Report No. 35
650. Position in Canada.-
It may be useful to discuss here the scheme recently adopted in Canada. Though the Canadian Committee1 did not favour the suggestion to divide murder into degrees, and shared the conclusions of the United Kingdom Royal Commission on this point, yet, by the amendment to the Criminal Code of Canada, which was assented to on the 13th July, 1961, a division of murder into capital and non-capital has been introduced by new section 202A. Under section 206 of the Criminal Code of Canada, as amended, a person who commits "capital" murder, shall be sentenced to death, while a person who commits non-capital murder, shall be sentenced to imprisonment for life. (A person who is under the age of 18 years, even though he commits a capital murder, is to be sentenced only to imprisonment for life).
1. Canadian Report, p. 17, para. 70.
651. Murder is thus defined in Canada1:-
"202. Murder in commission of offences.-Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit treason or an offence mentioned in section 52, piracy, escape or rescue from prison or lawful custody, resisting lawful arrest, rape, indecent assault, forcible abduction, robbery, burglary or arson, whether or not the person means to cause death to any human being, if
Intention to cause bodily harm
(a) he means to cause bodily harm for the purpose of-
(i) facilitating the commission of the offence, or
(ii) facilitating his night after committing or attempting to commit the offence, and the death ensues from the bodily harm;
Administering overpowering thing
(b) he administers a stupefying or overpowering thing for a purpose mentioned in paragraph (a), and the death ensues therefrom;
Stopping the breath
(c) he wilfully stops, by any means, the breath of a human being for a purpose mentioned in paragraph (a), and the death ensues therefrom, or
(d) he uses a weapon or has it upon his person-
(i) during or at the time he commits or attempts to commit the offence, or
(ii) during or at the time of his flight after committing or attempting to commit the offence, and the death ensues as a consequence.".
"Capital murder" is dealt with in section 202A of the Criminal Code of Canada,2 quoted below:-
"202A. Classification of murder.-(1) Murder is capital murder or non-capital murder.
(2) Murder is capital murder, in respect of any person, where-
(a) it is planned and deliberate on the part of such person,
(b) it is within section 202, and such person-
(i) by his own act caused3 or assisted in causing the bodily harm from which the death ensued.
(ii) by his own act administered or assisted in administering the stupefying or over-powering thing from which the death ensued,
(iii) by his own act stopped or assisted in the stopping of the breath from which the death ensued,
(iv) himself used or had upon his person the weapon as a consequence of which the death ensued, or
(v) counselled or procured another person to do any act mentioned in sub-paragraph (i), (ii) or (iii) or to use any weapon mentioned in sub-paragraph (iv), or
(c) Such person by his own act caused or assisted in causing the death of
(i) a police officer, police constable, constable, sheriff, deputy sheriff, sheriff's officer or other person employed for the preservation and maintenance of the public peace, acting in the course of his duties, or
(ii) a warden, deputy warden, instructor, keeper, gaoler, guard or other officer or permanent employee of a prison, acting in the course of his duties, or counselled or procured another person to do any act causing or assisting in causing the death.
(3) Non-Capital murder.-All murder other than capital murder is non-capital murder.".
1. Section 202, Criminal Code of Canada.
2. Section 202A, Criminal Code of Canada.
3. Emphasis added.
652. In the New Zealand Crimes Act,1 sections 167 and 168, the elevation of the crime of culpable homicide into murder has been made to depend on two alternative criteria, namely, either the subjective element (intention to cause death, etc.) dealt with in section 167, or, irrespective of whether the offender means death to ensue or knows that death is likely to ensue or not, if he means to cause grievous bodily injury for facilitating commission of certain offences, or if he administers any stupefying or overpowering thing, or wilfully stops, the breath of any person for these purposes.
These provisions, however, stand on a different footing from the scheme on which the English Act is based, because, under the New Zealand provisions, the sentence of death is abolished for murder and, therefore, the falling of a case in one category or the other of murder does not make any difference in the sentence by itself.
In fact, in the Bill introduced in New Zealand, a scheme for division of murder into capital and non-capital seems to have been embodied, but the scheme was dropped later.2
1. The (New Zealand) Crimes Act, 1961.
2. See speech of Hon'ble J.R. Hanan (Attorney-General), New Zealand Parliamentary Debates, House of Representatives, Vol. 328, 3rd October, 1961, pp. 2684 and 2685; and 12th October, 1961, p. 2990, voting on clause 172.
653. Aggravated murder.-
The clause as it stood in the New Zealand Bill is quoted below1:-
"167. Culpable homicide is aggravated murder in each of the following cases:-
(a) If the offender means to cause the death of the person killed or any other person and the killing is planned and deliberate;
(b) If the offender means to cause the death of the person killed or any other person, or means to cause to the person killed or any other person any bodily injury that he knows to be likely to cause death, and the act that causes the death is done for the purpose of
(i) 'facilitating the commission of any other crime; or
(ii) facilitating the flight or avoiding the detection of the offender upon the commission or attempted commission of any other crime; or
(iii) resisting lawful apprehension in respect of any other crime.".
1. See New Zealand, House of Representatives, Debates, Vol. 328, p. 2766.
654. (The penalty on conviction for aggravated murder was to be death-under clause 172-subject to consideration by Executive Council, and subject to any recommendations that might be made for the exercise of the Royal prerogative of mercy.)
"168. Culpable homicide is murder in each of the following cases:-
(a) If the offender means to cause the death of the person killed;
(b) If the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not.".
(The penalty for murder was not death, but life imprisonment under clause 172).
655. The scheme of division was referred to by Mr. Hanan, Attorney-General, in his speech on the first reading of the Crimes Bill, and even at that time he had hinted at the amendment which would be introduced on the subject, i.e., an amendment for abolishing capital punishment for murder.1
He explained, that the issue of capital punishment was a very solemn and controversial one, and the Bill made an attempt to resolve the issue by prescribing the death penalty for certain types of murders. He referred to the precedent of the English Act and the amendments in Canada and pointed out that the Bill provided for categories different from the English Act. "Under the present Bill the types of murder singled out as calling for the death penalty may briefly be described as planned murder, or murder committed in association with other crimes, and, of course murder by a person who has previously been convicted of murder."
His own views were known on the subject, and he was opposed to capital punishment for murder in any case. He did not believe that it was possible to draft a compromise without leaving serious flaws. The clause in the Bill was probably the best that had ever been attempted, but he did not wish to discuss that now. He could also see one immediate difficulty regarding planned and deliberate murder. A nice point would arise in the legal sense as to at what point in time a murder was planned.
1. New Zealand, House of Representatives, Debates, Vol. 328, p. 2206.
656. In his speech on the second reading of the Bill, Mr. Hanan dealt with in detail the scheme of division, and pointed out that the clause dealing with aggravated murder was based on the concept that there were murders which shocked the public conscience and merited the death sentence, and the clause was intended to embrace such crimes. It would cover poisoners and robbers, and most cases of rape where the victim was killed. It was much better than the English provision, which had worked out very badly in the United Kingdom.
But he had some fundamental objections. First, it did not deal with all types of murders for which the people might feel that the death penalty is the appropriate sentence, for example, a murder in a fit of resentment of an unwanted child, or a cruel murder committed by a sadist on a sudden impulse for the pleasure of seeing his victim suffer and die. Another objection was that it would include "mercy killing" in the aggravated category and also a planned killing of a deformed child by its father.
Thirdly, in many cases, it would be difficult to establish "planned" and deliberation when in fact it had been so. If the clause became law, injustices as between one murder and another would creep in, "depending on the evidence, the ability of the prosecutor, or the ability of the defence". In America there had been trouble over pre-meditation. Fourthly, the clause took into account the circumstances of the murder only and ignored the history and circumstances of the murderer. Factors other than pre-meditation tended to lose their importance under the clause. "It is not true that the measure of a murderer's guilt is in the length of time he had murder in contemplation."
Finally, British law, as opposed to American law had always set its face against degrees of murder. There seemed to be unanimity that the provision in the Homicide Act which departed from the traditional British pattern was a complete failure. The proposed compromise would not work out in practice. The choice was, therefore, between abolition and retention.1 (He then went on to explain why he favoured abolition.)
1. New Zealand, House of Representatives, Debates, Vol. 328, pp. 2684 to 2687.
657. Mr. Marshall, Deputy Prime Minister, defended the provision in the Bill, and thought that the fear about its operation was not justified. Though he favoured the law as it stood, he believed that the compromise clause was workable. As to killing of an unwanted child, he considered it unusual for the death penalty to be imposed in such cases or in cases of sudden impulse.
In such cases the prerogative of mercy was exercised. In the case of mercy killings, even though they would be planned and deliberate, the purgative of mercy would continue to be exercised. The compromise was an attempt to meet the view of those who felt that the present law went too far but who were also unhappy about abolition. Stability in this branch of the law was highly desirable, and he hoped that the clause would be generally acceptable.1
1. New Zealand, House of Representatives, Debates, Vol. 328, pp. 2697 to 2698. (He also stated his six reasons for retention, but that is not relevant here).
658. Mr. Nordmeyer, who was for total abolition, expressed the view that an attempt at compromise must inevitably end in failure, as a very great deal would depend upon the interpretation of the words in the statute, and it may very well be that a person charged with aggravated murder in one court under one Judge may have a verdict of guilty brought in against him by a jury, while another person charged with a fairly similar offence might have a verdict of murder not punishable with death. It was very difficult to have basic criteria which could separate one case from another. He also referred to the difficulty of deciding whether a crime committed after death (of the victim) was a crime "for which" the murder was perpetrated and would fall under aggravated murder1.
1. New Zealand, House of Representatives, Debates, Vol. 328, pp. 2699 to 2700.
659. Mr. Gotz, Minister of Internal Affairs, expressed his preference for retaining the death penalty for murder. As regards the scheme of division, he stated that the jury could determine whether murder was pre-meditated or not but the society "would still have some protection against brutal and horrifying murders" and (he hoped) "against potential murders". There was weakness in every compromise; but the death penalty should be kept at least for those whose wild acts had caused them to "forfeit the right to live1"
1. New Zealand, House of Representatives, Debates, Vol. 328, pp. 2766 to 2767.
660. Mr. Harker stated1 that the origin of the compromise clause was in the recommendation of the 1950 Committee. When the Bill reintroducing capital punishment was brought in (in 1950) after an exhaustive enquiry, the Committee recommended that the death penalty should be inflicted only for the worst type of cases, and that is what the proposed provision meant. There were types of murders for which death penalty could not conceivably be a deterrent, but there were other types of murders where it certainly could be.
1. New Zealand, House of Representative", Debates, Vol. 328, p. 2779, left-hand.
661. Mr. Hanan, (Attorney-General), in his later speech1, opposed the scheme of aggravated murders, and supported abolition in toto. He observed that it was "inherently impossible to prescribe by law a formula that will do justice". There was no proof that capital punishment could deter. The statistics did not prove it one way or the other, and that is what the Attorney-General had also stated in 1953 when introducing the Bill restoring capital punishment. Hanging was a barbarous performance, which edified no one and caused suffering to innocent people2.
1. New Zealand, House of Representatives, Debates, Vol. 328, p. 2784, right-hand.
2. New Zealand, House of Representatives, Debates, Vol. 328, pp. 2784-2785.
662. After a long discussion, the scheme of division was dropped, and the Bill was amended so as to remove the death penalty for murder1. The scheme was negatived by 41 votes against 30. In consequence, original clause 170 relating to "Diminished responsibility" was deleted.2
1. New Zealand, House of Representatives, Debates, Vol. 328, p. 2990.
2. Clause 170 (relating to Diminished responsibility) was, in substance, the same as the provision in the (English) Homicide Act, 1947.