EXHIBITS

SPEECH BY THE PRIME MINISTER OF CANADA IN THE HOUSE OF COMMONS ON THURSDAY, NOVEMBER 16, 1967, DURING DEBATE ON BILL No. C-168 To AMEND THE CRIMINAL CODE (CAPITAL PUNISHMENT)

(P4367): Right Hon. L. B. PEARSON (Prime Minister). Mr. Speaker, this is the first opportunity I have had within the House of Commons perhaps not the first opportunity but the first time I have taken advantage of the opportunity— of speaking on this very important matter. There was an opportunity in 1961 and another one in 1965. I did not speak in 1965. At that time we were discussing a private member's bill and I felt that, while this was a bill and this was a subject which should be left to the individual member's conscience to decide, I did not feel at that time it was possible for the leader of the government to divorce his personal position from his official position. Although I held strong views on the subject, I did not give utterance to those views. I am venturing to do so tonight, Mr. Speaker, although I know that members are understandably anxious to have a decision taken on this matter.

(P4368) This bill, Mr. Speaker, has been introduced by a minister of the government and in that sense the government has taken responsibility for the bill. However, this does not mean, as I understand some members are worried lest it might appear to mean, that this is in any sense not a free vote.

Some honorable MEMBERS. Oh, oh.

Mr. PEARSON. Mr. Speaker, every member in this house, on this side and indeed on the other side, has the right and the duty to vote with regard to this bill as his own conscience dictates.

Mr. HORNER (Acadia). That is hogwash.

Mr. PEARSON. The results of this bill

Mr. HORNER (Acadia). Tell your whip.

Mr. PEARSON. Every member in this house has a right to express his opinion and try to influence the opinions of others, because that is the very essence of debate, the very essence of parliamentary activity. The proof that this vote is a free vote is the fact that it is not a matter of confidence or no confidence, whatever the result of this vote may be.

This bill is different in two important respects, as all hon. members know, from the bill that was voted upon a year and a half ago. This bill provides for a five year term, and that is a very important distinction I believe over the previous private member's bill. It does, as we all know, exempt from its provisions the murder of police officers and prison guards. The bill, from the point of view of those of us who believe in the abolition of capital punshment, is admittedly a compromise, but in the circumstances I believe it is a reasonable compromise. I would be the first to admit that as a compromise it does put those of us who believe in the total abolition of capital punshiment in a position of some logical difficulty. There is no doubt about that. My own resolution of this particular difficulty on this bill in its present compromised form, is that it does provide a further, very important restriction on the exercise of capital punishment, if not the complete abolition of the death penalty. I am certainly prepared to accept it and be grateful for it. I do not wish to prejudice the possibility of not having three quarters of a loaf of bread by taking the stand which would prevent having any loaf at all.

The bill, Mr. Speaker, will dispose of this question for five years if it is carried. At the end of that time the decision can be reviewed in the light of the results that have occurred during that period. If the bill should fail to carry, then the matter is settled so far as the present government is concerned. Of course, every member of the house has the right to introduce any private bill on any subject at any time.

Mr. BELL (Carleton). Would the right hon. gentleman permit a question? In the event the bill fails to carry, would the government carry out the law of Canada?

Mr. PEARSON. Mr. Speaker, if this bill should be defeated, and I hope it will not be, the law of Canada will be carried out.

Mr. HORNER (Acadia). You said that the last time.

Mr. PEARSON. In this debate, Mr. Speaker, we have all been confronted with the deepest issues in human existence, life, death and society. I do not believe any of us need to apologize, and I do not believe any of us do apologize, for

taking the time of this house to debate these fundamental isues. The issues have been argued with sincerity and conviction, and indeed with emotion, in an entirely non-partisan way on both sides of the house.

We have heard statistics used to support the retention of the death penalty in Canada. We have heard statistics used to support the abolition of the death penalty. I have no intention tonight of taking up the time that would be required to examine the statistics for my own argument. Let me say, Mr. Speaker, as others have already said before me, that so far as I am concerned personally I am convinced from the study I have made over a long period of time that capital punishment is not effective enough as a deterrent to murder to justify its retention. In my opinion, its unique deterrent value, its adequate deterrent value, is the only valid reason I can find for retaining the death penalty for any crime. It seems to me that the death penalty stands or falls on that argument, although there are of course other related considerations which affect the issue, some of which I will mention. I think the retentionists as well as the abolitionists accept this position, that the basic question we have to settle is the deterrent value of the capital punishment that some of us wish to abolish.

Mr. FULTON. No, we never accepted that position.

(4369) Mr. PEARSON. If any other members used other arguments to justify their position, of course I respect those arguments. So far as I am concerned, and I think a good many on the other side of the argument are concerned, the deterrent value was the important part of the issue. We are told if the state can legally and morally kill, it is not to punish the guilty on the savage and primitive theory of an eye for an eye, a death for a death, but to frighten others from crime who might otherwise be tempted to imitate the guilty.

If this is a logical and moral position for those who advocate the retention of capital punishment, and if they believe in the deterrent value of capital punishment, then why do they not go further and insist that executions be held with a maximum of publicity to increase the fear and the deterrent value? That is in fact what used to be done. Surely it can be argued logically that if the death penalty is required because of the need to make an example of murders, maximum publicity should be part of the process, as was once the case not so very many years ago. (8:30 p.m.)

To me, Mr. Speaker, the balance of evidence shows that the existence or absence of the death penalty does not make any measurable statistical difference to the person who is unaware that he is going to kill until the moment of frenzy or obsession or passion hurls him into his terrible calamity. Those who commit tragic murders of that kind are not hanged now, because in 1961 we made a change to the law exempting from the penalty of execution those who commit non-capital murders of that type.

We are told, Mr. Speaker, by experts on the subject that a large number of murders are committed by persons with neither a previous criminal record nor with calculation or planning for their crime. So is there any real evidence that the threat of the death penalty frightens murderers, either of the kind who would not be hanged in any event or those from the ranks of the professional criminals who plan their crimes? I submit there is no evidence which would justify the use of capital punishment as a deterrent for that kind of murder.

Indeed, Mr. Speaker, as has so often been pointed out in this and in previous discussions, at a time when pickpockets were still executed in England other pickpockets worked the crowds that gathered to watch the execution. An hon. MEMBER. That is an old one.

Mr. PEARSON. Yes, it is an old one, but there is a moral attached to it. Even, if it cannot be proven that the death penalty reduces the number of murders by its horrible example, then some retentionists argue-and it is an impressive argument that while those who murder have obviously not been prevented by the fear of execution and death, there must be many other potential murderers who have been restrained by that fear but whom naturally we never know about.

This argument in favour of the death penalty, Mr. Speaker, means, as I understand it, that the greatest and most final of all punishments rests merely on a possibility that no one can prove. Surely, Mr. Speaker, a possibility which cannot be determined is too frail a foundation for Canadian justice in any form, but especially in such an absolute form as capital punishment. Death does not involve degrees or probabilities; it is definite, final and absolute. I think it was the first Earl of Strafford who said "Stone dead hath no fellow".

Mr. LAMBERT. So is the victim.

Mr. PEARSON. Yes, it is the same for the victim as for the murderer, but I will come to that later.

Mr. LAMBERT. Where is the greater crime?

Mr. PEARSON. Surely that kind of punishment should not be administered in the name of a possibility that cannot be determined by any society which calls itself civilized.

Death is also final in another sense, Mr. Speaker. There is no possibility of rectifying a mistake which may have been made in a death sentence; and we know that such mistakes can be made, have been made, and will be made. While the law is simple and blunt and irreversible—and in the case of the death penalty has an awful finality about it—the human spirit is infinitely complex, a collection of constantly competing needs and wants and emotions which no law can perfectly control.

(P. 4370) Fortunately, Mr. Speaker, most of mankind manages for most of the time to keep all these clashing forces that operate within a single personality in a kind of balance and under some control. But when an overpowering primal emotion breaks loose, no instinct, not even that of life or death, can oppose the tyranny of that irresistible force. Therefore a murder can occur. So for capital punishment to really be a deterrent, human nature would have to be as stable and cold as the law itself. And human nature, Mr. Speaker, is far from that. When this kind of human nature does exist in an individual, that individual is less likely to commit a murder.

I have tried to show that in dealing with this issue we should all be concerned as I see it, primarily concerned-with the protection of society from the crime of murder. But we are also concerned-and this concern has been voiced by many speakers in this debate-with certain fundamental moral and social values in our civilization and in our society.

There can surely be no argument that the final justification of any law is in the good it does in the society in which it applies. As Sir Winston Churchill, who was not an abolitionist, said in the Britsh House of Commons many years ago, when he was Home Secretary-and I am quoting from the speech he made at that time:

"The mood and temper of the public with regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country. A calm dispassionate recognition of the rights of the accused, and even of the convicted criminal against the state; a constant heart-researching by all charged with the duty of punishment; a desire and an eagerness to rehabilitate ... .; tireless efforts toward the discovery of creative and regenerate processes; unfailing faith that there is a treasure if you can find it, in the heart of every man. These are the symbols which . . . mark and measure the stored-up strength of a nation . . . proof of the living virtue in it."

Armand Camus put it more succinctly, if less eloquently, when he wrote: "Every society has the criminals it deserves."

In every capital conviction leading to execution, Mr. Speaker, it is not the condemned alone who stands under judgment. The whole of our society and our most fundamental human values are also being measured. Murder for which, it is argued, the death of the murderer is required is often, indeed is far too often, the end result of a lifetime of tragedy; the final liquidation of a human being who has never had or been able to find a place in society. (8:40 p.m.)

Mr. GRAFFTEY. Hear, hear.

Mr. PEARSON. The law itself has no way of taking into account those factors of life, personality, heredity and environment which in every individual are parcelled out unequally at birth and which may determine his fate, that fate of which we are all, wrongfully, supposed to be the master. The absolute responsibility of an offender who is to die cannot be precisely measured in any human system of justice, any more than the responsibility of society in the offender's crime can be completely measured or understood.

Some hon. MEMBERS: Hear, hear.

Mr. PEARSON. And so, Mr. Speaker, we recognize the impossibility of absolute justice. Yet death itself is the absolute condemnation. Its sentence postulates that the man is absolutely guilty and that the society which judges him is absolutely innocent; for the death penalty can admit of no qualification or imperfection. It is too final for that.

I repeat, Mr. Speaker, we know that neither our society, nor our judges and juries are without imperfections; and our imperfect society often makes it pos

sible for the criminal with wealth to put his defence in a way which is not open to the poor or friendless man.

If, as no one can doubt is the case, the death penalty in any form is now considered too gruesome and degrading an example to be carried out in public; and if, as I believe is the case, the death penalty makes no demonstrable difference to the deterrence of murder in our society; if it does no service to society and if it involves the possibility of a mistake for which no rectification is possible, then I must ask myself what other reason there could possibly be for retaining it. Mr. ALKENBRACK. For the murderers of policemen.

Mr. PEARSON. We know that the execution of a murderer will not restore the victim to life, comfort or solace his family, help them in any way, or bring comfort to his friends. So why ought we to retain it?

An hon. MEMBER. There is no alternative.

Mr. PEARSON. I believe the only logical explanation left for retaining capital punishment in our society is a desire for retaliation

Some hon. MEMBERS. No, no.

Mr. PEARSON. and for revenge.

Some hon. MEMBERS. No, no.

(P. 4370) Mr. PEARSON. It is to make the punishment fit the crime.

Some hon. MEMBERS. No, no.

Mr. PEARSON. The criminal kills, so he must be killed.

Some hon. MEMBERS. No, no.

(P. 4371) Mr. PEARSON. Well, Mr. Speaker, I cannot believe that this is an adequate reason in any society that aspires to become truly civilized.

An hon. MEMBER. You have it in the bill.

Mr. PEARSON. Retaliations do not protect society from anything. Indeed, such brutal revenge as the death penalty can feed the appetites for brutality and sadism that remain in our society. This is the one and major reason why the death penalty has been abolished from so many political societies.

From this I believe it can logically be argued that if society executes an offender only for retaliation, to make the punishment fit the crime, a closer look will reveal that it is not only the offender but society as well that feels the cruel corrosion of that retaliation. I feel this more strongly, because a criminal impulse is often the result of illness of mind or body, or both, and needs treatment rather than punishment.

An hon. MEMBER. And protection.

Mr. PEARSON. Guilty

An hon. MEMBER. And protection.

Mr. PEARSON. Guilty and insane. What is insanity under the law, as it now stands? I do not say this because I am soft on criminals, but because all history proves the ineffectiveness of punishment alone as a cure for crime or as a protection for society. I base my argument not on sentiment but on the record. I believe that crime must be treated, not on the gallows or in the gas chamber, but in the slums, in the ghettos and in the clinics, at the source. And that source is the most intricate and mysterious and precious of all mechanisms, the individual personality and the influence of heredity and environment which affect it.

So, Mr. Speaker, we are deciding in this debate more than the question of capital punishment; we are deciding, as I see it, how civilized we want Canadian justice to be.

Mr. NIELSEN. That was decided one year ago.

Mr. PEARSON. I believe that no decision taken by this house can measure more accurately the nature and degree of our civilization than the decision we take on this issue. And we are not truly civilized when the desire for revenge and retaliation, as old as man, is stronger than the desire to reform and restore. Retaliation, even the final retaliation of death, will not correct murder in the nature of man and therefore is not, in my view, an acceptable principle for any law; nor is it a necessary or humane ingredient of our system of criminal justice.

Even if it were otherwise acceptable, capital punishment is not an equivalent retaliation for murder. Our present law considers premeditated murder more serious than murder from an unplanned and unanticipated emotional explosion, and makes a distinction between the two kinds of murder with the application of the punishment of death. But capital punishment is death through a premeditation more calculated than any crime of murder could possibly be. Mr. FULTON. You are retaining it.

Mr. LAMBERT. So is the victim.

Mr. PEARSON. Yes, it is the same for the come to that later.

Mr. LAMBERT. Where is the greater crin Mr. PEARSON. Surely that kind of punish name of a possibility that cannot be deter civilized.

Death is also final in another sense, rectifying a mistake which may have b know that such mistakes can be made, h the law is simple and blunt and irreversi has an awful finality about it-the huma of constantly competing needs and wa fectly control.

(P. 4370) Fortunately, Mr. Speaker the time to keep all these clashing fore in a kind of balance and under some emotion breaks loose, no instinct, not tyranny of that irresistible force. Th punishment to really be a deterrent, h cold as the law itself. And human ni this kind of human nature does exi likely to commit a murder.

I have tried to show that in de cerned as I see it, primarily cont the crime of murder. But we are als by many speakers in this debate values in our civilization and in of

There can surely be no argumer the good it does in the society in was not an abolitionist, said in f when he was Home Secretarythat time:

"The mood and temper of the and criminals is one of the mo try. A calm dispassionate reco the convicted criminal agains charged with the duty of puri tate. . . ; tireless efforts tow esses; unfailing faith that the every man. These are the syri strength of a nation . . . proof

Armand Camus put it mor "Every society has the crimina In every capital conviction demned alone who stands w most fundamentai human val argued, the death of the the end result of a lifetime who has never had or beet Mr. GRAFFTEY. Hear, h Mr. PEARSON. The law life, personality, heredit celled out unequally at which we are all, wro sibility of an offender system of justice, any crime can be complete t Some hon. MEMBERS Mr. PEARSON. And justice. Yet death i that the man is abs solutely innocent; f fection. It is too fin I repeat, Mr. Sp juries are without