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ble for the criminal with wealth to put his defence in a way which is not open the poor or friendless man.
If, as no one can doubt is the case, the death penalty in any form is now conidered too gruesome and degrading an example to be carried out in public; and f. 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. PEARSON. For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at this mercy for months. Few murderers have ever been so horrible in their deliberation as an executioner.
I do not believe, Mr. Speaker, that such mental barbarity—and that is not too strong an expression-should have any place in the Canadian system of justice. If it cannot be removed entirely at this time, and I wish it could be, then surely it is a worth-while step forward to reduce it as much as possible, as we are doing in the bill before the house.
An hon. MEMBER. Discrimination.
Mr. PEARSON. I believe that all Canadians, to some degree, are morally diminished by the doctrine of legal retaliation as employed in the death penalty. A few years ago, in an article in the New Statesman, Anthony Storr made the following statement:
"The criminal cannot be regarded as a different kind of animal with different instincts; for he is also human, and subject to the same laws and the same. forces which determine the desires of every one of us.
"It is tempting to treat him as something utterly foreign from ourselves and so avoid looking into our own depths
"To condemn him as inhuman is to fall into the trap of treating him as he treated his victims: as a thing, not a person, a thing on whom we can let loose our own sadistic impulses, not a fellow creature who might, even yet, be redeemed."
(P. 4372) If society restrains its emotions in such a case and spares the offender's life, he could be examined-if only in an effort to learn why he and his kind behave so terribly. In this way, the true purpose of the law, to protect society and correct the offender, would surely be served more effectively than by killing the offender. If, as is said, crime does not pay, the experience of history shows that punishment of crime pays even less, unless it is coupled with successful corrective measures for the offender and with alteration of the circumstances in which he offended. (8:50 p.m.)
As the South African writer Alan Paton once wrote: "An offender must be punished. I don't argue about that-"
None of us do. -But to punish and not to restore, that is the greatest of all offenses. If a man takes unto himself God's right to punish, then he must also take upon himself God's promise to restore."
Some hon. MEMBERS. Hear, hear.
Mr. PEARSON. It is often argued, and it has been argued in this debate, that opponents of capital punishment are swayed only by emotion, that they are weakly sentimental. I suggest the opposite is the case. I respect the views of those who feel they must oppose this bill. But as I said earlier, in my personal opinion there can only be one reason left for wanting to retain capital punishment if it is not proven to be an adequate deterrent-and it has not been so proven. And that reason is retaliation. And retaliation is based not on reason but on emotion. Who, then, is really swayed by emotion and who is really being sentimental? To the degree that sentimentality may be considered a state of mind relying more upon emotion than upon reason, I suggest it is the defenders of the death penalty who are the sentimentalists.
If it could be proven that capital punishment was an effective and unique deterrent to murder, then even the most emotionally vulnerable diehard humanitarians would find themselves forced to espouse the other, the emotional argument, in its thinking, and I do not believe that emotion should dictate our actions in this matter. We should, instead, do all we can to discourage throughout our whole system of justice and correction, in our police force, in our courts and in our persons, this kind of retaliatory emotion. If we cannot yet eliminate capital punishment entirely from the Canadian system of justice, if we have not yet achieved that degree of civilization, then let us at least take the important step toward that time which is now open to every one of us in this house. Some hon. MEMBERS. Hear, hear.
Mr. MORE. I should like to ask the Prime Minister a question. Mr. Prime Minister, the hon. member for York East (Mr. Otto) spoke just previous to you, and I notice that you
Mr. SPEAKER. Order. The hon. member has to address the Chair.
Mr. MORE. I wish to ask the Prime Minister through you, Mr. Speaker, whether he agrees with the hon. member for York East that the reason for maintaining
capital punishment in the cases specified in the bill is that our law officers and administrators would otherwise take brutal retaliatory measures against these people. This was the statement the hon. member made in explanation of the reason for maintaining these exceptions in the bill. I believe it to be a reflection upon those concerned, which should be cleared up at once.
Mr. PEARSON. Those views as expressed by the hon. member are certainly not my views, and I do not agree with them.
Mr. THOMPSON. I would appreciate the privilege of directing a single question to the Prime Minister. In the event that Bill No. C-168 becomes law and that at some time in the future a person is found guilty, in due process of the courts, of murdering a policeman or a prison guard, would the government commute the death sentence or would it obey the Criminal Code as amended by the measure before us?
Mr. PEARSON. The hon. gentleman knows that the royal prerogative is exercised in a particular way as a result of the particular recommendation made regarding the circumstances of the case. If there were a recommendation to mercy from the jury in connection with the murder of a police officer or anyone else, that would be one situation; if there were no such recommendation, that would be another.
Mr. MUIR (Lisgar). I should like to ask the Prime Minister this question: If, as he says, capital punishment amounts to retaliation, why are those who murder policemen to be hanged?
(P. 4373) Mr. PEARSON. I thought I explained that, Mr. Speaker. I believe in total abolition, but I am willing to accept a bill which does not go as far as total abolition, although it goes toward that idea. I hope we shall have total abolition before long.
Some hon. MEMBERS. Hear, hear.
Mr. BALLARD. I should like to ask the Prime Minister a question with respect to a point on which I am not fully satisfied at the moment. Does the Prime Minister believe that life imprisonment should, in fact, mean life imprisonment?
Mr. PEARSON. It is impossible to give a categorical answer to that question, but the hon. member may know that the law was changed not long ago to the effect that in the case of commutation of a death sentence to one of life imprisonment the criminal cannot be released except upon the approval of the governor in council. So there is that protection.
Mr. FULTON. It is not in the law.
Mr. PEARSON. If it is not in the law, then I think it was done by administrative action. I think there should be that kind of protection, perhaps other kinds of protection, to avoid the premature release of those sentenced to imprisonment for life.
STATEMENT ON CAPITAL CRIMES UNDER THE NEW YORK LAW
(Prepared by New York Committee To Abolish Capital Punishment, Jerome Nathanson, chairman, Sol Rubin, of counsel, New York, N.Y., published September 1967, New York City)
I. THE REASONS FOR ABOLITION OF THE DEATH PENALTY
Culminating eight years of work by the New York Committee, efforts going back even longer by many individuals, including legislators, and finally the recommendations of the Temporary Commission on Revision of the Penal Law and Criminal Code, the New York legislature in 1965 abolished the death penalty except for two crimes. The New York Committee considers the bill that was enacted a great achievement, but it also believes that the 1965 act is unsatisfactory and it cannot cease in its efforts until abolition is complete. In this statement it examines the rationality-or irrationality-of the exceptions.
The 1965 act (chapter 321 of the session laws) abolished the death penalty for murder except of a guard by a prisoner under a life term, and (2) of a police officer while on duty. These "exceptions" to the abolition bill were opposed by the Temporary Commission on Revision of the Penal Law and Criminal Code. In its "Special Report on Capital Punishment," dated March 1965, the Commission recommended total abolition, immediately effective upon the passage of legislation. In general, it may be observed that the reasons given by the Commission for its abolition position are as applicable to murder by life term prisoners and murder of police officers as to any murders. It said:
First: The execution of the penalty of death calls inescapably upon the agents of the State to perpetrate an act of supreme violence under circumstances of the greatest cruelty to the individual involved. Only the clearest conviction that such action is essential to the public welfare possibly can justify a measure of this kind. We see no basis for holding that conviction. The social need for the grievous condemnation of the gravest crimes can be met, as it is met in abolition states, without resort to barbarism of this kind.
Second: The retention of the death penalty has a seriously baneful effect on the administration of criminal justice. The very fact that life is at stake introduces a morbid and sensational factor in the trial of the accused and increases the danger that public sympathy will be aroused for the defendant, regardless of his guilt of the crime charged. This morbid factor carries. through the period preceding execution, and public sentiment, which should support the law and its administration, is often marshaled on the other side. Third: Some erroneous convictions are inevitable in the course of the enforcement of the penal law and error sometimes cannot be established until time has passed. Such errors cannot be corrected after execution. An injustice of this kind destroys the moral force of the entire penal law. The danger that such an injustice may occur adds weight to claims of error in the trial, produces technical reversals on appeal and more than any other single factor has produced the endless protraction of post-conviction remedies developed by the courts in recent years. Cases that should and would have moved swiftly to life sentence on a plea of guilty have been carried on for years.
Fourth: Experience has shown that the death penalty cannot be administered in the United States with even rough equality. All States have found it necessary that the penalty be one that is discretionary with the court or jury; even if the sentence is imposed, the Chief Executive must wrestle with demands for clemency and clemency is often granted. The number of executions is, in consequence, extremely small. No one can be confident that there is basis for a rational distinction between the few cases where the sentence is imposed and executed and the thousands of cases which result in sentence of imprisonment. Especially in a matter of life or death, equality is a prime constituent of justice.
Fifth: The considerations we have stated would lead us to favor abolition, whether or not the threat of death has a greater deterrent efficacy than the threat of long imprisonment. There may, indeed, be cases in which such unique deterrent power has in fact been exerted. Such data as we have carries assurance that this factor has no major quantitative significance. There will be cruel and repulsive murders in New York whether the penalty of death is abolished or retained. The important point is that their number never will be greatly influenced by abolition. We may be confident, therefore, that in proposing action that is right upon so many grounds we shall not jeopardize the safety of the people of New York.
II. MURDER OF A POLICE OFFICER-PROTECTION OF POLICE
Neither the majority report nor the minority of four members of the commission suggested that there were any logical exceptions to the general abolition position. The majority was for total abolition; the minority was for further study. The minority report also pointed out that in the course of the hearings before the commission 63 persons testified, but only two were law enforcement officials of New York state. They both spoke against abolition, but again without suggesting that any exception for prison guards or police officers be made. It is evident from the Commission's staff study that the safety of police. officers is involved in the opposition of police to abolition. On page 34 of the staff study, the statement is made that it is "the collective opinion of the vast majority of police officers that the death penalty is the only effective deterrent to homicide in general and to the killing of police in particular. It is the main reason, the police claim, why many robbers carry unloaded or toy guns and why many other felons travel unarmed in plying their trades."
On the other hand, at one of the public hearings, the staff study reports, "a dissenting note from the law enforcement group was struck by the Honorable George Edwards, the then Police Commissioner of Detroit, a former judge of
the Michigan Supreme Court, who, on the basis of his experience in an abolition state, discounted the death penalty as a police safeguard, and testified: "There is no proof that abolition of capital punishment makes the police officer's job any more difficult nor any more hazardous.'" (Report, p. 35)
The suggestion that "the vast majority of police officers (believe) that the death penalty is the only effective deterrent . . . to the killing of police" is not borne out by a study of police opinions. Donald R. Campion solicited the views of the directors of the twenty-seven state police forces. The replies were as follows: Respondents from eight states favored the view that the existence of the death penalty provides a certain protection for police officers. Respondents from five states either rejected the claim or felt that the death penalty probably did not provide greater protection. Respondents from five states said they had no opinion. ("Attitude of State Police Toward the Death Penalty," in Bedau, the Death Penalty in America, 253.)
But there are hard data available in the place of these impressionistic views. The staff study refers to it as "feel"; (p. 35). Thorsten Sellin, professor Sociology at the University of Pennsylvania, who has studied this subject more closely than probably any other person, is cited in the staff study as follows: "Thorsten Sellin, in preparing a 1959 report for the American Law Institute's Model Penal Code project, sent questionnaires to the police departments of 593 cities having populations of more than 10,000, such cities being distributed among six abolition states and eleven death penalty states. The only usable results consisted of figures from 266 cities showing the number of policemen annually killed in each such city during a period of from 1919 to 1954. The tabulations for that period show a percentage police death rate of 1.2 for the abolition state cities. In view of this insignificant statistical difference, Sellin ultimately wrote, it is obviously 'impossible to conclude' that by abolishing capital punishment, the six states in question 'thereby made the policeman's lot more hazardous.'"
Sellin has written:
"Now and then some organization passes a resolution demanding the retention of capital punishment. The most persistent of this organized opposition is the police. State associations of Chiefs of Police in the United States have on more than one occasion successfully put a stop to legislation favouring abolition. "Who would speak with greater authority than those in constant contact with criminals and exposed to danger at their hands?" seems to be the attitude of legislators. No one disagrees with the claim that police service, like fire-fighting, steeplejack work, testing planes and a number of other occupations involve a risk to life, but the claim of the police that the existence of the death penalty reduces such hazards is a myth and like other myths is accepted as fact in States that still have capital punishment. That the police have failed to test the validity of the myth is clear from the statement made in 1954 to the Joint Committee of the Senate and the House of Commons in Ottawa by the then president of the Chief Constables Associations. He began by saying: “Our main objection is that abolition would adversely affect the personal safety of police officers in the daily discharge of their duties." He then interjected this statement: "If time had permitted I would have tried to obtain this vital information as to the number of policemen murdered in the execution of their duty in those parts of the world where capital punishment has been abolished.
"He had no time to do so, but this did not prevent him from arriving at a conclusion. He continued: "I submit that it will be found the number is much higher than in those countries where the death penalty is still in effect." Having made up his mind and expressed the view of his Association without taking time to find the facts, he ended with these words: "This point is the main one in our submission that our government should retain capital punishment as a form of security."
"Mr. Routledge was quite correct in assuming that he would have had to conduct some research into the matter because none had previously been done to test the truth of his assertion. The Joint Committee had asked me to give them some assistance and I had previously spent two days with them discussing statements I had prepared for them on capital punishment. Now it occurred to me that the time had come to subject the beliefs of the police to a test. Nowhere could such a test be better made than in the United States where abolition States and capital punishment States bordered on each other. The test was made in 1955 and submitted to the Joint Committee which published the results in its