for whose murder her husband was hanged five years previously. This case was the subject of an analysis by judges and members of the bar who appeared in a C.B.C. television program known as "Background" on Sunday, April 23. It is the case which was referred to by my friend the hon. member for Vancouver East (Mr. Winch).

The present bill is clearly compromise legislation which may satisfy some people. It

[Mr. Badanai.l

is quite obvious that the voice of those on the side of abolition has not been loud enough to convince the government to go all the way by bringing about the end of the death penalty in one stroke. However, the time will come when Canada will join those enlightened nations whose penal code no longer contains provision for the killing of the guilty by hanging them by the neck until they are dead. We can easily anticipate that the passing of this bill will not end the discussion on the subject.

The Globe and Mail of May 17, devoted a lengthy editorial to the subject concluding with these words:

The new amendments will reduce the number of cases in which the government is required to exact the extreme penalty or to interfere with the law; but they do not answer the moral question: Should society kill any man, whatever his crime? This is a question which can only be answered with the vote of a house that has been liberated from party discipline to follow the dictates of conscience.

Here, Mr. Speaker, I wish to state that the debate on capital punishment last year revealed the tremendous interest which the whole country shared on the subject. It was a practical demonstration of the people's feeling on the matter which was divided for the most part and for this reason, if not for others which could be cited as valid, it seems to me that there should be a free vote on this matter. I urge the government-and I am looking straight at the Prime Minister (Mr. Diefen-baker) at this moment-to allow a free vote of the members on this measure. A sincere expression of opinion in the House of Commons can be produced only by allowing members to vote individually as their consciences may dictate regardless of party affiliations. A free vote of parliament will indicate the degree of public feeling for or against capital punishment as no other sampling of public opinion could possibly achieve.

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PC

Arthur Smith

Progressive Conservative

Mr. Arthur Smith (Calgary South):

Mr. Speaker, I should like to speak very briefly on this bill. In so doing I wish first of all to congratulate the minister not only on the introduction of the legislation itself but on the very comprehensive and able analysis he presented to the house earlier today. I have one or two observations to make. Having spoken in the debate a year ago may I say at the outset that I am happy to support the bill. I have one or two reservations, and I would hope the minister will make some explanation in summary.

Perhaps I might open my remarks by first of all replying, to the extent one can do that, to the suggestion that this bill in any way represents a compromise, as it has been described. It is perhaps true that there has

been an attempt to reconcile certain views hitherto expressed on various aspects of capital punishment, but certainly there is no compromise in the principle in this legislation before us.

We might recall that a year ago in the debate at no time did any member suggest that we should take a life through capital punishment in return for a life which had been taken by a murder. It is not suggested that this should be done as a matter of revenge or retribution, but only if it represented in any form a deterrent in order to prevent some person at some later date from committing a similar crime. I think that those of us who argued the necessity of the retention of capital punishment did so on the simple ground that it did to some degree represent a deterrent. 1 suggest to you, Mr. Speaker, as did the minister, that any serious study of this factor-whether it be the United States review or the joint committee of the house and Senate-has exhibited very clearly in their conclusions that capital punishment is a deterrent. To what degree, of course, this house and in fact the public of Canada may never know.

It is not my intention to go over all the past events on this or any other bill dealing with capital punishment. I think obviously the principle point that we must establish in our mind is first of all whether a deterrent is exacted by employing the maximum penalty; then how best can we employ it so that, first of all, we do not take a life when there is any question as to the motivation or premeditation in the murder committed. In other words we must judge it in the circumstances surrounding it. We must also be absolutely certain that we provide every safeguard so that we do not take the life of an innocent person.

The bill deals with these two factors very adequately in my opinion. It provides three very excellent safeguards, namely prohibition of the guilty plea, the requirement that a trial judge asks if mercy is recommended and of course, the right of automatic appeal. This provision therefore is adequately taken care of in this bill.

But what about the other facet, namely that of determining whether or not a murder was premeditated or whether or not it was something that developed out of a crime of passion as it is legally described. Here again the minister and his officials have defined the bill in its two categories of capital and non-capital. The application is therefore fairly simple. Hence I suggest that it satisfies to this extent the rather extreme views that have been offered in the house, on the one hand arguing that it is improper and wrong to take the life of someone who conceivably out of anger or perhaps because of insanity

Criminal Code

took the life of a human being, and yet it provides for society protection from a person who, in his full knowledge and in the possession of all his senses goes out and with premeditation takes the life of a fellow human being. So for this reason I say this is a good bill.

But what of the reservations I have suggested? First of all, I would ask the minister in his summary to tell us whether he considers this aspect in his categorizing of murder. Is it to be suggested that perhaps we are encouraging those who might enter upon or become involved in an armed robbery, with the use of weapons and thus encouraging them to carry out the final act of committing a murder? I realize that this is a difficult question and that an accurate assessment of the matter cannot be made. Is this likely to lead, as has been suggested today, to the possibility of people committing murder because of the knowledge that, in the final analysis they will not, of course, lose their lives if convicted of a capital punishment offence?

The second question I put to the minister is this. Having regard to the safeguard that the jury has a right to recommend mercy- in fact, it is now a mandatory provision-is this likely to put us in a position where all juries are going to be obliged for the most part in effect to recommend mercy and that we are therefore limiting the usefulness of capital punishment as a deterrent?

The third question I put to the minister deals with the whole problem of life imprisonment and its relationship to parole. I would ask the minister to state in his summary his own view regarding whether the terms under which life imprisonment can now be exacted adequately deal with those people who are involved in sex slayings. I would also ask the minister whether or not we have created a situation in which the individual, whether he is convicted of a capital or a non-capital offence, is provided every opportunity to go out and again commit a similar crime. I think it is perhaps important that we look at the history of these people and our experience in this regard.

I do not intend to repeat it in any detail, but my one concern is this. It may be argued that in some instances it would be perfectly safe to release a non-capital murderer fairly shortly after conviction, provided he has no chronic mental instability or impairment. On the other hand there will be others whose mental imbalance is insufficient to constitute what has been described as legal insanity, which fact may not be brought out in the trial or in the proceedings on appeal. These people may or may not respond to treatment.

Criminal Code

I would ask the minister whether he considers that in the final analysis the cabinet should make the ultimate decision as to whether these people, if convicted of a capital offence, should be released. I think it is important to make a very careful assessment of the methods by which we impose or enforce life imprisonment so that we do not send out into society those people who are able and in fact are almost encouraged to commit murder for a second time.

Mr. Speaker, I have covered all the points I intended to introduce. As I said at the outset, I support the principle of the bill. I think it satisfies the essential needs. Capital punishment does represent a deterrent and it is still there to remind any individual, who with willful knowledge intends to commit a murder, that if he pulls that trigger or pushes that knife into someone's stomach he may in turn lose his own life. It therefore remains as a deterrent to any person who is likely to commit such a crime in the future.

May I close, Mr. Speaker, by once again congratulating the minister for what I consider to be a very important and very useful piece of legislation.

(Translation):

Topic:   CRIMINAL CODE
Subtopic:   REVISION OF PROVISIONS RESPECTING DEATH PENALTY
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LIB

Alexis Pierre Caron

Liberal

Mr. Caron:

Mr. Chairman, last year, when we considered a bill providing for the abolition of capital punishment, I declared myself very categorically in favour of the maintenance and, in some cases, of the increase of the reasons for hangings or executions.

I am not surprised that, from time to time throughout history, bills based on sentimentality are being introduced, in order to reduce the punishment meted out to those who have committed a crime against society.

Who are those who are against capital punishment? First of all, you have good, honest and serious people who want to abolish capital punishment to obey their conscience, their sentimentality or because they believe it is in the interest of society. Those people are as well intentioned as those who were preaching prohibition in 1917, who believed that it was the way to abolish alcoholism in the world; the result was exactly the contrary of what they were seeking.

Today, people who are just as well-meaning as the people in those days want to eliminate capital punishment, on the grounds that it is not humane and that civilization is going forward at such a pace that we must have great compassion for the person who is to be tried, found guilty and probably executed.

On the other hand, there are people in the underworld who are fully in favour of abolishing capital punishment, because they

fear it; they are afraid of the future, and it would be a good thing for them if capital punishment were abolished.

There is also the communist world, that wants capital punishment to be abolished in all its forms, even in cases of treason; because they feel the need to protect themselves in the event of a war between the communist world and the democratic world.

The idea of abolishing capital punishment is nothing new. As far back as the fifteenth and sixteenth century, there were people who favoured it. In France, there was Voltaire and Jean Jacques Rousseau. In Italy, there was Vico and Beccaria, and in Germany, there was Savigny, Karl Marx and Kelsen. In Great Britain, Hume and Benthan called for the suppression of this penalty, while in the United States, Franklin and Paine did the same.

All were great men, great philosophers who had studied the matter and felt compelled to promote a new idea in the world, for a developing society.

The idea was practically abandoned for many years, but in recent times it has been gaining ground in various circles. Some countries have accepted the abolition of capital punishment, while others have opposed it. In Canada, it has not yet been done, and I hope this country will not go so far as to accept this idea.

I realize that the piece of legislation now before us is not a bill for the abolition of capital punishment. However, we know it is one more step which will inevitably lead to a reality if we go on indulging in this false sentimentality.

What are the arguments of the very people who call for the abolition or reduction of capital punishment? For some of them, it is a matter of conscience, along the same lines as faith in God and acceptance of that part of the Bible which says:

Thou Shalt not kill.

They do not want us to feel any resentment against those who may hit us, because Christ said:

But whosoever shall smite thee on thy right cheek, turn to him the other also.

All those principles of tolerance are the basis of their beliefs and that is one of the reasons why they absolutely want the abolition or at least the mitigation of the death penalty.

Others, on the contrary, argue that capital punishment is inhuman and must be abolished since it is a survival of ancient times, when the one that had meted death also had to face death.

What about the murderer then? Did he entertain any of those soft feelings toward his victim? Did he have any feeling for the

family bereaved of their protector, when the breadwinner fell under the blow dealt by the murderer?

Some people would argue that the death penalty should be done away with on the ground that it is only a matter of vengeance.

It has nothing to do with revenge; in fact, if it did, I would support its abolition.

In my opinion, it serves as an instrument of retribution necessary in a society in order to remove the numerous causes which may lead to murder.

Some people say that capital punishment is not a deterrent to homicide. May I be permitted to refer to the report tabled on June 27, 1956. It was submitted by the joint committee of the Senate and the House of Commons on capital punishment.

I will quote only a few excerpts. On page 10, one can read the following:

The committee was deeply impressed by the support given the death penalty by those who are responsible for the administration of the law. It includes all the attorneys general of all the provinces except Saskatchewan. The experience of responsible persons who share that opinion showed that it was an effective deterrent to murder.

Now, to page 11.

Moreover, it was contended that professional criminals were more likely to resort to violence. To this class of criminal, capital punishment was a more effective deterrent than mere imprisonment to which they were already hardened and which they tended to regard as an occupational hazard.

Now to page 14.

In considering the arguments for and against abolition, the committee was conscious of the view of the provincial attorney general and other officials responsible for law enforcement from whom it received evidence that capital punishment is an important and necessary deterrent to murder. As indicated in paragraph 50, the committee did not consider that this opinion is displaced by other evidence based upon statistical comparisons, and the committee has concluded that capital punishment does exercise a deterrent effect, which would not result from imprisonment or other forms of punishment.

I now quote paragraph 56, page 15:

The committee while recognizing the substantial support given by many persons to the abolition of capital punishment, considered there is a still wider group who support and accept capital punishment. This support reflects the public's revulsion against murder, the "crime of crimes". Equally, the committee considered that the public abhorrence of murder reflects a traditional attitude built up by the reservation of capital punishment for this particular crime. The abolition of a penalty traditionally accepted as a just and effective deterrent could only be recommended if the evidence clearly established that the ordinary citizen's view of its efficacy was demonstrably wrong.

On the other hand, many consider the maintenance of capital punishment as a de-

90205-6-331

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terrent to murder. This is so true that whenever this question becomes an issue, people want capital punishment to be retained in the case of crimes of treason.

Therefore, if people can thus be deterred from such crimes, why can they not be deterred from any crime?

Page 15 of the report reads partly as follows:

The committee was of the opinion that capital punishment does protect the police to a greater extent than imprisonment alone would do by deterring criminals from using firearms or violence to facilitate the commission of crimes, or escapes from arrest or attempted apprehension.

And, on page 17, one can read the following:

In practice, the committee considered that any redefinition of the crime of murder-

This is closely connected with the present bill.

-should conform closely to the present practice in commuting sentences of capital punishment. Having concluded that it is not practicable to achieve a satisfactory redefinition of murder, the committee also decided that differences between murders can only be recognized by granting commutation in suitable circumstances.

Several witnesses suggested that consideration might be given to the creation of degrees of murder which would take into account the difference in moral culpability between different types of homicides. All witnesses representing law-enforcement authorities opposed the establishment of degrees of murder. The committee shares the conclusions of the United Kingdom royal commission on this question. The committee is of the opinion that the present distinction between murder and manslaughter is quite clear and straightforward.

I will now read a few of the committee's recommendations:

(1) Retention of capital punishment as mandatory penalty for murder.

(2) Retention of capital punishment for treason and piracy.

(3) No change in definition of murder.

(5) No special provision for women.

(6) Abolition of capital punishment for offenders under 18-

That is the only case where the committee felt capital punishment should be abolished, that is the case of offenders under 18 who can still reform and who may have been brought up since childhood in a neighbourhood where they were exposed to evil influences.

On the other hand, in the case of a man who has achieved more maturity, it is recognized practically everywhere that a criminal always comes back to the scene of his crime or always commits the same kind of crime over and over again. Consequently, there is only one way of correcting those criminals, namely to find the only solution which will at least check this desire within the criminals

Criminal Code

to kill their fellow human beings. I feel that capital punishment may often cause within young criminals, a reaction which will stop them, because of their families, from committing a murder.

History tells us that in the latter part of the war a great number of men in the army of Napoleon I committed suicide. Then, looking for a means of checking those suicides and knowing that those who committed that crime did so for the sake of family pride, Napoleon ordered that all those committing suicide be hanged. And it is said that from that moment on the number of suicides decreased considerably within Napoleon's army.

Thus we can say that hanging is considered as a dishonour and it is precisely for that reason that hanging must be kept as part of our traditions, as a deterrent for those who might still be prone to kill.

It has been said and it is still claimed that most murders are committed following fits of madness. It is true and whoever has read Alexis Carrel's book "L'homme cet inconnu" will agree with me that most individuals, if not all, have several fits of madness in their lives. In fact, whenever a man gets mad to the extent of losing control over himself, then he may do some foolish thing. But can such an act be an excuse for the crime of killing somebody? I do not believe so.

Besides, it is a known fact that our courts of justice have always been prudent in that field. Whenever a judge and jury are called upon to judge a case, they are absolutely prudent and make sure that there is confirmation of evidence and whenever they are faced with circumstantial evidence, they always make sure that all circumstances are brought forward so that there be no doubt whatsoever concerning the guilt of the accused.

Some people claim that in the past-I do not know personally-there have been cases where persons would have been found guilty when in fact they were innocent. One might say that was an accident. Even if it is possible for one such accident to happen in one hundred years would it be wise to abolish that deterrent which keeps people from making use of brutal force to eliminate an enemy or from acting like today's gangsters who enter a bank with drawn weapons, intending to kill if they do not get the money they are after.

You just have to recall the action of that young criminal who shot down a police officer, in a Montreal caisse populaire because

the latter tried to arrest him. Could we find some way to cure those criminals apart from holding out to them the prospect of hanging?

I do not think so.

However, I believe the main evil we should fight these days is the lack of religious education among our children. In fact too many people still claim that there is no room for religious education in our schools, that it should be eliminated from the curriculum. In our schools, we reach all our children whereas, at Sunday school-or the perseverance lectures as it is called in some places-there are a certain number of pupils taking those courses because their parents are strict enough to keep an eye on them and to send them to the school, but most children do not attend. I am of the opinion that the only way to foster a mental habit is to promote religious education for our children and to teach them principles they will never forget.

Those who want religious education to vanish from our schools do an ill-turn to society because they deprive a child of an opportunity to learn principles which might keep him on the right track during his whole life.

Topic:   CRIMINAL CODE
Subtopic:   REVISION OF PROVISIONS RESPECTING DEATH PENALTY
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PC

Paul Raymond Martineau (Parliamentary Secretary to the Prime Minister)

Progressive Conservative

Mr. Marlineau:

Would the hon. member permit a question?

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Subtopic:   REVISION OF PROVISIONS RESPECTING DEATH PENALTY
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LIB
PC

Paul Raymond Martineau (Parliamentary Secretary to the Prime Minister)

Progressive Conservative

Mr. Marlineau:

Could he tell us who are those persons who want to do away with religious teaching in our schools?

Topic:   CRIMINAL CODE
Subtopic:   REVISION OF PROVISIONS RESPECTING DEATH PENALTY
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LIB

Alexis Pierre Caron

Liberal

Mr. Caron:

Mr. Speaker, if the hon. member had read the publication entitled Orange Sentinel, distributed to us every month, he would have seen that there are many people who advocate the discontinuance of any religious teaching in our schools. As a matter of fact, I do know that an Anglican bishop in Toronto and Anglican ministers, who had put themselves on record as being in favour of religious teaching in the schools, received letters of protest and threat for having dared to ask for the retention of religious education in our schools.

Such teaching is most necessary, and too often it is not realized what ideas can be taught the children through it. That is what is sought to be abolished by those who favour the abolition of religious education. It is a matter of giving youth good training at a time when they are being educated. If we see to it soon enough, perhaps this matter of capital punishment will not have to be dealt with. I am convinced that we should be much more stern than we are now for hold-ups.

I could not tell whether it can be blamed on law administration or on the weakness of the bench, but recently in Montreal a criminal who had robbed a considerable amount of money was sentenced to only seven years in prison. Such leniency means that this criminal, on being released, will take possession of the stolen money which he must have hidden, and since society has been so lenient in his case, he will be ready to resume his former life.

Moreover, several people are opposed to capital punishment because their conscience objects to such punishment.

It is said that killing is forbidden in the Bible. In fact, it is stated in the Bible: Thou shalt not kill. This is a general commandment to the effect that an individual has no right to kill. But, on the other hand, this is what we find in chapter 9, verse 6, of Genesis:

Whoso sheddeth man's blood, by man shall his blood be shed.

Now, it is quite obvious that "by man shall his blood be shed". And "by man" means society, he who within society is responsible for maintaining order.

And in Leviticus, chapter 24, verse 17, we find the following:

And he that killeth any man shall surely be put to death, and he that killeth a beast shall make it good; beast for beast.

I understand that those words have been referred to earlier as being a commandment of the law of retaliation. But they are based on the fundamental principle that we must not kill, he who kills must be punished by society and the only fitting punishment is death. And we find here:

Voluntary murder.

And if he smite him with an instrument of iron, so that he die, he is a murderer; the murderer shall surely be put to death. And if he smite him with throwing a stone, wherewith he may die, he is a murderer; the murderer shall surely be put to death. Or if he smite him with a hand weapon of wood, wherewith he may die, he is a murderer; the murderer shall surely be put to death-

But if he thrust him of hatred, or hurl at him by laying of wait, that he die; or in enmity smite him with his hand, that he die: he that smote him shall surely be put to death; for he is a murderer.

And this is what we find in the Deuteronomy, chapter XIX, verses 18 and 19:

And the judges shall make diligent inquisition-

This shows that even in the Bible this matter was not to be dealt with without due consideration; evidence was needed, and convincing evidence.

90205-6-331J

Criminal Code

And the judges shall make diligent inquisition: and, behold, if the witness be a false witness, and hath testify falsely against his brother, then shall ye do unto him, as he has thought to have done unto his brother: so shall thou put the evil way from among you.

And further on, in the Proverbs, I find the following:

Foolishness is bound in the heart of a child; but the rod of correction shall drive it far from him.

The Bible mentions several times that he who kills should be killed by society.

The individual, of course, has no right to take the law into his own hands, but society must protect the victim of a murder. It must protect the eventual victim of a murderer.

For all these reasons and for many others that time does not allow me to give, I shall vote against this bill.

Topic:   CRIMINAL CODE
Subtopic:   REVISION OF PROVISIONS RESPECTING DEATH PENALTY
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PC

Rémi Paul

Progressive Conservative

Mr. Paul:

Would you allow me a question?

Topic:   CRIMINAL CODE
Subtopic:   REVISION OF PROVISIONS RESPECTING DEATH PENALTY
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LIB
PC

Rémi Paul

Progressive Conservative

Mr. Paul:

If I understood your statement, you mentioned that Napoleon had inflicted capital punishment to put an end to a wave of suicides. Is that true?

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LIB

Alexis Pierre Caron

Liberal

Mr. Caron:

I have read this fact somewhere but I have not checked its accuracy. I know that words and deeds are often wrongly attributed to great men, but the fact that it was ever mentioned is enough to make one wonder if that was not a way to deter his men from committing a crime.

Topic:   CRIMINAL CODE
Subtopic:   REVISION OF PROVISIONS RESPECTING DEATH PENALTY
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PC

Rémi Paul

Progressive Conservative

Mr. Paul:

How did they go about hanging a suicide?

Topic:   CRIMINAL CODE
Subtopic:   REVISION OF PROVISIONS RESPECTING DEATH PENALTY
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LIB

Alexis Pierre Caron

Liberal

Mr. Caron:

It is simply that a sentence to death by hanging was shameful, whereas suicide was considered an honour.

(Text):

Topic:   CRIMINAL CODE
Subtopic:   REVISION OF PROVISIONS RESPECTING DEATH PENALTY
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PC

Gordon Harvey Aiken

Progressive Conservative

Mr. G. H. Aiken (Parry Sound-Muskoka):

Mr. Speaker, I should like to speak briefly in support of this bill and also to speak directly on two principles of the bill and not on capital punishment in general. The first principle I should like to discuss is the suggestion that this is a compromise bill between two extreme points of view. I feel that this is not a compromise bill because in effect, as I see it, it carries out the will and the beliefs of the vast majority of people in this country.

I do not believe there is one large body of people who are absolutely for capital punishment, nor a large body who are absolutely against it. I believe this bill expresses the direct belief of the vast majority of people;

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therefore it cannot be described as a compromise but as a bill which carries out the general intent and beliefs of the people of this country.

I believe the majority of people would like to see capital punishment abolished except in certain cold-blooded, planned and deliberate murders. I believe that those who would not like to see complete abolition are of that belief because, first, of the danger of organized crime developing or moving into this country; and, second, because of that residue of restraint, indefinable though it may be, which would cause a person who might be' about to commit a murder to have second thoughts as to the possibility of his losing his own life.

Further, I believe that the adoption of this bill, for all practical purposes and with very few exceptions, would have the effect of abolishing capital punishment. Furthermore, I believe that it will reduce almost to zero the number of cases which may come before cabinet for consideration.

I should like to turn to another aspect of the bill. I wish to show that while there is still an element of capital punishment involved in the bill there are at least seven elements of protection which are given to a person who has been convicted of murder before his actual execution. I should like to list the seven elements of protection now given. First, a person must have committed a murder which is within the new definition contained in the bill, that is, the type of murder which is calculated and deliberate and accompanied by force or stealth. Therefore the first element is that he must have committed the type of murder that we now describe as capital murder.

The second element of protection is that he must have been charged with capital murder. This involves a decision by the law enforcement officers in the first instance in considering the facts and coming to the conclusion that the facts warrant a charge of capital murder being laid against the person involved rather than non-capital murder. Third, the convicted person must have had a full and complete trial. There cannot now be a plea of guilty to capital murder. Fourth, a jury must have decided unanimously that the person charged was guilty of capital murder. In this connection the jurors must have directed their minds to whether or not the person was guilty of non-capital murder because, even where capital murder has been charged, there is the alternative of finding the accused person guilty of non-capital murder. Therefore the jurors, having considered the facts and after applying their minds to the IMr. Aiken.]

matter, must have voluntarily decided that the person is guilty of capital murder.

Fifth, even after having convicted an accused person of capital murder the jury is now asked directly whether they wish to make any recommendation as to mercy. Here again the jury, having directed their minds toward whether the accused person is guilty or not guilty of capital murder, must further direct their minds toward the question of whether or not they wish to recommend mercy. In other words, they must now consider punishment as well as guilt.

The sixth element which is now involved is that there must have been an appeal to a provincial court of appeal. Even if the person charged does not himself voluntarily wish to appeal, under the bill the facts must be reviewed by a provincial court of appeal composed, in most cases of capital crimes, of five or more judges of such court. Under these provisions, therefore, the sentence and the facts must be reviewed by the provincial court of appeal. The final element of protection afforded to an accused person is that the royal prerogative of mercy must have been refused.

With these seven elements I believe that the enforcement of capital punishment involving execution of convicted persons will be reduced to the point where it will result in actual abolition. There is still that residue of people who, having passed through the seven steps of protection, can still be found to have committed a murder for which they should lose their lives. It is for that small element that I believe most of the people of Canada desire to see capital punishment retained. For that reason I feel very strongly that the bill is not a compromise but carries out to the letter what the people of Canada desire at this time in our history so far as the question of capital punishment is concerned.

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Subtopic:   REVISION OF PROVISIONS RESPECTING DEATH PENALTY
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LIB

Alan Aylesworth Macnaughton

Liberal

Mr. Alan Macnaughlon (Mount Royal):

Mr. Speaker, on February 18, 1960, at the time when the bill on capital punishment of the hon. member for York-Scarborough (Mr. McGee) was being discussed by the house, I set out in some detail, as found on page 1208 of Hansard, the reasons why I was opposed to capital punishment. I do not propose to cover those details again. However, I am still opposed to capital punishment and I base myself on three fundamental reasons or principles.

The first is that capital punishment emphasizes the punitive aspect of justice, and by the word "punitive" I mean punishment, of course. Punishment, as we all know, can be broken down into at least four elements,

punishment to deter an act from being committed, punishment to make a person suffer who has committed an act, a sort of form of vengeance or retribution, punishment in order to reform the criminal, to make him see the proper way to follow, and punishment in order to maintain the laws of the civilized state or, in other words, to protect society.

The second principle I mentioned was that it is human to err in judgment because none of us, of course is infallible. The third general principle I mentioned was that there is an ethical basis to this whole thing. It seems to me that the state cannot take what it cannot give. The state cannot give life and therefore it should not take life.

While the bill does not go as far as I should like to see it go, nevertheless it seems to me that it does bring in certain important changes. For example, during the past two decades there has been a great change with regard to the treatment, care and study of criminals and matters in relation thereto. A great deal of psychiatric research has been made and is under way. In this connection, and since it has not been mentioned so far, I should like to refer to two chief points in relation to psychiatric and medical research.

The first is that up to the present the language used in the Criminal Code is almost impossible of psychiatric definition. Thus the word "insanity" means one thing to the legal mind of the lawyer who is in court and has a completely different connotation to the medical profession or the psychiatric mind. The word "psychopath", for example, and all that word implies is new in relation to the outdated words, if I may call them that, in the Criminal Code as we have it at present. I suggest that the words "mentally deficient", for example, would be a much more scientific general term to use in this connection.

Second, it seems to me that too often the decision whether or not a criminal is guilty hinges on psychiatric evidence given by the so-called experts who are called in. It also seems to me that it is both unfair and unreasonable to put a psychologist or psychiatrist into the witness box and, whether he has prepared the case thoroughly or whether he has not, to expect this psychiatrist to give clear and unbiased replies to the questions which are put when he knows that, depending on the evidence he may give in the witness box, he may personally convict the accused. If he says that the accused is not insane according to the present definition in the Criminal Code, which according to the psychiatrist's definition is outmoded then he personally, in effect, convicts the accused. No respected, responsible professional man wants

Criminal Code

to put himself in that position. I say, therefore it is time we updated the Criminal Code and brought into the Criminal Code new words dealing with this general category of mental deficients.

If on the other hand he says the criminal under review is insane when he knows perfectly well that the accused has committed some act of violence then the accused is likely to go free. The only point I am making is that I approve of the updating of the Criminal Code certainly with regard to the general class or kind, if I may use that term, of mental deficient.

I do not propose to detain the house any longer. I just wish to say that I feel this amendment to the Criminal Code is an attempt to end the confusion in the public mind which has existed for many years. I think it is an attempt to resolve a very difficult problem. I believe the minister is to be heartily commended and congratulated upon the restrained and careful words he used in his opening statement. I want to say that, in my opinion, these amendments indicate an attempt to temper justice with mercy and forbearance and, for that reason, I propose to support these amendments as a step in the right direction.

Topic:   CRIMINAL CODE
Subtopic:   REVISION OF PROVISIONS RESPECTING DEATH PENALTY
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PC

Margaret Aitken

Progressive Conservative

Miss Margaret Aitken (York-Humber):

believe this bill, Mr. Speaker, No. C-92, an act to amend the Criminal Code in respect to capital punishment, and the debates that led up to it have shown parliament at its best. In his fine speech during the presentation of Bill No. C-92, the Minister of Justice (Mr. Fulton) gave due credit to the private members who introduced various bills on the subject of capital punishment. I believe that the debates we had in this house last year were good for parliament and good for the country as a whole.

I know that hon. members received, as I did, many letters from the constituents and from people outside our constituencies indicating that the debates crystallized their own thinking as they did our thinking. I received one letter from a lawyer in Prince George, British Columbia. He had this to say, and I thought it was pertinent:

As a practising lawyer, I believe most sincerely that capital punishment degrades and tarnishes the whole administration of justice. It places on judges, jurors and counsel alike, an unbearable strain. It engenders sympathy for the very last man for whom sympathy should be felt-the accused man himself. .

I am an abolitionist, Mr. Speaker, when it comes to capital punishment. I do not believe the taking of life by the courts is a deterrent to murder. I do not believe it is morally right that a man or a group of men should be given the power to take life. I believe hanging is a

Criminal Code

barbarous facet of our civilized society. I believe that capital punishment should be abolished. I do, however, give wholehearted support to this Bill No. C-92. I support it, first of all, because I think it is a forward step.

In last year's debate, I suggested that every step toward abolition of capital punishment is a forward step. I certainly believe that this bill is a step toward abolition. Last year the Anglican Church of Canada declared itself in favour of the abolition of capital punishment and decided to ask the government- I quote the words that were sent to the government-"to initiate proceedings leading to abolition of capital punishment in Canada." I think this bill, Mr. Speaker, is doing just that, initiating proceedings that will lead to the abolition of capital punishment.

I am not going to repeat the arguments that we who would like to see capital punishment abolished put forward in this house during these debates. I do believe that a murderer, whether capital or non-capital, should be taken out of circulation, out of society. I look forward to hearing from the minister an explanation of precisely what the life sentence penalty will now mean. There are some people who say, why should the taxpayers support murderers for many long years. It has been said, and truly said, that you cannot reduce anything as sacred as life to dollars and cents.

Another reason, Mr. Speaker, why I am supporting this bill is that I do not believe at this time if a vote were taken in the House of Commons or in the country as a whole, the result would be favourable to abolition. I believe this measure is a good compromise and a step toward the abolition of capital punishment.

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LIB

David Rodger Mitchell

Liberal

Mr. D. R. Mitchell (Sudbury):

Mr. Speaker, the introduction of this bill gives me an opportunity to say a few words with regard to my feelings about this matter. I know that some of my colleagues will not agree with my thinking on this matter, particularly the hon. member for Mount Royal (Mr. Mac-naughton), who has spoken, and also the hon. member for Fort William (Mr. Badanai).

Many arguments pro and con have been forwarded to me by interested persons concerning abolition or retention of the death penalty in Canada. I have not changed my position on this subject since I spoke on the previous bill introduced by the hon. member for York-Scarborough (Mr. McGee). I feel that the death penalty should be retained and that we should not have two kinds of murder defined in the Criminal Code with the death penalty applicable to one.

The bill introduced by the hon. member for York-Scarborough was debated but never

given third reading. I am sure the reason for this procedure was that it would have been defeated. It was a private bill, so there would have been a free vote; therefore, there is no doubt why it was never put to a vote.

Since I am not a member of the legal profession, Mr. Speaker, I am taking a layman's view of this particular bill. My findings are the result of many representations I have received in letters or personal interviews with persons who have sought me out or whom I have sought out. Since this bill is a government measure the possibility of a free vote so far as government supporters are concerned has been removed. This assures the passage of the measure. I think that the Minister of Justice (Mr. Fulton) or the Prime Minister (Mr. Diefenbaker) should allow government members to make up their own minds and allow them to vote as their consciences dictate. There are bound to be many on the government side who have their own views on this matter, but they are bound to vote with their party.

Topic:   CRIMINAL CODE
Subtopic:   REVISION OF PROVISIONS RESPECTING DEATH PENALTY
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PC

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

Progressive Conservative

Mr. Fulton:

Mr. Speaker, I do not want to interrupt the hon. member because of any difference with his approach to capital punishment which, of course, he is quite entitled to have. However, I bring to his attention and to yours, sir, the propriety of suggesting that in votes in this house members are bound other than by their consciences.

Topic:   CRIMINAL CODE
Subtopic:   REVISION OF PROVISIONS RESPECTING DEATH PENALTY
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May 23, 1961