1954-01-12

HOUSE OF COMMONS DEBATES


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BEING THE 96™ SESSION FOR THE PERIOD 1867-1954

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queen's printer and controller of stationery OTTAWA, 1954
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Tuesday, January 12, 1954


Mr. W. M. Benidickson (Parliamentary Assistant to the Minister of Finance):: On
behalf of the Minister of Finance I wish to table the public accounts and the report of the auditor general for the fiscal year ended March 31, 1953.



INQUIRY AS TO AVAILABILITY

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On the orders of the day:
Mr. Macdonnell:: May I ask the parliamentary assistant to the Minister of Finance whether or not the public accounts will be immediately available for distribution?


William Moore Benidickson: I understand they will be distributed today.



PRIVATE BILLS


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Bill No. 85, for the relief of Marie Jeannine Bisson Lecuyer.-Mr. Weir.
Bill No. 86, for the relief of George Joseph John Louis Gustav Brisebois.-Mr. Weir.
Bill No. 87, for the relief of Ivy Isabel Brown Wilkinson.-Mr. Weir.
Bill No. 88, for the relief of Eileen Sybil Fels Goldstein.

Mr. Weir.
Bill No. 89, for the relief of Liliane Bernier L'Heureux.

Mr. Croll.
Bill No. 90, for the relief of Andrew Warden Clark.-Mr. Croll.
Bill No. 91, for the relief of Frances Hersco-vitz Hershon.-Mr. Croll.
Bill No. 92, for the relief of Mary Frances Beatrice Lord Tomkinson.-Mr. Croll.
Bill No. 93, for the relief of Roslyn Belkin Cohen.-Mr. Croll.
Bill No. 94, for the relief of Phyllis Mildred Brohart Stephens Mowat.-Mr. Croll.
Bill No. 95, for the relief of Anna Lillian Montague Maye.-Mr. Croll.
Bill No. 96, for the relief of Gerald Fry.- Mr. Weir.
Bill No. 97, for the relief of Gordon Amos Finlay.-Mr. Croll.
Bill No. 98. for the relief of Eleanor Mary Hastie Moon.-Mr. Croll.
Bill No. 99, for the relief of Jean de Tonan-cour Racette.-Mr. Croll.
Bill No. 100, for the relief of Pauline Frances Elizabeth Appleton Powell.-Mr. Croll.
Bill No. 103, for the relief of Joseph Anthony Albert Britt.-Mr. Croll.
Bill No. 104, for the relief of Violette (La-beebe) Zakaib Kenemy.-Mr. Croll.
Bill No. 105, for the relief of Elizabeth Josephine Grant Drummond.-Mr. Croll.
Bill No. 106, for the relief of Joseph Georges Roger Dufort.-Mr. Croll.
Bill No. 107, for the relief of Max Wulfo-vitch.-Mr. Croll.
Bill No. 108, for the relief of Jessie Moffat Luce.-Mr. Weir.
Bill No. 109, for the relief of Julia McKenzie Clarke Smith.-Mr. Croll.
Bill No. 110, for the relief of Phyllis Matthews Cloutier.-Mr. Croll.
Bill No. Ill, for the relief of Rose White Bishop.-Mr. Croll.
Bill No. 112, for the relief of Victor Della Porta, otherwise known as Jack William Taylor.-Mr. Croll.
Bill No. 113, for the relief of Edith Hersh Beck.-Mr. Croll.
Bill No. 114, for the relief of Dorothy Amelia Hockley Burne.-Mr. Croll.
Bill No. 115, for the relief of Dora Garoff Bernstein.-Mr. Croll.
Bill No. 116, for the relief of Phyllis Weiss Cohen.

Mr. Croll.
Bill No. 117, for the relief of Rose Lillian Budd Cooke.-Mr. Croll.
Bill No. 118, for the relief of Jeanne De-lattre Toubeix.-Mr. Croll.


[Stage Direction]
On the orders of the day:
Hon. George A. Drew (Leader of the Opposition):: I should like to ask a question of the Minister of Trade and Commerce. Is it his intention to make a statement to the house with regard to the very important announcements which have appeared in connection with the proposed natural gas pipe line from western Canada to eastern Canada?


Right Hon. C. D. Howe (Minister of Trade and Commerce):: I think I can make a brief statement at this time. As hon. members

Inquiries of the Ministry know, it has been anticipated tor some time that Alberta would have a surplus of natural gas which could be made available to the eastern part of Canada. Three or four weeks ago Mr. Manning, accompanied by two members of his conservation board, called on the Prime Minister to say that the board had found that there is in fact an exportable surplus at present of three and a half trillion cubic feet of gas. It is anticipated by Mr. Manning that the surplus will grow at the rate of -75 trillion cubic feet per annum for the next five or ten years.


Mr. Adamson:: Trillion?


Clarence Decatur Howe: Trillion. Mr. Manning stated he had received two applications for export of the gas from the province and that the board feels that at the present time neither application satisfies its requirements. Mr. Manning suggested to this government that if the two applications could be combined into a single project the government of Alberta would be prepared to grant an export licence to the single applicant.
This government offered its good offices to that end. I had several interviews with the two groups who have been competing for some time in an effort to place themselves in a position to obtain the licence when it is issued. The two groups had been spending a good deal of money in building up two separate situations. They had been competing for sources of supply of natural gas. They had been competing for customers and competing generally as to their relative positions in the pipe line field. I was able to convince them that the project of bringing gas from Alberta to eastern Canada is sufficiently large to justify their merging their effort. I pointed out that the purpose must be not to combine two separate projects, but to build one project in which both proposals would merge.
After several days of discussion, in which this government was acting as an honest broker, just pointing out the weaknesses in the separate situations and the advantages of merging, the merger was effected. Agreement was reached in every point, so that today we have one organization formed for the purpose of building a natural gas pipe line from Alberta to serve the principal markets in Ontario and Quebec. The public electricity organizations in both Ontario and Quebec are showing a considerable interest in the future of natural gas. Consideration is being given by the Ontario hydroelectric commission and by the Quebec hydro, as well as by the Shawinigan company, to acting as distributors for the gas in their territories,


although at the moment nothing has been definitely decided on that feature of the project. I believe that outlines the position as we find it today.


George Alexander Drew: I would ask the minister if this will require any new charter on behalf of the new company or any supplementary legislation to make it possible to carry this arrangement into effect.


Clarence Decatur Howe: In speaking of the eastern provinces, I should have said that the pipe line would also serve Saskatchewan and Manitoba. I should not like them to feel left out. I am afraid I cannot answer the question asked by the Leader of the Opposition definitely. Certainly, there will have to be an amendment to one of the present charters. The company is adopting the name of Trans-Canada Pipe Lines, which is the name of one of the present charters. There will need to be amendments affecting the capitalization of the company, and it may in the end prove to be desirable to introduce a new bill of incorporation that will repeal the two existing franchises.
In either event, I sincerely hope hon. members will be disposed to give the necessary legislation priority in the house so that this great project need not be delayed. In the meantime, the merged companies are working under the franchise given Trans-Canada Pipe Lines Limited.


George Alexander Drew: I can assure the minister that the reason for the question was that we might proceed as rapidly as possible to do anything that might be necessary to expedite this important venture. I would point out that we have already indicated our support of the general plan that is involved. Naturally, the sooner any information is before us that would be required for the purpose of subsequent action by parliament, the sooner we can proceed to deal with this question.


Clarence Decatur Howe: I should like to add a word. I understand that the deadline for the introduction of private bills is next Monday. I expect that those interested will introduce legislation before that day. As to the nature of the legislation, I am not too sure.


Mr. Coldwell:: May I ask a supplementary question? Has any consideration been given to making this project a publicly owned project, a joint project of the provinces concerned and the federal government?


Clarence Decatur Howe: I presume that consideration has been given to it, but it seems to me that this is obviously a project

where private initiative is required to build the longest pipe line that has ever been built in the world, and to develop customers in areas that have used gas only to a limited extent. This is a job that requires an organization somewhat outside the organizing ability of government bodies.


Mr. Mclvor:: I should like to ask a supplementary question about the pipe line. Does this information mean that the greatest obstacle to the all-Canadian pipe line has now been overcome, namely, the people to put up the cash for the line?


Clarence Decatur Howe: I would be optimistic if I thought that obstacle had been overcome, but I think the machinery now organized will be the most effective means for financing the building of the line.


Mr. Fleming:: May I ask the minister if the government offered any inducement to the two companies in urging them to unite their forces in that project?


Clarence Decatur Howe: The answer, Mr. Speaker, is no. No inducements were asked for and none were offered.


Mr. Applewhaiie:: May I ask a supplementary question of the Minister of Trade and Commerce, arising out of the answers he has already given? Can he inform the house whether the negotiations of settlement to which he has referred will have any effect upon the supply of natural gas for British Columbia, and has he any statement to make on the progress of that proposal?


Clarence Decatur Howe: One project does not interfere with the other. The gas for British Columbia will originate in the Peace river territory of British Columbia and Alberta. All I can say about the status of the west coast proposal is that the necessary export permits have been given which will make it possible to build a gas pipe line to serve British Columbia. The application to export gas to the United States has been before the federal power commission of the United States for some 17 or 18 months, and I believe the sponsors of the pipe line are hoping for an early decision.



QUESTION AS TO FINAL PAYMENT FOR 1952-53 CROP

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On the orders of the day:
Mr. H. R. Argue (Assiniboia):: I should
like to direct a question to the Minister of Trade and Commerce. Can the minister say what the final payment for the 1952-53 wheat crop will be, and whether a final payment will be made at an early date?
83276-65J
Inquiries of the Ministry


Clarence Decatur Howe: I am unable to answer
either of those questions, Mr. Speaker. I shall make inquiries, and will hope to be able to make a statement in the not too distant future.



DUMPING


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On the orders of the day:
Mr. Stanley Knowles (Winnipeg North Centre):: May I direct a question to the
Minister of National Revenue? Can the minister say whether any regulations have been passed under Bill No. 29, which was passed just before Christmas, or any instructions issued under the terms of that bill? If so, could any such regulations or instructions be tabled in the house?


Hon. J. J. McCann (Minister of National Revenue):: I did not receive notice of the
question, but I shall take the inquiry as notice and give an answer as soon as possible.



COMMONWEALTH FINANCE CONFERENCE


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On the orders of the day:
Mr. J. G. Diefenbaker (Prince Albert):: Has
the Prime Minister any report on the progress of the conference of finance ministers in Sydney? Secondly, is an invitation to be extended at Sydney to hold the next conference in Ottawa?


Right Hon. L. S. St. Laurent (Prime Minister):: We have received no official report on the progress that is being made at the conference in Australia. I saw a report in the newspapers that the Minister of Finance, as had been understood before he left, had said that Canada would be glad to have the next meeting take place in Ottawa.


George Alexander Drew: Supplementary to that, and in view of certain reports that have come to us from Sydney, may I ask if the Canadian Minister of Finance is attending that conference without any restrictions and on the same basis as the others attending it, or if, in fact, he is only attending as an observer? I direct that supplementary question because of reports which have appeared in the press that he is there as an observer.


Mr.   Si. Laurenl@: He is attending the meeting of the finance ministers of the commonwealth in the capacity in which he was invited, as one of the finance ministers of

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the commonwealth, to consider methods of further improving world trade. It may be that ministers representing sterling areas will have to discuss certain aspects of the problem with respect to which our Minister of Finance would be more an observer than a participant. But he is there with the same general objective as all the finance ministers-that is to say, to endeavour to promote a larger measure of world trade.



UNITED NATIONS


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On the orders of the day:
Major James William Coldwell: Mr. Speaker, I should like to ask the Secretary of State for External Affairs whether or not Canada is supporting the calling of the United Nations assembly, in reply to a circular issued by Madame Pandit, the president of the assembly.


Hon. L. B. Pearson (Secretary of State for External Affairs):: I received only this morning the suggestion from the Indian government that the assembly reconvene on February 9. We are giving consideration to the matter at once.



NATIONAL DEFENCE


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On the orders of the day:
Mr. H. A. Bryson (Humboldt-Melfort):: Mr. Speaker, I should like to ask a question of the Minister of National Defence. Has he, or any other minister of the government, any statement to make with regard to a report that a defence road is to be built from a point in southern Manitoba to Churchill, Manitoba?


Hon. Brooke Claxton (Minister of National Defence):: I have not seen the report but, had I done so, I would say there is nothing in it.



CRIMINAL CODE


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The house resumed, from Tuesday, December 15, consideration at the motion of Mr. Garson:
That a joint committee of both houses of parliament be appointed to inquire into and report upon the questions whether the criminal law of Canada relating to (a) capital punishment, (b) corporal punishment or (c) lotteries should be amended in any respect and, if so, in what manner and to what extent:
That 17 members of the House of Commons, to be designated by the house at a later date, be members of the joint committee on the part of this house, and that standing order 65 of the House of Commons be suspended in relation thereto:

That the committee have power to appoint, from among its members, such subcommittees as may be deemed advisable or necessary; to call for persons, papers and records; to sit while the house is sitting and to report from time to time;
That the committee have power to print such papers and evidence from day to day as may be ordered by the committee for the use of the committee and of parliament, and that standing order 64 of the House of Commons be suspended in relation thereto;
And that a message be sent to the Senate requesting that house to unite with this house for the above purpose and to select, if the Senate deems advisable, some of its members to act on the proposed joint committee.
Mr. Speaker:: Is the house ready for the question?


Mr. Fulton:: Is the Minister of Justice not going to make an explanation of the motion?


Hon. Stuart S. Garson (Minister of Justice):: Mr. Speaker, when this motion was moved on December 15 it was supported by me in a short speech, following which the debate was adjourned by another member of the house. This being so, I would be glad to close the debate, if no other member wishes to speak.


Edmund Davie Fulton: I understand this is a motion the minister placed before us at the conclusion of the debate on second reading of a bill to amend the Criminal Code. The motion is to set up a special committee of both houses of parliament to consider certain matters. At that time there was no debate. That was on Tuesday, December 15, as I recall it. The motion which the minister placed before us appears in Hansard of that day at page 958, and the debate was adjourned. There was no debate actually on that day, because at the close of the minister's remarks I asked this:


Edmund Davie Fulton: Will you move the adjournment of the debate?
And then the hon. member for Calgary North (Mr. Harkness) said: "There is no debate." And Hansard records that "On motion of Mr. Bennett the debate was adjourned." Actually there was no opportunity for debate. The minister did not speak. Therefore, if I may state my understanding of the rule, if the minister speaks now he does not close the debate because, apparently, he did not speak when introducing the motion. Therefore I wonder if it is not possible for him to say something at this stage in order to explain what the government has in mind in connection with setting up this committee. I should think he could speak without actually closing the debate. Then further debate might follow the minister's explanatory remarks.


Stuart Sinclair Garson: Speaking first to the point of order raised by the hon. member for Kamloops, I would remind the hon. member that

the motion now before the house arose from a motion which had been made previously for the second reading of Bill No. 7, to consolidate the Criminal Code.
In my rather lengthy remarks in the debate on second reading of the bill respecting the Criminal Code, I dealt at some length with this question of setting up a joint parliamentary committee, and explained the nature of the arrangement between the parties out of which it was proposed that that step should be taken. Then, in carrying out the undertaking which had been given in my remarks on second reading of Bill No. 7, I seized the first opportunity, with the unanimous consent of the house, to move the motion which now appears before hon. members.
After I had done so, no further explanation from myself being required, the hon. member for Grey North (Mr. Bennett) moved the adjournment of the debate. That is the position in which, I submit, the matter now stands. I would be glad to listen to the comments of hon. members concerning this motion and in closing the debate to try to meet the points they raise. But if I were to speak further at the present time I think I could do very little more than repeat what I said in the debate on the second reading of Bill No. 7.


Edmund Davie Fulton: Probably the discussion at this stage on the point of order could be disposed of if we are to take it that the minister does not intend to make any further remarks. If that is his position, then we cannot force him to speak. But I do point out to him that, as reported at page 958 of Hansard, the hon. member for Winnipeg North Centre (Mr. Knowles) said, when it was indicated that the minister was going to place a motion before the house:
Perhaps the house would consent to the minister making his motion so we would have it before us. Then he might immediately move the adjournment of the debate.
To this the minister replied:
I shall be glad to do that. I move: . . .
And then the minister proceeded to read his motion, following which the discussion to which I have already referred took place. I think I can say, without imputing any improper motives to anyone, that the matter was left in a state of some confusion. The hon. member for Grey North will, of course, speak for himself, as to what was in his mind, but I do believe there was some confusion, and that it was as a result of that confusion that it was generally agreed the hon. member should adjourn the debate. Certainly however it was our understanding that the motion was being moved simply to get the motion for
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committee on the record, so that hon. members could see it and that at a later date there would be a statement from the minister as to the government's position with respect to it.
However, if the minister says now that he has nothing further to say and that he does not intend to make any statement, that will dispose of it. I think it is quite clear however, under the rules of the house, that there is no reason why the minister should be precluded from speaking now. However, if he does not intend to, all right.


Stuart Sinclair Garson: I apprehend two things in connection with this matter. I apprehend, first, that on the point of order I would be out of order if I proceeded to take part in the debate at the present time other than to close it. Perhaps I should ask Mr. Speaker to rule upon that point first.
However, I might say, secondly, that if I were to lay before the house my reasons in support of this motion for the setting up of a joint committee of the sort proposed, I could do little more than paraphrase what I said when I spoke at considerable length upon this very point when moving the second reading of Bill No. 7. I do not think any useful purpose would be served by such repetition. I believe the matter was clearly placed before the house at that time. If there are any members who think there are reasons why this motion should not pass, and who would wish to address the house in that regard, then in closing the debate I would be glad to reply to their arguments.


Mr. Speaker:: Perhaps I might add a word on the point of order because, as I understand it, there is no doubt that if the minister were to speak now he would close the debate. The minister moved this motion, and then on motion of the hon. member for Grey North the debate was adjourned. If he spoke now he would be closing the debate, technically. As the minister explained a moment ago, when he moved the second reading of the bill to amend the Criminal Code, he explained this motion and the purpose of it. As he has just said, he has spoken upon it, and as soon as second reading was carried he tried to carry out the undertaking with regard to this second motion. Hon. members will see, if they turn to page 958 of Hansard, the minister said:
Mr. Speaker, during the course of my remarks on second reading of the bill I stated that the government-
And so on. There he referred to his intention to make this motion. It was apparently expected at that moment that the motion would carry immediately, because of the explanation the minister had made on second reading of an act to amend the Criminal Code. But some members took exception to its

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immediate adoption and the hon. member for Winnipeg North Centre (Mr. Knowles) suggested that the minister put his motion on Hansard anyway, and that was done. Following that, on the understanding that the minister had made all the remarks he had to make, the hon. member for Grey North (Mr. Bennett) was taken as having adjourned the debate. With the explanation that the minister, if he were now to make a statement, would repeat with respect to it what he has already said on the motion for second reading of an act to amend the Criminal Code, we ought to consider the matter cleared up.


Edmund Davie Fulton: If the minister does not wish to make a statement, and if we are to proceed on that basis and on the basis that you have just outlined, sir, I want to point out to him, if we are to be taken as continuing a debate which commenced on the evening of December 15, that actually at that time, as Your Honour will recall, it was after ten o'clock, so that except by unanimous consent no further proceedings could be carried on in the house. However, at that time we did not wish to take that technical position and thereby prevent the minister from even laying before the house what his motion would contain.
The device suggested by the hon. member for Winnipeg North Centre, and to which Your Honour has already referred, was that the minister would move his motion so that it would be on the record, and then adjourn the debate. I think it should be said that we are now in the position, it is true, where the minister technically

and if he wishes to rely upon that technicality, of course he can do so-cannot speak without being taken as closing the debate. In order to avoid taking advantage on our part of a technicality'-it was then after ten o'clock-we said, "All right, go ahead; put your motion so that it will be in Hansard, and then you can adjourn the debate and speak again"; and it is a little unfortunate that, having made that concession on the basis of that understanding, we are now to be placed in the position where the minister is not going to vouchsafe further information to the house on the government's intention with respect to this matter.
In making a motion of this sort to set up a special committee to consider a subject of this importance and of this complexity, it is usual that the government should indicate at some length the procedure which it suggests should be followed in that committee. It is true of course that a committee once constituted is master of its own proceedings within the limits of the rules of the house, and that the government frequently says: "We cannot
I Mr. Speaker.]
tell the committee what to do; it is for the committee to decide." Nevertheless a suggestion from the government, and particularly an expression of intention on the part of the responsible minister as to how he thinks the matter should be dealt with and in what respects his department will be prepared to co-operate, what information, what statistical tables and matters of that nature the department intends to prepare or would be willing to prepare to lay before the committee, whether or not it is to be suggested that the *committee be invited to hear representations, and if so from what sorts of bodies and how many, is of great help to the committee. It is always helpful if the minister indicates at the time he makes his motion and is speaking in support of that motion just how it is intended to proceed.
Therefore, it is unfortunate that a technicality is in effect being raised at this time to deprive us of the benefit of that information from the government as to how it proposes to proceed in this matter. We have not got it, however, and we cannot force the minister to speak. Therefore I will take this opportunity, Mr. Speaker, to lay before the house some considerations which I feel should be borne in mind by the committee now to be set up, if this motion passes.
I should like to say at once that in what I have to say on matters of detail with respect to the matters to be referred to the committee I do not wish to be taken as in any way attempting to make a statement of policy with respect to the attitude of the Conservative party or of the official opposition, because it must be realized that in matters of this kind, particularly where matters of such far-reaching importance for the whole welfare and conduct of the nation with respect to its criminal law are concerned, matters which are so controversial, matters in which differences of opinion with respect to the local and national consequences of a certain course of action have no relation to differences of opinion between parties, it would be unwise and indeed impossible to attempt to draw any party lines with respect to them.
It seems to me that the only feasible and constructive approach to problems of this sort will be for each individual member of the house and each individual member of the committee to express his personal conviction, and it is in that spirit that I venture to make these few remarks in connection with the motion now before us.
This motion invites the formation of a committee to consider whether the criminal law of Canada should be amended with

respect to (a) capital punishment; (b) corporal punishment; and (c) lotteries; and if so to suggest how it should be altered. It seems to me that in approaching this question we have always to bear in mind that we are dealing here with facts and not with theories. Murder is one of the headings that the committee is to be invited to consider. It deals with a set of facts. Each one of these headings arises out of the circumstances of the subject matter with which the criminal law on that subject is dealing. It is a subject matter which exists in fact and not in theory. In other words, murder is a fact, and hanging is a fact. Unfortunately, people do kill. So that we are not considering the question of capital punishment in an atmosphere of abstract theory but in an atmosphere of unfortunate fact, that in society as we have it today killings, murders, do take place. In the same way, people do commit the crimes which are now punishable by whipping. Corporal punishment being confined in this country to whipping, it is necessary that we carry on a discussion of that branch of the motion both here and in the committee in the light of the unfortunate fact that horrible crimes which at present call for the penalty of whipping are in fact committed.
The same thing can be said of the law with respect to lotteries. People in Canada do in fact carry on and take part in lotteries. I have reference here, and will have throughout the discussion of this branch of our criminal law, not to the question of the law regarding the keeping of gaming houses or institutions of that kind where roulette and fan-tan and games of that sort are played for the profit of the owner, but to the conducting of sweepstakes and lotteries in public and games of chance for charitable purposes.
While the considerations and recommendations to be made on these subjects are matters which the committee will decide for itself, there are I think certain considerations which it might be suggested should be before the committee in the light of which it might approach its decisions on these various branches of the criminal law. I should like to deal with them in series, starting first with the question of capital punishment.
It seems to me that here the committee will have two branches of the law in this regard to consider. First there is the question of whether or not capital punishment should be retained as part of our criminal law, or whether it should be abolished. Second, if the committee should decide to recommend that capital punishment be retained, then they would have to consider whether or not there should be certain modifications of the law of murder in order to restrict the number or
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types of cases in which the death sentence will be automatically imposed. I should like to deal with these two branches of consideration.
First, then, in connection with the question of whether capital punishment should be retained or abolished. I can only express the hope that the committee when appointed will approach this matter with open minds and not with preconceived notions either one way or the other. Although one hears quite a number of expressions of opinion that capital punishment is an outrage and should be abolished, it seems to me that we have to study the matter somewhat more deeply than that. I would suggest for the consideration of the committee that at a time like the present when the incidence of crimes of violence is not diminishing, when the tendency I might say is not for murders to become more simple but rather to become more horrible, we cannot lightly say that capital punishment should be abolished.
There are other arguments or factors which I think the committee should bear in mind and on which they should ask for evidence and statistics before they reach their conclusions. I think there are quite a number of factors which urge that this is not the time to make that radical change in our criminal law which the abolition of capital punishment would involve. I refer to the atmosphere in which we live in which crimes of violence, murders and killings are certainly not becoming less in number.
Then I think the committee should look at the experience in other countries, particularly those whose legal systems and criminal law are based by and large upon our system of the common law. I have in mind particularly the United States, and the other countries of the commonwealth. Perhaps I might interpolate here to say that most of the statistics which I shall refer to have been compiled by the royal commission on capital punishment which sat recently in the United Kingdom. This royal commission was appointed in 1949 and brought down its report in September, 1953. In my opinion this document is one of the most masterly and comprehensive studies of the whole question of capital punishment that have ever been made.
Not only did they look at the situation and experience in the United Kingdom; they looked at the experience of practically all countries outside the iron curtain on the continent of Europe, of other countries of the commonwealth, and of the United States. In the United States they considered not only the federal jurisdiction but many if not all of the states.

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Mr. Knight:: In order to keep the record straight, may I ask the hon. member if it is not a fact that that royal commission did not deal with the question of capital punishment as such.


Edmund Davie Fulton: I am coming to that, if the hon. member will just give me a moment. The hon. member for Saskatoon (Mr. Knight) is perfectly correct in saying that by its terms this royal commission was not invited to consider whether or not capital punishment should be abolished but only to consider the modifications which might be made in the law of the United Kingdom with respect to capital punishment, with respect to murder and with respect to the imposition of the death penalty.
Nevertheless it did make a most comprehensive and detailed investigation, not only of the law relating to murder and capital punishment in the countries which I have mentioned but of the number of murders, the number of executions and also as to whether or not there was an automatic imposition of the death penalty in those countries or whether the imposition of the death penalty was within the discretion of the jury, the court or the judge once a person had been found guilty of murder. As I said, it is one of the most comprehensive and masterly surveys of the whole field which have been made.
Looking then at the experience of other sountries as found and reported upon by the royal commission in the United Kingdom, we see that in forty-two of the forty-eight states of the United States capital punishment is retained for first degree murder, although in forty of those forty-two states the jury has some discretion as to the sentence, as to whether death or life imprisonment will follow. They summarize their findings at pages 460-461 and I think it might be convenient for the purposes of this discussion if this summary were put on the record. It reads:
In three states, the juries are authorized to recommend mercy but the recommendation is not binding.
In fifteen states, the jury must specify whether the sentence should be death or imprisonment for life and there is no verdict unless the jury reach agreement on both guilt and sentence.
I might say that this deals exclusively with the situation which arises in those states of the United States where a verdict of guilty of murder in the first degree has been brought in. I continue:
In eight states, the death penalty is automatic unless the jury recommend life imprisonment; thus, if the jury cannot agree, the death sentence is pronounced.

In two states, a sentence of life imprisonment is automatic unless the jury recommend death; thus, if the jury cannot agree, the sentence is imprisonment for life.
In nine states and the federal jurisdiction, the jury may qualify their verdict by the words "without capital punishment", though it is not certain whether the jury's decision is binding on the court. It appears that the jury must reach a unanimous decision and there is no verdict unless the jury reach agreement on both guilt and sentence.
In two states a recommendation by a majority of the jury is sufficient.
That, then, is the situation in the United States where in forty-two of the forty-eight states capital punishment is retained. In all commonwealth countries the death sentence is retained. In Australia generally speaking, in Canada, in Ceylon and New Zealand the death sentence is mandatory following a verdict of guilty of murder.
It is interesting to note, also, that for a period of time they abolished capital punishment in New Zealand but they have recently re-introduced it. The same holds true of the United Kingdom where after a trial period in which it was agreed that no one convicted of murder would be subjected to the death penalty, and where when the time limit for the trial period expired the experiment was not continued, the death sentence is mandatory following a verdict of guilty of murder.
I am sure that the committee, in addition to considering the experience and present practice in other countries, will want to give some consideration to the question of the very nature of punishment itself. Here I think we cannot do better than consider the words used by the British royal commission in their discussion of the question of the nature of the death penalty as a punishment, with respect particularly to its deterrent effect and as to whether it is justified because of that effect. On that question they had this to say, as reported at page 18, where they quoted the words of one of their witnesses, Lord Justice Denning, as follows:
The punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishment as being deterrent or reformative or preventive and nothing else . . . The ultimate justification of any punishment is not that it is a deterrent, but that it is the emphatic denunciation by the community of a crime; and from this point of view, there are some murders which, in the present state of public opinion, demand the most emphatic denunciation of all, namely the death penalty.
They continue with this statement by the commission itself:
The Archbishop of Canterbury, while expressing no opinion about the ethics of capital punishment, agreed with Lord Justice Denning's view about the ultimate justification of any punishment. By reserving the death penalty for murder the criminal law

stigmatises the gravest crime by the gravest punishment; and it may be argued that by so doing, the law helps to foster in the community a special abhorrence of murder as "the crime of crimes", so that the element of retribution merges into that of deterrence. Whatever weight may be given to this argument, the law cannot ignore the public demand for retribution which heinous crimes undoubtedly provoke; it would be generally agreed that, though reform of the criminal law ought sometimes to give a lead to public opinion, it is dangerous to move too far in advance of it.
Now, with respect to the argument as to whether or not the retention of capital punishment is justified on the basis that it is a deterrent to the crime of murder, the royal commission came to the conclusion, and I think I am summarizing their conclusion fairly and accurately, that the evidence was inconclusive either way. In other words, that one might compile a set of statistics to show that the existence of the death penalty had in certain cases or in certain countries a very great deterrent effect, and on the other hand one can turn to countries in which there is no death penalty in existence and can argue from statistics gathered there that the incidence of murder was no greater there than in countries which retained the death penalty. The royal commission, however, uses this sentence:	"We can number its
failures. But we cannot number its successes." That is for the very reason that it is obviously impossible to say in how many cases a person tempted to commit murder has been deterred by the fact that he might expose himself to the possibility of the death sentence.
It is pointed out, however, that they feel a good deal of weight has to be given to the opinion of responsible police officers, and I think perhaps the most impressive summary they gave of the police officers' evidence is to be found at page 38, where they say as follows:
The representatives of the chief constables' association and the police federation were strongly opposed to any changes in the existing law.
Then they go on:
. . . they had no doubt that if liability to be convicted of murder and to suffer the death penalty were limited, criminals would take more risks, use more violence and more often carry firearms.
While we of course in this country are not in any sense bound by the opinions or necessarily by the experience of any other country, I would nevertheless suggest that these opinions and similar opinions, which I hope our committee will have an opportunity of hearing from similar organizations in Canada, will carry the greatest weight with the committee when it commences its deliberations.
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There is, it seems to me, another reason for caution in considering this first aspect of the matter as to whether or not capital punishment should be abolished. It appears to me that to a very great extent the arguments of those who favour an immediate embarkation on the abolition of capital punishment are met by the fact that we have under our system of law the jury method of trying persons accused of murder. I make no bones about it, nor do I have any hesitation in saying that by and large I have complete confidence in the jury system in producing correct and just verdicts in murder trials.
My conclusion is based on my experience, limited as I immediately confess that experience has been, compared to the experience of some others in this house and many others outside who have had a wide experience in criminal trials. But, based upon my experience-and I have been on different sides in different murder cases-and based upon the reading I have been able to do on the matter, my conclusion is that the jury does not often go wrong.
I think it is an established fact that juries will not convict if they feel a man should not hang, and it does not matter what the judge may say to them. The judge may say to them that there do not seem to him any grounds upon which the jury can bring in a verdict of manslaughter. If the jury do not think the man should hang, they will not convict him of murder; and this is true in the vast majority of cases. Other hon. members may have had a different experience, and of course individual cases differ; but by and large it seems to me that that is the experience of most people and that that fact is the greatest assurance that could be given that the existence of the death penalty does not lead to unjust or unmerciful results.
I was glad to find that my conclusions in this regard were similar to those of the royal commission in the United Kingdom to which I have referred. I think the passages of their report dealing with this tendency of juries to reach merciful verdicts where they feel the circumstances of the case do not warrant conviction, even though technically the crime may be murder, are extremely interesting. They say, and I am reading now from page 8, paragraph 28:
After giving full weight to the consideration that juries rightly demand a very high standard of proof before they are willing to convict on a charge so grave as murder, we formed the impression from the evidence that juries do from time to time return a verdict of manslaughter, and more rarely of guilty but insane, or of acquittal, in cases where there is little ground for reasonable doubt that the accused was in fact guilty of murder. (A typical case,

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cited by more than one witness, is the murder of an unfaithful wife or her lover by a soldier returning from the war.) We agree with Sir John Anderson that such verdicts are to be attributed to sympathy for the accused in the particular case rather than to disapproval of capital punishment or to any shrinking from responsibility.
They also summarize certain of the evidence presented to them as follows:
Lord Justice Denning, on the other hand, said that "in many cases which are in law plainly murder, juries return verdicts of manslaughter, because they do not think the death sentence is appropriate": and the Howard League for Penal Reform said that their observations over many years bore out Justice Denning's view.
When you take the conclusion that juries will usually arrive at a proper verdict on all the facts and couple with that the existence in Canada, as in all countries of the British commonwealth which observe the principle that Her Majesty is the head of the commonwealth, of the exercise of the prerogative of mercy, the right of reprieve, then I think that there is room for argument that the principle of capital punishment should not lightly be removed from our criminal law.
While I am not going to trespass upon the work of the committee, I think that in this connection a very short statistical review of the experience in England and in Canada is interesting and illuminating. The table reproduced in this royal commission report shows that so far as the United Kingdom is concerned, in the ten-year period 1940 to 1949 inclusive there were 1,666 murders known to the police. These resulted in 815 arrests for murder. Of the 815 arrested 680 were committed for trial at assizes. Of the 680 tried there were 262 cases where the jury returned a verdict of guilty and the death sentence was imposed. Out of the 262 there were 127 executions.
In other words, within that ten-year period murders were followed by executions in 7 * 6 per cent of cases. In 38-5 per cent of cases those tried were found guilty. In 18-7 per cent of cases those tried and found guilty were actually executed, and in 15-5 per cent of cases those arrested were actually executed. While statistics in Canada are not available on the same basis, we do have in the report published by the bureau of statistics entitled "Statistics of Criminal and Other Offences for the Year 1950", a summary at page 199 of murder charges, dispositions, commutations and executions from 1900 to 1950. Although the same detail is not available in this table, it shows that in the period of ten years from 1940 to 1949 inclusive there were 479 murder charges laid. Those 479 
charges resulted in 196 death sentences as the result of jury verdicts and 104 executions.
Therefore during that ten-year period, in 40-9 per cent of cases those charged were found guilty by the jury, compared with 38-5 per cent in Great Britain, or pretty nearly the same percentage. In 21-7 per cent of cases in Canada those charged were found guilty and actually executed compared with 18 [DOT] 7 per cent in the United Kingdom. Therefore verdicts of guilty in Canada are higher by about 2 per cent of cases than in the United Kingdom and executions in Canada are higher by about 3 per cent of cases.
But the statistic which I think is interesting is that, in that period of ten years, in 21-7 per cent of cases in Canada, or roughly only one-fifth of the cases where a charge of murder was laid which proceeded to trial, was there a finding of guilty and the death sentence actually executed upon the accused person. Therefore I think we should always bear in mind that in this country, and our experience appears to be repeated in the United Kingdom and I should gather from that in other commonwealth countries, it is fair and accurate to say that only in a very limited number of cases is a charge and trial for murder followed by execution, and in a restricted number of cases is the sentence of death followed by execution of that sentence. These are the main considerations that occur to me which should be borne in mind by the committee and all aspects of which should be studied in connection with their consideration of whether or not capital punishment should be abolished in Canada.
Then there is the other branch of that consideration which I mentioned, namely, possible modifications of the law of murder even though the principle of capital punishment may be retained. Again I would say that in approaching the question of whether to modify our law it is desirable to go slowly. After four years of study the royal commission in the United Kingdom reached four main conclusions on this point. It is always difficult to summarize a lengthy report in a few words, but I think I am doing so fairly and accurately when I say that, broadly speaking, the four main recommendations were: First, to eliminate or vary-there were two different recommendations on this subject-the rules in M'Naghten's case having to do with insanity; second, to modify the rule regarding provocation; third, to abolish the doctrine of constructive malice; and fourth, to give discretion to juries in murder trials, in cases where they have brought in

a verdict of guilty, to find in addition extenuating circumstances which would mean that the death sentence would not be imposed but that a sentence of imprisonment would automatically follow.
For our purposes I think it might be suggested that it is important for us to consider only the last two recommendations. The subject of insanity is going to be referred to a royal commission and the rule regarding provocation is already the same in Canada as it has been recommended that it be in the United Kingdom. It does not seem to me therefore that the first two recommendations need concern us very much, and even the third recommendation respecting the abolishing of the rule regarding constructive malice does not seem to me to be of much importance to us because the application of the rule of constructive malice in Canada is not by virtue of its being a rule of law, but is restricted to those cases laid down in the Criminal Code. The fact that it is confined to certain offences gives it a more restricted application than it has as a general rule of law in the United Kingdom.
It would seem to me that the most important of their recommendations from our point of View is the one which I have listed as the fourth, namely, that juries be given discretion, after having found a verdict of guilty of murder, to find in addition extenuating circumstances. However, Mr. Speaker, I think it should be pointed out that the British royal commission were concerned with what does concern every one of us here and every person in Canada, that is, cases where there are extenuating circumstances in the environment or background of the accused or where it is felt that the accused did not actually intend to kill, but where, in law, what the accused did was murder. Certainly, I do not suppose there would be a person in this house or in the country who would not agree that in cases of that kind there is room for modification of our law. It is a horrible thing that a person should be hanged merely because, although he does not intend to kill, in law what he has done is murder. That is the situation that concerned the British royal commission. It is a situation that each and every one of us will have in mind when we consider this subject.
It is felt that it is contrary to the principles of our law that a person should pay this penalty for something he did not intend to do. But one has to realize also that the law has been carefully framed so as to make it impossible for people to embark recklessly upon acts which result in the taking of a life. After all, that is the most serious thing a 83276-66J
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person can do. It is to discourage embarking lightly upon courses of action of that kind that the law has, heretofore at any rate, been careful to lay it down that such a course of action is, technically, murder.
The question is whether that kind of murder, if I might call it that, as distinct from deliberate, cold-blooded, intended murder, should carry with it automatically the death penalty. It was this point that the British commission considered, and which they had in mind when they made their recommendation, regarding the discretion given to the jury to bring in this finding of extenuating circumstances. While realizing fully the difficulty that lies in this problem, and the desirability of exploring every method which might result in tempering justice with mercy, I want to reiterate my belief that the greatest safeguard we have may be found, not so much in amendments to the law as in the fact that we follow the jury system. It seems to me it is the greatest safeguard we have in Canada against the possibility of cases, in which there are extenuating circumstances, resulting in the death sentence. As I have said my conclusion, as a result of experience and reading, is that with remarkably few exceptions juries will not convict of murder when there are extenuating circumstances.
In dealing with this problem the British royal commission considered and rejected an idea which however I think should be explored here in spite of what I have said about the safeguard of the jury system. That is the suggestion that there should be a statutory definition of two types of murder, first degree and second degree murder. First degree murder would be the only one to be followed automatically by the imposition of the death sentence. The British royal commission considered that and rejected it. They came up with this recommendation of giving juries a discretion.
It is interesting to note that that recommendation has already been very strongly, and I may say very effectively, criticized in the House of Lords. Members who are interested will find the debate on that point recorded in the House of Lords official report for Wednesday, December 16, 1953. Viscount Simon-unfortunately, Mr. Speaker, one has now to say the late Viscount Simon because according to newspaper reports he died yesterday, one of the most eminent lawyers ever produced in the United Kingdom-introduced into the House of Lords a motion criticizing the particular recommendation of the British royal commission to which I have referred.

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Interestingly enough, he was supported in his argument by Earl Jowitt, who had 'been the lord chancellor in the Labour government until Churchill was re-elected. Lord Jowitt agreed with Lord Simon that the recommendation of the British royal commission was not sound. Their objections were based mainly on the contention that it is not proper to give to the jury a discretion as to sentence. Their argument was that under our system the matter of sentence has always been reserved for the judge, that the jury are the judges of the facts, they are the judges of the question of whether or not the accused is guilty as charged. That is all it is proper to place upon the jury. Once they have exercised that responsibility, then it is not fair to go back and ask them to accept another responsibility by saying, "How shall this man [DOT]be punished as a result of the verdict you have brought in?"
I was impressed by the objections raised in the House of Lords to this particular recommendation, and I am certain it will be agreed that if the objections are valid they would be as valid here as they are in the United Kingdom. But it seems to me it may not be necessary for us in our consideration, if we do feel it desirable to make some change in the law of murder, to feel driven to adopt such a course as the British royal commission recommended. I put this forward as a suggestion only. It seems to me that one of the reasons for the British royal commission coming to the conclusion it did and making the recommendation it did was that it felt impelled to reject the suggestion of a statutory definition of the different types of murder, as first degree or second degree murder. Having rejected that suggestion, they were left with but one alternative, the recommendation. they introduced.
In Canada, I think we are fortunate in that we have established for ourselves a codification of our criminal law. We have had our Criminal Code since the 1890's. The British appear to have almost an abhorrence for codifying their criminal law. Theirs is embodied in a great mass of common law and over 150 separate statutes relating to the criminal law. It seems to me that the objection to making statutory definitions of murder does not apply in this country to the same extent as it does in the United Kingdom; at any rate, we do not have the same objection to it. I think we should not shrink from introducing a statutory definition of different degrees of murder, if that is felt desirable, merely because they did not adopt that course in the United Kingdom. I do not think their objection to it applies here at all. I believe that if we decide that some solution along
[Mr. Fultond
these lines is desirable, then the creation of different types of murder would be found to be preferable to giving a discretion to the jury.


Stuart Sinclair Garson: Will the hon. member permit a question? When he refers to types of murder, to what has he reference?


Edmund Davie Fulton: To first and second degree murders.


Stuart Sinclair Garson: Not to constructive murder?


Edmund Davie Fulton: No. Our code has already established in statutory form that which in the United Kingdom is referred to as constructive malice.


Donald Methuen Fleming: Not political murder.


Edmund Davie Fulton: I shall conclude my remarks on this phase of the matter by saying that it may be there is no need for a change in Canada at all. I have already expressed my confidence in the jury system, and in juries in general. I would also point out that, at least in any case within my knowledge, the jury has always had laid before it most thoroughly by defence counsel any extenuating circumstances. And having before them the knowledge of those extenuating circumstances such as might be calculated to arouse their sympathy, juries, I am sure, will not find accused persons guilty of murder if they do not think those persons should hang.
I cannot think of any defence counsel who would not take every advantage of placing before a jury every extenuating circumstance, or who would fail to place before a jury every suggestion alternative to the idea of murder, or who would fail to place before them anything which might be calculated to arouse their sympathy. Once the jury has gone through the process of arriving at a verdict, and having decided that an accused person is guilty of murder, I cannot conceive their being asked to go back and to consider all over again whether there are any extenuating circumstances.
Had they felt that there were such extenuating circumstances, they would not have found the accused person guilty of murder in the first instance. Perhaps they would have found insanity, or brought in a verdict of manslaughter. I would therefore urge the committee now to be set up, when it is considering this subject, to keep in mind the fact that there is a distinct and strong possibility that the necessity for change in our law concerning murder in Canada is not as urgent as is sometimes suggested.
I can imagine some people saying that I am a typical Conservative or, if you like, perhaps that I am a typical lawyer because I am

opposed to change. I would ask hon. members to think of the matter in this way, that what I am suggesting is not so much that there should not be any change in our approach to the idea of capital punishment or the laws regarding murder, but rather my suggestion is that what we now have in our Criminal Code and our use of the jury system give an assurance that changes will be made. We may be assured that as they are made those changes will keep abreast of but will not precede or run counter to current social and sociological thinking in society, because juries are formed of members of society.
Thus a hundred years ago a jury would probably have brought in a verdict of guilty, without any compunction whatsoever, in respect of a crime upon which no jury today would convict. And yet the law of murder has not changed; it is the jury that has changed. A jury in considering the charge and the evidence, and in arriving at its verdict, is going to reflect the current social and sociological, penal and penological thinking of the country. So that to suggest that we should go slow in embarking upon changes in our Criminal Code is not simply to oppose change, but rather is to say-as I am now saying-that we already have embodied in the criminal law and procedure of Canada the assurance that change can take place, that it will take place and that it does take place, and that it takes place at a pace which is in keeping with the progress of thought and the development of ideas on these subjects in society as a whole.
I do not intend to exhaust the patience of the house, and shall mention only briefly the other two subjects the committee will be asked to consider, those of corporal punishment and gambling laws. I have dealt at some length with the subject of capital punishment at this time, because I do not think it requires much argument to convince ourselves that probably it is the most important of the three subjects the committee will be asked to consider.
Murder is very final; so is hanging. No one gets a second chance after he has been hanged. While none of us may ever be the accused in a murder trial, we cannot for that reason refuse to consider the matter in the serious light it deserves. Furthermore, every person in Canada is potentially the object of a murderer's activity, so that the consideration of this matter, especially when there is involved in it the question of punishment and whether capital punishment acts as a deterrent to murder, is of vital concern to every Canadian. It is for these reasons that I have
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spoken on the subject at such length, and at considerably greater length than I shall deal with the other two subjects.
However, I do wish to say, with respect to corporal punishment, that here again, while it may be that views on the subject are not as definite as those concerning capital punishment, there is reason to make haste slowly. I think that a resume of the types of offences for which corporal punishment may now be imposed as an additional penalty would indicate some of the reasons why we should not go too fast in seeking to eliminate it.
Referring to the index to the Criminal Code one finds that the penalty of whipping may be imposed-and it need not necessarily be imposed-for the following offences: assault, whether it be indecent assault or assault on the person of the king, or on a wife or other female causing actual bodily harm. Then- armed burglary; carnal knowledge; choking or strangling when incidental to such things as attempting to have carnal knowledge or administering narcotics; incest; administering drugs; procuring; rape; and robbery-that refers to joint, violent, or armed robbery.
Those are the offences for which whipping may be imposed as part of the penalty. And I do suggest that merely to catalogue those offences, each of which has about it some element of horribleness, something about it which is disgusting or particularly reprehensible, does suggest that we should not move too fast in eliminating the possibility of whipping being imposed as part of the penalty.
Incidentally, I think that again we might be somewhat reassured, by looking up the statistics as to the number of occasions upon which whipping has been imposed in the last two years as part of the penalty. I find that in this statistical table issued by the bureau of statistics, to which I have already referred, while in respect of the indictable crimes for which persons were charged and found guilty there is no breakdown of the actual number of types of crimes for which whipping might have been imposed as part of the penalty, nevertheless during 1950, out of a total of 31,385 convictions for indictable offences, in only 40 cases was whipping imposed as a penalty. In 1951 the total was even smaller. Although there were 28,980 convictions for indictable offences in 1951, there were only 35 cases in which whipping was imposed as part of the penalty. Therefore it is obvious that it is a power or a discretion, available in the hands of the judges, that is not always used, and indeed is used very sparingly and only in exceptional cases where it is felt that the whipping, while perhaps it may not-and I suggest this for the consideration of the committee-act as a deterrent to somebody else

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not to commit the same crime, it will be almost one hundred per cent guaranteed to act as a very powerful deterrent to the person who receives that penalty against a repetition of the same crime.
Then, with respect to the question of the gambling laws and lotteries generally, as I said at the outset, Mr. Speaker, I feel that we are going to be much more concerned in the committee with the situation regarding the holding of lotteries than with the question of whether or not a person should be allowed to keep a common gaming house where roulette, fan-tan, and gambling of that sort takes place to the profit of the owner of the house. I do not suppose there is a person here who would not agree that that sort of thing is undesirable in our civilization; but I do think we have to give a great deal more serious thought to the much more difficult problem of the gambling laws generally, particularly with respect to lotteries.
I am not going to attempt to lay down here even a broad general principle, let alone any refined one, or indicate particularly what I think the committee should find, but I am going to take the liberty to suggest this and this alone as the basis of approach. It seems to me we should decide whether or not in fact gambling is a crime; whether or not in fact the conducting of a lottery and taking part in it, even for purposes of raising funds for charity, is a crime, or whether rather the crime does not lie in the conducting of a dishonest lottery or the raising of money, whatever be the motive, by dishonest methods. It seems to me we have to sort out our thinking on this subject and decide for ourselves, without fear or without being too much influenced by outside pressures, whether or not, as I say, the conduct of lotteries and similar activities properly supervised and honestly conducted is really a crime.
One could be amusing about this. I suppose most members of parliament ride on the trains from time to time. Probably most of them journey to and from their homes on the railways. Therefore, as members of parliament, perhaps we are more intimately brought into contact with the question of the gambling laws in Canada than almost any other section of the community, simply because of the frequency with which we have to travel on railway trains where, as every member knows, there is posted in what is obviously felt by the authority in charge of that railway or steamboat to be the most conspicuous place, a warning to all and sundry of the terrible perils that

are attendant upon gambling on that railway car or steamboat. I see the minister nodding his head. I am sure he must have read that warning sign himself.


Stuart Sinclair Garson: On a point of privilege, I was not nodding my head up and down or sideways.


Edmund Davie Fulton: Well, I doubt whether the
minister could have gone home without seeing that little sign. I do not know whether he is less anxious to agree or to disagree with what I am saying. Perhaps the immobility of his head indicates that he is not going to express his opinion one way or the other. I was going to say that it is an extraordinary situation that if, let us say, the hon. member for Rosetown-Biggar (Mr. Cold-well) and myself happened to be journeying west and we indulged in a little innocent poker game-


Major James William Coldwell: Bridge.


Edmund Davie Fulton: Or bridge-for stakes, however small, we would be liable to be haled by the conductor or other officer in charge of the railway train at the first available opportunity, with or without warning, before an officer of the peace, and there delivered into his custody and charged with an offence against the Criminal Code of Canada. In fact, it would be incumbent upon that railway conductor so to hale us -I think that is the word-before the peace officer and lay a charge.


Donald Methuen Fleming: Is this an actual case?


Stuart Sinclair Garson: May I ask my hon. friend a question? In what percentage of the cases of the innocent poker or other card games upon trains that he has heard of has a prosecution been launched?


Donald Methuen Fleming: The minister has got the point at last.


Edmund Davie Fulton: I am glad the minister has asked that question. It touches upon the very point I was trying to get over in connection with our approach to the gambling laws. In other words, as the minister is aware, this section is completely disregarded; it is not enforced. People break it and get away with it. I am glad they do, because it would be absurd if it were to be enforced. But is it a healthy state that there should be on the statute books of this country, in the Criminal Code, a section which, as the minister will agree, it is fair to say by his own admission is so absurd that it would produce such folly if not injustice if enforced that it is just simply ignored? As the minister himself knows, a great many of the other provisions of our Criminal Code with respect to gambling, particularly in

regard to lotteries, are ignored. Gambling does take place and the Canadian people are taking part in lotteries. That is why I have said, and I am glad to have the minister's interjection to reinforce my point, the time has arrived when we have to make a serious and solemn study of this situation and decide for ourselves whether or not taking part in lotteries is a crime.
While perhaps that is not as important as the question of capital punishment, the time has certainly arrived, in fact it is long since past, when we should not have on our statute books-and in perhaps the most important statute in Canada, the Criminal Code-a provision at which everybody laughs. Everybody knows that that situation should not be allowed to continue because contempt of the law is an undesirable, a harmful and a mischievous thing, and ought not to be permitted to continue longer in Canada.
I do not think there is anything further that I can say in connection with these subjects except that I hope we may hear from the minister before the debate concludes an outline of the method by which the government suggests the committee ought to conduct its deliberations, and an indication of what opportunity will be afforded to interested bodies and organizations throughout Canada to make representations. I know that in the final analysis the committee decides these things. But I do urge upon the minister the fact that the government's desire and intention in the matter would be most helpful both to the committee and to the public who are so intimately concerned with the manner in which this is to be handled.


Mr. Harold E. Winch (Vancouver East):: Mr. Speaker, I am keenly interested in this motion introduced by the minister recommending the appointment of a joint committee of this house and of the Senate to consider the important matters of capital punishment, corporal punishment and lotteries. I have been greatly interested in the question of capital and corporal punishment over a long period and I feel very strongly on the matter. My views are somewhat different from those of the hon. member for Kamloops (Mr. Fulton). In the course of all the reading I have done on this matter and all that I have heard I have never yet come across any basic or fundamental argument that convinced me that I was wrong in my contention that capital punishment is a survival of savagery and barbarism and that on no ethical ground can it be defended.
There is no one who will condone a murder; it just could not be done. However, I think we have to recognize that murder
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takes place under the stress of circumstances; it takes place mainly for reasons of passion and jealousy, through an attempt to escape capture; it is committed by the insane and in some instances it is premeditated. As I say, we do not condone murder because it is an offence against society. It is a criminal act because murder is the taking of life.
We all maintain that human life is sacred, but if it is sacred and its destruction by an individual is a crime, then the fact that two or more people get together and call themselves either a society or a state does not alter the basic fact of the sacredness of human life. Surely it is a principle of social ethics that we should not delegate to someone else the responsibility or duty of taking a human life.
The previous speaker quoted at length from the report of the royal commission in Great Britain and commented on the fact that capital punishment had been reimposed in that country. I think it should be remembered that capital punishment was not actually abolished in Great Britain. There was a period which was sometimes referred to as a truce or a suspension, and that is what actually took place. After the period of the suspension or truce was over capital punishment was reimposed.
In listening to the hon. member for Kamloops I rather got the impression that he was trying to indicate that it had been reimposed, if I can use that term, because of an increase in crime. I take it that he meant in particular an increase in the number of murders during the period of suspension.


Edmund Davie Fulton: I did not say anything like that.


Harold Edward Winch: To me the hon. member's remarks indicated that it had been done for that purpose. However, the fact remains, if we can take the information which was sent to all members of the House of Commons by the Canadian Friends' service committee under date of December 22, where they quoted from the British Hansard of January 27, 1949, that in Great Britain there were 19 murders in the 7 weeks before the truce; 25 murders in the first 7 weeks of the truce; 17 murders in the last 7 weeks of the truce; and 26 murders in the 6 weeks after the resumption of executions in Great Britain.
This matter of the abolition of capital punishment goes back to 1843. Since that time a great many countries of the world and 6 of the states of the United States have abolished capital punishment. To the best of my knowledge in that period only 3 countries resumed capital punishment. It is

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very interesting to note the countries that did abolish it, although, as I say, I believe there were 3 countries that resumed the imposition of capital punishment.
New Zealand abolished capital punishment in 1941; Queensland abolished it in 1922; Sweden in 1910; Portugal in 1886; Switzerland in 1943; Italy in 1899; Cuba in 1940; Argentina in 1922; Brazil in 1891; Colombia in 1910; Ecuador in 1895; Peru in 1897; Mexico in 1929; Costa Rica in 1926 and Honduras in 1926 also.
As was also mentioned by the hon. member for Kamloops, 6 of the states of the United States have abolished capital punishment. This action was not taken in recent years as Michigan abolished capital punishment in 1847; Rhode- Island in 1852; Maine in 1876; Minnesota in 1911; North Dakota in 1915 and Wisconsin in 1853.
I have not the recent figures but about five years ago I compared the per capita ratio of murder in the 6 states where capital punishment has been abolished with the average of the other states where it is still imposed. Those figures proved conclusively that in the 6 states of the United States where they had abolished capital punishment there was only half the number of murders on a per capita basis as compared with the other states.
I think the evidence is conclusive from some of the greatest legal minds and penologists in the world that capital punishment is not a deterrent to murder. If we followed through with the line of reasoning of the hon. member who spoke a few minutes ago, that society in Canada has placed its stamp of disapproval on certain acts of man by applying capital punishment, then it would appear to be logical reasoning to assume that we could prevent crime or would have a lesser amount of crime if capital punishment was applied to some of the other activities of criminals.
This does not work out in fact. If it did, then the time in the history of Great Britain when there would have been the least crime would be the nineteenth century. In the nineteenth century there were 240 kinds of offences that were punishable by death, and in the reign of Henry VIII I find there was a total of 72,000 people who died either on the gallows or on the block. Now, if there was a deterrent to crime through the medium of capital punishment then we should have seen it in operation during that time. The facts, however, prove the opposite. They prove that instead of being a deterrent it was actually an encouragement. If we took the statements and examined the records of penologists after an execution they would show that there was an increase in crime. I do feel we should take into very serious consideration the findings of men whose names are very well known to us.

I do not think there is a greater authority on penology on the North American continent than Mr. Lewis E. Lawes, who was for many years a warden at Sing Sing. In an article he wrote, I think it was about two years ago, this expert on penology, this man, who for a period of over twenty years lived his life amongst the criminal element in the United States, had this to say, and I quote:
I used to believe strongly in the social necessity of capital punishment. Now, I do not. There is no room for sentimentality in dealing with the subject of capital punishment. I believe death fades into insignificance when compared with life imprisonment. To spend each night in gaol, day after day, year after year, gazing at the bars and longing for freedom, is indeed expiation.
And he further said:
Executions, like war, brutalize men; the more that take place, the greater the number there is to execute. The man about to die becomes a hero.
I do not want to take up too much of the time of the house in reading quotations but I would like to give just one more and that is from one of the greatest lawyers in North America. His name is Clarence Darrow and he took a very firm stand on the question of capital punishment. He had this to say, and I quote:
If the full details of executions could be vividly told; if men and women could visualize the horror coming from the fear and dread of this shameful and cruel death; if people could feel the agony of the days of waiting: if they could grasp every detail-all normal human beings would be so shocked to think of their part in the horrible deed as to get rid of the barbarism that inspires the desire to have some unfortunate killed by the state.
Clarence Darrow also had this to say:
No facts can be produced by anyone to show that the death penalty ever lessened murders.
That being the case, if it does not lessen murders, if it is not a deterrent to crime, then why kill? Why insist on standing by what I might term the Mosaic law? I know there are some who like to follow that law, "an eye for an eye and a tooth for a tooth", but that certainly was not the principle as laid down by Christ himself. Surely we, who boast that we are Christians and civilized, should recognize that it is not our responsibility to take the life of another. It is our responsibility only to see that those who are dangerous to society are incarcerated in such manner that they can no longer be dangerous.
I am absolutely convinced after having been of my own volition in a great many of the prisons in Canada-I was one of the very fortunate ones, for I could get out when I wanted out-that the average person fears life imprisonment and his loss of freedom a great deal more than he fears the loss of his life. I am sorry that the government could

not see its way clear to bring in an amendment to the Criminal Code abolishing capital punishment, but as they have not seen their way clear to do so I am very glad that they are going to refer the matter to a committee.
A number of years ago I, along with others, tried to have the death sentence on three Indians changed to life imprisonment.
I was told at that time that I did not know what I was talking about. Had I ever seen a man hanged, I was asked. Apparently you have to see a man hanged before you know anything about it. I had not at that time, but about three weeks later I went to see a man hanged, a young man. He had not killed anyone himself but he took part in a bank hold-up and he was condemned to death. That was about eighteen years ago and because of it I still have nightmares.
I have no hesitation whatsoever in saying that in my opinion no judge or member of a jury should be permitted to sit on a case where they may bring in a verdict of death unless they have seen a man put to death, and unless they themselves have seen a man hanged. It is a horrible thing to go into a small room like a disused elevator shaft, such as the one in British Columbia, with about a dozen people standing around waiting for the condemned person to be brought in, and to see the look of fear and the expression, "Well, I have had it". It is horrible to see that foot-long knot behind the condemned man's ear, and to see the executioner's touch on the man's shoulder, "Forward a little bit there, please, that's a good1 boy". And then the drop. It is horrible to see and to hear that rope whanging back and forth across the sides of the trap and to hear the gurgling noise and the sighs that come up from below.
I think something is wrong with us when we have to resort to that sort of thing in this modern day and age. Yes, we have to protect society, we have to incarcerate those dangerous to society, but I think we should also remember that the majority of homicides take place in a time of passion and under the strain and stress of difficult circumstances. Although we have got to inflict some penalty upon them we should not arrogate to ourselves the right to take the life of another human being.
I sincerely hope that this committee in its studies will obtain information from all over the world, and that they will study the records of those countries which from 1853 have not had capital punishment. I hope they will study on a per capita basis the records of crime in those countries where there is no capital punishment compared with
Criminal Code
those where they do have it, and I hope they will also take the same opportunity of getting information on corporal punishment.
It was my privilege to be permitted to visit the penitentiary in British Columbia for a couple of days before coming here to the House of Commons and I found there that unless it is ordered by the courts they never use the lash, or the paddle. Those in charge of the British Columbia penitentiary inform me that a far greater deterrent to bad conduct on the part of inmates than the paddle or the lash is the bread and water treatment, and confining prisoners to their cells for twenty-four hours a day. I think the same principle would apply in the matter of the committing of crimes.
Therefore I am most certainly opposed to capital punishment and to corporal punishment, and I have a great deal of hope that, when the report of the committee is presented, the minister will amend the Criminal Code again so as to remove this throw-back to savagery and barbarism from the statute books of the Dominion of Canada.


Stuart Sinclair Garson: Mr. Speaker-


Mr. Deputy Speaker:: May I remind the
house that if the minister speaks now he will conclude the debate.


Robert Ross (Roy) Knight: Mr. Speaker, this is one of the occasions upon which I envy hon. members of this house who may be designated by the term "my hon. and learned friend". I admit immediately that I am not in my own field when I take part in this particular discussion; but if any of my hon. friends think that I, through ignorance of the subject, should not take part in this debate may I refer them to the hon. member for Kamloops (Mr. Fulton) who has held up the juror to eulogy before the house and made him out to be practically infallible. I remind the house that in most cases the juror is an amateur like myself so far as legal experience is concerned. Possibly he has never been in a law court in his life; yet collectively at least, if not individually, he is supposed to have some sanity and ability to judge, again collectively, the particular issue before the court.
Capital punishment is of course a controversial subject. Practically all my life I have been trying to make up my mind about it, although I do not claim to have had any extended or morbid interest in the matter. But as a layman I should like to express, inadequately of course in the opinion of my learned friends, one or two of the things about which I have been thinking. There is

Criminal Code
this matter of the commission in Great Britain. As a matter of fact I became interested in it because of the comments I read in certain newspapers. I would remind my hon. friends that the commission did not receive as great praise in certain quarters, particularly in some of the British newspapers, as it has at the hands of my hon. friend. I should like to quote from this rag -and it is a rag-the Daily Mirror, the issue of September 4, 1953. It is a rag but I would remind hon. members that it is read by more people than any other newspaper in the world. I am not quoting it as an authority, but rather because it gives an opinion which is read by many people. It has this to say with respect to the report of the royal commission on capital punishment:
It is an evasive mouse of a thing made smaller and thinner and more ill-nourished by the vast amount of labour that has been spent upon it.
Then it goes on to say that for nearly four and a half years the commission conducted its investigations in various countries of the world, and it makes this significant statement:
They went into it with their hands tied. They came out of it washing them.
The reference to their hands being tied has to do with the fact that the question under consideration was not actually that of capital punishment itself. The London Times of September 24, 1953, has this to say about the matter:
The report of the royal commission on capital punishment deals with only the secondary aspects of a great subject, for the fundamental question whether the state has the right, or requires, to take human life by process of law, was not referred to the commissioners.
It is true, as stated by the Times, that the reference to the commission was limited. The question is whether the state is to continue to punish the crime of murder by taking the life of the offender. I may be wrong in this statement, but I take it that criminals are not now convicted of murder unless they have consciously endangered life.
I submit that the word "consciously" can be variously interpreted. I would ask this question. Are there not many murders committed, as was pointed out by the hon. member who has just spoken, in moments of passion or mental disturbance? I wonder if fear of execution would be a deterrent at all in such cases? I wonder if a man, when he is going to commit murder, sits down and thinks: If I do this, what will I get? Will I get 60 days or will I be hanged?
Perhaps I might point out to my hon. friends as an aside that the word is "hanged" and not "hung". I wonder if a man sits down

and thinks about that sort of thing or if he does not simply commit murder in a moment of intemperance, insanity or emotional upset. After that, what happens to him is in the lap of the gods. I submit that people do not usually calculate the consequences when they are about to commit a crime.
The question of the justification of capital punishment is one on which it is indeed difficult to make up one's mind. We are uncertain about other things too. One talks about unity of parties on various things, but I find continually that there are matters upon which so many things may be said on both sides that it is difficult to assess it and arrive at a final conclusion. But after due consideration I have decided that I am on balance opposed to capital punishment. There are various arguments. There is the moral question, which I think has already been raised by the hon. member for Vancouver East (Mr. Winch) as to whether or not the state has the moral right to deprive any one of its members of the right to life for any reason.
The judgment I have reached is one to which I have come rather slowly, but let me give some of my reasons for opposing capital punishment. First of all there have been cases where people who have been convicted of murder and hanged have later been proved innocent. I would remind the hon. member for Kamloops, and I am sure he will agree, that although juries are frequently right there are occasions where the jury or even the learned judge may be wrong. I would rather take the chance of a half dozen people being wrongly acquitted. It would be a terrible thing if injustice were done in even one case. It would be far better to forgo the gruesome pleasure of taking social revenge upon someone rather than to do an injustice of that magnitude.
Many persons convicted of murder and condemned to be hanged are later reprieved. I suggest that again there is cruelty and agony in such a situation. The long periods of waiting, the long periods of mental agony, are probably more terrible than the carrying out of the death penalty itself.
Then there is the matter of justice in connection with reprieves. I imagine that mistakes are made there. When one reads about reprieves in the newspapers he finds that many of the people so reprieved are women.
I am not going to enter upon any discussion that might arise on that point. Many of the reprieved are young people. They are people,
I suppose, between 18 and 21 years of age. We all know that people are not alike. We cannot be equal. When God poured for each

of us a little measure of intelligence, he did so with an uneven hand. I am going to ask you, is a man who is 20 ipso facto more emotional or unstable than another man of 22? It is evident, at least to me, that in these reprieves we fit the punishment to the criminal and not to the crime. I think that might be true in those instances. Certainly there is a lack of uniformity, and discrimination may leave room for injustice.
Then I would advance the argument of cruelty in many executions where death has been prolonged. We have had gruesome instances of this sort. I shall not go into them today, but I mean where something goes wrong with the killing machinery, if I might term it that, and we have these horrible cases, demoralizing even to those who read of them.
I want to say another word or two about the Gowers commission, as I think it is sometimes known. It is significant, first of all, that that commission recommended giving the jury the power to declare whether or not there were extenuating circumstances. In other words, as I interpret it the jury was given the discretion of substituting a lesser sentence than the death sentence. Does that not show that in the minds of the people who set up the commission there was some doubt as to the adequacy of this method of capital punishment? The discretion is handed over to the jury, an awful discretion, a weighty responsibility. It is even a heavy responsibility for a judge, who is a man trained in law and who has studied crime all his life, but for an ordinary man called from his labour to know that he has in his own hands the responsibility of whether his neighbour shall live or die is surely a horrible thing.
The member for Kamloops (Mr. Fulton) has talked about the efficiency of the system of capital punishment in Britain. His figures do not jibe with those submitted by the hon. member for Vancouver East (Mr. Winch). The argument of the hon. member for Kamloops is that capital punishment acts as the best possible deterrent against murder. I want to point out to the hon. member that in Britain it is estimated that of all convicted murderers only half do, in fact, go to the gallows; that for every twelve murders reported, only one killer is executed. The hon. member for Kamloops has pointed out that killings are becoming more frequent in Canada and the United States. Since capital punishment is in existence in Canada and the United States, how can he assert that fact as a logical argument for its continuance?
The infallibility of the jury has been much stressed by the hon. member.
Criminal Code


Edmund Davie Fulton: I did not use the word "infallibility".


Robert Ross (Roy) Knight: The hon. member is a man of words; perhaps he can suggest a better one.


Edmund Davie Fulton: You suggest it. You are the one who is trying to improve on my speech.


Robert Ross (Roy) Knight: By the way, I have never been in a law court in my life, and perhaps that is evident from what I have said already. I would point out that probably the average juryman, like myself, has never been in a court previously. He has to decide whether or not there are extenuating circumstances. He has to decide even upon the issue of sanity, and that must be rather difficult for the average man who has no training whatever in mental disturbances or, for that matter, in psychology. A juryman has to give judgment on matters of character and matters of mentality which might puzzle even judges who have had experience, who have been studying law and crime all their lives.
Even with this inexperience or lack of ability in the jury, I would be prepared to accept their judgment in most things because I am a believer in collective good sense. I am not so sure of the good sense of the individual, but when you get twelve men, good and true or otherwise, I think they nearly always do come to a logical conclusion. The trouble is that this verdict of guilty in murder cases is the sort of thing on which you cannot take a chance. I would be prepared to trust jurymen in spite of their inexperience and their inability in some cases, but here is a case where you have a life at stake, and surely that is the ultimate in importance.
Since the only justification for capital punishment is the protection of society, and since we cannot justify it on the grounds of social revenge, then I maintain that society can be protected equally well by other methods, the most obvious of which is life imprisonment.


Mr. W. B. Nesbitt (Oxford):: With reference to the special committee to be set up to study capital punishment and lotteries, Mr. Speaker, I have only a very few brief remarks to make, which I hope may help the committee.
First of all I should like to say that I agree with the hon. member for Kamloops (Mr. Fulton) in the thoughts which he so adequately expressed. In addition, I should like to say that I hope the committee will consider, if capital punishment is to be retained, different methods of carrying out the execution. At the moment we have the usual method of hanging for carrying out capital punishment. I hope the committee will seriously consider, if capital punishment is to be retained,

Criminal Code
whether or not some other method could be used. Alternative suggestions have been made, such as the lethal chamber, the electric chair and so on. I believe that this is an important consideration.
I think further that the committee ought to bear in mind that such punishment for murder might not necessarily be considered as punitive but rather in the nature of a deterrent. Possibly if the method of carrying out the execution were made less barbarous the deterrent factor might not be so strong.
In regard to the matter of whether or not capital punishment ought to be retained, there is a very practical consideration. If the criminal who is convicted of murder is sentenced to life imprisonment, that is the maximum sentence he can receive. There is nothing to deter that criminal who is sentenced to life imprisonment from trying to escape at every opportunity, possibly taking other lives in the process. In other words, such a person is rather analogous to a continual time bomb in the penitentiary, because he can receive no heavier sentence than life imprisonment and there is nothing to deter him from attempting to break out.
I have no doubt many members who will serve on the committee will receive representations from various organizations throughout Canada on the subject of capital punishment, stating whether in their opinion it should or should not remain in our law. Undoubtedly many of these recommendations and suggestions will come from genuinely moral groups holding deep religious convictions, such as the Society of Friends. I have no doubt many hon. members have already seen such representations.
Since section 46 in Bill No. 7, as I read it, would make spying in peacetime a capital offence, representations may very well be made to members of the committee from groups holding somewhat ulterior motives in trying to remove the death sentence. I think this should be borne in mind, because it would certainly facilitate the activities of any spying group. And I hope no one will mistake my meaning and proceed to classify me with a well-known gentleman south of the border. I do feel, however, that this should be borne in mind.
There is one further item I would mention at this time. It seems to me that, in addition to the subjects of capital and corporal punishment, and lotteries, the special committee to be set up might very well take into consideration the additional subject of sex crimes as they are set out in sections 135 to 149 inclusive in Bill No. 7, as well as in sections 659 to 667 in the same bill.

I make this suggestion for many reasons. With the exception of sections 659 to 667, which deal with preventive detention, there are no substantial differences on this subject in that bill as compared with the corresponding sections in the present Criminal Code. Having had some experience as a crown attorney for several years, I have found that offences of this nature present difficult problems both to the police and to crown counsel, from the point of view of laying proper charges, and that these offences present even greater difficulties to the magistrates and judges who must deal with the matter from the point of view of sentences to be imposed.
The difficulty in connection with the imposition of sentences arises from the fact that there is a wide diversity of opinion as to just what degree of severity there should be in sentencing in a sex crime. The argument that an accused person has had previously good character and has conducted himself as a good citizen, but that he has suffered some type of mental aberration, is invariably presented in mitigation of these sentences. One may find that one magistrate or judge may inflict a very light sentence upon an accused charged with a crime of this nature, while another magistrate or judge might inflict a more severe penalty. There is this lack of uniformity in sentences throughout the country, a condition which does not encourage respect for law.
It is my feeling that this confusion with regard to the sentences that ought to be imposed on criminals of this kind is due to a confused state of public opinion generally, and that some sort of clarification as to possible minimum as well as maximum penalties should be set out in the proposed new Criminal Code.
From the amount of publicity crimes of this nature have been receiving in the last few years it would appear that such offences may very well be increasing. But even if they are not on the increase, public interest in them most certainly is. While crimes of this nature are all offensive and disagreeable, those involving children are the most offensive of all. I feel that the people of this country are determined that stringent action should be taken against such criminals who attack children, action more stringent than has been, taken in the past.
Again, within reason I feel that this matter should be investigated by the special committee to be set up to study the matters which have been mentioned previously. My personal view would be that, like the subject of insanity, this is one that should be dealt with

by a royal commission, in view of the psychiatric evidence which ought to be considered. People who are outside the fields of medicine and psychiatry are almost totally unfamiliar with such subjects. However, since no provision of this kind has been made, at least it would be a step in the right direction if sex offences were given consideration by the special committee to be set up.


Daniel (Dan) McIvor: Mr. Speaker, I should like to ask the minister a question. What does he consider the chief cause of murder? Is it hunger for gold; is it jealousy, or is it drinking parties? My experience is that the last is the most serious. If the government licenses the liquor business, then how can it condemn a man when, under the influence of liquor, he commits a crime?


Stuart Sinclair Garson: I shall be glad to answer my hon. friend when I close the debate.
(Translation):


Mr. J. W. Dufresne (Quebec West):: Mr. Speaker, I have been listening with great attention to the speeches delivered this afternoon on the subject now before the house. I was particularly taken by the interesting facts, statistical information and, more generally, by the very able fashion in which the hon. member for Kamloops (Mr. Fulton) expressed himself on this subject.
As for me I have no intention of discussing this matter from a legal point of view, since I am not a lawyer. I simply wish to discuss it in a somewhat logical way.
I see that the hon. Minister of Northern Affairs and National Resources (Mr. Lesage) finds it funny that there can be one member sitting here for Quebec city who is not a lawyer. A precedent has been set. The working people of my constituency have wished it to be so and they have not requested the minister's permission.


Mr. Lesage:: Mr. Speaker, I rise on a question of privilege. I laughed because my colleague, unintentionally, poked fun at lawyers when he said that, not being a lawyer himself, he felt in a position to discuss the matter in a logical way.


Mr. Gauthier (Portneuf):: Somewhat logical.


J.-Wilfrid Dufresne: Mr. Speaker, I know that I am not as fortunate as the minister, not being a university graduate, and that I may have made a slip during my remarks. However, I do intend to continue and I hope that the hon. members who have found my remarks rather funny will now show a little more tact.
Private Bills-Divorce
(Text):


Mr. Speaker:: As it is now five o'clock, the house will consider private and public bills.
(Translation):


J.-Wilfrid Dufresne: Mr. Speaker, I move the adjournment of the debate.


Mr. Speaker:: It is not necessary for the hon. member to do so. When we resume the debate interrupted by the study of private and public bills, we will proceed from where we left off a moment ago.
(Text):



PRIVATE BILLS


Mr. W. G. Weir (Portage-Neepawa) moved: the second reading of Bill No. 12, for the relief of Catherine Miller Mary Harris Dawson Coutts.


Mr. Speaker:: There are several divorce bills on the order paper, running from No. 29 to No. 88. Will they all be taken in one motion?


Some hon. Members:: Agreed.


Mr. Speaker:: Is a motion for second reading of these bills agreed to?


Stanley Howard Knowles: Mr. Speaker, just before the motion for the second reading of these 60 divorce bills is agreed to, I should like to say a brief word. As Hansard does not have the capacity for recording the emphasis members sometimes try to make, I should like to emphasize that in this brief moment we are called upon to give second readings to 60 divorce bills.
Were it not for one significant fact I would suggest that the house should give consideration to what it is doing, and take these bills one by one and do our job on them more seriously. However, the one significant fact to which I refer is that a special committee has been set up by this House of Commons under Your Honour's chairmanship, which is studying the rules of the house. As the result of a discussion which took place in the house a month or more ago, it has been agreed that in that committee we shall give consideration to the question as to whether or not we can find some other way to handle these divorce applications. My hope is that that committee will grapple with this problem, will realize the fact that no one in this House of Commons likes dealing with divorce in this way and that we shall find some other way to handle this matter.
So long as the matter is under discussion by Your Honour's committee on the rules of the house I will not take any time on these
1038	HOUSE OF
Private Bills-Divorce
bills here on the floor. But I think I should make it clear that if no alternative method is found for dealing with these bills, some of us will feel later on that we should call upon the House of Commons to take this job seriously and deal with these bills one by one.
Motion agreed to and bill read the second time.



SECOND READINGS


[Stage Direction]
Bill No. 13, for the relief of Elizabeth Ann Hunter Daykin.-Mr. Weir.
Bill No. 14, for the relief of Martha Anne Sutherland Clarke.-Mr. Weir.
Bill No. 15, for the relief of Phyllis Best Childs.-Mr. Weir.
Bill No. 16, for the relief of Marilyn Clerk Merlin Clarke.-Mr. Weir.
Bill No. 17, for the relief of Kenneth Urban Lunny.-Mr. Croll.
Bill No. 18, for the relief of Florence Bella Davis Baines.-Mr. Weir.
Bill No. 19, for the relief of Claude Arlington Root.-Mr. Croll.
Bill No. 20, for the relief of Lizzy Weiss Nomberg.-Mr. Croll.
Bill No. 21, for the relief of Mildred Elizabeth Sears Leighton.-Mr. Croll.
Bill No. 22, for the relief of Margot Land-wirth Steinbach.-Mr. Weir.
Bill No. 23, for the relief of Pauline Noel Lapointe.-Mr. Croll.
Bill No. 24, for the relief of Joseph Philippe Marc Andre Fortier.-Mr. Weir.
Bill No. 25, for the relief of Nancy Rachel Bonnar Barclay.-Mr. Weir.
Bill No. 26, for the relief of Marusia Zozula Hempseed.-Mr. Croll.
Bill No. 31, for the relief of James Alexander Stevenson.-Mr. Weir.
Bill No. 32, for the relief of Vyvyan Holcombe Hervey.-Mr. Croll.
Bill	No.	33,	for	the	relief	of	Gilberte
Drouyn Serres.-Mr. Croll.
Bill No. 34, for the relief of Margaret Alice May Plinn Cote.-Mr. Weir.
Bill	No.	35,	for	the	relief	of	Stanislas
Anthony Placzek.-Mr. Croll.
Bill No. 36, for the relief of Rose Enkin Carriere.-Mr. Weir.
Bill No. 37, for the relief of Lottie Levine Lubotsky, otherwise known as Lottie Levine Kuznicki.-Mr. Croll.
Bill	No.	38,	for	the	relief	of	Solanges
Laperle Desjardins.-Mr. Weir.
Bill No. 39, for the relief of Jack Kaufman.-Mr. Croll.
Bill No. 40, for the relief of Selma Sara Schachter Lande.-Mr. Croll.
Bill No. 41, for the relief of Paul Joseph Simard.-Mr. Weir.
[Stage Direction]

Bill No. 42, for the relief of John McCullough Gasken.-Mr. Weir.
Bill No. 43, for the relief of Joseph Louis de Gonzague Giguere.-Mr. Weir.
Bill No. 44, for the relief of Jean Hunter Bercovitz.-Mr. Weir.
Bill No. 45, for the relief of Diane Lorraine Cleveland Morgan Stewart Patterson.-Mr. Weir.
Bill No. 46, for the relief of Elsie Eleanor Bennett Kirkcaldy.-Mr. Weir.
Bill No. 47, for the relief of Bernice Margaret Vizzutti Charters.-Mr. Weir.
Bill No. 48, for the relief of Archibald Christopher Mottley.-Mr. Weir.
Bill No. 49, for the relief of Bessita Asaria Farchi Lotenberg, otherwise known as Bessita Asaria Farchi Lotey.-Mr. Weir.
Bill No. 50, for the relief of George William Bonfield.-Mr. Weir.
Bill No. 51, for the relief of Marjorie Joan LeRiche Dunphy.-Mr. Weir.
Bill	No.	52,	for	the	relief	of Geraldine
Donovan Wilcox.-Mr. Weir.
Bill No. 53, for the relief of Norma Mary MacKenzie Benton.-Mr. Weir.
Bill No. 54, for the relief of Anna Smilo-vitch King.-Mr. Weir.
Bill	No.	55,	for	the	relief	of Kathleen
Dempsey Robertson.-Mr. Weir.
Bill No. 56, for the relief of Joyce Delia Pierce Korenberg.-Mr. Weir.
Bill	No.	57,	for	the	relief	of Alfonsas
Jankus.-Mr. Weir.
Bill No. 58, for the relief of Michael Lansky. -Mr. Weir.
Bill No. 59, for the relief of Wilma Elizabeth Dalglish Rochon.-Mr. Weir.
Bill No. 60, for the relief of John Cromkie Nicol.

Mr. Weir.
Bill No. 61, for the relief of Tyrus Raymond Markham.-Mr. Weir.
Bill No. 62, for the relief of Thelma Louise Heinz Finlay.-Mr. Weir.
Bill No. 63, for the relief of Dorothy Joan Glegg Statham.-Mr. Weir.
Bill No. 64, for the relief of Mary Laura Olive Coote Laflamme.-Mr. Weir.
Bill No. 65, for the relief of Sadie Denen-berg Rockman.-Mr. Weir.
Bill No. 66, for the relief of Yukiko Takeu-chi Zusko.-Mr. Weir.
Bill No. 67, for the relief of Joan Gooder-ham Wyman.-Mr. Weir.
Bill No. 68, for the relief of Guy Favreau.- Mr. Weir.
Bill No. 69, for the relief of Elizabeth Stewart Hughes Koren.-Mr. Weir.
Bill No. 70, for the relief of Esther Wray Carpenter Batt.-Mr. Weir.

Bill No. 71, for the relief of Shirley Mary Davis Robertson.-Mr. Weir.
Bill No. 72, for the relief of Carlo Castelli. -Mr. Weir.
Bill No. 73, for the relief of Eveline Sha-heen Sauvageau.-Mr. Weir.
Bill No. 74, for the relief of George William Swinwood.-Mr. Weir.
Bill No. 75, for the relief of Marguerite Frances Wiggins MacKay.-Mr. Weir.


Stanley Howard Knowles: the second reading of Bill No. 81, to amend the British North America Acts, 1867 to 1952, with respect to the quorum of the House of Commons.
He said: Mr. Speaker, in rising to say a few words in support of this bill I wish to say at the outset that it is my view there is one thing wrong with it. It proposes that the quorum of the House of Commons should be increased from 20 members, which is the present figure, to 30 members.
What is wrong with this bill of mine-in my own personal estimation-is the figure 30. My view is that that figure should be much higher. Bearing in mind the fact that this house consists of 265 members, and bearing in mind the fact that most bodies that meet and transact business have much higher quorums-indeed in many cases the accepted quorum is at least a bare majority of the membership of the body in question-it does seem to me that we should be proposing a much higher quorum. It seems to me that it ought to be at least 50 members, or perhaps more. But, at any rate, for reasons which are well known to hon. members, I have proposed in this bill the figure of 30.
Lest there be any of the new members who are not aware of the reason for the proposed figure of 30, I would point out that when the British North America Act was passed in 1867 it provided for a quorum for the House of Commons of 20 members. But that quorum of 20 members as enacted in 1867 was in relation to a House of Commons the total membership of which was 181. Therefore, in view of the fact that the membership of the House of Commons today is 265, by a process of simple arithmetic one can determine that to maintain that same proportion calls today for a quorum of 29-2 members. It is on that basis that I suggest our quorum should be not fewer than 30. In other words, in suggesting that the quorum should be increased I go only so far as to
British North America Act suggest that we should retain the same percentage that was established by the fathers of confederation.
Actually I do not mean to suggest that there is any sacredness in the percentage so arrived at by the fathers of confederation when they drafted the British North America Act. For example, I have found it a bit interesting to discover that the statutes that provided for the rules of procedure of the legislative assembly of the province of Canada-the one that was in existence from 1840 to 1867-included in the rules of that body the provision that the quorum was to be 20 members. Indeed, if one takes the trouble to look up the rules of the legislative assembly of the province of Canada, from 1840 to 1867, he will discover that for the most part our rules today, in particular those of our rules that give us a great deal of trouble, are simply rules that were carried forward in the same wording that was used by Upper and Lower Canada in the legislative assembly they had from 1840 to 1867.
Well, that was the simplest thing to do. In fact, when the parliament of Canada first met in 1867 the question arose as to what rules of procedure would be followed. Sir John A. Macdonald simply moved that the rules of the late province of Canada be the rules for the House of Commons until such time as a committee might work out alternative suggestions. On the same day he moved that a committee be appointed to work out rules for this House of Commons, and when that committee did its job it made very few changes in the rules that had been in effect in the legislative assembly of the former province of Canada. Therefore one of the rules that was carried forward was this rule that the quorum be 20 members.
I have tried, but I have had some difficulty in ferreting it out, to ascertain just how many members there were in the legislative assembly of the province of Canada. It looks to me as though there were 130. It is interesting to read the statutes that provided for that legislative assembly and discover how the information one seeks is buried in words. At any rate, provision was made for 65 members from Lower Canada, namely what is now the province of Quebec; and as I understand it the number was equal for the two parts of that province, namely Lower and Upper Canada. Therefore in that period from 1840 to 1867 you had an assembly of 130 members. That figure is subject to correction, but I believe it is correct. Out of that 130 members you had a quorum of 20.

British North America Act
When the parliament of Canada was set up and the House of Commons was established it had a membership of 181. It seems to me that those in that first House of Commons might well have increased that quorum of 20, which applied to 130 members, to a higher figure proportionate to the new membership of 181; but they did not choose to do so, and I think the reason is quite clear. They were starting off with the rules of the new House of Commons in the simplest way they could. They just took over the book that had been in use in the legislative assembly of the late province of Canada. Since 1867 the membership of this house has increased on a number of occasions from the 181 in the first instance until we now have in this present house a membership of 265, but down across those years no change has been made in the quorum of this house.


James MacKerras Macdonnell: Has any change ever been proposed?


Stanley Howard Knowles: The hon. member for Greenwood (Mr. Macdonnell) anticipates the very next point I am going to make by asking me whether changes have been proposed. The answer is yes, that a change was proposed on at least one occasion. I hold in my hand a copy of the Journals of the House of Commons for 1925. During that session a special committee was established to consider the rules of the house. There is an interesting little story behind the appointment of that committee. It arose out of a private member's motion, in fact a motion made by Mr. William Irvine, who many hon. members of this house will remember as having been here not many years ago. His motion was amended by the then prime minister, Mr. King, and as a result the committee was set up and did an exhaustive job.
It went over all the rules of procedure that then comprised the standing orders of this house and made suggestions for changes in quite a number. Following that report, in the next year, 1926, quite a number of those changes were put into effect. The rules that we operate under today are more or less the rules as put into effect in 1926. Any changes that have been made since have been few in number.
One of the suggestions that committee made in its report back to the House of Commons on Friday, May 29, 1925, related to this very question of the quorum. Let me read a paragraph from the report of that committee, as follows:
The presence of twenty members forms a quorum of the house under section 48 of the British North America Act which was passed when the Canadian Commons consisted of only 182 members.
[Mr. Knowles.)

I regret having to pause at this point to make a correction in one of the official records of this house. I am sorry to state that they were wrong at that point in 1925. It may have been only a typographical error, but if one will consult the British North America Act he will discover that the membership was 181 rather than 182. Perhaps the confusion arose from the fact that there were 82 members for the province of Ontario. To go on with the recommendation made to the House of Commons by that committee:
According to the proportion then accepted-
That is the proportion accepted in 1867.
-the quorum should now be raised to 27 members.
That was the view expressed by the special committee in 1925.
But this even does not seem to be sufficient.
I could not agree more than I do with the members of that committee in 1925 who suggested that even 27 did not seem to be sufficient. The recommendation continues:
Your committee being of opinion that a larger quorum will be conducive to better attendance, recommends that the quorum should now consist of thirty members.
In reply to the hon. member for Greenwood (Mr. Macdonnell) I think I have a good basis for the suggestion made in my bill. The next sentence or two in the recommendation probably makes it clear why nothing was done:
In order to make this change, it will be necessary to present an address to the parliament of Great Britain requesting that section 48 of the British North America Act be amended so as to substitute the word "thirty" for the word "twenty" therein.
I suggest that that requirement was the main reason nothing was done in regard to that recommendation. The rest of the changes proposed in the report were within the competence of the House of Commons to put into effect, but so far as the quorum of the house was concerned it was obvious that it could be changed only by amending the British North America Act. The only way to amend the British North America Act at that time was by presenting an address to Westminster. Apparently at that time the House of Commons did not feel that the issue was of sufficient importance to warrant the presenting of an address from both houses to the crown requesting such a change.
However, in the meantime we have had the amendment to the British North America Act which was passed in the fall session of 1949, and which gives the parliament of Canada authority to amend the British North America Act in respect of any matter exclusively federal. There are other details in that amendment which I need not recite at this time, but I think it is quite clear

that the matter of the quorum of the House of Commons, or for that matter the quorum of the other place, is exclusively federal, so there is no question hut that we have the right here in the parliament of Canada to amend section 48 of the British North America Act if we see fit to do so.
There has been only one amendment to the British North America Act since the amendment of 1949 which gave the parliament of Canada that authority. I refer to the amendment respecting the basis of redistribution, which amending bill was put through in 1952 on the motion of the Minister of Citizenship and Immigration (Mr. Harris). We had a most interesting discussion at that time, particularly in the committee on redistribution, as to the form in which any amending bill would be drafted that would seek to give effect to the authority of this parliament to amend the British North America Act. Several courses of action were suggested, but it seemed to be generally agreed that we had the right here in this parliament to amend that statute even though it might be referred to as the statute of another country.
The answer to the question that arises when one puts it that way is that technically speaking it is the crown which enacts legislation. It was the crown which enacted the British North America Act in 1867. It did so on the advice of the Lords and Commons of the United Kingdom at that time. Now when we amend the British North America Act, as we did in 1952 in respect of redistribution, or as we could do in respect to the quorum, it will be the crown which will be enacting that change on the advice of the Senate and House of Commons of Canada. That may be a bit of digression from the main purpose of the bill, but I confess to an interest in the constitutional aspects that arise out of this simple bill.
As I have indicated by referring to the report of the committee in 1925, it was recognized 29 years ago that it was desirable to increase the quorum but apparently nothing was done because of the necessity of presenting an address by both houses to Westminster. That hurdle is now out of the way; we can do it now by a bill dealt with by both houses of this parliament.
I suggest that we should take advantage of that opportunity to make this minor but significant change. Some hon. members will say of course that it is not very much to increase the quorum from 20 to 30. I agree, and I have pointed out already that I would like to see the figure much larger. However, knowing the difficulty that one has in getting anything of great substance through around
British North America Act here I prefer to ask only for the number I have suggested, which simply maintains the same percentage.
These days, and I suppose this has always been the case, parliament is frequently under criticism by the public for a variety of reasons. We get criticized if we let things go through the House of Commons without adequate discussion, and we get criticized if we talk too much. As the hon. member for Kamloops pointed out on a former occasion, members of parliament get criticized if they are down here in Ottawa instead of being home meeting their constituents, and if they are back home meeting their constituents they are criticized for not being here in parliament. That is in the nature of things, and one has no complaint to make about it.
But one of the things we get criticized for is our attendance. I refer to attendance under two headings, on the one hand being here in Ottawa and on the other hand being in this chamber of the House of Commons when legislation is under consideration. It seems to me that the least we can do to show the public that we are taking our jobs seriously would be to increase the quorum and make sure that there are more members here all the time than is the case under the present quorum of 20.
There are those who have argued against this bill on the ground that hon. members have other things to do, that they have committees to attend, that they have correspondence to deal with in their offices and so on. But we know all that, and it applies to everyone; yet there are some of us who are able to be here a great deal of the time. I see no reason why we should not increase the requirement as to the attendance in the house.
With regard to the argument about committees requiring the attendance of members elsewhere, hon. members know very well that even in respect of rooms where committees can meet in this building, accommodation is quite limited, and I am sure I am setting an outside figure when I suggest it is not possible to hold enough committees at the same time to take 100 members out of this chamber at any one time.


An hon. Member:: Oh, yes.


Stanley Howard Knowles: Oh, no. I have checked the figures; and even in the fall session of 1951, when we had a great many committees meeting, at no time were over 100 members required in attendance in the committees that were sitting. That was during the session when sometimes committees were sitting so often that we even adjourned the sittings of the house. Even if we make the

British North America Act figure 150 that still leaves 115 other members available for attendance here; and to suggest that as a reason why the quorum could not be 30 is, I believe, evading the issue.
Therefore, Mr. Speaker, in presenting this bill to the house I strongly urge hon. members to support it. The only criticism, it seems to me, that could be levelled at the bill is that it does not propose a higher figure. If anyone wants to do that I have no objection, but it does seem to me that this at least is a step we should take. Although this bill has been before the house on previous occasions it has not yet received the support of the house, but I present it once again today in the hope that the requirement it contains will meet with the approval of the members of this house.


Mr. Gordon Churchill (Winnipeg South Centre):: Mr. Speaker, I am labouring under a disadvantage in entering this debate at this moment. It is always somewhat of a surprise to find out which particular private member's bill is going to be presented; and in addition to that, of course, we have only today resumed our session. My other handicap is that I wish to point out some deficiencies, if I may use that term, in the hon. member's remarks, and I know I am getting tangled up with a person who has already established a reputation for knowledge of the rules of procedure of this house. However, I am going to attempt the task.
The hon. member for Winnipeg North Centre (Mr. Knowles) happens to be a resident of the riding which I represent, and every resident of a member's riding is a potential supporter. Nevertheless, I am going to risk the loss of his support in the next election. A year ago when a similar bill was brought before the house I was unfortunately out of the chamber but still in the building, and I missed the debate by about a minute and a half. I made sure I would be present on this occasion.


Hazen Robert Argue: If the quorum had been 30 then you might have been here.


Gordon Minto Churchill: Let me say in advance that I am not much concerned with the proposal for amending the British North America Act. That can be done at any time. I do not think we need any further demonstrations that we are masters of our own destiny. That aspect seems to loom rather large in the opinion of the sponsor of the bill, but I do not think it is of such great importance. I realize, though, that he would like to have the privilege of introducing a bill which would amend the British North America Act and establish a precedent.


The hon. member seems to be concerned with the attendance in the chamber and I propose dealing with that, but before doing so I would like to consider just what is meant by a quorum, and I think the debate may be narrowed down somewhat if we examine a definition. Lest there be some doubt about it, a quorum, according to the Oxford dictionary, means a fixed number of members that must be present to make the proceedings of an assembly or of a society or board valid, and the meaning of the word "valid" given by the same dictionary is "executed with proper formality".
The purpose of a quorum, therefore, is merely to ensure that no business shall be conducted unless there is a certain number of members present. It also serves the purpose of permitting the house to commence its business without any great delay, for it is obvious that when the quorum consists of only 20 the Speaker will be able to call the house to order within a few minutes of the assembly bell. It also means that if there is a falling off in the attendance in the chamber during the transaction of business and there is no quorum in the house, then the house will come to a standstill if someone draws attention to the lack of a quorum and an adjournment will take place, or at least a procedure will be followed to ensure that before the house resumes its business there shall be a quorum present.
But the purpose of a quorum, briefly, is to make certain that any business done in the house shall be conducted according to the rules and shall be valid, and it precludes the conduct of business in the house by perhaps two or three or even a half dozen members. On the other hand, it does not insist that the entire membership shall be present. In any organization or society you have to determine at the outset how many shall be necessary to constitute a valid conduct of business. You either say that everybody must be there, or half the members must be there, or you decide on a certain proportion; and over the years it has been customary in all types of organization to set a rather low figure for a quorum simply to ensure that business will not be conducted without a sufficient number of people present to ensure that everything will be in order. It is not set at a very low figure, nor is it set very high, in order to introduce the element of compulsory attendance which my hon. friend has mentioned.
It is obvious that if a quorum is set at higher than the present figure the house might on occasions be counted out because of lack of attendance, although on many occasions last year I counted the members in this house and my observation was that it was a rare thing for the attendance in this chamber to

fall below 45, except at some of those awkward moments around five or six o'clock, or at eight o'clock when we resume.
With an enlarged quorum the whips, whose troubles are many, would be under obligation to pay more attention to the number of members in the house and would be bothered by, I think, an unnecessary obligation to see that the quorum was maintained. When the quorum is left at a low figure there is not much need for that type of attention. If the quorum is set at a high figure a person who wanted to obstruct the business of the house might ask for a count just for that purpose. We all know that members are coming and going all the time, and you might have a count of the house called and find that within the lobbies on either side there were members who could immediately enter the house. You would have obstruction of the business of the house just for the sake of having a count to see where members were. I think there should be little or no occasion ever to count out the House of Commons, and that we should be careful that that should not occur. I believe that keeping the quorum low is an assurance that there will be no counting out of the house.
I did a little research on my own after the fashion of the hon. member for Winnipeg North Centre. I wanted to find out if this house had ever been counted out in the past. I may not have found all the occasions but I will draw the attention of the house to the three I discovered. It was counted out on the 29th of June, 1917, at the hour of ten minutes to eleven. In those days the house continued until eleven o'clock. There were 18 members present, they were counted and the house was adjourned at five minutes to eleven. It was not a very serious matter, because they were near closing time anyway.
On the 11th of March, 1919, the house was counted out. It was then fifteen minutes after ten o'clock. There were 15 members present. They were counted, and the house was adjourned at eighteen minutes after ten.


Mr. Rowe:: What date was that?


Gordon Minto Churchill: The 11th of March, 1919.
In the first instance I gave the house was debating a bill. In the second case they were considering the address in reply to the speech from the throne. The third occasion was on the 10th of June, 1938. The house was in committee of supply, and at eight p.m., just after the supper hour, a sufficient number of members were not present. A count was held. There were only 16. The chairman of the committee called in Mr. Speaker, who then had another count made and discovered
British North America Act that the number had reached 17. The house was then adjourned at ten minutes after eight. These are the only three occasions I have found on which the house was counted out because a quorum was not present.
I also had occasion to look at the situation in the United Kingdom. My hon. friend mentioned the fact that years ago our quorum was still only 20 when the house was small in numbers. He said the number of members has increased, and that the quorum has not gone up correspondingly. He mentioned the fact that in 1867 the quorum consisted of 11-5 per cent of the members, but I do not think for one minute that when the fathers of confederation were determining the quorum of the House of Commons in 1867 they decided upon a percentage. They just took what had been the practice in the past, simply an arbitrary figure of 20, and let it go at that. I do not think anyone ever worked it out on a percentage basis until possibly the committee of 1925.
The House of Commons of the United Kingdom has been functioning for many years, and they have a larger membership than we have. I think it is 625 at the present time. Their quorum was set at 40 over 300 years ago. Mr. Ivor Jennings, who has written an excellent work entitled "Parliament", states on page 75:
By a usage which dates from 1640, and which may be altered by resolution of the house, there is a quorum of forty members.
The quorum is set at that figure, and although they have an easy method of altering it they have not bothered so to do. I think the reason is the very reason I have already given, that the purpose behind the quorum is simply to see that things get started on time without too much trouble and to guarantee to members who are not present that nothing is being done in the chamber except by at least 20 members. In the United Kingdom the House of Commons, with a membership of 625, is satisfied with a quorum of 40.
The question of the quorum of the house at Westminster was raised about a year ago last December when the house was counted out unexpectedly. It was debating a government measure, the iron and steel bill, and it was discovered that there was not a quorum present. The house was counted out and the sitting adjourned. Following the resumption of business the next day Mr. Attlee twitted the government for permitting itself to be counted out on a matter of government business. There had only been four members of the opposition present, but he quite properly said that it was no particular concern of the opposition to maintain a quorum of the house when the government of the day was trying

British North America Act to reverse something the previous government had done. In his opinion the responsibility rested upon the government.
However, he looked back to see whether such an astonishing thing had happened before and was unable to find that their House of Commons had ever been counted out in that manner. They take extra precautions over there. In order to avoid counting out there is an arrangement that during the dinner hour-and I interpolate that their house meets from 2.30 in the afternoon until 10.30 with no adjournment for dinner-from 7.30 to 8.30 in the evening, no count shall be taken. During the course of the day if there is a count-out before four p.m. the house simply stands adjourned until that hour and then resumes business. They do not have to wait until the following day. It is only when the count-out occurs after 8.30 in the evening that the rules provide for adjournment of the house until the following day. I think it is obvious that their quorum is kept at a low figure in order to avoid unnecessary interruption of the business of the house.
I come now to another matter in the presentation of my hon. friend to which I take exception, the idea of compulsory attendance. As I understood him, he thought it would be wiser for us here to have more people sitting in the chamber under the compulsion of a higher quorum than to carry on as we are doing at present. I do not think the question of compulsory attendance, if it ever arises- I hope it will not

should be linked up with the question of a quorum. I believe there are two different things involved. I believe the quorum serves its own purpose, and that the question of compulsory attendance is separate and apart.
My hon. friend has suggested that even when several committees are meeting it should be possible to have more members in the house. It is an extraordinarily difficult task to determine why a member is not in the chamber at the particular time you yourself happen to be present, and I think we simply have to assume that other members are absent from the chamber for the same reasons that would cause me, my hon. friend, or any of us to be absent. There are committee meetings, there is correspondence, there are visitors who come at unexpected moments, and one could never determine at any given moment that a person should be here in the chamber and not elsewhere.
If you were to insert a suggestion of compulsion, then we would lose a little of the small amount of freedom we have. On the ground of compulsory attendance alone I would be inclined to oppose this bill. I think


there are ways and means for people to be called to account if their attendance in the House of Commons is not what some think it should be. Surely it has to be left to the members themselves to determine when they shall be in the chamber and when they shall be elsewhere.
Mr. Ivor Jennings, from whom I quoted before, has noticed that over in the United Kingdom they have the same trouble with attendance. I shall just give this short sentence from page 76. He says:
It is obviously not necessary that members should be in the chamber itself. They must be somewhere near the fount of oratory, but they need not drink. The visitor to the house is, in fact, impressed with the multifarious duties which members find to perform when an ordinary member is speaking in an ordinary debate. The hon. member may be addressing almost empty benches.
Well, that has happened to many of us here in the short experience that some of us have had. Nevertheless we are all well aware that when matters of vital importance to the state are being discussed here in the House of Commons, the place is filled. When matters of somewhat less importance are being discussed, people find it useful to do other things. By and large, the business of the country is carried on and most members are available when needed. We need only recall the occasions when the bell rings for a division, and the scores of people who appear whom we may have thought were not anywhere near this chamber. Consequently I think the idea of compulsory attendance should be entirely removed from this discussion. If the proposal to increase the quorum to 30 is based on the idea of compulsory attendance, it should be defeated on that ground.
I conclude by simply saying that the quorum is set at an arbitrary figure merely to get things going and to ensure that the business shall be conducted in an orderly fashion. There is no hint of compulsory attendance behind it; it is merely a method of having the business of the house conducted in an orderly fashion. I think we should avoid at all times any possibility of a countout of the house. It would be embarrassing to both sides, and it would be bad for public relations. If we keep the quorum at the low figure it now is, I think we will avoid having a count-out. We can be sure there will be members in the chamber or nearby at all times in case an urgent matter comes up.


Mr. Clarence Gillis (Cape Breton South):: Ordinarily I do not take part in a debate of this kind, Mr. Speaker. It is procedural, and there are a lot of technicalities attached to it. In listening to the discussion this afternoon I

thought it was rather unfortunate that the hon. member for Winnipeg North Centre (Mr. Knowles) should have had to introduce a motion of this kind. With the increase in the number of members in the house since the establishment of the quorum, those who write the rules should have been automatically influenced to increase the quorum, without any discussion in the house. If the remarks made by the member for Winnipeg North Centre were read outside by the average "Joe" on the street, it would lead him to believe that absenteeism in this house was much greater than that portrayed by the president of Dosco, at a time when he is trying to belittle the efforts of his workers.
I was rather amazed at the opposition of the hon. member for Winnipeg South Centre (Mr. Churchill). He based his whole opposition to the rule stating the number of members that could constitute a quorum on the principle that it was compulsory attendance. When we set up a committee of this house to examine legislation or bring in recommendations, the first thing we do when that committee sits is to fix its quorum. This makes it necessary for a certain number of members to be present before business can be transacted. No doubt the hon. member who takes that view has voted for that kind of motion in committees many times since being a member of this house.
In listening to his argument one would wonder as to the purpose for which we are elected. Is it not to attend this house and attend to the business of this country? Surely the present quorum expects a small number to be in attendance. I was looking at this book, Beauchesne's second edition-I am rather reluctant to consult this thing because every time I take a look at it I finish up more confused. I read the first edition and thought I knew a little about the matter. I read the second edition and decided I did not know so much. I looked at the third edition, and decided I would not read it.
On this particular subject, standing order No. 5 is very clear and very significant. It says this, and I should like the hon. member for Winnipeg South Centre to listen. It deals with the matter of compulsory attendance.


Gordon Minto Churchill: I did not advocate compulsory attendance.


Clarence Gillis: You said you were opposing the motion of your colleague from Winnipeg on the ground that it meant compulsory attendance. The book says you are compelled to
British North America Act be here anyway, and you certainly cannot disagree with the book. Standing order No. 5 reads:
Every member is bound to attend the service of the house, unless leave of absence has been given him by the house.
A member has no right to be out of this chamber unless Mr. Speaker tells him he can be absent. I do not see why there is any opposition to this bill at all. It is ridiculous for the matter to be here. I would suggest, Mr. Speaker, that without any more discussion or fanfare we just gracefully accept this motion and say it is a conservative approach to the problem to move that at least 30 members who were elected to attend the people's business in this chamber should be expected to be here when that business is being transacted.


Mr. J. L. MacDougall (Vancouver-Burrard):: Like the hon. member for Winnipeg South Centre (Mr. Churchill), I did not expect to enter this debate except to suggest to hon. members present that when the question of a count-out comes up I hope we do not get into the position where we shall be involved in a Dempsey-Tunney short count or long count.
The hon. ^ member who has just taken his seat has said that he would utilize standing order No. 5 as it is set out in Beauchesne's second edition. This was most illuminating, because I believe it was the first time I have ever heard that hon. member discuss the rules of the house as they are set out in any of the three Beauchesne editions. I thought he, like myself, was one who never really consulted those publications with any degree of sincerity or study. We realize, of course, that the honour in that respect goes to the hon. member for Winnipeg North Centre.
However, be that as it may, it seems to me this is not a problem of compulsory attendance. If we are to be fair to ourselves we must admit that if we did not want to be here we would not be here. First of all we asked the electors to send us and, having been sent here, it is our duty to attend. I have a good deal of fun in my discussions back and forth with members in all parts of the house, particularly those from Ontario and Quebec who, because they are closer to their constituencies-much closer than those of us from the Pacific or Atlantic coasts- have to attend certain functions in their constituencies necessitating their absence from the house.
I am not one who will condemn them for that, because such attendance at those functions is part and parcel of our democratic

British North America Act system. Unfortunately those of us who come from the far Pacific or the Atlantic are in the position that, while we would like on many occasions to be back in our constituencies to attend particular events, because of the 3,000 miles separating us from our constituents we find such attendance at those events impossible.
As a second termer in the house I might say that in the twenty-first parliament I noticed as a freshman that to the best of my knowledge there was no occasion when the count-out was used. I know, as a whip from British Columbia, that when membership in the chamber got low it became my responsibility, and that of others holding similar office without emolument, to see that members were brought here.
I do not consider this situation too seriously because, regardless of our individual opinions in the matter, we must always keep in mind the type of representation meant by a quorum. One could quote from Webster or from other dictionaries in seeking a definition of a quorum. I think, however, that from a practical standpoint the people of Canada generally consider a quorum to be the irreducible minimum of membership present in the house whereby the business can be conducted in a proper manner.
Let us permit it to rest there. In the last parliament, and I expect we will have a similar situation in this one, there has been good representation from Tuesday to Thursday. I am sure that hon. members who are not present on any of those days have always had excellent reasons for their absence. Then we come to the last sitting day of the week, at which time duties call members to the various constituencies which are located reasonably close. They find that they make the return journey over the week end, perhaps extending into the following Monday.
If we were to add an additional ten members to that irreducible minimum by which the business of the country can be transacted, what would it mean? It would mean that those from the far east and the far west would be the ones who at the first and the last of each week would hold the bridge. Since 1867, the year of confederation, we have gotten along very nicely with a quorum of 20 members. It is true that the membership of the house has increased but, as was pointed out by a previous speaker, they have a quorum of only 40 members in the old land, with a membership of 625.
I am expressing only my personal views when I say that the main issue is the business of the house; and if, as has been proven, that business can be conducted on the basis of a

quorum of 20 members, I can see no legitimate or valid reason why at this time we should increase the number from 20 to 30.
The electorate of Canada are not particularly concerned whether it is 20 or 30 or, indeed, 130. They are interested in the results accruing from the deliberations of members of the House of Commons in respect to the welfare of the country.
On motion of Mr. MacDougall the debate was adjourned.


Mr. Speaker:: The hour for private and
public bills having expired, at eight o'clock the house will resume the business interrupted at five o'clock.
At six o'clock the house took recess.


[Stage Direction]
AFTER RECESS

The house resumed at eight o'clock.


[Stage Direction]
The house resumed consideration of the motion of Mr. Garson:
That a joint committee of both houses of parliament be appointed to inquire into and report upon the questions whether the criminal law of Canada relating to (a) capital punishment, (b) corporal punishment or (c) lotteries should be amended in any respect and. if so, in what manner and to what extent:
That 17 members of the House of Commons, to be designated by the house at a later date, be members of the joint committee on the part of this house, and that standing order 65 of the House of Commons be suspended in relation thereto;
That the committee have power to appoint, from among its members, such subcommittees as may be deemed advisable or necessary; to call for persons, papers and records; to sit while the house is sitting and to report from time to time;
That the committee have power to print such papers and evidence from day to day as may be ordered by the committee for the use of the committee and of parliament, and that standing order 64 of the House of Commons be suspended in relation thereto;
And that a message be sent to the Senate requesting that house to unite with this house for the above purpose and to select, if the Senate deems advisable, some of its members to act on the proposed joint committee.
(Translation):
J.-Wilfrid Dufresne: Mr. Speaker, it is not my intention to delay the debate, but, as I stated this afternoon, I would like to give my humble opinion on the matter now before the house.
It is obvious that crime is increasing in Canada as well as in all countries of the world. I shall not attempt to mention all the reasons that lead to crime or to murder.

I shall only say that murders are being committed in the most horrible and even unthinkable way.
As was stated this afternoon during the debate, the murderer kills for motives of vengeance, passion and jealousy. However, one has but to look at the statistics to see that most often theft is the main motive of the crime. The murderer does not usually kill in order to obtain what he needs for his subsistence.
Most of the time, and it is very unfortunate, murderers are young people in their twenties; they are the ones most often accused of murder before our courts.
Those young people want an easy life, without having to work to earn their living; they want to drink, to lead a disorderly life and indulge in immorality. In my opinion, it is not by abolishing capital punishment that we shall succeed in suppressing murder and crime.
However, I believe it is the duty of parents to keep up their efforts and give our young people the necessary advice and especially the example they need, which is indispensable in cases of that kind, so that our young people may take the right path in life and become Canadian citizens worthy of the name.
This afternoon I heard the hon. member for Vancouver East (Mr. Winch) say that he had visited some prisons. I had occasion, a few years ago, to visit the Bordeaux jail. As a matter of fact I once had the opportunity of entering what is called the death cell. Only a few steps away was the trap through which the murderer falls into eternity. Fortunately, when I visited that spot, there was no condemned man inside the cell. Still, I believe that if all young men who are now thinking of embarking on a life of crime, of walking that road which probably will lead them to the scaffold, had the opportunity to see that death cell, to have a look at the gallows on which they will pay for those crimes they are premeditating, fewer of them would feel that they are cut out for a bandit's life.
I feel that now is the time to broadcast a vibrant appeal to the young people of this country, to ask them, not only for the sake of their country's honour but more especially so as not to leave in their family's heart a festering wound, to turn their steps along that road which leads to honour and away from crime and murder.
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Educators in our schools, colleges, as well as in our universities, are real apostles in this respect, and I am of the opinion that all our young men should bear in mind the teachings of these educators.
That is why I also believe that parents should continue to look after the education already started in this direction.
There is also another reason which prompted me to rise in this house in order to speak on this matter. In my opinion it is also the duty of the state to analyse the circumstances in which most murders are committed, for, as I was saying a few minutes ago, the motive of the crime is, most of the time, theft. Why does one steal? Because, of course, one has not sufficient means to meet one's obligations-


Mr. Speaker:: I regret to interrupt the
hon. member, but after having listened to him for several minutes, I patiently expected that he would link up his remarks with this motion concerning the establishment of a committee to consider three things: capital punishment, corporal punishment and lotteries.
If the hon. member wants to give some reasons why he is in favour of capital punishment or of changes in that punishment in order to check crime, it is perfectly in order for him to do so. However, I believe that during these last few minutes he has wandered somewhat from the question which is now before the house.


J.-Wilfrid Dufresne: I thank you for your remarks. I take due note of them-


Pierre Gauthier: I hope so.


J.-Wilfrid Dufresne: I beg your pardon? I
take due note of them, but if I wandered about a little I may say that I did like the fellow who wants to go to Montreal. As you know two roads lead there, and I may have taken the longer one, but I will get to the motion just the same.


Mr. Pouliot:: You did go to Montreal; you mentioned the cell of those who are sentenced to death in Bordeaux.


J.-Wilfrid Dufresne: Well, it took me a long time to come back to Ottawa, but here I am at last.
Mr. Speaker, I am entirely in favour of setting up a committee where we will have the opportunity of studying the ways and means of checking the crime wave in order to reduce the number of death sentences. One matter which, I believe, could very well

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be considered concerns the lack of employment now experienced by thousands of people across Canada and especially in the county which I have the honour of representing. I am of the opinion that the government should also co-operate to bring about the solution of this problem.
As far as lotteries are concerned, the Criminal Code should be amended so as to allow the provinces to organize lotteries, the proceeds of which would be used to give help to hospitals, as well as for relief and, more particularly perhaps, educational purposes.
If my memory serves me right the government of the province of Quebec unanimously adopted-not very long ago-a motion in favour of state lotteries as a means of subsidizing education. Millions of dollars leave this country every year which could be used with advantage right here in Canada and of which our people are being deprived. No one will ever stop our people from gambling. They will never give up the pleasure of betting. In the meantime we are losing millions of dollars to other countries which could otherwise be kept here and be of immense service to education, public welfare and hospitals.
Consequently, I am definitely for the setting up of this committee to ensure that the Criminal Code be amended not to abolish capital punishment but, if possible, to allow for lotteries under provincial sponsorship which would enable us to give our universities, for example, the money they need to meet their obligations and at the same time prevent the federal government from interfering in matters which come under the exclusive jurisdiction of the provinces.
Mr. Jean-Fran?ois Pouliot (Temiscouala): I shall be brief; I shall say in a few words what I think of this motion.
(Text):
Mr. Speaker, I want to be understood by all my hon. friends. We must consider this matter with an open mind because it is a serious matter. What strikes me is that those ladies and gentlemen who are in favour of the abolition of capital punishment are without any experience in law. They are kindhearted people who consider it wrong to punish a murderer by putting him to death. They have the best intentions in the world, as have those who favour capital punishment. It works both ways.
But they forget that those who have committed murder have not abided by the law and have had no consideration for the neighbour whom they have killed or for the relatives and children of the murdered man. It
[Mr. Dufresne.l
is a serious matter. Some people seem to be under the impression that if things are left as they are, if there is no change made in the provisions of the Criminal Code with regard to capital punishment, then the members of parliament-I include the members of both houses-will be indicting any man charged with murder and sentencing him to death. That is not the case at all. Far be it from me to think that with the experience I have had as a member of the bar appearing before the bench and the jury box.
What about the jury? The jury is one of the most remarkable and useful institutions in British corpus juris, the right of a man to be judged by his peers. The members of the jury are selected for the panel by the attorney general of the province, or under his authority by the local people.
What happens? A murder is committed, not always in connection with theft as was suggested by the hon. gentleman who just spoke. A murder may be inspired by passion, by love, by vice, in connection with kidnapping and rape and the defilement of children. A murder may be committed for many reasons and for many objectives. Are we to be so tenderhearted that when a man commits murder we will be more indulgent toward him than he has been toward those who have suffered at his hands? Shall we forget that by being indulgent toward a man guilty of murder we encourage the idea in the minds of those who may be inclined toward committing murder?
What about the stories we read in the newspapers glamourizing murderers, showing their pictures, describing the colour of their shirts? That is often the treatment given by the newspapers to the man who has killed another man or woman. The press is hideous in giving yellow details about these men who should be ignored, who should be hanged in secret and seclusion. Instead our press appeals to the morbid feelings of the crowd, which is often more rapacious than the people to be found in the wildest part of Africa.
In what sort of age do we live? Why is it that the first thing read by young people is often the headline of a murder trial, the trial of a man who is unworthy of having been born? What about the women who are shameless enough to pack our courtrooms in order to listen to all the details of a murder? In what age do we live? Capital punishment should remain on the statute books as a protection for society. In the past, Mr. Speaker, death was the penalty for rape but the courts have been rather indulgent-is indulgent the word? The courts have been weak in not applying capital punishment to rape. What is the result?

When other hon. members are through I will go on, Mr. Speaker.


Mr. Speaker:: Order. Perhaps since the hon. member himself has interrupted his speech I may tell him that I think he is wandering away from the subject. The manner in which the courts deal with the sentences to be given people who have committed different crimes should not, I think, come in at this time. Let us keep our remarks within the ambit of the resolution. I would ask hon. members to keep silent. They may whisper, but they may not speak loudly enough to disturb the hon. member who has the floor.


Jean-François Pouliot: I beg your pardon, Mr. Speaker. The matter I was dealing with was capital punishment, and I was explaining to hon. members who do not belong to the legal fraternity as do you and I the role of the jury in the matter of capital punishment. I was also explaining to them that the right of the jury to find a man guilty of murder should remain on the statute books and that the sentence is not given by the jury but by the presiding judge, who has no option. When the jury reaches the verdict that the man before the court is guilty of murder, then it is the duty of the judge to sentence him to be hanged, subject to an appeal to the Minister of Justice (Mr. Garson) who is also the Attorney General of Canada.
But my point, Mr. Speaker, and I want it to be well understood, is that by leaving that provision in the Criminal Code we leave to the jury the right to decide whether or not a man is guilty of murder. In that connection, sir, I cannot but remember what was said to me by no less a criminologist than the late Sir Frangois Lemieux, then chief justice of the superior court of Quebec. He told me that the institution of the jury was the greatest protection and the safest guarantee of freedom of the individual in our country, not only in the province of Quebec but in our country at large, because the Criminal Code applies to each of the provinces of Canada.
That is my point, and when I speak in that way my object is to explain just as clearly as I can to my hon. colleagues that by leaving the Criminal Code as it is, according to the words of a man who knew his business and is remembered as one of the greatest judicial minds of Canada, a man who saved several people from the rope, we are guaranteeing the freedom of the individual in cases of that nature.
Jurymen are chosen from amongst the common people like you and me, sir-I beg your pardon-and they are chosen from all ranks of society. Twelve are chosen, and there is a right to challenge the jury if they 83276-67
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are prejudiced. That is another protection. These twelve men are there; they are conscientious, they listen to the grim charge of the crown attorney, then to the plea of the attorney for the defence and then, according to British judicial tradition, there is the charge of the judge who must be impartial, otherwise the verdict is quashed on appeal. That is considerable protection.
My first point in regard to this very serious matter, Mr. Speaker, is that due to the fact that we enjoy the institution of the jury in this country there is no reason at all to change the provision of the Criminal Code concerning capital punishment for murder. 1 will go further than that. I submit, Mr. Speaker, that capital punishment should be applied to rape, and should be applied to kidnapping and to the defilement of children. We have enough of that. Everyone has in mind the whole story of cases such as that, but I respect you too much, Mr. Speaker, and I respect my colleagues too much to mention those cases in the house. I think every hon. member knows what I am speaking of; and do you not agree, sir, that if capital punishment were applied to rape and to the defilement of children there would be an improvement? In my humble view capital punishment was not enough in some cases about which we have read recently. In the case of the airplane crash that occurred near Quebec not long ago it was not enough.
There is something else, sir, and I will take advantage of this opportunity to speak about it now. I refer to mens rea, the guilty intent that must exist for the matter to be murder. Otherwise, as you know, it is only manslaughter. I take this opportunity to mention en passant the shameful way in which the police, whether federal, provincial or municipal, try to get confessions of guilt by promising people that they will not be so severely punished if they confess, if they declare themselves guilty. I shall have other occasions to speak about this matter.
To summarize, I find that the present dispositions of the Criminal Code do not go far enough, and I suggest that they should be extended to some other crimes which make us think that our civilization is doomed.
With respect to lotteries, I shall be very brief. There are things that I cannot understand. Those who sell the tickets are denied postal rights. Their names are published in the monthly periodical of the Post Office Department, and they cannot receive letters. Letters addressed to them go to the dead letter section. On the other hand, those who buy tickets and win money have their pictures in the newspapers, and they get their money without any trouble. I find this unfair.

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Stanley Howard Knowles: Free of income tax, too.


Jean-François Pouliot: Presumably so; I do not know because I have never earned anything that way. But I suggest that the matter should be considered from every angle by the special committee. If it is a bad thing to sell the tickets I do not see how those who are fortunate enough to win can keep the money. It is beyond me. If it is legal to take money from a lottery it should also be legal to sell tickets. I have no personal views about the usefulness of lotteries or whether or not they are very much apropos. They may be. I am not discussing that, but I think our Criminal Code should be fair and should be in accordance with the regulations of the Post Office Department.
This shows that with regard to the Criminal Code, as with regard to any matter, one must exercise a little common sense, and I am sure those who will be members of the committee that is about to study these matters will be endowed with a great deal of it.


Mr. Claude Ellis (Regina City):: Mr. Speaker, I want to make a few comments at this time, and I am not going to apologize for not being learned in law because I feel that at times lawyers are very adept at throwing out convenient smokescreens.
I wish to refer to the comments regarding juries. I cannot quite appreciate the view expressed, because my understanding of the law is that the jury finds the accused either guilty or not guilty. It is not for the jury to decide the method of punishment. The jury finds the accused guilty or not guilty, and it is for the judge to impose sentence. Thus I fail to understand the comments by the last speaker about the jury system. I do not think the question of the jury system has anything to do with capital punishment at all. After all, capital punishment is the punishment for a crime.


Jean-François Pouliot: If my hon. friend will permit, the role of the jury is to decide whether a man is guilty or not guilty. If it finds him guilty then there has been a murder, and hanging follows. If the jury in all its wisdom says not guilty, it is finished-no murder, no hanging.


Alfred Claude Ellis: Then am I to gather that a jury might feel constrained to find a man not guilty if the jurors were not anxious to see him hanged? That would be the only way the jury could possibly spare a man from the gallows.


Edmund Davie Fulton: Frequently they do.


Alfred Claude Ellis: But my understanding of the law is that if the jury brings in a verdict of guilty the judge has no other recourse than to

impose the death sentence. Therefore I quite fail to understand the arguments as to our jury system. What we are concerned with here is the question of punishment, and irrespective of whether or not capital punishment is abolished the same procedures in connection with the apprehension of criminals, their trial and conviction or acquittal will continue. The jury will find the accused either guilty or not guilty. There will be no change whatsoever up to the point where the judge imposes sentence.
When it comes to that stage, I want to suggest in all humility that there are other experts in the country besides lawyers. I suggest that some of our criminologists, penologists, psychologists and psychiatrists-


Jean-François Pouliot: Not psychologists; they are no good.


Alfred Claude Ellis: -have much to offer in connection with the important matter of the punishment of those who are found guilty in courts of law. I was rather at a loss to understand all this discussion regarding the jury system. What we are concerned with is the question of punishment, and it seems that there are two basic points of view. There are those who, because of moral or religious reasons, are opposed to capital punishment as a matter of principle. Then there are those who, like the hon. member who just spoke, not only support capital punishment but would extend it. They would turn back the clock, so to speak. We have two very divergent points of view, but I am sure there are many Canadians, and a good many members of the house, who are perhaps unable to come to one or other of these two conclusions.
This afternoon the hon. member for Saskatoon (Mr. Knight) related the long process he went through in formulating his present stand in support of the abolition of capital punishment on balance, I believe he said. I believe there are many Canadians who are wrestling with this question in their consciences, but I feel that the attitude many take is that unless it can be proven conclusively that capital punishment is totally ineffective, the law should remain as it is.
I have done a little reading on this subject and have searched around as much as possible to find evidence one way or the other, and I must say that the preponderance of the evidence I have seen would seem to indicate that capital punishment is not effective. Even if one were not to go that far, but say there is reasonable doubt as to the effectiveness of capital punishment, then I say we ought to err on the side of being humane and civilized in this matter. In other words, the only

justifiable reason for maintaining capital punishment would be that the abolition of capital punishment would throw open the doors and leave this country open to a great increase in the number of murders, as some of our people have suggested. I do not believe that anyone in Canada wants to see anyone hanged or executed in any other way. Only a sadist would get any satisfaction out of seeing a man put to death. I suggest there must be very sound reasons for taking a man's life.
The question that must arise in our minds is simply this, whether or not we agree in principle with capital punishment. Would the removal of it bring about a great increase in crime, particularly with respect to homicide? That is the only justification for the retention of capital punishment. We learn from experience. We know that in those countries where capital punishment has been abolished there has been no increase in homicide. As a matter of fact we know that in Denmark the last murderer was executed in 1892; in Holland the last execution took place in 1860; in Norway, in 1876; in Sweden, in 1909, and in Switzerland, in 1924.
In the years that followed the abolition of the death penalty there was no increase in murder in those countries. Wherever we look throughout the world, the abolition of the death penalty has not been followed by an increase in homicide. Why should we, therefore, believe that in Canada the situation would be very different? If the abolition of the death penalty in Sweden, for example, was not followed by an increase in homicide; if in Norway or Switzerland the abolition of the death penalty did not bring about an increase in murders, what reason have we to suggest that this country will be overrun with murderers the day after we abolished the death penalty? We have no logical reason for believing that.
Without wishing to go into the moral or ethical reasons for the death penalty, pro and con, since the subject was dealt with very effectively by my seatmate, the hon. member for Vancouver East, this afternoon I do want to leave this idea with the house.
I hope when the committee meet they will take this attitude. We do not like to take human lives; therefore we will not take human lives unless it is absolutely essential. The burden of bringing proof will not be upon those who want the abolition of capital punishment but upon those who want to retain capital punishment, to prove to the members of this house that we cannot do without it.
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I believe the evidence indicates that we can do without it. In any case, I maintain that if there is any reasonable doubt in the minds of the members of this house, and if a mistake is to be made to the slightest degree, let us err on the side of humanity and decency.


Mr. G. W. Montgomery (Victoria-Carleion):: I do not intend to take up much time on this subject, Mr. Speaker. The matter has been dealt with thoroughly, in so far as I am concerned, by my colleague the hon. member for Kamloops (Mr. Fulton). Having been a member of the special committee which worked on the bill last session, I feel I should like to say a word about that committee. First, I am one hundred per cent in favour of this committee being set up. The speakers who have preceded me have indicated there is a divergence of view across this country about capital punishment. At the last session the committee wisely recommended that a special committee be set up to study these particular subjects. I am very glad that the minister and the government have seen their way clear to appointing this committee. I imagine it will be given the broadest terms of reference.
If the committee at the last session had left the code as it was, I feel there would have been a lot of criticism. If in the limited time available last winter we had undertaken to deal with these subjects, there would have been much criticism. I feel the committee acted wisely in the recommendations that were made. As I said, I have very little to add to what other members have said. I feel all hon. members should approach this subject with an open mind.
I cannot agree entirely with the hon. member who just spoke that we should consider this whole question of whether or not we should abolish capital punishment on the basis of whether it might reduce or increase crime. I look at it from a different standpoint entirely. Of course I am a lawyer. I have had no great experience in criminal practice, but I have had some. I have a lot of faith in the jury system. I believe the jury system ties in with this subject of the criminal law and with every phase of crime, prosecution and punishment. I believe that people who are accused of crime are well safeguarded under our criminal system as it is at the present time. The prosecution takes a very fair stand, and in most cases places before the court all the evidence, not only against the prisoner but anything known to be in favour of the prisoner which might

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permit him to have a fair trial and which is not placed before the court by him or his solicitor, if he has one.
This afternoon the hon. member for Kamloops struck the nail on the head, if I might be permitted to use that expression, when he said the jury system is the greatest protection for the people of this country. I feel it should be carefully studied. I believe it was a fine thing to have this whole matter considered by a committee.
There is just one point I should like to add which I do not think has been touched upon. It may be that the minister intends to have it included in the study anyway. I have not heard anyone mention that this committee might consider also the method of carrying out the executions. A lot of people do not like capital punishment because they do not like the idea of hanging. It seems a gruesome thing. I presume the terms of reference will give this committee the privilege of studying other ways of carrying out the death sentence, if it remains, and making some recommendations about it.
The next point I should like to mention is that the committee ought to consider whether or not these executions should be carried out within the jurisdiction of the court by which the accused is found guilty. It might be a good idea to have these executions carried out in some central prison. I feel that is another subject which might well be considered.


Stuart Sinclair Garson: The motion covers both those matters.


Gage Workman Montgomery: Thank you very much. I think that covers about all I have to say, except one more word about the committee on which I worked last year. As a new member of parliament and a junior member on the committee, it was a good education for me. I enjoyed the work very much, under the chairmanship of the hon. member for Essex West (Mr. Brown). That was one committee that worked diligently and faithfully. So far as I know everyone did his best to improve the Criminal Code in every way possible, while at the same time protecting and safeguarding the interests of the country.


Mr. Angus Maclnnis (Vancouver-Kings-way):: Mr. Speaker, I have only a few remarks to make in this debate. Indeed, I rather think perhaps this is not the proper time to have a debate on the subject at all. What we have been hearing this afternoon and this evening would have been better said after we had the report from the committee that is to be set up to deal with the matter.

If the debate this afternoon and this evening has demonstrated one thing more than another, it is that many of those who have taken part in it are certainly not qualified according to our rules to be members of the committee. That does not hold, however, for the hon. member who last spoke. I would say, with him, that I too was glad to have the privilege of serving on the committee on criminal law last year. It was an education in itself.
What troubles me in regard to capital punishment is that if it is a bad thing for one person to take another person's life, then it is also a bad thing for the state to take a person's life. I do not want to be misunderstood, because certainly I have as little use for a man who commits murder as has any other member in the house. But I think today, in our ideas respecting those who violate our laws, we are getting away from the idea of punishment and directing our thoughts more along the lines of the protection of society and reforming the individual.
I appreciate that that cannot very well be done in the case of a person who commits a murder. He must be put away and, for the protection of society, he must be put away for good. I believe it was the hon. member for Regina City (Mr. Ellis) who said that today most people are revolted by the method by which executions are carried out.
I have read some considerable history, and it seems to me that as the human race advances its members become more humane in their dealings with one another. It is really only in that way that one can say the human race does advance. I was interested in what was said by the hon. member for Temiscouata (Mr. Pouliot) when he, as well as others, referred to the protection given by the jury system.
I am not sure that the jury system protects anyone. I am, of course, in favour of it; but let us remember this, that in every murder case, or almost every case coming before a jury, the prosecution as well as the defence are chiefly concerned about the calibre of the lawyers representing them. If I had need of a lawyer I would most certainly look for a good one. I believe it was one of our national journals in which appeared recently a story concerning the beginning of the legal career of a prominent member of this House of Commons, which referred to the help given him by the jury in winning his first case. I would like to have a lawyer like that, if it were my misfortune to find myself in a similar circumstance.
The prosecuting attorney tries to impress the jury in one way and the defending

lawyer tries to impress it in the other. Sometimes it is the power to influence that is the deciding factor, rather than the evidence in a case. In almost all murder cases the evidence must of necessity be circumstantial. A person who is about to commit a murder does not publicize or advertise it, so that people will come around to see it. He proceeds in a quite different way. The result is that lawyers and juries must make as intelligent guesses as they can as to what has happened and, on the basis of those guesses, bring in a verdict of guilt or innocence, involving hanging or acquittal.
These are some of the reasons I find it hard to accept capital punishment at all. I think we should get away from the idea of punishment and think more in terms of protecting society. In my view the hon. member for Temiscouata was on more dangerous ground when he advocated the extension of capital punishment to the crimes of rape and kidnapping. While I am not an authority or an expert in these matters, like most hon. members in the house I have read the opinions of others who have studied these matters and who are convinced that there would be fewer murders in connection with kidnapping if kidnapping itself was not a crime punishable by death. The same is true in the matter of rape.
How does that apply? If the person injured were going to lay a complaint, her evidence would be convincing. But dead people do not lay complaints and, in order to prevent such a person laying a complaint, murder follows the first crime. That, I believe, is the way the criminal mind works. To make the death penalty apply would not diminish the number of such crimes. I do not believe anyone who commits any of these crimes is ever in an emotional condition to consider the pros and cons of what may happen to him or to her, as the case may be, if he or she does what he or she has in mind. I do not believe anyone can accept that idea.
However, I am glad the Minister of Justice is setting up the committee. Regardless of what it may find, it will be good for the people of Canada to study the matter and to hear what is to be said on both sides of the question. Experts as well as laymen are interested in this matter. We all want to do the best we can for the society in which we live and so advance that society that we can diminish those anti-social acts that call for punishment.


George Alexander Drew: Mr. Speaker, before this debate is closed I do want to say something about
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the subject that has most actively engaged the attention of hon. members in their comments about this committee. 1 do not propose to make any remarks about the two very important subjects of corporal punishment and lotteries. They have been adequately covered, particularly by the hon. member for Kamloops (Mr. Fulton); but I do want to speak about the discussion in regard to capital punishment, particularly as it has taken form here this evening.
What has been said by the hon. member for Kamloops and by the other hon. members who have raised certain questions here has not been in opposition to this motion. I recognize that the Minister of Justice (Mr. Garson) has been well aware of that from the time the discussion began. It would not be proper for the members of this house at this time to seek to tie the hands of the committee that they will appoint on the adoption of this motion, if it is adopted, as it would appear that it will be, I should think, unanimously. Nevertheless, the way in which this committee does its work, the way in which it approaches the subject, may very well be guided in some degree at least by the attitude expressed toward the subject matter of its inquiry.
The committee will doubtless hear different views, and the different views which have been expressed here will undoubtedly be expressed again when that committee meets. In the examination of the witnesses and in the calling of evidence undoubtedly different approaches will be suggested by different members of the committee. It may well be, however, that if the members of the committee became convinced that one point of view or another was clearly the point of view of the members of the house, they might in some measure seek to anticipate that point of view. It is with that thought in mind that I wish to make a few remarks in regard to capital punishment.
This is a moral question. It is a question that deals with the right of any human being, individually or collectively in the form of society itself, to deal with any matter that may arise, to deal with any guilt that has been proved, by depriving some other human being of life itself. Capital punishment is a terrible thing. It is not inappropriate that the full horror of capital punishment should be discussed, as it has been discussed here in dramatic terms today. It is appropriate that we should bear in mind exactly what it is that the parliament of Canada is permitting the courts to do after a man or a woman is found guilty of a capital offence.

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By all means let us hope that the committee to be appointed by this resolution will consider this subject from the most enlightened and civilized point of view.
But, Mr. Speaker, let us remember that there would be no death penalty if there were no murders. The death penalty is a terrible thing, and so is murder, an act by an individual who has defied the laws of society and not merely deprived some innocent individual of life but perhaps for the long years ahead will have brought tragedy and despair and the denial of the ordinary decencies of life to the wife and the children of one who has been shot down in cold blood by thugs who have armed themselves, perhaps not with the idea of murder but reckless as to what the results will be.
Yes, by all means let us examine this in a most civilized way. It may be that with the advancement of society some better method will be found but, Mr. Speaker, let any approach to this subject have first and foremost in the minds of those considering it the fact that what we are trying to do today is place it within the power of our courts to prevent murder by the example of the punishment that is inflicted. I personally do not believe the statement that the fear of death is not a deterrent. I personally do not believe that some young man, conscious of the fact that death would be the result of his reckless use of weapons, would not think twice of taking that weapon on some adventure that might result in death and in his own punishment for a capital offence. It is contrary to everything we know in human nature to think that anyone looking at that pistol or knife and taking it in his hand would do so without some thought of what the penalty will be if the adventure in which he is about to engage should result in death and a subsequent conviction for murder.
We have had a number of rather dramatic examples in this country of the kind of thing that should be in the minds of the members of the committee-and which I hope will be in the minds of the majority of the members of that committee-in making their recommendations back to this house. Already the hon. member for Temiscouata (Mr. Pouliot) referred to that almost unbelievable multiple murder when a time bomb was placed in a passenger aircraft flying from the city of Quebec to Sept lies. An almost unbelievable murder it was. To murder his own wife a man followed a course which meant death to many innocent human beings. Those 21 people who died left behind widows and children who for long years to come will have reason to remember that horror.
Just think of what happened only a few days ago in St. Michael's hospital in Toronto, when a brilliant young girl was murdered in a laboratory of that great hospital. Certainly let us remember that if the man or woman who committed that murder is apprehended the courts will be dealing with a human being; but remember also that the young woman who was murdered was a human being performing a humane task of great advantage and of great importance to many people in that hospital. Think of the bank manager in the province of Quebec who before Christmas was shot down by young men who perhaps did not contemplate murder, but having guns in their hands used those weapons when the bank manager resisted the theft they were trying to carry out.
From one end of this country to the other reports come to us of crimes of violence against decent, simple human beings whose lives are of immense importance to other decent human beings. The purpose of parliament and the purpose of the committee which will make its recommendations to parliament should be to do everything within the judgment of sensible men and women to discourage in every way possible that type of horror which affects such a wide area of our society when it occurs.
I am not laying down any dogmatic opinion in regard to the death penalty, but I do say that if there is going to be a balanced consideration of the humanities, let that consideration rest on the innocent people who are being shot down or knifed or otherwise destroyed. Let us think in terms of how we can best prevent that by example, if that can be done in any way.
There have been strangely conflicting arguments and certain statements which I do not think should pass without notice. I heard, as did other hon. members, the statement that it is a terrible thing to think of people engaging in the gruesome pleasure of taking social revenge. No one is contemplating the gruesome pleasure of social revenge. What we are considering is every sensible step that may be taken to end the gruesome horror of cold-blooded murder.
There have been some conflicting arguments presented. I do not question for one moment the good faith of those advancing the arguments, but I suggest that they be reviewed by those who have put them forward. On the one hand we were told that the thought of life imprisonment was even more terrifying than the death penalty. We had scarcely been told that when all the horrors of the contemplation of the death penalty

were pictured to our minds. I think the latter was the correct interpretation.
It is a horrible thing; but to the extent that the death penalty may act as a deterrent, then everyone on this committee and in this house should be most reluctant to change the law as it now stands until he has heard more convincing evidence than has yet been submitted. That may come, and if it does come I have no doubt the committee will listen and give careful consideration to what is said; but I would hope that the very natural instinct of humanity to look with consideration toward any other human being will not be carried to the extent of doing anything that will make it more likely that young men will put weapons in their pockets, carry knives or do those things that have brought so much tragedy to this and other countries.
I am not overlooking one thing that was mentioned by one hon. member here today. I am not overlooking the fact that some murders are committed by those whose condition has been brought about by alcohol. That very fact imposes upon those who are charged with any responsibility in that respect the duty of exercising the greatest caution and the greatest restraint that can be exercised in regard to the abuse of alcohol. The record is clear. I think there are many instances of violence by those crazed with alcohol. With that in mind an attempt should be made to follow a course that will discourage people carrying lethal weapons, and to keep before the minds of those who may be engaged in some other enterprises the dangers of following a course that may carry them to murder itself.
The trend in this country should not be a trend that will throw the doors open wider to crimes of violence of any kind, but rather in this country of ours our first thought should be of those decent citizens who at all times should be protected.
Mr. Stanley Knowles (Winnipeg North
Centre): Mr. Speaker, my colleagues the hon. member for Vancouver East (Mr. Winch), the hon. member for Saskatoon (Mr. Knight), the hon. member for Regina City (Mr. Ellis) and the hon. member for Vancouver-Kings-way (Mr. Maclnnis) have expressed views on this question of capital punishment with which I agree. Therefore I shall not take the time of the house to repeat any arguments which they have put forward. However, in view of the way in which this debate has gone I feel constrained to rise and make what I think is an additional argument in support of the abolition of capital punishment.
Before I indicate the additional argument which I wish to make I want to say that 1
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am glad the Minister of Justice (Mr. Garson) has made the proposal that a joint committee be established to go into this and other questions. I certainly hope that the consideration given to these questions by that committee will be objective. I express that hope despite the trend of the discussion back and forth in the house this afternoon and evening. As I listened, not only to the speeches that have been made but to the volume of applause on one side rather than the other, it has appeared to me that maybe the case is weighted on one side even before the committee meets.


Stuart Sinclair Garson: Mr. Speaker, I wonder if I
might in the friendliest way possible raise a point of order which I perhaps should have raised at a much earlier stage in the debate. The motion which is before the house at the present time is to set up a committee which, if it is to do its duty effectively, must approach its task in the most objective manner. The sole question is whether that committee will be set up or not set up. I should think that in relation to that subject a debate upon the merits or demerits of capital punishment would be of all debates most calculated to prejudice in advance the efforts of the committee.
In saying this I am in complete agreement with the remarks just made by the hon. member for Winnipeg North Centre (Mr. Knowles). I wonder if the hon. member, with a concern for order that perhaps not all of us are able to equal, will not be one of the first to deal with the subject which is under discussion, that is whether we shall or shall not set up this committee. If we set up the committee, I think everyone in the house will agree that it will get off to a much better start in its important task if the water has not been muddied by acrimonious debate on the merits or demerits of the subject matter upon which the committee will try to decide and report.


Stanley Howard Knowles: On the point of order which has been raised by the Minister of Justice (Mr. Garson) I must say, Mr. Speaker, that I might have found it easier to go along with him if he had raised it much earlier in the day, in fact if he had raised it during the course of the first speech that went into the substance of the question of capital punishment. I might also have found it easier to go along with him if he had not indicated, when he was anxious to get the debate closed on the motion for second reading of Bill No. 7, that there would be an opportunity to discuss the question of capital punishment on this motion to appoint a committee.


Stuart Sinclair Garson: On a point of privilege, Mr. Speaker, I am not suggesting for a moment

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that the question of capital punishment should not be discussed, but I think in keeping with the motion in connection with which it is now being discussed it would be more appropriate and helpful if it could be discussed at this stage in as noncommittal a manner as possible.


Stanley Howard Knowles: Mr. Speaker, I do not know whether this is a point of order on which Your Honour feels compelled to rule.


Mr. Speaker:: I think what the minister has in mind is that hon. members in speaking to the substance Of various points which are later to be examined by the committee should not oppose the principle, and that not too many members who might later be selected as members of the committee should declare that they are opposed to certain principles and therefore go with blind eyes or very open eyes along the lines they intend to follow and have announced in the house they intend to follow. I think he had in mind citation 529 of Beauchesne's third edition, where it states that a member who is totally opposed to certain particulars of a bill or a motion may be excluded from a committee. His point was perhaps not so much one of order but rather a point of wisdom.


Stanley Howard Knowles: I think there is wisdom in the position that you have taken, Mr. Speaker, with respect to this point of order, and I think also there is much to be said for the contention by the Minister of Justice that the water has been muddied a good deal today. As a matter of fact, although it is a very common expression on the part of members that they did not intend to speak, I did not intend to speak myself until the Leader of the Opposition (Mr. Drew) waxed so warm on the other side of the question than that which I take.
I said when I started that I did not intend to repeat any of the arguments put forward already today by my colleagues to whom I have referred, but there is one point that kept coming to my mind as I listened to the hon. member for Temiscouata (Mr. Pouliot) and the Leader of the Opposition. They and other members say that before we abolish capital punishment we must consider society; we must be concerned with the protection of society, and we must not, if I may quote the hon. member for Temiscouata, be too indulgent with murderers.
I could not agree more. I am not asking for indulgence for murderers; I am not asking that we disregard the rights of society. What I am concerned about, and I can say it very briefly, is what the practice of capital punishment does to society.
[Mr. Garson.l
I am far more concerned with that than I am with what it does or does not do to the convicted murderer. The hon. member for Temiscouata referred to some of the recent instances of trials for murder and the newspaper publicity that was given to the executions that took place, and he used the word "barbarous" in relation to the way people act at such times. That is what capital punishment does, regardless of what it does to the accused or convicted murderer. It makes society that much more barbarous.
I think there are other ways of dealing with this question and protecting society from further murder by the same individuals. I think there are other ways in which to try to get rid of murder and that is through reforms, through the removal of some of the causes that lead to murder, for even after it has taken place capital punishment does not bring back the life that has been taken. Whatever it may or may not do for the murderer it brutalizes society; it makes us a barbarous group of people, and I think we have moved on to a point where for our own sake we can devise a better way of dealing with this serious question.


Mr. Colin Cameron (Nanaimo):: Mr. Speaker, it was the hon. member for Temiscouata (Mr. Pouliot) who brought me to my feet. I did not intend to speak, but I felt it was time to protest when I heard the hon. member suggest that only those who are members of the legal profession really have an opinion that is worth anything on this question. I would submit to you, Mr. Speaker, that this is not a legal question; it is a statistical and moral question. As far as I am aware the legal profession does not give any particular study to the study of statistics, and I think it would be a very bold member of the legal profession who would suggest that they are entirely the palladium of all moral virtues.
It has been suggested by those who have spoken in this debate that we must bear in mind the suffering and bereavement of the family of a murdered man or woman. That is quite right. We should certainly bear that always in mind. But I am at a loss to understand just how their condition would be improved and how their woes would be relieved by hanging the person who was directly responsible for their tribulations. I think we should face that fact quite plainly, and those who suggest that as an argument for capital punishment should realize they have one motive and one motive only. That is the motive of revenge, because it serves no useful purpose and does no good to the

victim of the murderer. What you are seeking to do is to relieve your emotional antagonism toward the murderer by an act of revenge.
It will be said, of course, that when we think of the bereaved family of a murdered person we should think in terms of protecting society so that other families will not meet the same fate. It is all very well for the Leader of the Opposition (Mr. Drew) to say that he does not believe the death penalty is not a deterrent to murder. He, of course, is entitled to his belief and his opinion; but there are those of us who prefer to base our opinion upon statistical evidence, and all the statistical evidence available to students tells us without a single exception that there is no correlation whatever between the death penalty and the incidence of homicide.
I would suggest that no case can be made out either for or against capital punishment on the basis of its relationship to the incidence of murder, and I think had my colleague from Vancouver East (Mr. Winch) pursued his remarks with regard to those states of the American union which have abolished the death penalty-you will recall he showed us where the level of incidence of homicide remained unchanged-and had he compared these states with the other states in the union where the death penalty is still imposed we would have found-in fact I saw the same study to which he referred-that the incidence of homicide is dependent entirely on other factors.
These factors largely appear to be the educational and economic status of the various regions. In regions where the educational and economic status is such as to encourage homicide you can have all the death penalties you like and you will not reduce the homicides, and in those regions where the educational and economic level is such as to discourage homicide you will not increase the homicides if you abolish the death penalty.
Like my colleague the hon. member for Winnipeg North Centre (Mr. Knowles), I also am more concerned with the effect upon society as a whole of the use of capital punishment than I am with the effect on the convicted person. I do not think I can be alone among the people of Canada-in fact I know very well I am not-when I have a feeling of guilty horror every time I hear of someone condemned to death in our law courts. I am not able to escape that feeling of guilty horror, and I am convinced that there are many thousands, if not hundreds of thousands, of my fellow Canadians who suffer 83276-68
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that same feeling of guilty horror that the only way we have yet evolved of dealing with the problem of homicide is to kill the murderer, in spite of the evidence that it does not reduce the incidence of homicide, and the clear evidence in front of our faces that it does nothing whatever to relieve the condition of the family of the murdered person.
Surely, Mr. Speaker, it is not good enough to suggest, as I heard suggested here not long ago, that perhaps in the future, when Canadian society has progressed further than its present point, we may be able to do away with the death penalty. Doing away with the death penalty will be evidence of our advancement and our progress. Its retention will be evidence >of our determination to remain back in the dark ages which guard this question of homicide.


Stuart Sinclair Garson: 


Mr.   Speaker-Mr. Speaker@: If the minister speaks now, he will close the debate.


Stuart Sinclair Garson: In closing the debate I think the first point I should make is to refer to the occasion for this motion, which was the report of the special committee of the House of Commons of the last parliament on its Bill No. 93, the Criminal Code consolidation bill. On that occasion the committee reported as follows:
The committee, upon the material before it, was not prepared to recommend a change in the present law respecting the defence of insanity, lotteries and the imposition of punishment by whipping and by sentence of death, but unanimously has come to the conclusion, and so recommends, that the governor general in council give consideration to the appointment of a royal commission, or to the submission to parliament of a proposal to set up a joint parliamentary committee of the Senate and the House of Commons-
-to consider and report upon these matters. Like other members, I was very much impressed by the excellent speeches which have been made during the course of the debate, but it did seem to me that if any stranger had come into our midst during its course he would have been drawn to the almost irresistible conclusion that the resolution before the bouse was whether or not we should continue capital punishment. What we are seeking to do here, I suggest, is not to prejudge the matter at all but to send it to a committee to get that evidence without which the special House of Commons committee of the last parliament was unwilling to change the present law, because its members did not feel they could take that responsibility until the matter had been more carefully investigated.

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For that reason I think the expression of strong views in the present debate is not particularly helpful. Perhaps some of us have preconceived ideas upon this subject; but if we are going to take the trouble of sending this matter to a committee-and I gather from the tenor of the discussion that most hon. members are in favour of doing so- there is not much purpose in our doing so unless we are going to at least preserve a sufficiently open mind that we can consider in a reasonably objective manner the material that comes before the committee and is then reported by the committee to the house.
I dealt with this question of whether a committee should be set up in a previous debate, and I mention this because I was criticized by the hon. member for Kamloops (Mr. Fulton) for not doing so in the present debate. My arguments can be found at pages 939, 940, 941 and 942 of Hansard of December 15, 1953. I do not think I can add anything to them at the present time, and therefore I should like to use the time available to me in replying to some of the points raised by those taking part in this debate which I think deserve some explanatory comment.
One of the points which was mentioned by the hon. member for Vancouver East (Mr. Winch), if I remember rightly, was as to the fact that in the states of the United States where capital punishment had been abolished the homicide rate was, if I remember him correctly, the order of about half that of the average of those states which retained capital punishment. I do suggest-and in this respect I think I am in complete agreement with the hon. member for Nanaimo (Mr. Cameron)- that when one is using statistics of this sort he must, before he can claim the conclusions from them which were claimed by the hon. member for Vancouver East, be in a position to say that all of the other factors in the states not having capital punishment on the one hand and in those having capital punishment on the other, were equal. Obviously they were not because some of them were agricultural, some of them were industrial, some of them had huge cities with their higher crime rate than rural areas, and some of them were in the north and some in the south.
I think the opinion of the British commission was that conclusions based upon statistical material have to be received with a very great deal of caution indeed.
There is one point we have to keep in mind throughout this whole question. I do not think it can be better expressed than in the very wise words which were once used by a former governor general of this country when
fMr. Garson.l
he said that to be simple in an unsimple matter is the surest road to confusion. We have in this question of the proper punishment for murder an exceedingly unsimple matter, and when the hon. member for Regina City (Mr. Ellis) makes the statement that in all the places in the world where they have abolished capital punishment they have had a favourable homicide rate and fine conditions, I suggest that that is a rather simple argument in an unsimple matter. It also lacks the merit of being accurate, because if he will examine the British report, for example at page 345, he will see there listed ten states of the United States which, having abolished capital punishment, felt by reason of the condition which followed its abolition that it was necessary to restore capital punishment, and they did restore it.
Now, if the hon. member makes his statement apply to the world as a whole he takes in those states; and those states, whether they were right or wrong-


Alfred Claude Ellis: On a point of order, Mr. Speaker, I named certain states. I did not say the entire world. I named the states of Norway and Denmark and I referred to specific states.


Stuart Sinclair Garson: Hansard will record what the hon. member said, but I distinctly recall him saying there was no place in the world that did not show that when capital punishment was abolished, the homicide rate declined and conditions improved. I am not going to suggest for a moment, here or before the committee or elsewhere, that because these states, having tried out the abolition of capital punishment in some cases for as short a period as two years, restored capital punishment and with one single exception kept it restored, that that in itself is necessarily a strong argument in favour of capital punishment. I suggest this question is far too unsimple to lend itself to rather simple types of argument such as this.
One of the important things we have to bear in mind is this. The Criminal Code as it stands today, in relation to almost every other offence, allows the courts a very wide discretion with regard to the penalty which they may impose. It is true that in both Canada and the United Kingdom the death penalty can be imposed for offences other than murder. One of these is rape although we are proposing to abolish this death penalty for rape in the new Criminal Code consolidation bill. In practice the mandatory sentence of death has been imposed during peacetime only for the crime of murder.
While other offences allow a wide discretion to the court as between minimum and

maximum to fit the penalty to the moral obliquity of the offence committed, murder is the only one in which the court has no discretion but to impose the mandatory death sentence. Yet it is true, and it seems to me that this is one of the important branches of the problem that we must consider carefully before the joint committee, that there are few offences in any country which vary so widely as murder in character and in culpability.
I do not want to refer to any facts in Canada, because those are facts which will doubtless come before the committee. I do not want to say anything here tonight that will in any way prejudice the committee's ability to give this matter the most careful and judicious consideration. I have, however, abstracted from the British report these facts: Of 50 cases of murder that occurred in the United Kingdom during the 20 years from 1931 to 1951 the convicted persons were men, women, girls, youths, and some hardly older than children. Some were normal, some neurotic, some epileptic or insane. In each case the mentally abnormal differed in their abnormality. So far as the crime itself was concerned it varied all the way from a crime which called more for pity than censure to other crimes of the most brutal and callous character. They may have occurred in the heat of passion, or they may have occurred with the greatest premeditation.
I think it was my hon. friend the member for Fort William (Mr. Mclvor) who asked what were the causes of murder. In this study which was prepared by the British commission it showed the following motives "springing from weakness as often as from wickedness":	cupidity, revenge, love, jealousy, anger, fear, pity, despair, duty, selfrighteousness, political or religious fanaticism. In some cases they were unable to find any intelligible motive at all. I think, therefore, that we have here a matter of very great difficulty indeed. We have to consider in what way and under what circumstances we can, with safety to society and fairness to those upon whom the crime of murder has been committed and their relatives, make this rigid and mandatory death sentence more flexible to fit the crime and the culpability of the individual accused.
When I say that, I would be leaving quite a wrong impression if I did not indicate that there are some modifying factors to the rigidity of this punishment at the present time. There are four important factors. First of all the crown prosecutor of the provincial attorney general's department can consider 83276-68 j
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the facts which have been laid before him, and has discretion to choose between laying a charge of murder or some lesser offence such as manslaughter or criminal negligence.


Mr. Deputy Speaker:: Order. I listened
with great interest to the point of order which the Minister of Justice raised while the hon. member for Winnipeg North Centre (Mr. Knowles) was speaking. I am wondering if the minister does not agree that he is transgressing his own point of order?


Stanley Howard Knowles: Is this a case of hanging
Haman on the gallows he built for Mordecai?


Stuart Sinclair Garson: I would be the first to admit, Mr. Speaker, the validity of the point which Your Honour has raised. I believe however that in this debate the record has been rather heavily loaded with what from my point of view I must regard as erroneous material. It would be in the interest of all concerned that these points should be corrected. Moreover I claim this additional measure of validity for what I am now saying, that this is the question which is to go before the joint committee, and not some of the things that have been said by opposition members.


Stanley Howard Knowles: The resolution does not say that.


Stuart Sinclair Garson: Yes, it does. If the hon.
member will read it he will see that it says the committee is to consider the law relating to these subject matters and to say in what way that law shall be changed.
It is quite true that the judgment of the crown prosecutor in that respect is not necessarily final -because the magistrate can commit for murder, even although the offence charged was a lesser offence. In practice, however, the crown prosecutor's judgment usually prevails.
Then the jury not only has the opportunity of exercising its judgment with regard to whether the offence has been committed beyond a reasonable doubt. If it has any doubt at all it can acquit completely. But if the jury have convicted, perhaps reluctantly, they have the power which the hon. member for Regina City left out in his remarks, and a very important power, of making a recommendation for mercy. This is a recommendation which carries a great deal of weight indeed, especially if concurred in by the trial judge. It goes to the Minister of Justice, who takes careful note of it in his recommendation to the governor general in council, as to whether or not capital punishment will be actually inflicted, or commuted to life imprisonment. Then the accused has the right to appeal the conviction registered against him. This appeal can be taken to

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the provincial appeal court; and if unsuccessful there, if there is one dissenting judge the accused can take a further appeal to the Supreme Court of Canada.
In the great majority of cases-in more than 75 per cent of cases in the last five years -that right of appeal has been exercised. If in all these appeal proceedings the conviction is quashed because of legal irregularity or because there has been a miscarriage of justice, the effect, so far as the accused is concerned, is that he does not undergo capital punishment. While it is true that the appeal judges do not reach their judgments upon the basis of mercy, or anything of that sort-they base their views purely upon legal questions-these judgments if favourable do have the same effect upon the accused as if mercy had been extended to him.
But if the conviction is sustained against the accused, then whether he has any friend and no matter how black his record may be, no matter whether he has a lawyer acting for him, he is not permitted to suffer the supreme penalty of death until his case has come before the whole cabinet and has been considered by it in a regular cabinet meeting, at which it is item No. 1 on the agenda.
When I say that his case is considered I mean that, first, there is before the cabinet a stenographic transcript prepared by the court reporter of the whole trial proceedings, including all the evidence and the judge's charge, as well as trials within the trial. Second, there is also placed before the cabinet the official record of the case, and the judgments of the judges of the court of appeal or of the Supreme Court of Canada, in those cases in which such appeals have been launched. Then, third, there is a complete report by the trial judge of the course of the trial, with his and the jury's recommendation, if any, for mercy, which he is required to submit within 15 days. Fourth, there is also a report from the police, and fifth a report from the warden of the gaol in which the accused has been detained pending execution. Then, whether any applications for commutation have been made or not, this entire case comes before the remissions branch of the Department of Justice and is carefully gone through by its officers, whose report is submitted to the minister who, I can assure you, spends a great deal of time in going through it again before placing it before the cabinet.
So the result is that of all who have been committed in the first place, a very large percentage are either acquitted by the jury or succeed in their appeals, or have their death penalties commuted. In the five-year

period from 1946 to 1950 there were 267 murder charges laid in Canada. Of this number 138 were acquitted by the jury. Of those who were convicted, in 39 cases the convictions were set aside by courts of appeal or for reasons of insanity. This leaves 90 as being subject to the death penalty. Of this number the death penalty was commuted in 28 cases and execution was carried out in 62 cases. This was out of a total of 267 who had been charged with murder.
So while a stranger reading the Criminal Code might think there was harshness and rigidity in connection with the death penalty, in actual practice there is a great deal of justice and mercy accorded to accused persons. And it is for this reason that the committee which sat at the time of the last parliament, in considering this matter, felt that without having the matter investigated further in some detail by a committee of parliament, representing both the House of Commons and the Senate, they did not wish to take upon their shoulders the responsibility for changing the present law upon this subject.
Now, concerning the other matters-


Stanley Howard Knowles: Before leaving this matter of capital punishment I wonder if the minister would permit a question-and, in passing, I would say that it would have been helpful if we had had his statement earlier this afternoon. However, I am now concerned about the minister's statement that what this committee will be dealing with will be merely possible changes in the criminal law with respect to capital punishment. Does he imply by that statement that arguments for or against capital punishment itself are not also to be considered by the committee?


Stuart Sinclair Garson: Oh, no. I do not know whether my hon. friend has in front of him the motion I moved earlier. However, if he will look at page 958 of Hansard for December 15 he will see that, in part, my motion is as follows:
Resolved, that a joint committee of both houses of parliament be appointed to inquire into and report upon the questions whether the criminal law of Canada relating to (a) capital punishment, (b) corporal punishment or (c) lotteries should be amended in any respect and, if so, in what manner and to what extent:
There is no limitation there.


Stanley Howard Knowles: It includes the possible abolition of capital punishment, if the committee is so inclined?


Stuart Sinclair Garson: Yes, because it is a question of amending the law. It is not a reference such as that which formed the basis for the inquiry in Great Britain.


Stanley Howard Knowles: That is satisfactory. What the minister said a moment ago left some doubt in our minds. What he now says is clear.


Stuart Sinclair Garson: I think I should record the fact that the government which set up the inquiry in Great Britain was the Attlee government. Mr. Attlee made it very clear in the House of Commons that the commission did not have the power to recommend against capital punishment. But the committee will have that power in this reference. Not only will it have that power, but it will have the power to cover the point mentioned by the hon. member for Victoria-Carleton (Mr. Montgomery), namely the method of capital punishment. It is noteworthy in that connection that the British report was to the effect that if capital punishment was to be retained the present method of hanging was
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the least unsatisfactory of all methods that might be employed, although they did suggest that lethal injections might be considered.
The other matter raised by the hon. member for Victoria-Carleton is covered by this wide reference. So I think upon these grounds, no matter what one's views may be either for or against capital punishment, there are very substantial reasons why it is wise to send the matter to the committee.


Edmund Davie Fulton: What is the government's policy on lotteries?


Mr. Speaker:: Is it the pleasure of the house to adopt the motion?


[Stage Direction]
Motion agreed to.
At ten o'clock the house adjourned, without question put, pursuant to standing order.
[Stage Direction]
Wednesday, January 13, 1954