Report No. 35
Topic Number 10
Abolition move in Canada
58. Abolition move in Canada.-
The history of the move for abolition in Canada and the reasons for the recent decision of the Government are well set out by Hon. E.D. Pulton, Minister of Justice, in his speech on the second reading of Bill No,.-92, to amend the Criminal Code1. The relevant portion is quoted below:-
1. Canadian House of Commons, Debates, Session 1960-61, Vol. 5, pp. 5220, 5222 et seq (23rd May, 1961).
"In Canada attempts to alter the death penalty for murder began at least as far back as 1914, when Mr. Robert Bickerdike introduced Bills to abolish capital punishment in several sessions of the House of Commons beginning in that year. Although they were debated at length, none of them resulted in legislation. In 1924, Mr. William Irvine introduced a similar Bill which also failed of passage. In 1937 a Bill was introduced by Mr. Blair to provide that the sentence of death be executed in a lethal chamber rather than by hanging.
This Bill was referred to a special committee which reported unfavourably on the proposal. In 1947 and again in 1958 the Canadian Institute of Public Opinion made two inquiries with almost identical results, 68 per cent. in favour of retaining capital punishment against 23 per cent. in favour of life imprisonment.".
In 1950 and again in 1952 Mr. Ross Thatcher introduced a Bill to abolish capital punishment. On the latter occasion he withdrew it on the undertaking from the then Minister of Justice that at the next session Parliament would be asked to set up a committee to go into the matter fully:
"The most authoritative recent exposition in Canada has been report of the joint committee of the Senate and House of Commons on capital punishment, corporal punishment and lotteries which was set up pursuant to the undertaking referred to. This Committee, which studied these matters for two years, in 1954 and 1955, recommended the retention of capital punishment, and in this respect the Bill before the house meets the recommendation of the committee. The committee also recommended that there be no degrees of murder. In this respect the Bill does not follow the recommendation of the joint committee.".
The deep and continuing concern of Hon. members with this subject is shown by the debates that took place both last year and this year on certain private members' Bills. Although these debates took place on one Bill only, a Bill for the abolition of capital punishment for murder, the fact is that last year at least three Bills were introduced all differing in their proposals. While these Bills approached the subject from different directions, they did have in common an assumption of dissatisfaction with the present position and a desire to bring the law in this connection in closer conformity with present day concepts of crime and punishment:
"I believe we owe much to the members who sponsored those Bills, the Hon. member for York-Scarborough (Mr. McGee), the hon. member for Burnaby-Richmond (Mr. Drysdale) and the hon. member for Vancouver East (Mr. Winch), quite apart from the question whether or not we agreed with their specific proposals. I believe the ensuing debate on this Bill will be all the better for the thinking and formulation of ideas about this subject which those Bills stipulated.
"Although none of those Bills was adopted, an analysis of the debates which took place, as well as discussions with those who did not participate, show quite clearly that the majority of members in the house favour retention of capital punishment. It became equally obvious, however, that even among those opposed to abolition there are serious misgivings as to the present law and practice governing the death penalty. It therefore seems proper and desirable to bring about some modification of the law and practice.
"There is another thing which, in my submission, a review of these debates, as well as a study of all that has been said and written elsewhere, makes quite clear. It is that while the authorities are of some assistance and the debates have been of help, nevertheless this is an area where views are held with such depth of feeling that they are never going to be changed by mere weight of argument or statistics. Indeed, on the question of the deterrent effect especially, statistics cannot give a satisfactory answer; there are no statistics of murders not committed. But as in the case of all such problems, there has to be some finality, responsibility has to be taken and a decision has to be made, and this the Government has done.
"We have accordingly approached the question on broad grounds. We have first been mindful of the fact that the criminal law must endeavour to translate into an enforceable code the highest concepts of the moral and legal standards by which society desires to be governed, while at the same time, since it must command respect if it is to achieve this purpose, it must broadly reflect the actual state of public opinion.
"Second, we have taken account of the fact that the country, as reflected by opinion in this house, favours retention of capital punishment. Third, we have also recognised that even among those who favour retention there is a general feeling that the law should be modified. Finally, we have taken account of the feelings against the rather artificial division of murder into degrees based on the means by which it is committed or the class of person who is killed.
"Thus while we have avoided the rather arbitrary and rigid classification found in the British Homicide Act, we have put more emphasis on the element of deliberation as the requisite for capital murder than has been the case generally in the United States. We have also provided for an automatic review by the court of appeal, and for an appeal as of right to the Supreme Court of Canada. In short, we have applied our own thinking to the mass of authority and opinion available, and have produced a Bill which represents our views of the kind of law by which Canadians would wish to be and should be governed. On this broad basis we take full responsibility for presenting this Bill to the house.".
59. The amendments made in 1961 to the Canadian Criminal Code are in the nature of a division of murder into capital and non-capital.1 It may be noted, that the Joint Committee2 which had gone into the subject was opposed to any scheme of "degrees of murder", because such a scheme had been opposed by all the law enforcement officers, and also because it shared the conclusion of the Royal Commission on the point (that such a division would not be satisfactory). The Government, however, after taking into consideration several factors, thought it desirable to bring about some modification of the law, and introduced the Bill (to amend the Criminal Code), which has now become law.
Recently, a Bill was moved in Canada to abolish capital punishment. It will be sufficient to quote a summary of the debate3:-
"The best debate of the sessions was on a Bill introduced by a private member for the abolition of capital punishment. Since the Government permitted a free vote, party lines were split on the issue and a series of excellent speeches were delivered by supporters and opponents of abolition before the Bill was defeated by 143 votes to 112. One interesting feature of the vote was that support for the retention of the death penalty came mainly from members for the rural constituencies, and urban members contributed most of the minority.
The verdict of the House of Commons leaves the Government in a difficulty as 18 out of 23 members-including Mr. Pearson and his Solicitor-General, Mr. Pennel, a fervent abolitionist who advises the Cabinet about appeals for commutations-voted in favour of abolition. There are 15 murderers awaiting Cabinet decision4.".
1. See comparative material-1961 amendments to the Canadian Criminal Code.
2. Canadian Report (Report dated 27th June, 1956 of the Joint Committee of the Canadian Senate and House of Commons on Capital Punishment), pp. 17 and 18, paras. 70 and 71.
3. The Round Table, (The Commonwealth Quarterly) (July 1966), Number 223, under Canada 296 and 300.
4. The Round Table, (The Commonwealth Quarterly), (July 1966 Number 223, under "Canada" pp. 296 and 300.
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