1961-05-29

Right Hon. J. G. Diefenbaker (Prime Minister):: Mr. Speaker, with leave of the house I should like to make a statement on commonwealth technical training week, which begins today. The idea of holding a special week to focus attention on the importance of education and training, particularly the technical form of training, originated with His Royal Highness the Duke of Edinburgh. This week is being observed simultaneously in Great Britain and many other countries of the commonwealth.
As a first step in arranging for this week, I consulted with the premiers of the provinces, and early this year I called a meeting in Ottawa which was attended by representatives of the federal and provincial governments, labour, management, and a number of national organizations. The idea received complete endorsement.
At the national meeting, five broad objectives for a commonwealth technical training week were adopted. The first is to try to create more public awareness of the excellent career opportunities which exist in the technical and vocational fields. There is still, among an ever decreasing minority, I am glad to say, a tendency in this country to think of the "white collar" occupations as being more desirable, even though many of them demand less education and training than do many of the skilled and technical jobs. We must give the technical and vocational careers their proper place of importance.
The second objective is to stimulate more apprenticeship and other in-plant training programs. There are not enough programs of this kind now in existence, although where they are they have proved their worth both in Canada and other countries.
The third objective is to convince young people of the necessity of planning a career and of staying in school until graduation, seeking training which will fit them for the modern demands of advanced technology. Present rates of drop-outs from school reveal that 70 per cent of students entering grade 11 of elementary school will have left before 90205-6-347i
they get their junior matriculation. This is a serious matter when viewed in relation to the widespread reduction, since world war II, of unskilled and semi-skilled occupations through the introduction of more and better machines and more efficient methods.
The fourth objective is to encourage adults to upgrade their skills and increase their education, and to stimulate the establishment of more adult education and training programs. There is a reluctance on the part of adults to take advantage of available facilities, as illustrated by the fact that less than 5 per cent of unemployed persons apply for the training in programs operated in a number of the provinces.
The fifth objective of the week is to bring together industry and the schools so there can be a greater understanding of each other's needs. The rapidly changing patten of employment and occupations makes it essential that industry and the schools develop closer co-operation so that more courses can be vocationally oriented.
All these broad objectives, I realize, cannot be reached during one short week; but if public attention is drawn to them, and more people in positions of leadership at all levels, national, provincial and municipal, become aware of the need for positive planning and action to reach these objectives, then this commonwealth technical training week will have been worth while.
It was agreed at the federal-provincial planning meeting that each province would organize the observance of the week within its own jurisdiction. The federal government will provide assistance in the way of pamphlets and posters for the schools, along with film material for the schools and television, as well as generally assisting in organizing some national publicity for the objectives of the week.
All these plans give full respect to the exclusive jurisdiction of the provinces in respect to education. This has been worked out, and each province has organized a variety of methods for bringing attention to the objectives of the week. Special pamphlets are being distributed through the secondary schools to each student to point out the need for young people remaining in school to get as much education and training as possible before seeking their first job. It is expected that the fundamental message, namely the need of action will be carried to young

Vocational Training
people and their parents. Through the cooperation of press, radio and television, I hope the Leader of the Opposition and the leader of the C.C.F. will join me in approval of what is being done and what is being attempted this week not only in our own country but in the United Kingdom and in various countries of the commonwealth.


Hon. L. B. Pearson (Leader of the Opposition):: Mr. Speaker, we on this side are very happy to associate ourselves with the Prime Minister in what he has just said about the value of commonwealth technical training week. The importance of that week and the steps taken to publicize it in Canada have been made clear in a memorandum from the Minister of Labour, which I have before me, and by what the Prime Minister himself has said this morning. Also we can join the Prime Minister and others in expressing appreciation to the Duke of Edinburgh for the initiative he has taken in bringing about this important development.
It is a cliche, of course, Mr. Speaker, to say that we live in a technical and scientific age, but it is something that is very true, so it is necessary for technical education to keep abreast of the fantastic changes that have taken place both nationally and internationally. Perhaps it is also important to point out that while technical education is now more important than ever, and it is well for the federal government to associate with and assist the provinces in the development of technical education in every appropriate way, we can emphasize the importance of technical education without minimizing the importance of education in the humanities and in the social sciences; because it is also true that if we do not learn how to use for constructive purposes the machines we create, technical education itself may not be of any great value. The necessity for reconciliation of the two kinds of education was put in a striking way the other day by the head of the Carnegie Corporation in the United States when he said:
We must have respect for both our plumbers and our philosophers, or neither our pipes nor our theories will hold water.
Commonwealth technical education week also reminds us that progress in such education has been uneven within the commonwealth. Therefore, those members, including Canada, which have been more fortunate in their development in this field can help and are helping other members of the commonwealth to make similar progress. This is a kind of mutual aid which can underline the meaningful character of the commonwealth

association. In short, for domestic, commonwealth and international purposes it is important to give all the support we can to commonwealth technical training week. We on this side will be glad to support in any way we can the initiative and the work done by the government in this field.


Mr. Hazen Argue (Assiniboia):: I am pleased on behalf of this group to associate myself with the words of the Prime Minister and the Leader of the Opposition in giving support to the commonwealth technical training week. I think we are becoming more and more aware of the fact that educational facilities require continuing change, and that the present unemployment situation and some of the things that have been learned from it demonstrate the great need at this time for increased skills for many of those who are out of work at the present time and require such training.
We are pleased that this is a commonwealth venture. We need such facilities and emphasis on such facilities in Canada, and they are also needed much more in other parts of the world. There is a challenge to the west today. There is a challenge to our educational system. Coupled with further improvements, we think this is a very good step to underline the need for further emphasis on technical training in Canada and in the other commonwealth nations.



EXTERNAL AFFAIRS


Hon. Howard C. Green (Secretary of State for External Affairs):: Mr. Speaker, hon. members will recall that on March 15, when I announced some diplomatic appointments, I expressed the hope that Canada would shortly be able to open diplomatic relations with the Sudan as part of a program of strengthening Canadian representation in Asia and Africa.
I am pleased to announce that the government of the Sudan has agreed to accept a Canadian ambassador even though the Sudan government will not itself immediately be able to accredit an ambassador to Ottawa. Mr. R. A. D. Ford, who recently took up his appointment as Canadian ambassador to the United Arab Republic, will be concurrently accredited to the government of the Sudan.
The Sudan has close ties with both the Arab world and Africa south of the Sahara, and is becoming increasingly important in the United Nations. The appointment of a Canadian ambassador to that country reflects the importance which the Canadian government attaches to developments in Africa, and will encourage closer relations with one of that continent's most important countries.


On the order:
Introduction of bills-The Minister of National Health and Welfare-Bill intituled:	An act to
provide for the control of narcotic drugs.


Hon. E. D. Fulion (Acting Minister of National Health and Welfare):: Mr. Speaker, on behalf of the Minister of National Health and Welfare may I ask that the first item under introduction of bills, an act to provide for the control of narcotic drugs, be allowed to stand and that the second item be proceeded with.


Mr. Speaker:: Stand.


FOOD AND DRUGS ACT
Edmund Davie Fulton: for leave to introduce Bill No. C-99, to amend the Food and Drugs Act.


Mr. Marlin (Essex East):: Will the minister give us an explanation?


Edmund Davie Fulton: On behalf of my colleague I should explain to the house that the purpose of the bill is to provide a system of controls under which it will be possible to deal with the problem of barbiturates and other drugs commonly known as goof balls.
Motion agreed to and bill read the first time.


FINANCIAL ADMINISTRATION ACT
Hon. Gordon Churchill (for the Minister of Finance) moved: that the house go into committee at the next sitting to consider the following resolution, which has been recommended to the house by His Excellency:
That it is expedient to introduce a measure to amend the Financial Administration Act to permit the Minister of Finance to buy and to sell securities guaranteed by Canada as well as securities of Canada: to permit the governor in council to authorize the deletion from the accounts of debts due to Her Majesty not exceeding $1,000 and to also permit the treasury board to make regulations for the deletion from the accounts of small debts not exceeding $100, rather than $25 as at present; and to provide for further amendments in connection with the administration of the act.


[Stage Direction]
Motion agreed to.

Mr. Frank Howard (Skeena):: Mr. Speaker, I beg leave to move the adjournment of the
Air Lines Labour Dispute house under standing order 26 for the purpose of discussing a definite matter of urgent public importance, namely the decision by Trans-Canada Air Lines to disregard the safety and well-being of its passengers by taking action to replace its present stewardesses, hostesses and pursers with other personnel who will not be required to undergo medical or physical examination and who will be accepted from any large group regardless of whether or not they qualify as flight attendants.


Mr. Speaker:: I wonder if the hon. member can tell me when the decision to which he refers was taken, or whether it has been taken.


Frank Howard: Yes. The decision referred to, and which just came to my attention over the week end, was taken by way of a teletype directive to all T.C.A. stations, sent by Mr. H. W. Seagrim, the vice president, on May 17, the day before a conciliation board report on this matter was released by the Minister of Labour; and this recruitment of personnel along the line suggested in the motion is currently taking place.


Hon. Michael Starr (Minister of Labour):: Mr. Speaker, this dispute is under collective bargaining procedures and meetings were held last Thursday and Friday. I have no word that they have been discontinued. I feel that any motion such as this would have an effect on the discussions that are at present under way.


Mr. Speaker:: The definite matter of urgent public importance which the hon. member for Skeena wishes to have discussed under standing order 26, which involves the interruption of the normal course of business in order to discuss the matter, relates to a labour dispute between Trans-Canada Air Lines and some of its personnel, namely stewardesses, hostesses and pursers. It is put forward by the hon. member as a matter of the safety of passengers.
There are two aspects to the matter. One is the labour dispute, which undoubtedly is an important matter, as is that of the safety of passengers who travel by Trans-Canada Air Lines. The whole administration has been given to Trans-Canada Air Lines by parliament, and the management has the responsibility of continuing labour negotiations and assuring the safety of passengers.
It has been suggested that the decision interposes a matter of such urgency for debate that we should interrupt our proceedings. In view of the fact that this is a continuing labour dispute which, in so far as it is a matter of administrative responsibility, comes under the Department of Transport whose

Air Lines Labour Dispute estimates have been before the house in the last 10 days-in fact as recently as last week, I believe-and will be before the house again, as I am advised that the first item has not yet been passed, it seems to me that unless the matter is of immediate urgency for discussion-that is, that it must be discussed today or within a day or two-urgency of debate does not arise.
Furthermore, I think we would be abusing the rule if we projected labour disputes into our discussions every time there was a difference of opinion in an important section of labour relations in the country. Those are not unusual in occurrence. If we invoked the rule for this kind of thing I think we might have to change the rule, because we would be talking about little else.
As to the other aspect, that of safety, in view of the record of administration I think it will bear waiting until the hon. member can raise the item on the estimates. Therefore, with all respect to the hon. member, I do not think we have here a matter that should be allowed to intervene under standing order 26.
On the orders of the day:


Paul Joseph James Martin: Mr. Speaker, I should like to direct a question to the Minister of Transport, or to the Minister of Labour, or to both, asking whether they have received representations on behalf of the Canadian air line flight attendants association regarding action of the management of T.C.A. which they regard as being in violation of section 4 of the Industrial Relations and Disputes Investigation Act. If so, what action is the government going to take with regard to these representations?


Michael Starr: Mr. Speaker, such representations have not been brought to my personal attention. I will check in the department to see whether or not this has been brought to their attention, and I will report to the house.


Paul Joseph James Martin: Mr. Speaker, a supplementary question. May I ask the Minister of Transport whether he has received a telegram from Robert R. Smeal on behalf of the Canadian air lines flight attendants association.


Hon. Leon Balcer (Minister of Transport):: Yes, Mr. Speaker, I received such a telegram this morning and I sent it to my colleague, the Minister of Labour, under whose jurisdiction such matters fall.


Paul Joseph James Martin: I hope we will have a reply before the day is over.


REPORTED U.S. ACTION RESPECTING BIDS ON SALE TO CHINA
[Stage Direction]
On the orders of the day:
Hazen Robert Argue: Mr. Speaker, I should like to ask the Prime Minister a question arising out of a press report that Canadian flour milling companies with United States affiliations have been forbidden to bid on contracts for the export of flour to China.
In view of the answer given by the Minister of Agriculture on Saturday last, that the question of permits being granted by the United States to such companies is no concern of ours, I should like to ask the Prime Minister whether it is not the policy of the Canadian government that all corporations operating in Canada should follow Canadian policy and should operate in the best economic interests of this country, and whether or not he feels it is an impingement on our sovereignty if these companies-as it is claimed in the report-are forbidden to export flour to China.


Mr. Speaker:: Order. I do not know whether the Prime Minister can deal with the matter without notice, and I of course do not wish to intervene, but the hon. member's question is largely hypothetical. He does not take responsibility for the report, he indicates that he does not know whether the point arises at all, and then asks a rather indefinite question.


Hazen Robert Argue: Mr. Speaker, on the point of order, I think the accuracy of this has been rather well established by the answer from the Minister of Agriculture last Saturday, that the question of companies operating in Canada obtaining permits from the United States government is no concern of ours.
My question to the Prime Minister is this. Is it not the well known policy of the Canadian government that corporations operating in Canada should follow Canadian policy and should not have to go to the United States for permits to carry on export business with a country to which Canada is selling? I think the question is very much in order, and I thought the government had a policy on it.


John George Diefenbaker: Mr. Speaker, as usual the hon. member interjects gratuitous statements that have no foundation whatever. He starts off with a question and states he has no information in this regard-


Hazen Robert Argue: Except the press statement and the minister's statement in Hansard.


Mr. Speaker:: Order.


John George Diefenbaker: Mr. Speaker, perhaps the hon. gentleman would allow me to continue. The hon. member has had two bites of the cherry so far and has not achieved anything. If the hon. gentleman had asked me at the beginning the question which he asked at the end of his hypothetical excursion, I would have answered immediately.
We have taken the stand, and very definitely, that in so far as Canadian corporations are concerned, they are governed by the laws of Canada. I can say further, without going into detail which would not be helpful at this or any other time, that the attitude of the administration of the United States has been most favourable to that viewpoint expressed most strongly in the past by the present government.


Hazen Robert Argue: A supplementary question, Mr. Speaker. Do I take it, then, from the Prime Minister's reply that flour milling companies operating in Canada are not required, in the opinion of the Prime Minister, to obtain any permits in the United States? I am referring to those corporations which are undertaking this work.


John George Diefenbaker: Mr. Speaker, the hon. member has already stated that he has no knowledge that any flour milling companies have been interfered with. Therefore the question is entirely hypothetical.


Hazen Robert Argue: I ask the Prime Minister this question. Has the Prime Minister-and this is the point-any knowledge that these companies in Canada have to be suppliant and have to ask for permits from the United States government? This is the question.


Mr. Speaker:: Order.


John George Diefenbaker: Mr. Speaker, I would not have superior knowledge to that possessed by the hon. gentleman. There is no subject upon which he does not pretend to have the fullest information.


Paul Joseph James Martin: Answer the question.


John George Diefenbaker: I have heard nothing that would bear out the suggestion the hon. member offers.


Hazen Robert Argue: Can the Prime Minister deny that this is a fact?


Mr. Speaker:: Order. I think the hon. member has exhausted the subject.


Hazen Robert Argue: I have exhausted the Prime Minister.
Inquiries of the Ministry CANADIAN NATIONAL RAILWAYS


MONCTON-PROTEST AGAINST TRANSFER OF REPAIR WORK
[Stage Direction]
On the orders of the day:
Mr. H. J. Robichaud (Gloucester):: Mr. Speaker, I should like to direct a question to the Minister of Transport. My question has to do with a statement made to this house by the minister on May 26 on the reported lay-offs at the Moncton C.N.R. shops.
Has the minister received a telegram from the president of the Moncton labour council protesting against the transfer of repair work from the Moncton shops? If so, will the minister use his good offices with the C.N.R. in order to meet the request of the labour council?


Léon Balcer: Mr. Speaker, I received such a telegram this morning. I immediately sent a copy of it to the management of the C.N.R. asking them to keep me informed of any developments and also asking them to give the utmost consideration to any avenue or possibility of these people either keeping their jobs or securing new jobs with the railway.


Hazen Robert Argue: A supplementary question, Mr. Speaker. I wonder if the minister will inform the house whether he will report back the reply he gets from the C.N.R. management on this very important problem.


Léon Balcer: Mr. Speaker, I always report to the house such reports as I receive. If my hon. friend had been in the house he would have heard that I answered in detail the question asked by the hon. member for Westmorland (Mr. Creaghan) on this very matter.


Hazen Robert Argue: On a point of order, Mr. Speaker, I want to inform the minister that the reason I am raising the question today-


Some hon. Members:: Order.


Hazen Robert Argue: -is because of the unsatisfactory answer he gave on Saturday.


Mr. Speaker:: Order. It seems to me that the hon. member has not a point of order there.



BUSINESS OF THE HOUSE


[Stage Direction]
On the orders of the day:
Frank Howard: Mr. Speaker, I should like to direct a question to the Minister of Justice and ask him whether or not it has been a decision of his or of the government not to proceed with Bill No. C-70 this session. This bill refers to the furnishing

Inquiries of the Ministry of financial and other statistics relating to the affairs of corporations and labour unions carrying on activities within Canada.


Edmund Davie Fulton: Mr. Speaker, I was asked that question about a week ago by the hon. member for Bonavista-Twillingate, I think it was, or the hon. member for Essex East. I have nothing to add to the reply I gave then.


Paul Joseph James Martin: A supplementary question, Mr. Speaker. Since the minister did not really say anything on that occasion, would he say something now?


Edmund Davie Fulton: What the minister said on that occasion is well within the understanding of most hon. members in this house.



WAR MEASURES ACT-INTRODUCTION OF LEGISLATION THIS SESSION

[Stage Direction]
On the orders of the day:
Lester Bowles Pearson: Mr. Speaker, I should like to ask the Prime Minister, having regard to the statements made by him during the debate last year on the bill of rights and similar statements on January 27 this year, whether the government intends to submit the War Measures Act to this session of parliament for consideration.


John George Diefenbaker: Mr. Speaker, I can only say at this time that depending on the progress that is made in the house, a decision in that regard will be announced to the house.


Paul Joseph James Martin: A supplementary question, Mr. Speaker. If the government does not proceed, could I ask the Prime Minister whether the government will support the bills standing in my name that seek to do what the government itself promised it would do?


John George Diefenbaker: All I can say to the
hon. gentleman is this; that his interest in this matter is commendable, even though for all the years he was a minister he did not see fit, and the government to which he belonged did not see fit to follow the course he now recommends.


Some hon. Members:: Hear, hear.



N.H.A.-INTRODUCTION OF AMENDMENTS THIS SESSION

[Stage Direction]
On the orders of the day:
Mr. J. R. Garland (Nipissing):: May I direct a question to the Minister of Public Works. Does the government intend to introduce


legislation this session to amend the National Housing Act so as to permit loans to be made on existing homes?


Hon. D. J. Walker (Minister of Public Works):: I do not know what the hon. member has in mind in asking that question. This is a broad field, and perhaps he would be more specific.


John Richard Garland: The National Housing Act now restricts lending in such a way that loans can only be made with respect to construction of new houses. My question is simple. Does the government intend to amend the act so as to permit loans to be made on used or existing houses?


David James Walker: As the hon. member knows, the government has made it possible for loans to be made for the improvement of old homes at the present time. The loans by the banks are guaranteed by the government. Also, there are 1,500,000 rental houses throughout Canada, the owners of which can obtain loans of up to $4,000 for the improvement of those homes. That is something which is new this session. However, as to extending these operations to enable direct loans or mortgage loans to be made with respect to old houses, the answer is no, because the government finds it has to extend itself in order to provide sufficient money for loans with respect to new houses.


John Richard Garland: A supplementary question. I wonder if the minister does not believe-


Mr. Speaker:: Order. I think the hon. member should not pursue that subject, which is one involving broad questions of policy. He has received a specific answer to this first question, and he may ask the minister to explain that answer if he thinks it necessary, but it would not be in order for him to make a statement.


John Richard Garland: I simply want to ask the minister whether he does not believe that the residue from the proposed sale of mortgages presently held by Central Mortgage and Housing Corporation would allow sufficient elbow room to assist financing in respect to the sale of existing houses.


Mr. Speaker:: Order. I think the hon. member had better ask that question on the estimates.



NATIONAL DEFENCE


[Stage Direction]
On the orders of the day:
Mr.  C. W. Carier@Burin-Burgeo: Mr. Speaker, may I direct a question to the Minister of National Defence. If the minister is

unable to answer perhaps he will take the question as notice. Can the minister give the house any information about the reported sighting of an unidentified submarine by fishermen off Burgeo, on the south coast of Newfoundland, last Wednesday, May 24?


Hon. D. S. Harkness (Minister of National Defence):: Mr. Speaker, I have not had a report on this particular incident. I will be glad to ask for one and inform the hon. member.



DEFENCE PRODUCTION


[Stage Direction]
On the orders of the day:
Mr. H. W. Herridge (Kootenay West):: wish to address a question to the Minister of Defence Production. In view of the concern being expressed by members of the union concerning the dearth of contracts being awarded to Canadian Arsenals Limited at Lindsay, which is causing the work force to be reduced to the lowest level in 15 years, can the minister assure the house that priority in awarding defence contracts is given to this crown corporation over unorganized, privately owned plants?


Hon. Raymond O'Hurley (Minister of Defence Production):: I wish to remind the hon. member that this plant has been kept in production since the end of the war and since the present government came to power. We wish to continue doing so. I must add that sitting where 1 do I receive a daily reminder from my hon. friend who represents Victoria about the desirability of keeping this plan in operation.



INDUSTRY


[Stage Direction]
On the orders of the day:
Mr. Hubert Badanai (Fort William):: I wish to direct a question to the Minister of Trade and Commerce. Notice has been sent to the hon. gentleman. My question arises out of a news item which appeared in the Wall Street Journal indicating that tear gas manufacturing is becoming a big secondary industry with exports to countries all over the world. I should like to ask the minister if there are any tear gas manufacturing facilities in Canada and, if there are not-


Some hon. Members:: Order paper.


Hubert Badanai: -whether it would be in the interests of Canada to encourage the establishment-


Some hon. Members:: Order.


Hon. George H. Hees (Minister of Trade and Commerce):: I wish to thank the hon.
90205-6-348
Inquiries of the Ministry member for having given me notice of his intention to ask this question. Tear gas is not being made in Canada at the present time. It was produced during the war, but the plant has since been shut down and destroyed because it was badly contaminated. There is very little demand for tear gas in Canada, and any produced here would have to depend almost entirely upon export demand. I am advised that it is doubtful whether a manufacturer would be interested in starting production without at least a reasonable volume of domestic business in prospect.



AIR TRANSPORT


[Stage Direction]
On the orders of the day:
Hon. Lionel Chevrier (Laurier):: I should like to direct a question to the Minister of Transport based on a statement the minister is alleged to have made on Friday, reported in the Montreal Gazette of May 27 under the heading "Local Air Carriers Given New Routes". The report attributes this statement to the hon. gentleman:
Up to now T.C.A. has been able to alter Its routes and schedules without reference to the board. Other air lines are not able to do this.
The question I want to ask the minister is this. Did he take cognizance of a denial by an official of Trans-Canada Air Lines, who stated that the publicly owned air line T.C.A. has always been required to obtain government approval before changing its domestic operations? Then the spokesman went on to say that in fact T.C.A. does go before the air transport board. I wonder whether the minister has any comment to make in these circumstances.


Léon Balcer: I do not think the statement attributed to the T.C.A. spokesman constitutes a denial. It merely said that, so far, T.C.A. has always had to obtain government approval in connection with new routes and that the air transport board has been consulted. The purpose of my statement was to make it amply clear that from now on Trans-Canada Air Lines will be using the same procedure with respect to public notice and hearings before the air transport board as must be followed with respect to other applications by private companies. Whenever T.C.A. wishes to change any of its domestic routes it will have to appear before the board, and other air lines which are interested or affected will be afforded a chance of coming before the board and expressing their views.

Inquiries of the Ministry EXTERNAL AFFAIRS



INQUIRY AS TO REQUEST FOT ASSISTANCE

[Stage Direction]
On the orders of the day:
Paul Joseph James Martin: May I ask
the Prime Minister if he can tell us whether or not it is a fact that the Prime Minister of India has communicated with him, as he has with the heads of government in the United Kingdom, West Germany and Japan, regarding commitments for assistance to India in the development of its third five year plan.


John George Diefenbaker: I received a personal letter, as I recall, from Prime Minister Nehru in connection with the next five year plan generally. It is a purely personal letter.


Paul Joseph James Martin: Is the government in a position to say what it proposes to do with regard to the request made by India?


John George Diefenbaker: When the government is in a position to announce a decision in this regard, it will, of course, be brought to the attention of the house.



THE CENSUS


[Stage Direction]
On the orders of the day:
Mr. Alexis Caron (Hull):: Could I direct a question to the Minister of Trade and Commerce? Is it an offence for a person to refuse to answer certain of the questions contained in the census forms and, if so, what would be the penalty for such a refusal?


George Harris Hees: If the hon. member would let me know what particular question he has in mind, perhaps I could give him a more accurate answer.


Alexis Pierre Caron: I am speaking of any of the questions which are in the form.


Mr. Speaker:: I think the hon. member should consult a lawyer.


Alexis Pierre Caron: Very funny. I was asked by a resident of Canada yesterday if I could answer that question, and I did not know. I am asking the minister who is in authority and who should know; or else he should be the one to consult a lawyer if he does not.


Mr. Speaker:: It is not customary to ask for the interpretation of statutes on the orders of the day. I have regarded the hon. member's question as seeking for a legal opinion. Perhaps I am wrong about that. If it is a question which is capable of being answered in a factual way I certainly have no objection to it being answered.



FISHERIES


[Stage Direction]
On the orders of the day:
Mr. J. R. Tucker (Trinity-Conception):: Mr. Speaker, I should like to direct a question to the Minister of Fisheries or, in his absence, to his parliamentary secretary.
Has the minister received a petition from the fishermen of Calvert, Ferryland, Aqua-forte, Fermeuse and Renews requesting that the use of bultows or trawls be forbidden in the area between Renews head and Burnt head in accordance with the regulations which have existed since 1895, and which were confirmed again in 1943 by the Newfoundland commission government?


Mr. Roland English (Parliamentary Secretary to the Minister of Fisheries):: Mr. Speaker, I shall take this question as notice and provide an answer as soon as possible.



CRIMINAL CODE


[Stage Direction]
The house resumed, from Wednesday, May 24, consideration in committee of Bill No. C-92, to amend the Criminal Code (capital murder)-Mr. Fulton-Mr. Flynn in the chair.
On clause 1-Classification of murder.
(Translation):
Mr. Paul:: Mr. Chairman, while I have no claim to being a linguist, I should like to draw the attention of the Minister of Justice (Mr. Fulton) to a possible interpretation of the French translation of section 1 of Bill C-92. The English expression seems to cover the primary purpose of this piece of legislation.
More than ever, in considering this bill, we must face the two essential conditions of a crime. There must first be the actus reus, which is clearly determined in this case, and also the mens rea.
It seems to me that if we added the word "prepare" to paragraph (a) of subsection 2, we would have an exact translation of what the government and the Minister of Justice had in mind in introducing this bill. Thus the paragraph would read as follows:
Le meurtre est dit qualifie, h regard de toute personne, lorsqu'il est prepare, pro] etc et deli be re de la part de cette personne.
I do think the French translation would then be more complete and would not lend itself to any discussion. In my humble view, the intention of the legislators would also be much better expressed.

I wanted to make these few remarks to the Minister of Justice, as the matter was brought to my attention over the week end when I had the privilege of discussing this bill with members of the legal profession in Three Rivers.
I shall not belabour the point, but I think the French version should be more complete so as to convey the meaning of the English word "planned", which reflects the idea that the government had in mind in introducing this bill.


Mr. Deschaielels:: Mr. Chairman, the house passed on the principle of Bill C-92 when the motion for second reading was put.
As far as I am concerned, I will try to suggest various means of improving it so that it may meet as much as possible the expectations of the public on this important question of capital punishment.
Section 1 introduces a new section into the Criminal Code, section 202A, which does not change the definition of murder itself found under sections 201 and 202; it merely distinguishes between two categories of murder, capital and non-capital, depending on whether the crime is premeditated or not. Section 202A is therefore the key to the whole bill.
When I spoke on second reading of the bill, I stated that even if such a distinction could be justified in principle, in the general context of the bill it necessarily leads to what is practically the complete abolition of capital punishment. Now, not only the hon. members of this house but a vast majority of the citizens of this country wish to keep capital punishment in our statute books, not as a museum curiosity but as a necessary and efficient deterrent for the protection of honest people.
May I say first of all that by establishing two categories of murder, section 1 is contrary to the recommendations of one of the most important joint committees of the house and Senate. I will now repeat what I said the other day as reported on page 5227 of Hansard for May 23, 1961:
Several witnesses suggested that consideration might be given to the creation of degrees of murder which would take into account the difference in moral culpability between different types of homicides. All witnesses representing law-enforcement authorities opposed the establishment of degrees of murder. The committee shares the conclusions of the United Kingdom royal commission on this question. The committee is of the opinion that the present distinction between murder and manslaughter is quite clear and straightforward. It considers that any attempt to break murder down into degrees may lead to the creation of technical and confusing distinctions without, at the same time, creating any precise delineation between murders of differing degrees of moral culpability.
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Moreover, by proceeding as we are asked to do under section 1, we also depart from the legislation passed in the United Kingdom in 1957, which is known as the homicide act, 1957. Indeed, as seen on page 5221 of Hansard for May 23 last, the minister said with regard to that act:
In 1957 after further consideration the parliament of Great Britain passed an act entitled "The Homicide Act, 1957". This act adopted the approach of dividing murder into two classes, those which carry the death penalty and those for which the penalty is life imprisonment. The division, however, is based rather on the method or weapon by which the killing is accomplished, or in certain cases upon the person or class of person killed rather than on the nature and circmustances of the crime itself.
The minister went on to say:
This has produced some arbitrary and rather unsatisfactory results.
The minister has expressed an opinion and I must admit that I am not sufficiently acquainted with the results of the enforcement of this act in Great Britain to advisedly discuss with him this matter of opinion.
Still I am prone to believe that this change on the part of the minister is unadvisable.
Moreover the minister is not in the best position to express such an opinion, and I do not think we have anything to teach the United Kingdom jurists in this matter of legislation on capital punishment.
It is a fact that there has been mass commutations in Britain, 14 death penalties being commuted from April 16 to June 10, 1948.
It should be remembered that, in 1948, a member of the British House of Commons had introduced a bill for the abolition of the death penalty during a 5 year experimental period. This bill was subsequently defeated by a huge majority in the House of Lords.
Here in Canada, in spite of the recommendations from the joint committee and a majority opinion in the house favouring the retention of capital punishment, 39 death penalties were commuted out of a total of 49.
I acknowledge a great respect for British criminal law. In fact, the greatest reforms in this field originated in that country.
Commenting upon the Gowers report, the minister could not conceal that he thought highly of this document when he said, as found at page 5221 of Hansard:
Its report was presented to parliament in the month of September 1953, and it constitutes the most complete analysis of the question in modern times.
It should be noted that all major changes in British criminal law followed intensive

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studies made by jurists and experts in the field, while here in Canada through section 1 of the bill now before us, we reject one of the most important recommendations made by the joint committee.
This new clause dividing murder into two kinds is brought forward as an ordinary government measure.
This new concept of criminal law apparently does not result from any special studies made by jurists or experts in that field.
In that regard, I must say that I hold the highest opinion of the Minister of Justice and all the senior officials of his department. But in all deference and while I recognize the high standards they set for the general administration of the Department of Justice, I do not feel I will reduce their prestige when I say that clause 1, in particular, is not the result of discussions by Criminal Code specialists, by jurists with a considerable experience acquired in criminal courts or by writers of criminal law.
While it is true that the newspapers, following the introduction of this legislation, agreed to that idea of two kinds of murder, several articles have been published since giving us the views of jurists, of experienced men, and I think-the minister has probably seen those articles-that this bill, and particularly clause 1, has been received by several jurists with mixed feelings which raise very important questions.
I have here an article that appeared in the Toronto Star of May 24, 1961, under the heading:
(Text):
Two murder penalties injustice-Ex-Judge
London, Ontario.-Proposed legislation to establish two degrees of murder was described last night by Arthur M. Lebel, retired Ontario appeal court judge, as a system which would make fish out of one man and flesh out of another.
He said if one man hangs and another does not, if one is locked up and another is not, "the sense of justice in all of us will say let us scrap the whole thing... let us not have any capital punishment".
The new government bill on capital punishment separates deliberate murder, punishable by death, and non-premeditated murder, punishable by a mandatory sentence of life imprisonment.
Mr. Lebel told the Canadian Progress club of London that mandatory sentences have never worked and would not work under the proposed new law.
"What will juries do if they do not like life sentences" he asked, and added, "reduce the charge to manslaughter."
Mr. Lebel also criticized the clause which would require cabinet approval for the release of a person sentenced to death but whose sentence is commuted. "What is wrong with the national parole board?" he asked.
He also questioned why there should be any interference from the cabinet when a court and jury find a man guilty of capital murder.

(Translation) :
Mr. Chairman, the minister based the introduction of this bill on the following principle, as reported on page 5223 of Hansard for May 23, 1961:
We have taken account of the fact that the country, as reflected by opinion in this house, favours retention of capital punishment.
Well, there is in law a proverb or a gibe which states:
Law is what it is, and not always what we should like it to be.
Well, what is the purport of clause 1, especially in relation to the other clauses of the bill? I firmly believe that by drawing this distinction between capital and non-capital murder, as set out in clause 1, we lay down premises which will in fact make capital punishment inoperative. More than that, our premises are contrary to the specific distinction made by the minister when he introduced this legislation, convinced as he is in spite of all that, that the country is of the opinion that capital punishment should remain efficient.
It seems to me that in an effort to solve a problem created by the government itself, the government is submitting, through this distinction between capital and non-capital murder, a project whose full implementation is not supported by the statement made by the minister when he introduced the bill. This distinction, provided under section 1, is meant, I think not only to satisfy the government's abolitionists who are getting impatient, even among the most eminent members of the cabinet, but those' who want to keep capital punishment in our statutes. Therefore, we are faced with a compromise that is not realistic and which, in practice, disavows public opinion.
This bill, which is based on the fundamental distinction of section 1 between capital and non-capital murder, has not been sufficiently examined, in my opinion, and section 13, which I may not comment in detail, is evidence of what I claim-this bill, and especially this basic distinction of section 1, has not been studied by experienced law officers and practitioners in criminal law. It is contrary to the recommendation of the joint committee which submitted its report in 1956 and, furthermore, it suggests a legal distinction contrary to the 1957 homicide act of the British parliament.
For all these reasons, I submit there is no urgency to adopt, in its present context, a legal definition based on legal uncertainties

and this distinction between degrees of murder should be reviewed by experienced law officers.
Mr. Chairman, I know that the rules of this house do not allow me, at this stage, to move a motion to this effect, but if I were free to do so I would do so immediately, in order that section 1, as well as the whole bill, be again referred to experts in this field. However, nothing prevents me at this time from renewing my request to the Minister of Justice, and I would remind him of the amount of work accomplished last year by the special committee during the discussion of the Canadian Bill of Rights. In spite of all this work, once we had considered the views of the experts heard in the special committee the subject was again referred to the committee of the whole of this house.
Mr. Chairman, those were the remarks I had to make on section 1. I shall ask the minister, as well as the government, to give serious consideration to that suggestion. I think, that if the minister and the government followed up the idea of reconsidering the bill, it would meet the views of this country's press.
Besides, there is no urgent need to go ahead with this right away; the whole matter might well be reconsidered in a special committee and we could take it up again during this session and pass the bill which the government would then submit. This legislation would be much more efficient. We would thus establish a much less disappointing basis than if we went ahead with the bill in its present form.


Mr. Martineau:: Would the hon. member allow me a question?


Jean-Paul Deschatelets: With pleasure.


Paul Raymond Martineau: Earlier today, the hon.
member quoted an article referring to a lecture given by the Hon. Justice Labelle, and he pointed out when quoting him-


Paul Joseph James Martin: Former Justice Labelle.


Paul Raymond Martineau: The former Hon. Justice Labelle, and pointed out, in his quotation, that in practice mandatory penalties were not very satisfactory and did not give proper results. Now as the existing legislation with regard to murder makes the death penalty mandatory, could the hon. member tell us whether, in his view, such a system is satisfactory in practice, and whether it meets public opinion on this matter?


Jean-Paul Deschatelets: Mr. Chairman, I would not say that the present system should not be improved.
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In fact, I would be in favour of its being so, but the article I referred to a moment ago I quoted in its entirety. It is the view of a former justice of the appeal court of Ontario, and what is especially interesting about this article is that a judge states that this bill now before us, Bill C-92, is not practical on account of the categories mentioned in section 1.
I am therefore impressed by that opinion given by an ex-judge of an appeal court. That is why I ask for a review of this bill on the basis of the opinion of this expert.
(Text):


Mr. Macdonnell:: Mr. Chairman, unfortunately I was unable to be present during the debate on second reading of the bill, and I should like to avail myself of the opportunity now for a moment or two to put myself on record with regard to this all-important measure.
I thought the debate on second reading was of a character of which all members of the house could be proud. As I say, I should like to put myself on record, and I can best do so by means of a very short quotation from the words used by the Minister of Justice in presenting the bill to the house. With your permission, Mr. Chairman, I should like to read a short passage from the minister's words as found on page 5226 of Hansard of May 23:
Finally, we present it in the conviction that in its merciful and progressive provision of an age limit below which no one shall be executed, and of an automatic review by an appeal tribunal to remove so fast as possible the element of human or judicial error, together with its other progressive features, it represents a proper reconciliation between the necessity for the protection of the lives of decent and law-abiding citizens on the one hand, and the desire of a Christian and civilized society to see justice tempered with mercy and forbearance on the other. On this basis we submit it for the approval of the house.
On that basis, Mr. Chairman, I am happy to vote for the bill.


Paul Joseph James Martin: Mr. Chairman, I have not taken part in the discussion of this subject since the matter was first introduced in the house by the hon, member for York-Scarborough in the bill he presented last year. Like other hon. members without exception, I regard the bill as one of the most important projects put before us for consideration and decision. The details of the bill are now before us, and it is possible to examine what the minister has sought to encompass. I think it is important that at this stage we should indicate our feelings as to the extent to which the bill meets the principle involved.

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Murder is the most serious crime in our Criminal Code. Yet this, with our allied offences, is the most difficult of all crimes to define and deal with. Over the week end I spent some time discussing this matter with certain persons, one of whom has had very considerable experience at the bar in criminal matters. In large measure I am influenced by his experience and advice in what I want to say today.
I believe there is more case law on the subject of murder than any other single crime. That statement may not have the significance for those who are not lawyers than it will have for those who are. But if it is a fact that there is more case law on this subject we should be careful about adding needlessly to our jurisprudence in a matter as vital to human beings and to our society as this matter is. It seems to me that because of the extended and far-reaching changes contemplated in this measure we should make sure that we take no final decision without the most thorough study.
I join with the hon. member for Maison-neuve-Rosemont in his plea to the minister this morning that at this stage we make sure that we in this parliament give the most careful consideration to this measure. Nothing the hon. member has said or that I am about to say is in any way a reflection on the care which hon. members of this house have given or will give to this bill. However, all of us are members with divided interests and occupations. I take it that none of us are experts in this matter, and that our knowledge of criminal practice, generally speaking, is not such as to give us the authority with which to arrive at a final judgment in this matter when there are at our disposal advice, experience and judicial and professional skills that can assist us greatly, in the light of our common law decisions, to make sure that we are doing the correct thing not only in principle but in the maintenance and furthering of that principle.
I believe, after careful examination of this bill, that one can say that it is not without much ambiguity, and that it is in some respects muddled. No legislature in a matter of this importance would want to pass a bill of this kind if that is the case. I submit that it is the case, and I hope at the proper stage to indicate that fact.
It is a fact-and I am sure the minister will not deny this statement-that many of those who have participated in many murder trials in our country, both for the defence and for the prosecution, are not clear on the meaning of this bill. As I have already indicated, I myself over the week end discussed the matter with a number of individuals who have had a good deal of experience

both as crown prosecutors and as defence counsel, and I may say that is their judgment.
Why this bill has not been sent to a committee of the House of Commons is difficult to understand. I hope the minister, in offering a defence, will not seek to do as he very nearly did the other day, namely suggest that we are inconsistent in the Liberal opposition by making this proposal, in view of the attitude which I personally, on behalf of our party, took in this house the other day when I complained about the contemporaneous sittings of parliamentary committees. This question is too important to be disposed of in that way. If this bill had been introduced early in the session there certainly would have been no real difficulty. I can well understand the minister wanting to see his measures receive ready dispatch, but in a matter of this sort I submit that is not a justifiable position to take.
In the United Kingdom this problem has been confronted and a solution has been put forward which is not the same as the solution provided in this bill. There has been a pinpointing of the instances when punishment by death will be permissible and will be the sanction provided under the law. However, before that decision was arrived at, after much discussion in parliament itself and after much discussion among the people of the United Kingdom generally, a royal commission on capital punishment was appointed.
That commission sat for four years from 1949 to 1953. It is interesting to note that the royal commission had before it the most experienced professional witnesses, including crown prosecutors, defence counsel and, more particularly, members of the judiciary who by their long experience, I think by what they said, proved to be indispensable in the evidence they gave. For instance, there came before the committee Lord Chief Justice Goddard, then the leading criminal judge in Her Majesty's courts.
With all this background they reached a decision. I am not saying it was the right decision, but it was a decision different from the decision which we are providing in a bill the principle of which I have voted for and will vote for. However, I point out that this bill now before us, which is not the English bill, represents a departure from our present law and that fact itself is a matter of the greatest importance.
I hope the minister will not think I am speaking about him personally in what I am about to say, because that certainly is not my intention. I am seeking to be as objective as possible in this matter. I have said that in England a royal commission was appointed and that the royal commission gave to the

lord chief justice of England, many of his colleagues, leading crown prosecutors, leading defence counsel, professors and the like, the opportunity to come and lay before it their opinions as to the formula, legally conceived, which they thought should be provided, to say nothing of the number of people with social welfare interests and others who appeared before the commission. But we have had none of that procedure nor have we had advice from such persons.


Edmund Davie Fulton: In order that I may be clear with regard to the point my hon. friend is trying to make, may I ask him this question. Do I understand him to suggest that at the time of the Gowers royal commission a bill was then under contemplation? That is not my understanding of the matter.


Paul Joseph James Martin: No.


Edmund Davie Fulton: There was no draft bill or proposal before the Gowers commission.


Paul Joseph James Martin: That is right. My hon. friend is quite correct. If I gave that impression I did not intend to do so. However, there was discussion of the kind of formula, involving legal precepts, that should be embodied in any kind of bill that would be dealt with. As a matter of fact, in his evidence the lord chief justice spoke of the distinction between various classes of murder and gave an indication of the very phraseology which should be used in order to meet certain particular objectives.
What I am seeking to establish is the fact that the parliament there made a decision only after there had been careful study. We are going to make a similar decision, and we have not had the same study. Who are the authors of this bill? The minister himself is a distinguished member of the bar. I do not in any way wish to suggest anything that would be regarded as the expression of a view that he is not eminently qualified to be Minister of Justice and that he is not a distinguished member of the bar. However, I am not aware that his experience at the bar has been on the criminal side. I am not aware that there is in the Department of Justice at the present time any official who has had great experience in criminal practice. I may be wrong in this, but I gave careful consideration to the point before making the statement. I do not believe there is anyone in the Department of Justice now who has had any experience professionally, either in private practice or as a professional officer of the department, in the field of criminal law. I think this would be very important, if true, in giving us the kind of confidence we would want to have in the absence of
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the study about which the hon. member for Maisonneuve-Rosemont spoke a moment ago.
I suggest to the Minister of Justice, as a further argument for no undue haste, that I am sure we could determine this matter within the course of the present calendar year and yet give this measure the kind of study representation and care which I feel must antedate the passage of a bill of this importance. I would be prepared to suggest to the minister that every judge, every defence counsel and every crown attorney would say that in this matter we have not had-I do not say this with regard to the subject matter of the bill, necessarily-the study which this bill deserves. If the United Kingdom took four years to consider this matter, surely we are not asking too much of this parliament when we say it would be worth while to spend more time in the study of this measure.


Edmund Davie Fulton: Mr. Chairman, does my hon. friend forget the two years our parliamentary committee spent on the matter?


Paul Joseph James Martin: That parliamentary committee was conducted under the chairmanship of my former colleague the hon. member for Essex West. It was a committee that pursued its course with care and responsibility, but the witnesses who were called before it were not all of the character of some of the people about whom I have spoken today. Also, it was a committee that did not deal exclusively with this particular problem; it dealt with a variety of other matters as well.
What objection can there be to having this kind of bill, for instance, submitted to a carefully selected committee of the Canadian Bar Association? That was done, as the hon. member for Maisonneuve-Rosemont pointed out, in the case of the bill of rights. The Canadian Bar Association and other interested bodies appeared before a committee and gave their views as to the bill of rights. If the bill of rights was regarded as warranting that kind of treatment, surely a bill dealing with the particular subject matter at hand deserves similar treatment. Yet this bill will not be submitted to these various bodies. The proposal is that we should give it the finality that we give to all measures passed in this house after it has gone through various stages.
I have supported this bill in principle, but even so I believe we would be wise in making sure that we have ourselves given the greatest possible care to this matter, and also that others who by training and experience are particularly competent to assist us have made sure that the drafting, the legal phraseology and the legal formula employed in the bill are such as to enable the proper dispensation

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of justice in the future, both from the point of view of the crown and of those charged with murder.
Some hon. members may suggest, "What is wrong with having the committee of the whole deal with this matter?" I suspect that would be the viewpoint of the hon. member for York-Scarborough. "Why should not every hon. member of this house be given an opportunity of discussing this matter? Why should it be confined to members of the committee?" My answer to that question is that if you have a parliamentary committee, obviously you cannot have the whole house in that committee, but that does not preclude the widest participation by hon. members of this house who are especially interested or especially qualified to deal with this matter; nor does it preclude an ultimate discussion of the committee's deliberations in this house. I am afraid that the bill as drawn up at the present time will provide defence counsel for a long time in the future with all kinds of ammunition which may or may not be in the interests of the administration of justice in our country.
I suggest to the Minister of Justice that the proposal made by the hon. member for Maisonneuve-Rosemont with regard to further study of this matter, enabling those especially qualified to give evidence, is a step which is both prudent and, I believe in the circumstances, urgently necessary if we are to avoid passing a measure of such importance without employing every safeguard that it is possible for us as human beings to resort to in trying to evolve an enactment of the best possible character. I believe that only in this way will we have the feeling that we have taken the right course.
I agree with the basic principle of the bill, which seeks, as I understand it, to provide a distinction between murders for which there is to be the death penalty and other murders. That being the case, it seems to me it is most important that the distinction should be drawn as precisely as possible. If this plea is not accepted, what we will be doing will be passing this bill in as many days as we pass other measures in this house of much less consequence. Are we prepared, as members of parliament, to say that in a matter involving security of the person, life, death and the administration of justice we want to pass a measure without using those instruments of understanding and assessment which were used in the United Kingdom when they were confronted with the same problem a few years ago?
I believe the suggestion made by the hon. member for Maisonneuve-Rosemont is a very worthy one. We should be satisfied that we
[Mr. Martin (Essex East).!
have put into this bill provisions which will allow no room for doubt or uncertainty as to when the death penalty is to be imposed. I do not believe this bill does that.
It would be interesting to know what suggestions could be put forward in that regard. I say this bill is not clear because, as we know, all convictions for murder require the existence of mens rea, or the element of intent. I ask, after reading this bill, what additional elements are required to make a murder a planned and deliberate one. I do not see anything in this bill that answers this question. It is true that this bill makes a distinction, but it is a distinction that is going to offer to defence counsel and any unobjective crown counsel, an opportunity which I do not believe should exist in the interests of justice.
There are some other ideas I should like to express when we come to the appropriate clauses. Even though it is not open to us now to make any amendment along the line suggested by the hon. member who made the proposal for a further study a few months ago, I suggest that the Minister of Justice has a responsibility in this matter. I know he takes that responsibility seriously. I suggest to him that this responsibility can be exercised more carefully at this moment by recognizing the desirability of calling in those who administer the criminal law and asking the views of the law officers of the crown in the provinces- I do not say the attorneys general, for other reasons-and crown prosecutors, eminent defence counsel, the Canadian Bar Association and other interested bodies with strong views for and against capital punishment.
I support the principle of this bill, but I do not have confidence in the measure as drafted, for the reasons I have given.


Mr. Chambers:: I did not participate in the debate which took place on a somewhat similar bill last year, and it had not been my intention to take part in this discussion today, but I think it is important, lest what was said by the hon. member for Essex East should give the impression to the public that we as members of this house have not given enough consideration or taken sufficient advice to be able to pass on this matter, that something should be said.
As the Minister of Justice has pointed out, a special committee of this house undertook a most extensive study of this question generally some years ago, and since I have been in the house no subject has occasioned more discussion both on the floor of the chamber and among members outside the house. I am sure that practically every member here has, like myself, consulted the best legal opinions he could get

among his private associates on this important subject. We frequently read in accounts of trials of the efforts of lawyers and of the judiciary to establish what was in the mind of parliament when a certain measure was passed. Surely, then, it must be parliament which takes the responsibility for the character of the measure which should be passed in connection with such an important subject as this which we are now considering.
The hon. member for Essex East made reference to the experience in criminal law of those who had to do with the framing of this measure. I think it would be true to say that probably the most experienced criminal counsel in the country today is one of those who passed upon this bill before it was placed before the house, because I am sure the cabinet had a look at the bill before it was sent down.
The only point I wish to make is that I have done my best, not having the advantage of being learned in the law, to give full consideration to this matter and to take what competent advice I could find. I am sure every other member of the house has done the same.	-


Paul Joseph James Martin: Within our capacity and experience, undoubtedly.


Egan Chambers: I am sorry, but I missed that.


Mr. Marlin (Essex Easl):: Every member, I am sure, has done that within the limits of his or her capacity and experience. It is the lack of experience in connection with these matters which I think is important in this discussion.


Egan Chambers: I am glad that point is established, because I think we should be wrong if we gave the impression that this measure was being considered today in committee without a great deal of thought having been given to it by hon. members and, as I say, a resort to such experience as is available to them through their private contacts. As a result of my own thought, study and consultation, I shall support the bill.


Miss LaMarsh:: I did not have the opportunity to take part in the previous debate on this measure at the committee stage, nor when the bill came up for second reading. I listened, however, with great interest to the statement made by the minister on this occasion and have since that time-up until the time of the vote-considered carefully whether I should be in a position morally to vote for it or against it. Fortunately, my colleagues and I in this group as true Liberals were guided by our conscience and our experience in our decision in voting for or against the principle of the bill.
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As far as I am concerned I have always felt in a dilemma, in that I am incapable in deciding whether I am completely for abolition or completely for retention. In spite of the fact that I have had some limited experience as defence counsel in four murder trials, I have not been able to reconcile in my mind that there should be complete abolition, and I have felt there should be retention of the maximum penalty for at least two classes of crime. Therefore I found it within my conscience to vote affirmatively for this bill in principle.
But having regard to the heart of the bill, that is clause 2 of Bill No. C-92, perhaps I may point out that from my own experience and my reading on capital crimes which have occurred within this country it appears that a very high percentage of them-and these figures, so far as I know, are not available -have occurred by reason of the relationship between men and women, whether it be two men fighting, or the husband causing the death of his wife, or the wife causing the death of her husband. I suggest to the minister that because of the intensity of this relationship a deterrent is seldom present regardless of the provisions of the criminal law. When it is considered that, added to this particular fact that crimes arise mainly because of the man-woman relationship, there is the fact that in most Canadian crimes there is an element of the use of alcohol, I think this more than ever points up the fact that a deterrent does not exist; because when one commits such a crime, either arising from the man-woman relationship or because of the excessive use of alcohol, there is no deterrent which works on the mind at that moment.
This being the case, I have felt that if there is any deterrent at all to causing the death of another person it must be the thought of being apprehended, and not of what would occur following that. Perhaps even more so, when one considers a deliberate murder, where one has made a deliberate plan involving more thought, perhaps a higher intelligence, if anything were to deter that person it would be more likely to be life imprisonment rather than the ending of a life by hanging.
Because of the gaps which are in the legislation I would like to identify myself and my remarks, with the two hon. members from my party who have already spoken, the hon. member for Maisonneuve-Rosemont and the hon. member for Essex East, inasmuch as I would ask the minister to make arrangements for a further study by those who have had experience in this field prior to bringing the bill to a vote for final decision.

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In particular I would ask the minister why it is that this bill contains no provision for one of the most important things which the public should protect, that is, the possibility of the death of a prison guard during the course of a prison riot. Hon. members will recall that in the last few years there was one of these in the state of Michigan where a Canadian was involved, where there was a riot and a guard was killed. In this incident the Canadian had been sentenced to life imprisonment for murder and could not be sentenced to anything further.
Under the legislation which is now before us, if there is an attempt to escape from prison or lawful custody and a murder is caused, it is a capital murder. However, if there is a riot, during which there is an unpremeditated killing, nothing in this legislation makes this a capital murder. In the interests of protecting those who must work in our maximum security penitentiaries, I suggest the minister should give consideration to this type of killing which, for the general good of the community, should be included as capital murder.
In every case involving a second murder, I suggest it is certainly necessary to retain the death penalty. In the British homicide act of 1957 there is a provision stating that an individual who is convicted of murder for a second time must pay the supreme penalty. While I appreciate that under the provisions of the act before us if a murder is deliberate, whether it be a first or second one, in all likelihood the culprit will pay the maximum penalty, it is not beyond the realm of possibility that an individual could commit two non-capital murders. I suggest that one should not be entitled, to use the phrase of the Prime Minister this morning in respect of another matter, to more than one bite out of the cherry. If an individual is so skilful as to cause the death of two persons on different occasions I submit the state should demand the death penalty in respect of the second murder.
There is another provision contained in the British homicide act of 1957 which I recommend to the minister particularly for the protection of police officers in Canada. I appreciate that English police officers are unarmed, which is not the case generally in Canada. However, in most provinces of Canada police officers are not only ill trained but ill paid, and must assume the risk of dealing daily with criminals and the risk, more than any other private citizen, of thereby being injured or killed, I suggest there are great benefits, for the good of the state and of those people who stand between us and the criminal element, to be derived by the inclusion of that provision of the British

homicide act retaining the death penalty in respect of the killing of police officers.
I can recall, as I am sure all hon. members will, that this has happened once or twice in the last ten years in the province of Ontario, causing great public outcry because of the necessity, in this ever more complex society, of depending upon those individuals to protect us from the criminal element.
Bearing in mind that the present legislation seeks to make a difference between capital and non-capital murder based mainly upon the element of deliberation, whether it be under paragraph (a) or (b), there is no provision in this legislation, as there is in the British homicide act of 1957, in respect of an individual who suffers, not from insanity, as judicially defined, but from diminished responsibility. I should like to refer to section 2 of part 1 of the British homicide act of 1957, which reads as follows:
2. (1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.
Surely this principle should commend itself to the minister and hon. members of this committee. If the essential element to be used in differentiating between non-capital and capital murders is the element of deliberation, these poor unfortunates in our society, many of whom are attracted to a criminal way of life, who are incapable of being completely responsible for their acts who are incapable of that, mens rea which must always be proved, should never be placed in jeopardy of being hanged.
I have in mind, Mr. Chairman, the following situation. A person in full charge of his mental capabilities hires an individual who is mentally retarded to accompany him in committing a bank robbery. The mentally retarded individual equips himself with a weapon. He is not given the weapon by the person who planned the robbery but provides it for himself, so the individual actually in charge of the robbery cannot be convicted of counselling or procuring the other person to acquire this weapon. The two go together to the bank where the one in full possession of his faculties commits the robbery and is the only individual actually involved in the robbery. During the robbery the individual who is mentally retarded, through fright or for some other reason, fires at and kills a person in the bank. As I read the legislation before us the mentally retarded individual, who had not considered murder but who committed murder during the course of the

robbery, is liable to be hanged while the other person, fully aware of what he was doing, not having planned the murder but being unmindful of it, cannot be convicted of a capital offence.
I have outlined some problems and situations which have occurred to me within the last few days. I certainly am not an expert regarding the crime of murder, either as it exists presently or as it appears in this bill. However, I suggest there is in this chamber at the moment an individual who has had experience with a great many cases of this type. That is the chairman of the national parole board, now sitting before the minister. As a magistrate in the county of Welland he frequently presided at preliminary hearings on charges of murder, and I do not know of any individual who has been in a better position to see the day to day effect of such crimes in a community, either from the position of the defence or of the prosecution.
So I suggest to this committee that when someone as inexperienced as I am can make four or five suggestions which require consideration, surely there are many more qualified individuals who should be heard before this committee makes its final decision.
May I call it one o'clock?
At one o'clock the committee took recess.


[Stage Direction]
AFTER RECESS

The committee resumed at 2.30 p.m.
The Acting Chairman (Mr. Chown):: Shall
clause 1 carry?


Mr. Godin:: Mr. Chairman, on the first full day of discussion of this most important bill I consider it a privilege to take part in the debate. I appreciate the remarks which other hon. members have made, but I must say I find it most unfortunate that, although some members on the government side have spoken for a minute or two, no one has helped hon. members who are to make a decision by an analysis of this most important legislation or have given the necessary details to indicate that this bill meets the requirements of our Canadian society at this time.
Before we vote on clause 1, I trust that members from all sides of the house will have expressed the reasons why they find this is the legislation on capital punishment that is required in Canada today. I trust that we shall not leave it to the Liberal opposition alone to scrutinize this bill which we are now studying clause by clause to ascertain that the protection of our society is fully met by this legislation.
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Although I appreciate the remarks made by the Minister of Justice, I must say that he has in no way given a substantial reason why he supports the new ideas, opinions and laws which he hopes will help to solve this important problem. We know of no public document this government has received which contains instructions or opinions of specialists on the matter. There is no such public document in the possession of any member of the House of Commons. We know of no special committee set up to study this matter and define and phrase a statute of this importance. As I say, we do not know why this bill was not referred to a committee to make sure that it incorporates all the protections which would meet the desires of the Canadian people and possibly the desires of specialists in the matter.
We all recall how the bill of rights was improved by the study given to it by a special committee formed for that purpose. I for one am absolutely surprised at the conduct of this government in asking hon. members to pass upon a bill the phraseology of which we cannot individually analyse, nor do we know the significance of all its details. This is why I should like to see members on the government side of the house give reasons why they feel that clause 1, which we are now discussing, meets in full the desires of the Canadian people.
Recently I said I agreed with the principle of the bill. I am one of those who feel that it is important at this time in our history to solve some of the problems which pertain to capital punishment in our country. This is what we are doing, and this is what the Canadian people whom we represent are thinking about for two or three reasons. I should like hon. members on the government side to realize this and to give opinions which would be constructive in the study which we are now giving to this legislation.
We know there has been difficulty with juries and judges who found their hands tied because the law did not give them the directives required to reach a proper, honest and justifiable decision in the matter. We know also that in Canada people resent the fact that with respect to practically every conviction for murder, where capital punishment is imposed, the final decision rests with the cabinet of this country. I do not wish to discuss the royal prerogative in regard to pardon, but I believe the view is commonly held among people throughout Canada today that we must try to find a way to end the procedure whereby the final court of appeal in murder cases is the cabinet.
We know that in the past the royal prerogatives were limited. I only have to recall to the minds of hon. members the television

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program of a few days ago wherein Baldwin insisted that the crown should not change a law which the representatives of the people had decided to pass. Hon. members know that is so, and I am afraid that the way this legislation is phrased it will bring about a greater degree of inconsistency.


Mr. McGee:: No.


Osias.-J. Godin: The hon. member for York-Scarborough says no, but I should like to indicate to him the problem that the people of Canada see so far as capital punishment is concerned. Our judges and juries find their hands tied because of the lack of a proper definition of the crime which should deserve capital punishment. On the other hand, I believe the Canadian people do not see any good reason why the final court of appeal with respect to murder should be the cabinet of Canada, which is composed of politicians.
There are three divisions in the administration of the affairs of our country. There is the legislative body, this House of Commons. There is the judicial section composed of judges and juries in accordance with our method of administering justice. We also have the division which is composed of crown attorneys and policemen. Having regard to the problems with respect to capital punishment and the criticisms that are made, I say it is our duty to make sure that, on the one hand, we keep the decision as to capital punishment out of the hands of politicians and, on the other hand, out of the hands of those people employed in the administration of justice.
I find after analysing the bill that it brings about a situation whereby the authority of politicians in the matter of capital punishment is increased, as is the authority of those people who are employed in the administration of justice. It is unfortunate that I can speak on clause 1 only and not go into how it may be related to other clauses of the bill. Members of the house will recall the television program some months ago in which part of the process of hanging was depicted, and which I understand some company refused to sponsor. However, the C.B.C. undertook to make the program available to the Canadian people, and I was impressed by it. If I recall correctly the title of the play was "The Case of the White Horse". If I may give the story briefly, a small community miles from anywhere found that a murder had been committed within the community. Someone had seen a white horse being driven through the town on the night of the murder. No one in the community owned a white horse, and as the town was without any system for the administration of justice they created their own. That is what we are trying to do in this bill and that

is what preceding parliaments have tried to do, create a law whereby people can judge for themselves.


Paul Raymond Martineau: Would the hon. member permit a question?


Osias.-J. Godin: Yes.


Paul Raymond Martineau: Is it his considered opinion that it is the role of parliament to enact the law?


Osias.-J. Godin: I am surprised to hear such a remark by the parliamentary secretary to the Prime Minister. Is it the function of parliament to make the law?


Mr. Nesbitt:: He asked a question. Answer it.


Osias.-J. Godin: The hon. member has asked me whether it is the function of the government to make the laws of this country.


Paul Raymond Martineau: This parliament.


Osias.-J. Godin: I am surprised that such a question should be asked by an hon. member elected to this house. We know that there is only one major legislative body in Canada, and that is the parliament of Canada.


An hon. Member:: Answer the question.


Osias.-J. Godin: I am not answering because it is obvious to anyone walking the streets who has any brains that parliament is the only body that can make the law with regard to those matters which come within its powers under the British North America Act. Why should an hon. member, especially the parliamentary secretary to the Prime Minister, ask me whether I feel that parliament should make the law? That is our only function; we have no other. We have nothing to do with the administration of justice or with our judiciary. It was made certain in the British North America Act that we would have nothing to do with the judiciary or with the administration of justice. I am absolutely opposed to the expression of the view by anyone that our jurisdiction goes beyond that of making the law or that we should tell our courts what they should do and what decision should be made. That is why I am speaking on this very subject. That is why I say that in amending the code so far as capital punishment is concerned we should do so in a way that will remove the function of the cabinet in this regard.
I am not saying there is no such thing as the royal prerogative to pardon. That should exist, but it should continue to exist as something to be used only in the most extraordinary circumstances. It should not be embodied in our Criminal Code by making provision, as the bill does, that a jury may ask the cabinet to exercise clemency. I say

that the politicians should stay out of this matter, and our crown attorneys should do likewise. Our crown attorneys should not be able to say that this Canadian citizen will be tried on a murder charge for which the punishment is hanging while another citizen will also be tried for murder but under a charge for which the punishment is not hanging. That is what the bill sets forth.
I heard hon. members speak on second reading of the bill. I heard the hon. member for Dufferin-Simcoe, who said he was opposed to this change if it means that we will be trying to protect the criminal rather than Canadian society. I appreciated what he said, and it is most unfortunate that he is not here today. I should like to ask him to support my views about the bill which gives extended power, in that it practically makes the cabinet a part of our judicial process. It makes the cabinet of Canada the final court of appeal for murder. It also gives crown attorneys and police officers the power to decide who will face hanging if he is found guilty and who will face life imprisonment. I am absolutely opposed to that.


Mr, McGee:: Will the hon. member permit a question?


Osias.-J. Godin: After I have finished my remarks I will be prepared to answer any questions. I am convinced as to this matter as I have never been before with regard to anything else. I have a great appreciation for the way justice is administered in Canada, but to give those who administer justice the opportunity, duty and function to decide who is going to face hanging and who is going to face life imprisonment is not in my view the type of improvement in the law that the Canadian people want to see implemented. It is not the type of improvement that the legislators in this house should try to formulate.
I realize that it is most difficult to be precise in describing all crimes and the circumstances that go to constitute each crime. Our duty today is not to get up and congratulate the Minister of Justice on this wonderful bill. Our duty today and this week is to study this bill and see what results it will have in Canadian society. We have no other function but to sit here today, tomorrow and the balance of this week to study this bill, and for that reason I am pleased to take advantage of this occasion during the clause by clause study of the bill to give to the minister some of the opinions I may have. It is possible that my opinions are not the best. I realize, Mr. Chairman, that the Minister of Justice will not ask the Liberal opposition to create the bill which this government decides to pass.
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We know that a special committee of the Senate and House of Commons of Canada studied this subject and made a report in 1955. Other members have mentioned this. The report was not favourable to a bill of this type. A study of this subject was undertaken in England in 1957, although England has no criminal code such as we have in Canada. After this study was completed the government decided to pass a homicide code which pertains to murder only, and this code contained certain sections to which the hon. member for Essex East and the hon. member for Niagara Falls have referred. The government of the United Kingdom had reasons for placing certain things in that bill which we do not find in this bill.
If I may return to clause 1, Mr. Chairman, I must state that after reading it I was most surprised. It is especially surprising when read in conjunction with other clauses of this bill, such as clause 7 and clause 13. I realize that I should not embark on a discussion of these other clauses at this time and should limit my remarks to clause 1. However, I am sure the Minister of Justice and others will permit me to discuss clause 1 in so far as it relates to other clauses or could be complicated by other clauses which we find in this bill.
What do we find, and what is the first surprise in this clause? We know that in Canada today we have the crimes of murder, manslaughter and other forms of homicide such as infanticide. We are trying to arrive at a definition which will assist judges and juries in making a finding one way or the other in so far as capital punishment is concerned. I should like the Minister of Justice to try to follow the reasoning which I am about to advance.


Mr. Bell (Carleion):: That would be a devious path.


Mr, Godin:: Hon. members opposite may find it very funny, but in clause 1 we find this when we are trying to ascertain whether murder is capital or non-capital:
Murder is capital murder, in respect of any person, where-
Now, Mr. Chairman, if I were to ask anyone, "Did you hear about the murder which was committed in respect of the Minister of Justice", would that question be construed to mean that the Minister of Justice had killed someone or that the Minister of Justice had been killed? As I understand the English language, when someone refers to a murder in respect of a person he is referring to the person who has been killed and not the person who kills. Now, the problem goes further'



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Peter Francis Martin: May I ask the
hon. gentleman a question?


Osias.-J. Godin: Yes.


Peter Francis Martin: I should like to ask a question on this point so that I may clearly understand the hon. member's thinking. I believe it is an important point. Does the hon. gentleman not think that the answer is provided in clause 2 (a), where it is clearly indicated, it seems to me, by the phrase "on the part of such person"?


Osias.-J. Godin: I thank the hon. member for Essex East for his question, and it is a pertinent one which I am prepared to elucidate. I suggest that the second paragraph to which the hon. member has referred relates to the first one because of the use of the word "such". Paragraph (a) plainly says, "on the part of such person", and in the French translation we find the words "a l'egard de".
I shall give an illustration of the arguments that might be used by lawyers in such cases. If I deliberately plan to kill A, who is supposed to be at a certain street corner one night carrying a million dollars in a yellow envelope, and I deliberately plan to kill him for the purpose of getting this envelope, but when I go to that street corner at the precise time somebody else comes along and I kill him only to find out it is not A but B, then according to the wording of this bill I could only be found guilty of noncapital murder. You can only be found guilty of capital murder if you kill the person you intended to kill. This is the way this bill will work.
I see the hon. member for Carleton shaking his head in the negative. I realize that the intention of the Minister of Justice is to relate the offence-


Edmund Davie Fulton: If my hon. friend would permit an interruption, I may say that what my hon. friend has just said is complete nonsense. If he will look at section 202, which is preserved in this bill, he will realize that what he has just said is quite wrong.


Osias.-J. Godin: The only reason the Minister of Justice cites section 202 is because I referred to the yellow envelope.


Some hon. Members:: Oh, oh.


Osias.-J. Godin: I recall to you, Mr. Chairman, that section 202 only refers to a murder which is committed while you are trying to commit a felony. If a man kills another person because he is the lover of, his wife, he does not kill him because he wants to commit a felony. He kills him because he wants to do away with him. The Minister of Justice
[Mr Godin.]
has indicated to me that I should be very precise. Let us leave the yellow envelope out of our consideration. Let us say the man he went to meet at that corner was the lover of his wife and he wants to do away with him. He goes there for the purpose of killing him. How does section 202 come into play in that case? It seems to me that if you kill the wrong person you are not guilty of capital murder, according to this bill, and not subject to capital punishment. It may be, as the minister has mentioned, that if you apply force during the commission of a felony you fall within section 202, that is while you are trying to get the yellow envelope.
I am surprised, Mr. Chairman, that the Minister of Justice should be distracted by the fact I used the yellow envelope as an example, and not the case of the lover. What about the person who wants to do away with the milkman and does away with the bread man by mistake? I am prepared to admit that the Minister of Justice definitely wanted to tie capital punishment to the person who committed the offence and not the person who was the victim of the homicide; there is no doubt about that. However, the words used make it clear to everyone that judges and juries will be forced to say, "It is written this way but we must find, for the purposes of equity and justice, that this pertains to the person who committed the offence". Therefore even if this person committed murder against the wrong man, they must still find him guilty because of the way the bill is worded.
(Translation):
Mr. Chairman, I should also like to make a few remarks on the use of the adjective "deliberate", in section 2(a) of the act.
The word "deliberate", according to the dictionaries, does not have quite the same meaning in French as in English. The English word means that someone has done something "without impulse", "without deliberation", while according to the French dictionaries, the word "deliberate" rather means "voluntarily".
I recognize that the Minister of Justice, who considered the English version in the first place, just as I did, will say that if there is any difference as between the English and the French texts in Canada, the meaning of the English terminology must be accepted.
However, I fail to see why a province should always, in regard to that section, have to go by the rule requiring that the English interpretation be the criterion.
I feel we should try to find a translation involving no distinction between the two languages, such as there is now between the words "deliberate" and "delibere".

For instance, on the basis of the French terminology, I would say that a man, finding himself betrayed in his love for his wife, might go into his garage, shed or basement, pick up a gun and kill the guilty party.
There is no doubt that on the basis of the English version, this individual would get away, because his action would have been prompted by an insult. That is what is meant by the word "deliberate".
However, on the basis of the word "deli-bere", he would be guilty, because a man who goes to his shed and picks up a weapon to kill another man does so voluntarily.
Perhaps the distinction is rather fine, but I would remind hon. members that it is important to look at the wording of the bill.
(Text):
Mr. Chairman, I could mention other flagrant misgivings which arise out of clause 1 of the bill. In subclause 2 (b) (i) it says that murder is capital murder, in respect of any person, who-
-by his own act caused or assisted in causing the bodily harm from which the death ensued.
Then in (ii) and (iii) we find these words. For instance, (iii) says:
-by his own act stopped or assisted in the stopping of the breath from which the death ensued.
This apparently means there were differences of opinion in the mind of the Minister of Justice or whoever drafted this bill. If a person chokes somebody, only the person who actually does the choking can be found guilty, but in subclause 2 (i) it is said:
-by his own act caused or assisted in causing-
Surely lawyers will discuss this and juries will listen to a case where perhaps someone flies somebody in his airplane 50 miles to commit a murder, or takes him to the place of the murder, and the jury will decide that person is guilty of assisting in causing bodily harm. I think the Minister of Justice should study the problem in relation to the differences in subsection 2 (i), (ii) and (iii).
I am sure that in a case where a man has no way of getting to a place where he wants to commit a robbery, and at the time the robbery is committed he is forced to shoot and kill somebody, under section 202 the crown will argue, quoting subsection 2 (i) of this bill, that the driver of the automobile should be found guilty. But with regard to the driver of the automobile in the case where somebody has been driven to choke a person to death, the driver cannot be found guilty because this specific, concrete clause is contained in the bill.
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Gordon Campbell Chown: Order. I am sorry to interrupt the hon. member, but his time has expired.


Some hon. Members:: Carry on.


Gordon Campbell Chown: Has
the hon. member the consent of the committee to continue?


Some hon. Members:: Agreed.


Osias.-J. Godin: Let us take it slightly further. In other clauses these words are used "assisted in applying the force". We know that murders have been committed and will in all probability be committed in the future by people who are practically wholly unaware of what they are doing. I should like the Minister of Justice to follow this example and give consideration to this matter. Suppose a doctor wanted to do away with a certain person and prepared a lethal injection for that person without his nurse knowing anything about it. The doctor would say to the nurse. "Mr. Jones is coming in at three o'clock. Tell him I have prescribed this injection and give it to him". Then the nurse would be the one who actually applied the force, in the form of the injection, from which that man died. Under this bill she would be guilty of the offence of murder.
I realize that hon. members will say, "The question of mens rea comes into it, and she was not aware of what she was doing". I agree that this question and others enter into it, but are accused persons always capable of giving evidence that should be given to show they had no mens rea and were actually no party to the offence? I think the words "knowingly assisted" in applying the physical force whereby a person dies should be put into the bill. Even then I am not sure this would solve the problem. As I have told the committee on previous occasions-


Mr. Browne (St. John's West):: Mr. Chairman, I wonder whether I could draw the hon. member's attention to section 201 which reads:
201. Culpable homicide is murder
(a)	where the person who causes the death of a human being
(i)	means to cause his death, or
(ii)	means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;
(b)	where a person meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or
(c)	where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death

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to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.
If the nurse were completely ignorant of what the syringe contained, she would be perfectly innocent and could not be charged at all.


Osias.-J. Godin: I am just stating the problem.
I realize that if the nurse could prove she had no intent that would be the case, but accused persons are not always in a position to furnish the evidence that is required for a jury to find they had no part in the offence.
I realize that the clauses of this bill do not abolish those matters which may be given in evidence by an accused person, but we are trying to establish when a person shall be judged guilty of capital murder and thereby suffer capital punishment and hang, and when a person shall be found guilty of non-capital murder and therefore will not hang. I am suggesting to the committee that this matter should be given careful consideration. I am not saying that in no way will anybody be able to obtain justice in our courts. I am giving these examples, and more specifically the last example to illustrate my point. I know that if there is absolutely no mens rea and the jury finds there is no mens rea or intent, the person accused cannot be found guilty of murder. I admit that.
However, sometimes these circumstances are not easy to prove. I feel that as we are now considering how the Criminal Code should be worded in order that proper direction shall be given to judges and juries, our consideration should be as complete as possible and the Criminal Code should be worded in a way that would meet to the fullest extent the different circumstances which may arise. I repeat that I am confident no government would be capable of formulating a statute which would satisfy the requirements of the situation 100 per cent. But it is not enough merely to congratulate the Minister of Justice. We have the duty to ensure that whatever measure we do enact will meet the situation to the best of our capacity and knowledge.
I should like to raise one question in particular concerning clause 1. I think the duty of distinguishing in the first instance between the two classes of murder should not rest in the hands of whoever is bringing the prosecution. It will be my intention to suggest later that the whole of clause 7 should disappear. It is my view that everyone committing a capital crime of the nature covered by one or other of the two classes of murder should first of all be charged with the crime of murder to find out whether he is guilty of having committed a murder at all. If a jury found that a murder had been committed by

the accused, then direction would be given to them by the judge to find, further, whether that person is guilty of capital murder or not. In this way all Canadians committing capital crimes would be faced with the same murder charge. It is my view that if this proposal were adopted it would reduce possible confusion among juries. I know how long and difficult are some of the charges made by judges to juries in murder cases.
It is true there are other fields where the crown attorney can make important decisions with regard to the nature of the crime with which an accused person is charged. The most serious example which occurs to me is the case where the prosecuting officer may choose to proceed on a charge of manslaughter rather than murder. But I say that at this time when we are altering the legislation concerning capital punishment, our court officials should no longer be in a position virtually to decide which person is to face a charge involving hanging and which person is to face a charge involving imprisonment for life. I am not prepared at this time to put forward a formal resolution or amendment, but I am sure the discussion on this clause will continue for some time and I shall almost certainly find it necessary to speak further on some of the amendments which are placed before the committee.
There is another feature about this bill which I find surprising. Although the United Kingdom parliament in 1957 exempted from liability to the penalty for capital murder anyone with a certain degree of mental instability, there is a clause here which provides that any man whose birth certificate shows he was younger than 18 when he committed an offence may escape the death penalty, though he may well have the intelligence of a man of 25. But in this country if it is found that a man has the mentality of a 12 year old, which is the Christie case, he can be hung. Surely the penalty for the crime of murder should be attached not to the birth certificate he carries but to his capacity to commit murder, knowing full well what he is doing. Why should a person who has a birth certificate proving that he is younger than 18 escape, although it may be recognized in court that he has a superior intelligence, while a man whose birth certificate shows he was over 18 at the time the offence was committed but whose intelligence turns out to be that of a 12 year old, will incur the fullest rigour of the law? I think the minister should give us an explanation of this point before we proceed very much further.
I appreciate that members of the committee have given me an opportunity to continue

after my time expired. I will avail myself of other opportunities later to discuss certain other phases of the bill.


Mr. Aiken:: May I ask the hon. member a question? He mentioned during his address that the decision as to whether a charge of capital murder or non-capital murder should be preferred ought not to be left with the crown attorney. Can the hon. member tell me how this would differ from the present situation, where the crown attorney has the duty of deciding between a charge of murder and a charge of manslaughter?


Osias.-J. Godin: Yes, I shall be pleased to give the hon. member my views on that. The present bill does not deal with manslaughter as it is defined in the Criminal Code. I am confining my observations to the present bill, which deals only with murder. It is true that at present a police officer may choose to charge a person with manslaughter or he may choose to charge him with murder. We are not being asked to alter that. I am not saying I fully agree with the present system, but I do not disagree with it as completely as I do with the circumstances envisaged in the present bill, where a policeman or a crown attorney will be given the responsibility of deciding whether a man is to be charged with one class of murder, which is punishable by death, or another class of murder which is punishable by imprisonment for life.


Mr. Denis:: As far as I can see there is
plenty in this bill to please those who are in favour of the abolition of capital punishment. Those who are against abolition may also find something to say in favour of the bill, because there are a great many contradictions contained in this measure. There is even contradiction between clause 1 and the explanatory note. I should like to draw the attention of the minister to what I think is an inconsistency arising from clause 1 subclause (2) (i), which reads:
Murder is capital murder, in respect of any person, where-*
(b) it is within section 202 and such person
(i) by his own act caused or assisted in causing the bodily harm from which the death ensued.
Now I shall read the explanatory note at the end of the page:
What is provided by the new section 202A is that of all those crimes which may be murder as defined, only murder of a calculated and deliberate nature shall be capital, or murder committed in the course of carrying out any of the crimes mentioned in section 202-generally speaking a crime itself involving the use of force or stealth, thus importing the element of deliberation. Under the latter alternative, however, only the person who actually committed the act or applied the force causing death, or counselled the doing of it, would be guilty of capital murder.
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That is in contradiction with the provisions of the measure itself. The law states that an individual is guilty of capital murder and liable to capital punishment if by his own act he has caused or assisted in causing the bodily harm from which the death ensued.


Edmund Davie Fulton: If the hon. member will consult subparagraph (v) he will see that the individual is also guilty of capital murder if he has counselled or procured another person to do any act covered in this section.


Azellus Denis: I should like to present a hypothetical case to the minister, in respect of which I hope he will give an explanation. Suppose a group of five individuals decided to rob a bank, and two of them confronted the tellers in the bank, one watched the doorway inside, one watched the doorway outside, and one acted as driver of the getaway car, and during the course of this robbery one of the individuals killed the manager of the bank. According to this proposed legislation only the individual who shot and killed the manager would be liable to capital punishment.


Edmund Davie Fulton: Unless-


Azellus Denis: Yes, unless he was close to an individual who told him to shoot. However, the guard behind the door, the outside lookout, and the driver of the car, all bandits of the same gang, would not be liable to capital punishment. Only the individual who shot the manager would hang, so it would take five such robberies in order to get the whole gang. Four fifths of the gang would be completely safe from hanging. In light of that interpretation of this proposed legislation, I suggest those individuals who are in favour of the abolition of capital punishment will be in favour of this bill.


Mr. Carter:: Mr. Chairman, having listened to the contributions made by learned lawyers in this chamber, perhaps a few words from a layman would not be out of order at this time. I did not speak on second reading of this bill because I had not had time to study it thoroughly. However, I should like to take-advantage of this general discussion on the first clause to state my position and lend support to the request put forward by my colleagues on this side of the house that this legislation be sent to a special committee for further study.
This is a very important piece of legislation, perhaps the most important to be dealt with this session. It is a very difficult piece of legislation to evaluate. Since we are not dealing with it in a partisan manner, it is important that everything should be said and done in order that the public may be fully informed in respect of what this legislation

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will accomplish, and as to how it compares with the legislation it will replace.


Edmund Davie Fulton: This does not replace anything; it adds to it.


Chesley William Carter: It is amending legislation.


Edmund Davie Fulton: There is an important distinction involved. This does not replace anything, but adds a provision that there shall be two degrees of murder. There has to be murder in the first place; only then the question will arise, is it capital or not?


Chesley William Carter: I agree with the minister's interpretation and thank him for his correction. I readily admit that what we are adding by this legislation is an improvement, but there are some features which are perhaps objectionable. I suggest the legislation would perhaps be more desirable if those objectionable features were left out. I suggest that is something which could be better determined by a special committee than in the way we are dealing with it here.
The wide difference of opinion which exists among various members of this house in respect of this legislation was very evident last Wednesday in the vote which took place then. The members who strongly advocated the abolition of capital punishment voted in favour of this legislation because they felt it was a step in that direction, while those members who were perhaps equally in favour of the retention of capital punishment voted against this legislation because they too felt it was a step towards abolition.


Mr. Jones:: Perhaps the hon. member would tell us which parts of this legislation he feels should be left out.


Chesley William Carter: If the hon. gentleman will possess his soul in patience I shall try to outline those portions.


Henry Frank Jones: We should like to know what they are.


Chesley William Carter: They will come out in the wash.


Thomas Miller Bell: It will probably be dirty wash.


Chesley William Carter: Editorials and press comments in respect of this legislation have generally been quite favourable. That favourable comment has been more or less based, I suggest, on the assessment that this legislation represents a step in the direction of the abolition of capital punishment. The minister has denied that assessment and, in fact, has quite properly pointed to the fact that this legislation does retain capital punishment. Last Wednesday I voted against this legislation because that vote had to do with

the principle of the bill, the retention of capital punishment. I am personally opposed to capital punishment for two reasons, which I shall attempt to outline briefly.
The first reason is that in spite of all the precautions which may be taken, as well as the safeguards written into the legislation, innocent people have been hanged. We know that as a fact. In my view that fact outweights all the deterrent value of capital punishment, which I understand is the main reason for its retention. The second reason I oppose the retention of capital punishment is that I feel society itself is to some extent responsible for the guilt of accused persons. When an individual is born into this world he is either normal or handicapped. If an individual is born handicapped and later commits murder, there is no way of knowing to what extent the murder resulted from the handicap which he inherited. On the other hand, if an individual is born normal and becomes a criminal, he does so to some extent as a result of his environment. In view of the fact that society is responsible for the environment which leads to the development of that type of individual, it is my belief that society is to some extent responsible for the crimes that person commits.
Since society is responsible for the imposition of capital punishment, that society is to me likened to Pilate washing his hands of the whole business. Furthermore, I believe in the principle that society should not take away something which cannot be restored. When the life of an innocent person is taken away by society in error, that life cannot be restored. I also oppose the retention of capital punishment for that reason.
The curious thing in respect of this legislation is that the minister states it retains capital punishment because of the evaluation of public opinion in Canada as being in favour of retaining the death penalty. I believe it is true that this legislation retains capital punishment on the basis of its deterrent value. I fully agree with that. I think that for the normal person the death penalty is a very strong deterrent, perhaps the strongest there is. But a curious thing about this legislation is that it has abolished the death penalty for all those groups of people who would be most likely to be deterred by it, and it has retained the death penalty for the professional, calculating criminal who is the least likely to be deterred by it. Therefore, on the one hand we are retaining a principle, and on the other we are lessening the deterrent value on which the principle is based.
Surely the object of our legislation should not be to classify types of murder but to

deter killing, to save people's lives and to prevent killing. If a person is killed it does not make much difference whether he is killed by somebody whose crime is going to be classed non-capital or by somebody whose crime is going to be classed as capital murder. It certainly does not alter the fact that the person is dead. What we wish to do is to try to lessen the number of killings. If the deterrent value is valid at all, then we should be extending it, but in this bill we are diminishing it and reserving it only for those groups of people who are least likely to be deterred at all.
As I said, there are some good things in this bill, but I have pointed out one of the objectionable features that my hon. friend inquired about. I think the age limit and the automatic appeal are desirable features, but we are dealing with this legislation in a nonpolitical way. I think the proper thing to do is to send it to a committee where we can get expert opinion from people versed in the practice of criminal law so that we can produce the very best piece of legislation possible. At the same time I think we should inform the people fully as to what the difference is between this legislation and the present legislation, or what we are actually adding to the legislation already in existence because actually when it is evaluated I do not think we are adding very much; in fact, we may be taking away more than we are adding to it.


Mr. Nugent:: Mr. Chairman, I should like to pass a few comments on this legislation. I listened with interest to some hon. members who spoke this morning and this afternoon. Because of the remarks made by the hon. member for Maisonneuve-Rosemont, the hon. member for Essex East and the hon. member for Niagara Falls, I thought the record might give the impression that there were not many men in the house learned in the law and well qualified to consider all the ramifications of the bill before us. I think the tenor of the remarks expressed by those three I have mentioned amounted to this, that we really should send this bill to a committee or hold it up for further study so that we could bring in some people expert in the law, some who have had considerable legal experience and who can advise us on what might be the effect of this bill.
Just for the record, Mr. Chairman, I started to look over the composition of the house and the legal talent available. While I am not acquainted with the experience and qualifications of all hon. members, I do know that on the government benches, for instance, we have some very outstanding legal talent. The Prime Minister has a reputation in this field which I think is familiar to all hon. members and
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indeed it is well known across the country. He is ably supported by the Minister of National Revenue who has an outstanding reputation as a barrister. The Secretary of State has a big name in the province of Quebec as a crown prosecutor and defence counsel. The Solicitor General has some 15 years' experience on the bench plus many years at the bar. Therefore, I submit, Mr. Chairman, the cabinet itself is well represented in experience by people who have had much to do with criminal law and capital cases.
The talent is not limited to the cabinet benches, however. We have such outstanding barristers as the hon. member for Parkdale who is perhaps the country's leading criminal lawyer. We have from the province of Alberta the hon. member for Peace River who has many years of outstanding service at the Alberta bar, and his trial experience includes I believe some 20 murder cases. There are other members scattered throughout the house; for instance, the hon. member for Peel has behind him, a pretty fair amount of criminal law work in the general practice field and it includes some capital cases. The hon. member for Victoria, (B.C.) has had a very wide and distinguished career at the bar, including a lot of criminal work.
I have mentioned those members whose experience and reputation are known to me. I have not attempted to make an accurate survey of the house, as I am sure there are probably a good many other lawyers in the house who have even more experience than some of those I have mentioned.
Out of my own career and experience I would mention only one case. 1 have had only one murder trial, but I think the committee might find it of interest because it is my considered opinion that while the man I defended was charged with murder-he was convicted of manslaughter-I am convinced that had he been charged under this legislation he would have been charged with capital murder and would have been found guilty of non-capital murder. The point I make is that for a long time we have had juries reluctant to bring in a verdict of guilty of murder where a man was going to hang for it. They have tended to bring in a verdict of manslaughter and in some cases where that has not been possible I believe that some murderers may have escaped conviction altogether because the jury just would not condemn them to death. Therefore, by this legislation I think we shall get a little more proper administration of justice in that we shall have convictions where there should be convictions without fear of too much punishment.
I should like to comment just for one minute on the remarks of the hon. member

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for Nickel Belt who seemed to be obsessed with the fear that it was too much of a load for the crown prosecutors to ask them to decide whether or not they should arraign a person on a charge of capital murder or non-capital murder, and who seemed not to be able to understand murder and manslaughter as we have them now.
I suggest that the burden on the crown is going to be even easier now, if it is to be changed at all. I believe that the crown prosecutors normally charge the most serious crime that can possibly be sustained by the evidence they have to consider. In that way they cannot make any mistake because if the evidence falls short of the most serious offence the jury can always find for the lesser offence, and I really fail to understand the hon. member's considerable worry on this point.


Lester Bowles Pearson: Mr. Chairman, I can make no claim to any legal knowledge or legal education with respect to this matter which would justify my intervention but the matter is such an important one that I feel I should say something about the bill before us, more particularly as I was not able to take part in the debate on second reading. When the minister, whose speech I regret I was not able to hear but which I have read in Hansard, introduced the bill he said, as found on page 5220 of Hansard:
... only on rare occasions is this house required to consider and amend or change laws or institutions that form part of the very foundation of our society.
This, Mr. Chairman, is one of those rare occasions. Capital punishment, which is the extinguishing of an individual human life, is certainly not in my view a matter of a politically partisan character when we in this house attempt to deal with it. A bill of this kind, as I see it, deals with fundamental moral values of our society and should be and is being treated in that sense in this house. Therefore, Mr. Chairman, we in the official opposition are not considering this bill in any partisan sense. It has been made clear, so far as we are concerned, that it is a matter for each of us to decide as to how he will vote and the attitude he will take in accordance with his individual conscience and his individual judgment based on considerations of conscience.
The bill has been passed in principle, and if I had been in the house I would have supported its passing. The principle, as I see it, is that capital punishment should not be eliminated but that there should be a limitation on it, through a distinction between murders for which the death penalty is provided and other types of murder. In other

words, there should be a distinction between capital and non-capital murder.
In following the debate and reading Hansard I have been interested to note that there have been those who have opposed the bill for diametrically opposite reasons. In his introduction of the bill the minister stated, and I am paraphrasing what he said, that public opinion in this country was not ready for complete abolition. Perhaps he is right, but I wonder how he has managed to come to that conclusion. Whether or not that is the case, the bill indicates that in the minds of the government this country is presumably ready now to make progress toward the abolition of capital punishment by limiting the categories of murder to which the death penalty is attached.
There are however, some points of very great importance which are related to murder and capital punishment and which are not included within the bill. There is one I should like to mention. I ask myself, why did the government, seeing that it was dealing with this problem, omit reference to the manner or method of execution? In the report of the joint committee of the Senate and the House of Commons on capital punishment submitted on June 27, 1956, section 91, page 21, reads in part as follows:
The committee has concluded, after weighing these considerations, that hanging is not the most satisfactory method of execution which might be employed and, accordingly, recommends its abolition.
As hon. members know, that recommendation was made after a great deal of consideration and long and careful examination. The government has not seen fit to accept this recommendation in the legislation before us, and perhaps the minister might be able to give us some information later as to why no action was taken in this regard. It certainly would appear to me, from the study I have been able to give the matter, that there are more humane methods of execution than hanging. As I see it, there could hardly be a less humane method. I cannot understand why the government did not take advantage of this opportunity to deal with that particular problem and perhaps the minister will be able to explain why when he speaks later in this debate.
As I see it, Mr. Chairman, and this point has been dealt with by other speakers on clause 1, the provisions of the bill are defective in two ways. First, in adopting the basic principle of the bill that there has to be a distinction between murders for which there is to be the death penalty and other murders, surely it is axiomatic that that definition should be drawn as precisely as possible. In a matter of this kind nothing could be much

more important than the maximum amount of precision possible when we are dealing with a question, literally, of life and death. There should be no room for doubt or uncertainty as to when the death penalty is to be imposed and in that sense, as other speakers have pointed out, it seems to me that the bill is defective and that it can be improved.
Murder in general, I admit there can be exceptions to this, requires as an element that there be an intent to kill. We ask ourselves, what additional element or what additional elements, because there may be more than one, are required to make murder planned and deliberate? The bill does contemplate such a distinction, of course, and therefore it would be up to each jury to distinguish between a merely intentional murder and one that is planned and deliberate. It seems to me that we may get into a great deal of trouble in the future in attempting to work out that definition in a way which will not create injustice.
I find it difficult myself to make up my own mind that there is a basic justification for making the imposition of the death penalty turn on that distinction. I know, of course, there can be distinctions in murder and those distinctions have been worked out in legislation in other countries, more particularly in the United Kingdom. However, the distinctions there, as I will try to point out in a moment, are not the same as those embodied in this bill.
Then, there is the effect of this bill, if it should become law, on the deterrent character of punishment. A good deal of consideration has been given to the deterrent effect of capital punishment by speakers who have taken part in this debate. I think it is generally admitted by experts who have given consideration to this matter, Mr. Chairman, and also by the minister himself in his speech, that capital punishment as a conscious deterrent against crime cannot be exactly evaluated. I have, as other members have, read a lot of statistics with regard to this. You can compare the experience of one country where there is no capital punishment with the experience of another country where there is. You can compare the experience of one country during a time when that country had capital punishment, and after it was abolished. You can compare the experience of a state in the United States which has capital punishment with the experience of one that has not. I have not, myself, been able to come to any satisfactory conclusion, merely on the basis of these statistics, because there are too many other factors that may affect those statistics and you are dealing with a question of such fundamental moral
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importance. So I cannot come to any final conclusion, on the basis of those statistics which I have been able to study.
As the minister himself has indicated-I am again paraphrasing his words-it is the effect of punishment in stigmatizing conduct so that the ordinary citizen does not contemplate such conduct that is probably its greatest effect; that is where, as I see it, the deterrent lies. If I may use an expression which has now become a homely one, punishment conditions the mind in the same way as Pavlov's dog was conditioned to salivate when the bell rang. We all have mental blocks created by the existence of punishment against criminal acts. I believe however, that punishment is not, itself a conscious deterrent, except in the case of the professional criminal or in one or two other instances. As the French philosopher Pascal once said, speaking in a different context, "if there were only a small probability of eternal damnation the risk of sinning would appear excessive". Well, that may be true, but it has not prevented sinners from existing in the world for a long time, nor has the existence of capital punishment prevented murder during the centuries that capital punishment has existed. Considering the number of crimes for which capital punishment once was imposed history shows that at times it has not had as much deterrent effect as the reduction in the number of capital crimes has had.
This bill seems to be founded on what I consider to be the shaky basis that a planned and deliberate murder can be deterred by capital punishment. I doubt, in practice, if this will work out. Perhaps I may give one example which was once given a great deal of attention in the press. Not long ago a young man who was crazed by jealousy went out and purchased a knife. He proceeded halfway across the city and stabbed his estranged wife. There is no doubt, Mr. Chairman, that the killing was planned and deliberate. The certainty of capital punishment did not serve as a deterrent. The individual in this case was perhaps beyond the reach, in his mind, of any deterrent. Why should the death penalty apply here, as it would I think if this man, in a momentary loss of control, killed someone yet in technical circumstances which would hardly be interpreted as otherwise than planned and deliberate?
The distinction in this bill between planned and deliberate murder and other murder appears, at least, to give effect to the view- this worries me-that these murders are worse than the others in a moral sense. This interpretation would appear to accept the former

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principle of retribution and vengeance, although I am sure that was not in the mind of the minister when drafting this bill.
Perhaps at this point the minister would permit me to ask him a specific question with which he might be willing to deal now. I think it is a question that has already been asked this afternoon by the hon. member for Niagara Falls while I was out of the house. If during the course of a riot in a prison a guard were killed by the prisoners, would the charge of capital murder be laid against the prisoner committing the offence? As I understand this bill, if the guard were killed under those circumstances, the murder might well not be planned and deliberate and therefore might not be subject to the death penalty. If that is a correct interpretation, does the minister not feel that this would place the prison warden and the prison guards in an intolerably dangerous situation? Would it not discriminate against them, in that sense?
The homicide act of the United Kingdom, as has been pointed out by other speakers, rests on a very different basis from that of this particular bill. The British act, by selecting certain types of killings or certain types of victims, is aimed at the professional criminal, and at the protection of policemen or prison wardens who come in contact with professional criminals; also to prisoners under life sentence who otherwise would have nothing to lose by committing another capital crime. The obvious purpose of the United Kingdom bill is to create a deterrent, and as I mentioned earlier, where a deterrent would be most likely to be effective.
In his statement the Minister of Justice suggested that there were certain murders that would be covered by this bill which would not be dealt with by the British legislation, and that of course is quite true. On the other hand, I suggest there will be murders covered by this bill for which there is no justification in applying the death penalty in one case and not in the other. In other words, I suggest there is greater uncertainty in the division of crimes in this bill than in the British measure. I know that in Great Britain at the present time there is a good deal of uneasiness because there is that uncertainty over their act and how it is working out.
It seems to me, Mr. Chairman, that the course recommended by more than one speaker in this discussion is one that should be followed. This bill would stand over so it could be submitted to a committee, where representations from experienced law enforcement agencies could be heard, where evidence could be taken bearing on the actual clauses of the bill, where organizations like

the Canadian Bar Association could offer their views on the details of this bill and where provincial deputy attorneys general could be given the same opportunity. It seems to me it would be wise if this bill were submitted to a committee so that this course of action could be followed. If that were done, we in this house would have the advantage of the experience, judgment, evidence and views of those people, some of whom I ventured to mention a few moments ago.
I should also like to suggest-and I do it in a constructive way-that with a bill of this kind, with a matter of such fundamental moral character, with a matter dealing with life and death, when we are entering into new ground in this country, where the results may be very good but where, on the other hand they may not work out as we hope, it would be wise to include something in this bill which would provide for its reexamination and possible revision at the end of a certain period of years. I hope the minister will give consideration to this suggestion.
It is quite clear that organized society has been progressing now for generations in its attitude toward the death penalty. I think- and I am quite frank in saying this-this bill is a step further in that progress; yet there is certainly no reason to assume that this bill, and I am sure the minister does not make that assumption, has achieved any finality in dealing with such a complex problem.
That being the case, I have put forward two proposals. One is that this bill be given further consideration before a committee, and second, that some provision should be put in the bill to make sure its term of application is limited so it can be re-examined at the end of that time. As I have said, I feel that in some of its details this bill is defective. It is our desire on this side of the chamber, those of us who support this bill in principle, to make it more effective. In due course, when we get to the detailed consideration of the clauses, we will put forward some changes which we hope will have that result.


John George Diefenbaker: Mr. Chairman, I know it is often said by speakers in this house that they had no intention of participating in the debate. I can assure you, sir, that on this occasion that statement is not a mere formality.
I took the attitude that in view of the tremendous amount of study that had been given to this question by the Minister of Justice and the Solicitor General there was no reason why I should say anything regarding a matter in which over the years I have had more than a passing interest.

All of us in the practice of law have had from time to time the opportunity of appearing either for the crown or the defence. I belong to that group in the practice of law composed of those who have never appeared for the prosecution in a murder case. I have often said that I had an outstanding record as a crown prosecutor, for I never lost a case. However, that statement is somewhat diminished in importance when I add that from the time of my appointment until I resigned after a change in the government in Saskatchewan I had no prosecutions. However, I have been intensely interested in this problem of capital punishment and have expressed myself strongly on this subject on many occasions, the major reason for that being the possible conviction of an innocent man.
I am not going to go into the problem of the retention of capital punishment as against its abolition. The Leader of the Opposition says statistics can establish anything that the person producing them desires in that field. It will never be possible to look into man's mind and determine an answer to this question which has exercised the thinking of men in every generation, but it is of interest-and this is a fact-that in upper Canada during the first 25 or 30 years of the nineteenth century capital punishment was imposed for a variety of offences.
I remember my old grandfather telling me that he was present at an execution in upper Canada when he was a boy. It was the execution of one charged with pickpocketing. The execution was at Aurora, I think, or one of those localities immediately north of muddy York, as it then was. Everybody gathered from the surrounding countryside, and a number of Scots residents of that area had their pockets picked while witnessing the execution of one for the same offence.
Only recently I read the record of that era by one who has made a great study of punishment and I find there was justification for that penalty. However, one of my major concerns has been the danger of the execution of someone who had not committed the offence. I can do no more than say that this fear is not unjustified by actual experience in our country.
I do not think it is general, but when one innocent man is executed it shows the irrevocability of capital punishment. In order to meet that situation, a great deal of study has been given to the matter of ensuring that anyone accused of murder shall have available to him all of those defences and safeguards that would be available to anyone else.
I think in this legislation we are meeting the danger that is inherent in trials. The human factor is always present. However, we
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have endeavoured to meet it by certain safeguards. I am not going into the particulars, but I think the major safeguard is the automatic appeal. There are others to which reference could be made.
Nothing has caused me, as Prime Minister, more concern than the coming before cabinet of the various cases, after conviction of murdering, when the question arises as to the exercise of the royal prerogative. It is a frightening experience. Over the years in Canada the responsibility in this has rested upon the governor general in council.
I know hon. gentlemen opposite who have served in the cabinets of this country realize something of the experience it is to examine with care and attention the evidence and also the reports which are given by the officials and the recommendation by the judge. It is a responsibility which I feel should be taken from the shoulders of the entire cabinet. In the United Kingdom the home secretary exercises the royal prerogative. He recommends the course to be followed. I am informed that he does not consult other members of the cabinet though he does communicate in difficult cases, as he sees them, with the prime minister for consideration. We have built up over the years-and I am not criticizing it-a routine whereby the cabinet considers these matters, and anyone who has gone through the experience knows something of the awful weight of responsibility that is felt by those who have the duty to examine death sentences and recommend whether or not those sentences should be carried out.
I feel this legislation will go a long way to ensure that mistakes shall not take place. At the same time it will provide juries with an opportunity-one which they have so seldom realized in the past that they have possessed-to recommend mercy when an individual has been found guilty of capital murder. On many occasions I have encountered cases where members of the jury have said after a trial, "If only I had known I could have recommended mercy I would have done so". As far as recommendations of mercy are concerned, there has been no inconsistency on the part of the cabinet in accepting such recommendations. They have always been followed by this government. In the period from 1930 to 1957 there were some 30 recommendations to mercy to which effect was not given by the cabinet. I feel that responsibility for carrying out the law and maintaining the safety of the public in each area depends on the jury. Having heard the evidence and having come to the conclusion on the basis of the law as explained to them by the judge that a verdict of guilty is the only one they can bring in, a jury ought none the less to

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have the right to add a recommendation to mercy, and having done that, to hope that the royal prerogative will be reasonably carried out. I am not dealing with the future now; I am dealing with the period during which I have been in office as Prime Minister. In that period we have concluded that where recommendations to mercy are made, the proper weight should be given to them. How to meet the circumstances and take from the cabinet this responsibility is something to which I have always devoted my thinking. I feel we might well adopt a course analogous to that adopted in the United Kingdom today whereby the Minister of Justice and the Solicitor General would make the determination and recommendation and, on the basis of the opportunity now given to juries to recommend mercy, would be able to bring their recommendation to the cabinet as a whole. That recommendation, excepting in extraordinary circumstances ought to be accepted.


Paul Joseph James Martin: May I ask the
Prime Minister a question? I want to make sure I understand what he was saying. Did I understand the right hon. gentleman to state that the act provides that this responsibility shall be left to the Minister of Justice and the Solicitor General?


John George Diefenbaker: No. The hon. gentleman was speaking to his seatmate at the moment I was discussing that. What I said was that I feel this is the practice which might be followed. I do not expect it to be followed, but it may be considered, for many hours taken by the cabinet in consideration of these cases-and it takes hours if they are to be examined honestly and conscientiously-might well be saved, now that juries are going to be asked directly whether or not they recommend mercy. Responsibility now rests squarely upon the jury to determine in its area and on the particular facts of each case what is just and fair, what constitutes the proper course to be followed in the opinion of those who have heard all the evidence and live in the community in which they are desirous of maintaining justice and equity as between the crown and the subject.
Before the hon. gentleman asked me that question I was about to say something about the degree of recidivism among those tried for murder or convicted of murder. It is a strange thing; in almost every other type of offence the proportion of those convicted who return to the penitentiary is very high. I am not certain what the percentage is, but I think it runs up to 65 per cent and possibly even higher than that. But in the cases of those who have been tried for murder, of

those who have been convicted of murder and subsequently reprieved, and of those who have been tried for murder and convicted of manslaughter, it is of interest that over the years there are very, very few cases where the offence of homicide has been repeated. Indeed, I know of only one such case in this country in my time, a case which took place in the city of Saskatoon. This man was tried for murder and the jury acquitted him of murder but convicted him of manslaughter. He served his prison term and then, in about 1945, he went over to the United Kingdom where he committed murder and was executed.
There is another case which comes to my recollection, and this was in the province of Manitoba. A man was convicted of murder, reprieved and set free. Subsequently he committed a further murder. In one case a second murder was committed in Canada and in the other a man convicted of manslaughter in Canada was executed for the crime of murder in the United Kingdom. But it is amazing to note the number of men who, having served their term in the penitentiary after being convicted of murder, have made good. If I were ever to begin discussing this I could go on indefinitely but I do think of one case, the case of a young man who was charged and found guilty of murder. He killed his father in circumstances which did not result in a recommendation to mercy. He was reprieved, and served 12 or 13 years in penitentiary. I recall so well in 1941, or 1942 speaking to the then minister of justice, the Right Hon. Louis St. Laurent, informing him of this man who, having been educated to the extent of passing into grade 2, spent years in penitentiary as a model prisoner. While in penitentiary he took the remainder of his elementary education and finally passed grade 12 examinations. He had been an exceptionally exemplary prisoner and was in charge of the commissariat of the penitentiary. Upon his release he joined the army and became a sergeant. That man has not changed his name today, and occupies a high position relative to his ability and capacity in the business world in this country.
I can think of another individual who today, and during the years, has done a great deal to elevate a woman who, by reason of circumstances, had fallen away from the path of rectitude. That woman was charged with killing her child.
I could mention immediately six or seven other equally dramatic cases involving individuals who, having been punished, have been able to take their places in life.

I think this legislation will, in the days ahead, be looked back upon as a great forward step. Every avenue has been canvassed with a view to assuring that we shall protect law abiding citizens from what the Leader of the Opposition referred to a moment ago as, deliberate acts of those who desire to live above the law. We shall at the same time leave to juries the right which belongs to them, but which they have not had, to recommend mercy as of right. Up to the present time no judge has had the right to ask the jury whether or not it will recommend mercy. In many cases the jury would have recommended mercy if it had the right. From now on the responsibility will rest on the individual conscience of the community to preserve justice.
The Leader of the Opposition suggested that we should postpone this legislation until another session, or at least postpone it until further examination could be made. This is a matter which has received the attention of the Minister of Justice for a considerable period of time. His law officers and all those connected with the administration of justice have studied this measure. It is designed to ensure that we shall protect and preserve our people against those who would place themselves above the law while, at the same time, protecting those who, in passion or under circumstances short of deliberation, commit homicide. It has been said that most of us would, under circumstances of sufficient provocation, do that which we abhor. This legislation is designed to preserve and maintain the abiding principles that must characterize the administration of justice, while at the same time tempering justice with mercy. I cannot agree that we should postpone the consideration of this measure.
It might be said that experience will show that some further changes should be made. I think the hon. member for-


Jean-Paul Deschatelets: Maisonneuve-Rosemont.


John George Diefenbaker: -the hon. member made a very comprehensive speech, to which I listened with much attention, and which revealed a great deal of study on the subject. However, the hon. gentleman will realize that we cannot hope to bring about legislation in respect of a subject that has tried the souls of men since the laws of Moses were enunciated. On the basis of modern penological research, recommendations by those who have devoted themselves to a full study of criminology, the experience of the courts, of which most of us have some knowledge, and, on the basis of that body of opinion which has given study to one of the most trying types of crime, as well as on the basis of the experience of the United Kingdom, we have 90205-6-349
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placed before this house a bill which I hope and trust will be regarded as a forward step, and one that, in the light of the perspective of the future, will be looked back upon as a necessary and requisite step deserving of the attention and support of parliament.


Some hon. Members:: Hear, hear.
(Translation):


Alexis Pierre Caron: Mr. Chairman, after this statement of the right hon. Prime Minister (Mr. Diefenbaker), I am still not convinced that this bill is not just a roundabout way of reducing the number of hangings or death sentences in Canada. I would even say that it has practically convinced me that such was the intention of the government since the Prime Minister referred specifically to section 13 of Bill C-92 which prescribes that the judge must ask the jury whether they recommend the accused to the mercy of the Queen.
It is precisely on that point that, in my opinion, the government's action has been unfortunate. I would have been ready to accept that a judge should be compelled to say in his statement to the jurors: "You are free to recommend or not to recommend mercy." But what can the jurors do when, face to face with the accused, and with the attorney for the defence, and often friends of the accused who may have a rather fierce appearance, they are asked by the judge: "Do you or do you not recommend mercy for the accused?" Would that not place the jurors in an awkward position? Indeed, do you think ordinary people, with no legal training, and who are not familiar with things of that kind, can take a free decision in the very presence of the accused?
It is quite possible that they will be gripped by fear and say there and then: "We recommend mercy." They may even do so out of sympathy.
The Prime Minister stated a while ago that it is only logical that the cabinet should examine juries' recommendations for mercy. In my opinion, that is most dangerous. The judge should be called upon-


Rémi Paul: Mr. Chairman, I rise on a point of order. It seems to me that the hon. member for Hull (Mr. Caron) is getting far afield from the question under consideration, namely section 1 of Bill C-92.
Clause 13 will be called in due course and at that moment the hon. member will be allowed to make the required remarks.


Alexis Pierre Caron: Mr. Chairman, on the point of order, I wish to state that I was dealing with

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the principle of the bill, more particularly with the clause dealt with by the Prime Minister.


The Chairman:: I think that on the first clause of a bill, the practice is to make rather general remarks. Of course, I will admit that the hon. member for Hull was perhaps going into a somewhat detailed consideration of the jury recommendation, but I think this type of discussion is consistent with the rules.


Alexis Pierre Caron: Moreover, Mr. Chairman, I was only following the example set by the Prime Minister, who did give rather extended explanations on this recommendation to the jury. The Prime Minister is entitled to his opinion, I have no objection to that, but I think the actual section is dangerous which requires the judge to ask publicly whether the jury is prepared to recommend mercy or to refuse it.
Under the present system, following his summing up of the proceedings, the judge says to the jury: "On the basis of the evidence which has been submitted, you may recommend mercy, but it is not an obligation.
If we included in the act a section under which the judge, following his summing up of the proceedings, would have to indicate to the jury that they are entitled to recommend or not to recommend mercy, but would let them retire to the jury room and reach their decision in complete freedom from pressure, fear or false sympathy for the accused, and outside the presence of the public, the accused, the judge, the friends and the whole family of the accused-whose members would all be in tears-I think it would make things much easier and would be much more in keeping with the role of a jury.
On the other hand, I think the Leader of the Opposition (Mr. Pearson) was completely justified in suggesting a moment ago that the bill be referred to a special committee of the house, similar to the one we had in 1956.
I also note that only one of the many recommendations contained in the report of the special committee has been followed. I refer to the exemption from the death penalty for persons 18 or under.
All the other recommendations have been ignored, particularly that one.
Here is what we find, for instance, in section 69 of the report:
In practice, the committee feels that any new definition of the crime of murder should closely conform to the present practice of commuting death sentences.
Nor should commutations of death sentences become the general rule. They should remain exceptions as they were in the past.

In the last three years, out of 49 sentences, 39 were commuted. In other words, commutation has become the general rule. I think that is a dangerous practice and that the bill is also dangerous because it is not clear.
To take the example cited by the hon. member for St. Denis (Mr. Denis), suppose two armed men enter a bank, and one of them fires a shot. The one just stands there, because he has not been told to shoot. Of course, section 1 of the bill does say:
-or assisted in causing.
And the former section 202 stated:
__facilitating the commission of the offence-
However, there is one point that smart lawyers usually bring up before the jury; they say: do not forget the intent of the lawmakers.
I can see the contradiction that any smart lawyer will point out to the jury. He will say: The intent of the lawmakers was this: However, only the person who actually committed the act or applied the force causing death, or counselled the doing of it, would be guilty of capital murder.
All other murder Is made non-capital.
On that basis, smart lawyers will finally manage to secure the release of many criminals until such time as they personally commit other crimes, or until such time as five or six cashiers have been killed and five or six murderers have been arrested. Furthermore, it is stated in subsection 1:
(1)	Murder is capital murder or non-capital murder.
(2)	Murder is capital murder, in respect of any person, where
(a) it is planned and deliberate on the-
Well, what about the incendiary who puts a house on fire, thus causing the death of one or two persons? He may plead that he had no intention to kill, but just to burn down the house. How do you expect to condemn him when this bill is passed? I think that he enjoys much too great a protection in this case.
Moreover, how would the law deal with cases of rape particularly, when a man, a sadist, gets hold of a three or four year old child, and after committing his crime mutilates her so that she dies? He may say that he had no intention to kill the child, but merely to have his way with her.
Therefore, I repeat that not only should we not attempt to reduce the number of cases which may entail capital punishment, we should rather increase it, more particularly with regard to cases of rape committed on young children and other such cases, also in respect of the drug traffic.

I also think-and in this respect I take issue with what the leader of my party said a few moments ago-that we should not think of modifying the method of execution.
We have capital punishment by hanging, and all honest people seem to be horrified at the idea. Well, it is precisely what I wish preserved: that fear, that shame, that revulsion at the idea of a hanging.
I think that if it has such a critical effect on people who want to retain capital punishment-as they maintain that this method of execution is inhuman-the means must be the right one for deterring those who, though inclined to kill, would nevertheless be afraid of risking such an ignominious fate.
For all those reasons, and many others, which I will have an opportunity to deal with later, when we examine the bill in detail, I think that, except if much stronger arguments than those that have been submitted today are brought forward, I shall be once again obliged to oppose the passing of this bill when we are asked to cast our votes.
(Text):


Paul Joseph James Martin: Mr. Chairman, while some of the words of the Prime Minister are fresh in my mind I should like just briefly to intervene once again. I am sure the committee listened with considerable interest to what the Prime Minister had to say, particularly in the light of the fact that he has had some considerable experience at the criminal bar. However, I do not feel-and I say this with great respect-that his remarks today, interesting as they were, really answered the queries put on this clause by those of us who have spoken thus far. I may say I do not believe that he fully addressed himself to the clause, but I am not making that observation by way of complaint except to say that, interesting as his remarks were,
I do not feel they answered some of our concerns.
The Prime Minister said he was greatly concerned, and not without reason, that we take steps to avoid the possibility of providing in the future for undeserved convictions. Indeed, he noted there have been persons hanged who were not guilty of the crime for which they were convicted. I suppose no one will deny that. We do know positively that that has happened in the United Kingdom and I suppose it is true elsewhere. I am not aware at the moment of a case in Canada where we definitely know that to be so but it may be true here as well.
But it should be noted that the bill does not avoid that danger. It will still be possible under the bill for an innocent person
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to be convicted and, having been found guilty of capital murder, to receive the death penalty. Therefore the bill does not remove that danger. Admittedly it minimizes the occasion. It does provide certain safeguards and I strongly approve some of the safeguards provided in the bill, but the fact is that the bill does not remove altogether or to any appreciable extent the danger of someone being convicted and hanged for a crime for which he or she may not be responsible.
The Prime Minister spoke of the exercise by the crown through the cabinet of the royal prerogative of commutation. I had misunderstood his remarks. At one point I thought he said that the cabinet should be relieved of this responsibility entirely but I gather that is not what the Prime Minister suggested because he went on to point out later that consideration might be given to assigning to the Minister of Justice and the Solicitor General the responsibility for dealing with recommendations for mercy.
The Prime Minister observed that in the United Kingdom the home secretary exercises this responsibility without reference to his cabinet colleagues, and undoubtedly the precedent in the United Kingdom served to suggest to the Prime Minister that this responsibility in Canada might be left with the Minister of Justice and the Solicitor General. The Prime Minister was talking about a very interesting proposal, but it is to be noted that the bill about which the Prime Minister was speaking does not provide for the delineation of the royal prerogative in that way.
There would be nothing to prevent the Minister of Justice introducing a bill to restrict and define the powers of the cabinet with regard to commutation. As a matter of fact, the royal prerogative in most particulars is now part of the statute law in one way or another. The royal prerogative exercised in regard to commutation with respect to cases of individuals charged with murder is, of course, not a part of the statute law but there would be nothing to prevent a provision in this or in any companion measure to lay down the limit or the extent or in whom in the cabinet should repose the responsibility to give consideration to recommendations of mercy. Therefore all that the Prime Minister's suggestion in this particular amounts to is that it was sort of obiter dictum on his part, one that might represent the practice in the future without giving it any foundation or authority in law.
I would think, however, that it would be wrong for the cabinet in the future, notwithstanding its preoccupations, to assign to the Minister of Justice and to the Solicitor General in the absence of some statutory

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direction the responsibility that now is borne by the cabinet as a whole. If the practice is to be developed of leaving this matter to a committee of the cabinet or to two members of the cabinet, the legal advisers, then I think some authority should be provided in some statute passed by the house for the assignment that is given and for the restriction that is placed on the exercise of the prerogative.
The whole matter of the exercise of the royal prerogative in this regard has, of course, become a matter of great interest since this government came into office because, as the Minister of Justice has noted on other occasions, the number of commutations since 1957 has been very great. I am not quarrelling with any decisions of the cabinet in that particular. I am sure that in the consideration of capital cases the members of the present cabinet applied themselves conscientiously and seriously in accordance with their judgment and their conscience. I am equally sure that this has been the standard of conduct of former cabinets. Certainly it was true of the cabinet of which I had the honour to be a member. I am sure it has been the practice of all cabinets in Canada regardless of political complexion to give this matter the most thorough and objective assessment. But I think it is true to say that just as the conscience of the lord chancellor has varied with the person of the particular lord chancellor so too have the standards resorted to by cabinets at various times in Canadian history in the exercise of the royal prerogative varied considerably.
I know, and I am sure the Minister of Justice will confirm this, that one distinguished minister of justice before the first world war was so concerned about the jurisprudence, as it were, which he thought should serve as a background for cabinet action in capital cases that he laid down a set of principles which he considered should be borne in mind by Canadian cabinets in the consideration of the exercise of clemency. I do not believe that the principles as conceived by that distinguished minister of justice was followed very long even by the cabinet of which he was a member, nor to the best of my knowledge has it been followed by succeeding cabinets. Each human being in the cabinet has sought to exercise his best judgment in accordance with conscience, in accordance with standards of what was thought to be just, what was extenuating, what was relevant in the circumstances.
It seems to me that so far as one can detect in principle this bill does represent the basic standards that have been laid down by the present government in the exercise of the royal prerogative with regard to capital

cases. I have no right to say that this is so.
I have no right nor am I attempting to ascertain what goes on in the cabinet, but I suspect that since the Minister of Justice has brought forward this bill it represents fairly generally the standards which the cabinet itself has applied in considering the various requests presented to it for clemency or commutation. In other words, since the government came into office only those have been hanged who have been guilty of capital murder. I am not quarrelling with that because each cabinet has the right to decide the standards which it feels should be employed in the exercise of the prerogative. If that is the case, I do not see any reason why the government should not say so frankly. I do not see why the government should not put in this bill, or in a companion measure, what it feels are the correct standards for delineating the extent of the exercise of the royal prerogative, a prerogative which has been defined in most instances and has been restricted in many instances. There could not be any reason why there should not be a clear definition in this particular instance.
The Prime Minister says that from now on juries will be given encouragement either to make recommendations for mercy or to refuse so to do. In the event of a refusal, in the face of such an invitation, this will serve to give some indication to the cabinet of the jury's estimate of the situation, although the Prime Minister did not add those words. As the Prime Minister readily went on to point out, while there has been no statutory authority for juries to make recommendations, in the past juries have not hesitated-


Edmund Davie Fulton: They have.


Paul Joseph James Martin: My hon. friend says "hesitated" and I correct that to say that juries have not refrained from making recommendations for mercy.


Henry Frank Jones: Some juries have.


Paul Joseph James Martin: The minister may correct me.


Edmund Davie Fulton: I think an analysis of the cases would support the proposition that some juries desired to make recommendations but have refrained because they thought they had no right to do so. I believe in one or two cases juries have questioned the judge who replied that the Criminal Code made no provision for this. Although they were not told directly, the inference the juries received was that they had no right to make a recommendation.


Paul Joseph James Martin: I accept that at once, and I accepted it earlier when I changed the verb. I am sure many juries have not thought they had the power and therefore did not recommend mercy. There is no doubt, however, that many juries did recommend mercy, even without invitation or without any expressed knowledge of the power. I do readily admit that clause 13 will be an encouragement, and in that case will extend the number of cases in which juries will make recommendations or refuse to do so.
The Prime Minister, I think, misunderstood the suggestion made by the Leader of the Opposition, a suggestion that had been made earlier by the hon. member for Maison-neuve-Rosemont and supported by other members of this party who spoke earlier this morning. No one was suggesting that this matter be postponed. I regret that the Prime Minister has preoccupations outside that prevent his listening to this particular portion of my remarks. What we did recommend was that, because of the importance of this matter, we should not pass this measure hastily. We should resort to the various procedures that are open to us to make sure that our final judgment is attended by the most thorough consideration.
We have pointed out that it would be desirable in a matter of this sort, where there is alleged ambiguity, to refer the matter to a committee. One former judge who has had considerable experience in criminal work in the supreme court of the province of Ontario, Mr. Justice Lebel, in a speech delivered last week in London, criticized the bill because of ambiguity. I am sure from my personal knowledge, as I said this morning, and from consultations with certain individuals who have acted as crown prosecutors and defence counsel, that they share the view there are many ambiguities and many uncertainties in the wording of this bill. The consequences of this will be to afford the best counsel a field day and for a long time to come there is going to have to be built up new jurisprudence to take care of the new phraseology in this bill.
For example, there are the words "planned and premeditated". Does planned mean premeditated? This is not defined in the bill. What the Minister of Justice says in this debate will not give substance to the matter because the court, in the interpretation of our statutes, does not look at these debates. Not only does the court not look at them but it is no allowed to do so. Then, we can ask ourselves, what does deliberate mean? I ask, does deliberate mean that the offender is in full control of his reason? Now, that is a very important element in this matter. Does deliberate mean that the offender was in full control
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of his reason? Unless there is a satisfactory answer to that, I am sure it will be very difficult to get a satisfactory solution. These are questions which are not answered in this bill, and the answers to which might be provided if there were a careful study made by a committee before which competent witnesses could be called to assist us in arriving at the most precise language possible.
I do regret that the Prime Minister is not here because I am sure he would have been impressed with the purpose behind this suggestion. This is not a political measure. This is a measure toward which every member is directing his most honest efforts. We have invited the use of parliamentary committees, just as we have in connection with less important measures, for the purpose of preparing the most careful legislative enactment on a matter of this importance. We should ask the best qualified people in our country for their recommendations, in the light of their experience based upon their professional skill. We are not going to have an opportunity of doing that unless the minister accepts our request.
I should have liked to suggest that not only crown prosecutors, defence counsel with criminal law experience, but also judges should be called before this parliamentary committee. I should have liked to suggest that some of the best judges we have in this country, some of those whose work has been in the criminal courts and who because of that have a special ability and a special opportunity to make a most constructive contribution, should be called before the committee just as was done in England. As I pointed out this morning, the learned Chief Justice Lord Goddard, than whom at that time there was no more distinguished criminal law judge, was called to give evidence. The minister knows better than I, I believe, that his recommendations were incorporated to a large extent in the homicide act passed in Great Britain a few years ago. We are not asking that this bill be postponed. This bill can become law this year. We are asking that in addition to our own deliberations we have the support of the Canadian Bar Association, judges, crown law officers at the federal as well as provincial level and other bodies who will give us their judgment, in the light of their competence and experience, with regard to a measure that is so vital, I repeat again, to the security of the individual and to human life in our country.
The Prime Minister himself gave some encouragement that our plea may yet be heard, because when we urged upon him that the bill of rights should be preceded by consideration in a parliamentary committee for

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the purpose of calling the bar association and others before that body the Prime Minister at first said he did not propose to have the bill considered by a committee. However, it is on record that as a result of further urging the Prime Minister took another look at this matter and decided it was in the interests of the bill that it should be sent to a committee for consideration.
That bill was considerably modified. It was made a better document, as everyone knows from the admission of the Prime Minister himself. If that was justified, as I believe it was in the case of the bill of rights, surely it is justified in this case because this is such an important matter. It is a matter that has such vital application to our administration of justice, an administration of justice which characterizes our form of society and of which we are justifiably so proud.
That being the case, I would think that in a matter of this sort the government would want to think twice before passing this bill through with these uncertainties and these gaps, in the absence of steps being taken to provide the best available commentary from the outside. I can only renew that plea.
When the Prime Minister spoke today I hoped that in the light of his experience he would talk about something else that is left out of this bill. I refer to the mode of punishment. In the debate we have had on this bill, and in the discussions which took place on the bill introduced by the hon. member for York-Scarborough last year, not only have we discussed whether or not it was right to punish murder by death but we have also discussed whether or not, in the event that capital punishment was maintained in some form, the mode of punishment should be by way of hanging.
Some strong views were expressed in that regard in this house and throughout the country. I for one believe that the present mode of punishment of hanging an individual is not the method we should continue to use in this country. I believe we should resort to some other more humane, more civilized method of punishment. This is a gap in the bill that was not referred to by the Prime Minister. I should have thought that with his considerable experience at the criminal bar this would have been one matter to which he would have directed his attention.
I ask the Minister of Justice to indicate at some point in our proceedings before too long whether or not he feels that even at this hour the cause of justice and the legislating of the most effective enactment will be served by seeing that this bill does not pass merely on the discussion in committee of the whole.
It is not a question of our ability; it is not a question of our sincerity. We are all anxious

to do the best that can be done in this regard. However, I do feel that where we are making such a fundamental departure in the law with regard to the punishment for murder we should be able to say we have taken every step possible to determine the validity and wisdom of the course which is before us.
I for one do not feel we could answer that question in the affirmative unless the request that this matter be considered by a committee of this house, with all the advantages that affords, is granted by the government and supported by the membership of this house.


Edmund Davie Fulton: Mr. Chairman, I think it would perhaps be useful if at this stage I made some comments by way of reply to what has been said in debate today. I recognize that we are here discussing, in our consideration of clause 1 of this bill, what really amounts to the principle of the bill; that is, the question of whether or not murder should be divided into two categories, capital and non-capital.
For this reason I have raised no objection when on occasion I have felt, as I am sure you have also, sir, that the discussion has ranged pretty widely afield and that, indeed, rather than having a general discussion related to clause 1 we were quite frequently redebating the principle of the bill, which of course was decided when the vote on second reading took place.
However, as I say, since I suppose it might be said that the clause now before us, which will have the effect of dividing murder into capital and non-capital categories, is indeed the main substance of the bill, not too great objection should be taken. However, because of the wide ranging nature of the debate it seemed to me that the most appropriate course for me to follow at this stage would be to make some general observations in reply; to comment, as it were, on the matters raised by outlining our approach and the reasoning and logic which has led us to arrive at this principle of the division of murder into capital and non-capital categories. In doing so, of course, I will answer in a general, if not a particular way, much of what has been said by hon. members who have spoken today. Then, after that, I will go on to deal with some of the specific comments and suggestions that have been made.
In giving this general outline let me do so point by point. First I would emphasize this point. This is important, particularly in light of what in my submission, with the greatest good will in the world, I cannot regard as other than a complete misapprehension in principle on the part of the hon. member for Essex East. I refer to the hon. member's

apprehension that this bill changes the jurisprudence with regard to murder.
Let me first make it abundantly clear that this bill does not change the jurisprudence or the law with regard to murder. We have been deliberately careful not to do that and we have been, as an examination of the bill will show, successful in that objective, namely to leave the existing definition of murder, and therefore the jurisprudence built up with regard to that definition, entirely unchanged.
Second, I should like to emphasize that what the bill does by virtue of clause 1 and the succeeding clauses, is to raise a new question; not a question related to the definition of murder, but a new question which arises only when and if in a prosecution murder is proven. This question that arises is one of fact for the jury.
Therefore there is no new jurisprudence and there is no change in the jurisprudence being created by this bill. The jury will still have to be satisfied that murder has or has not been proven, and in charging the jury on that point judges will rely upon the existing jurisprudence. The question which then arises as a result of the bill is: is the murder which has been proven capital murder or non-capital?
This is my third point in this connection. We have made this question, as a matter of deliberate approach, a question of fact for the jury. It is as a matter of deliberate approach that we have kept the question as simple as possible. It has been urged upon us that the bill lacks something because it does not go into great detail by way of attempting to define, as in a legal treatise, what it is that the words used should mean in law.
We have deliberately avoided that approach and have kept the question as simple as possible. We have kept it a question of simple fact for determination by the jury, and the question is this: was the killing, which the jury has found to be murder, planned and deliberate, or was it not? That is all the jury has to ask itself: was the killing planned and deliberate, or was it not? In my submission, Canadian juries are not incapable of answering that question. Of course, they will be assisted by judges in the interpretation of those words. Jurisprudence will undoubtedly be built up over the years as to what those words mean, and the interpretation given to them will form precedents for other cases. That is how our law develops. But surely this parliament is not going to shrink from establishing a foundation for new law in this field which parliament and our country have desired to be brought into closer harmony with present day concepts of crime
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and punishment. Surely it does not constitute criticism but, properly accepted, praise of this bill to say that it does lay the foundation for the development of a new approach.
My submission is that we have laid such a foundation on the basis of the most simple principle possible, that is, by leaving it to the jury on the basis of whether or not a murder is a planned and deliberate killing. If the answer to that question is in the affirmative, then the murder is a capital murder. If it is not, if the answer is in the negative, then murder is a non-capital murder and is punishable by imprisonment for life.
Some hon. members have raised the question-indeed they have gone further and made the suggestion-that the effect of this legislation will be that there will be no more capital punishment. Such an assumption is totally unwarranted by anything which occurs in the bill, nor can it be deduced from any of the arguments which have been advanced in support of the legislation. The bill preserves the death penalty but provides that it can only be applied in cases where a jury finds an element of deliberation, either in accordance with the words "planned and deliberate" or through the application of section 202. The death penalty is preserved and is applicable in cases where the jury answers those questions in the affirmative.
To suggest that there will be no more cases where captial punishment is imposed is to assume one of two things, neither of which in my submission can really be expected. The first is that there will never again be a planned and deliberate killing in Canada. I wish one could assume that that could be the case, but I doubt whether anyone in this committee would make that assumption. Alternatively such an argument infers that juries confronted with the clearest evidence of a planned and deliberate killing will refuse to find such a verdict. I have too much confidence in the juries of this country to believe that when evidence is presented which satisfies them that the murder has been planned or deliberate or covered by section 202, they will be so perverse as not to bring in a verdict accordingly. I do not accept such a suggestion, particularly in the light of the fact that a great forward step has been made in this bill, namely, the division of murder into capital murder and non-capital murder as a result of which juries may find a man guilty of murder of a non-capital kind in the sure knowledge that he will not automatically be sentenced to hang as a result. This, as everybody knows, has been the great difficulty encountered by juries in the past and it is one of the reasons why juries have been so reluctant on occasion to bring in verdicts of guilty even when the murder charge has

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been supported by the clearest evidence, and why they have so often preferred to find the accused person guilty of manslaughter.
Now juries will be placed in what, in my view, is the proper position. Where the charge is one of capital murder they will decide whether or not the murder has attached to it the element of planning and deliberation which parliament has said to be necessary in order to constitute capital murder. Then, if the jury decides that there was that element of planning and deliberation, I do not believe any hon. member opposite would go so far as to assert that in these circumstances they would not bring in a verdict of capital murder. That is, in effect, what hon. members opposite have said when they have suggested that after this bill becomes law there will be no cases where capital punishment is imposed in Canada.
The next point I should like to make by way of general observation at this stage is that in making the subdivisions and establishing categories of murder, capital and noncapital, we have avoided the rigid classifications which are found in the 1957 homicide act passed in the United Kingdom. Of course, it may well be a proper subject of debate in this committee whether or not we have erred in making that decision, but we made it after analysing all the evidence which was available for study, all the opinions of statements of authority, and after looking at the effect of the United Kingdom act and reading the evidence of deep public soul searching which is going on in Great Britain now as a result of some of the consequences of their homicide act. After this study we came to the conclusion that the type of division. applicable to the crime of murder should not be made on the basis applied in the United Kingdom because a division of that kind has produced some unfortunate results, some of which I outlined previously but which will yet bear repetition. The most glaring deficiency is, of course, that when a distinction between capital and non-capital murder is made on the basis of the weapon with which the murder was committed, or the person or class of person killed, instead of the nature and circumstances of the crime itself, as we have done, a situation is produced in which the public is bound to be concerned about the results which follow. For example, if a man kills with a gun he is liable to the death penalty but if he kills with a club or by strangulation he is not liable to the death penalty.
In our view the proper course is to look at the character and circumstances of the crime itself and to ask the jury to inquire of itself whether the murder was planned and deliberate or not. The decision rests on the answer of that question. It does not seem to

us that a killing with a gun is any the less reprehensible; it is still an act of supreme defiance of society's basic law, as serious as an act of killing with some other weapon. It is, surely, the act of killing which constitutes the offence and whether or not that killing was planned and deliberate rather than the means by which it was accomplished.
The other point that I wish to make of a general nature arises in connection with the suggestion that consideration of this bill be suspended or postponed and the bill itself referred to a special committee.


Osias.-J. Godin: Mr. Chairman, before that matter is taken up by the minister, could I ask whether he has any remarks in respect of why this bill before the house uses the odd phraseology, "murder- in respect of any person-"?


Edmund Davie Fulton: Mr. Chairman, I will come to that question when I deal with the remarks made by the hon. gentleman who has just asked it. Obviously he was under a misapprehension as to the import of those words. I should point out, as I will in detail when I deal with his remarks, that the words "- in respect of any person-" taken in context with the subsequent words, "-on the part of such person-" make it clear that the person referred to is the person who commits the crime and not the person killed. I shall enlarge upon that when I come to the hon. member's criticism, which it seemed to me at the time, was made on the basis of a misapprehension as to the effect of those words.
The suggestion has been made, and repeated in several quarters, that we should interrupt our consideration and postpone our study, and that the bill be referred to a special committee of the house. Those who made this suggestion have done so on the unjustified and erroneous assumptions that this bill has been hastily and badly drafted, without proper study on the part of the government, or the government officials who drafted it, and that it has been presented to the house in circumstances, as it were, when the house has neither had previous opportunity to consider the matter, nor has a present opportunity to give it fullest study. Every one of those assumptions is, of course, completely erroneous.
Furthermore, the suggestion is made, on an equally erroneous assumption, that somehow or other, the procedure followed in the United Kingdom was different, and their homicide act, whether we agree with it or not, was produced and enacted as a result of the fullest and most detailed study of the particular proposals contained therein. Nothing could be further from the truth, nor further from the case. The British homicide act was not only

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not referred to a special committee of parliament, it was not before the Gowers royal commission and, indeed, in most of its particulars, it departed from the recommendations of the Gowers commission. The proposals contained in the British homicide act were never before the Gowers commission for its study or consideration.


Paul Joseph James Martin: That is agreed.


Edmund Davie Fulton: My friend, the hon. member for Essex East, also suggested that if we did have a parliamentary committee set up to study this measure, we should call before it a number of people, including judges. I venture to suggest that is not appropriate, and would not be an appropriate course to follow. I may be wrong, but in my experience in parliament, which goes back to 1945, a judge of our courts has never been called before a parliamentary committee, and I think there is good reason for that circumstance. I do not think it is appropriate that parliament should call judges of our courts before its committees.


Paul Joseph James Martin: Why?


Edmund Davie Fulton: Judges would then, by virtue of their being here, be asked to express opinions on legislation which parliament was in the process of enacting.


Paul Joseph James Martin: We would not do that.


Edmund Davie Fulton: They could not refrain, unless they refused to answer every question they were asked, from expressing a view which might well be in variance with what parliament decided to do. We would then have judges expressing opinions in respect of laws which they would be called upon, at a later date, in their appropriate judicial function, to interpret and apply. I think it would be entirely inappropriate, for other reasons, but mainly for the reason I have given, to call judges before a parliamentary committee. I think it might well be appropriate, and certainly was considered appropriate by the Gowers commission, to ask judges to come and give the benefit of their opinions to a royal commission, but that is quite a different thing. Royal commissions do not enact laws, parliament does. So, it is quite a different thing to have a judge give the benefit of his opinion and experience to a royal commission which is charged with making recommendations, from the situation which would arise if judges expressed their opinions in respect of proposals which were then before parliament, on the verge of being translated into law, and which would then later be before those judges for interpretation and application.
Mr. Chairman, this brings me to a consideration of some of the specific points that 90205-6-350
have been made by hon. members in the course of the discussion here today. The hon. member for Berthier-Maskinonge-Delanau-diere made a suggestion that the French version at least should be amended to include the word "prepare", in addition to the words "projete" and "delibere". I would never claim to be a sufficient scholar of French, or the meaning of the French language, to be able to say whether the two words "projete" and "delibere" properly and completely transport into the French language the meaning of the words "planned" and "deliberate", as they are contained in the English text. This is a matter in respect of which we are in the hands of the translators and experts in that field. That certainly was the intention of the hon. member's remarks. I would be very reluctant to say that one or the other version goes any further than the words "planned" and "deliberate", so that I can only say we will take the matter under advisement. As the hon. member knows, we have, in the ranks of my colleagues not only experts in the use of the French language, but a very real expert in criminal law in the person of my colleague the Secretary of State. We will take the matter under advisement and, if we consider the words now used in the French text do not properly carry into effect the meaning that is intended in the English text, we shall give further consideration to the matter.
This morning the hon. member for Maison-neuve-Rosemont said first that, as a result of this legislation, capital punishment, although preserved in words, would really become a museum piece. I do not think I need comment on that suggestion further than I have in the course of my general remarks made a few moments ago, when I presented, as my view, that juries would not be unable to answer the simple question as to whether or not a killing was planned and deliberate, and that if a jury came to an affirmative conclusion, it would then be unable or unwilling to bring in a verdict accordingly. The hon. member, it seemed to me, in the course of his remarks in respect of clause 1, went back to his objection to the principle of the bill, and his whole approach was based on the objection to the division of murder into capital and noncapital murder. In that regard I can only say that I am unable to satisfy him because, in our view, which is a view shared by the majority of the members of this committee including, as he knows, members of his own party, murder should be divided into capital and non-capital murder.
The hon. member went on to say, at one point in his remarks, that all changes made

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in the United Kingdom were made as a result of intensive study on the part of jurists and others. He was joined by the hon. member for Essex East in the suggestion that we should refer this measure to a parliamentary committee before which we should invite these experts, including jurists and others. I have already expressed my view that it would be entirely inappropriate to invite judges to come before such a committee. I have already expressed, in general terms, my satisfaction, that this bill and the subject matter with which it deals, have received the fullest and most complete study in this country, in this parliament, and by this parliament, to the point where we are now able to perform our duties in dealing with a specific proposal. I do not think there is any element of parliament being taken by surprise, or being unprepared, and we feel this bill should be proceeded with at this time in this committee.
May I point out again, however, that a comparison of what was done in the United Kingdom, with what is being done here, indicates that my hon. friends, who make the suggestion, have completely failed to understand what did happen there. They suggest that the change the United Kingdom made in the homicide act of 1957 was handled something along the lines of the suggestion they make. Bear in mind first that the United Kingdom bill, as it passed through their parliament, in its major effect rejects the recommendations of the Gowers commission. The Gowers commission was set up in 1949 and it reported in 1953. It did not have before it any specific proposal. Its terms of reference were:
To consider and report whether liability under the criminal law in Great Britain to sutler capital punishment for murder should be limited or modified.
That is all they had before them, the question of principle, not of detailed legislation. As I say, the commission made its report in 1953. it was not until 1957 that the government of the United Kingdom introduced legislation to deal with the matter, and the legislation that was brought in was based not on the Gowers commission report or on any other long and extensive study of a specific proposal. But in so far as its division of murder into degrees or types which carry the death penalty and life imprisonment respectively is concerned, it was based almost entirely on a proposal which was made by eight private members on the government side. That bill was introduced-I am not at all being critical of what was done, I am confining my remarks to a report on the facts-and in that respect, as I say, it originated from a very small group but, however, it did carry the judgment of the House of

Commons and the House of Lords. It was passed without any lengthy or extraordinarily lengthy debate. It was not referred to any special or standing committee of the House of Commons; it was treated in the ordinary way. It went through first and second readings, committee of the whole and third reading.
On the other hand, when you come to consider what has happened in Canada, what this bill deals with is the carrying into effect of a decision in principle on the question of whether murder should be divided into degrees. In Canada we have had exhaustive consideration by a parliamentary committee of both houses which sat in 1954 and 1955; in other words, for two years. It is true it also considered corporal punishment and lotteries, but it devoted extensive consideration to the question of capital punishment, whether it should be abolished and whether the law of murder should be changed. It heard a large number of experts on this question, and we have had the benefit of the evidence given before that committee, of the report of that committee and of its conclusions.
In addition, in this house for two years now this matter has been debated as well as being discussed and considered intensely by members outside this chamber. Therefore, it is completely erroneous to suggest that this subject comes as a new one to the members of the house, or that there has not been given to the subject the fullest and most ample consideration on the basis of which not only the government but the members are now in possession of every argument that could be advanced on either side, and are as fully as they will ever be in a position to make up their minds on the merits or otherwise of the specific proposal now laid before them. Therefore I can see no purpose whatsoever to be served under those circumstances, which are quite different from the circumstances surrounding the discussion of the bill of rights, in delaying the passage of this bill and referring it to a special committee.
The hon. member for Maisonneuve-Rose-mont said that after all it is not so important, there is lots of time, it would not hurt even if it did mean delay. Mr. Chairman, it does seem to me that since trials for murder and sentences arising out of conviction for murder are before the courts now, it is completely erroneous as well as inept to say there is not any urgency in passing into law those principles and provisions which parliament will from now on say should govern the law of murder.


Azellus Denis: Most of these murder sentences are commuted.

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Edmund Davie Fulton: It seems to me, in a matter of this kind, the time for decision having arrived, it is desirable, without undue haste and certainly without delay, after proper consideration, to pass as soon as may properly be done our conclusions into law, and to carry them into effect.
The hon. member for Maisonneuve-Rose-mont also said that in this clause we are proposing two types of murder, distinctions which will make inoperative the retention of capital punishment, notwithstanding the assurances that I gave in my speech on second reading that capital punishment was being retained. I think I have already dealt with that in the course of my general remarks this afternoon where I mentioned the confidence that we repose in the ability of juries to make up their minds and to bring in an answer to the question on the basis of which it will be determined whether murder is capital or non-capital.
The hon. member also said that it was a juridical distinction based on legal uncertainty. May I remind him that juries now have the responsibility of deciding the ques-ton of guilt or innocence of murder according to the law, and we are not disturbing that jurisprudence. The law is there. The law says what murder is, and juries now have to decide whether the individual is guilty or innocent according to the law. There is no different task imposed on them now as the result of this bill, which simply asks them, in addition to deciding whether there is murder there at all, to decide was it planned and deliberate, or was it not? They will have to make that decision in accordance with jurisprudence developed with regard to those words; but there is no new or different task from that which juries have had the responsibility of performing all through the years.
My hon. friend from Essex East started his remarks this morning by pointing out that there is more jurisprudence on this question of murder than on any other subject. He went on to say we ought to be very careful about adding to our jurisprudence on it. I would simply remind him of that which I said earlier when I rose to reply, namely that we are not changing in any single respect the jurisprudence with regard to murder. It remains and will remain exactly as it is now. All we are doing is raising one further question of fact for the jury after they have been satisfied that there is murder. The question is, was this murder planned and deliberate, or was it not? Therefore there is no disturbance of the jurisprudence. For reasons which I 90205-6-350i
indicated earlier I think it is not only appropriate but indeed timely and essential that we should place this additional question before juries.


Jacques Flynn: Order. The time of the minister has expired. Does the committee agree that he should continue?


Paul Joseph James Martin: Before the minister continues-and I think we all agree that he should-may I say he said that I said this morning we were not adding to the jurisprudence. I think I said there was more case law on the question of murder than on almost any other subject.
Will the minister now tell us what is his definition of planned and deliberate? I asked a question with regard to that. It will be new, and there will be a real field day for the lawyers on that very essential point.


Edmund Davie Fulton: In the final analysis the jury will have to decide whether it is planned and deliberate. As I said at the beginning, I feel it is a question which should be kept a question of fact to be determined by the jury. That is what we have done, and I am quite sure my hon. friend would not disagree with me when I say that this is the effect. It will be a question of fact to be determined by the jury in accordance with the evidence.


Paul Joseph James Martin: Lawyers will argue that the word "deliberate" presupposes planning.


Edmund Davie Fulton: Of course lawyers will argue just as my hon. friend is.


Paul Joseph James Martin: And judges will so decide.


Edmund Davie Fulton: Judges will interpret the law to juries, yes. Surely my hon. friend would not have us take that function away from them.


Paul Joseph James Martin: Oh, no.


Edmund Davie Fulton: Judges will interpret the law and will instruct juries upon the legal effect of these words. I am not going to presume to say here exactly how I consider every judge will interpret these words but I do say that I do not think judges will have much difficulty interpreting the intent of parliament to juries when they find parliament saying that the question for the jury is whether or not the murder was planned and deliberate or whether it comes within the ambit of section 202. I really do not think that is going to be a difficult question. I realize that lawyers will argue about it but that is the function of lawyers, and the function of judges is to interpret the law and to build up precedents on the basis of which subsequent cases are decided.

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Indeed, the hon. member for Essex East seemed to confine his remarks this morning to generalities and personalities. He said that he had no confidence in the bill. I point out to you, sir, that he brought forward no specific criticism of it. I could not help but ask myself: If he is so dissatisfied with it, why does he not say where it is wrong, what is the weakness or make some specific proposals as to how it should be changed? But, as I say, he confined himself to generalities and to personalities such as "I have no confidence in the bill because I do not think there is anybody in the Department of Justice really capable of drafting legislation as important as this".
I am not going to enter into any detailed refutation of that suggestion. I am simply going to point out that, so far as draftsmanship is concerned, when a decision on principle has been taken as it has been taken here the draftsmen of the Department of Justice are as capable as will be found anywhere in the world and an attack on that basis, unsupported by any specific point of weakness brought out by the hon. member for Essex East, falls by virtue of its innate and demonstrable weakness.
My hon. friend concluded this morning by saying that he supports the principle of the bill but does not have confidence in the bill as drafted for the reasons I have given. He gave no reasons aside from generalities and personalities so I am confident that no reflection and after the explanations I am now making he will find himself able to support not only the principle but the details of the proposal we have laid before parliament.


Paul Joseph James Martin: Will my hon. friend permit a question? He will remember that I said this morning that I was confining myself to the question of procedure and that I had some comments to make on the bill. I have already made some comments and I have more comments to make on the details. For instance, I ask this question: Does "deliberate" mean that the offender was in full control of his reason? The minister may feel that he does not want to answer that question but that is the very kind of matter that must be defined as precisely as possible in the bill. If the minister feels he cannot give that kind of definition, surely he must realize that that is evidence of what I have been saying, that the bill lacks the precision which I think it should have.


Edmund Davie Fulton: I will be very glad at a later stage to come to a discussion of details. At the moment I am endeavouring to answer some general comments that have been made, and we can get into a discussion of that kind, so far as it is appropriate, in a short

time. I will be glad to lay before my hon. friend some thoughts in that regard.
The hon. member for Niagara Falls also posed certain questions. Incidentally, I might remind the committee that she has had considerable experience in the field of criminal law and has acted as defence counsel or participated in murder trials in more than one instance. She asked me what would be the situation if there was a riot in a prison during which there was an unpremeditated killing and her suggestion was that there is nothing in the bill that would make this capital murder. The Leader of the Opposition asked the same question. To this I can only reply that it would be difficult, it seems to me, to envisage such a case where it did not take place either in the course of an effort to escape or to effect a rescue from prison in which case it would be covered under section 202 or, alternatively, where it would be possible to establish that on the part of the person who actually did the killing the act of killing itself was planned and deliberate. I, of course, do not attempt to lay down an answer for every conceivable case that might arise but in our view the killing of a prison officer is covered in the provisions for capital murder.
The hon. lady also asked me what the situation would be with respect to a second killing. Again, we have made our division of murder into capital and non-capital on the basis of whether or not the killing was planned and deliberate or carried out in the course of committing any of the crimes or offences covered in section 202. That is the principle which we carry forward. That is the principle which we would hope and expect that juries would apply to every case of killing that comes before them. As I say, in the drafting of the legislation we have in our view protected the situation with regard to the type of murder involved in the killing of a prison officer or a police or peace officer.
She also asked me why we had not accepted and incorporated into the bill the doctrine of diminished responsibility. I should point out to her that both the Gowers commission and our own parliamentary committee recommended against the importation into Canadian law of this doctrine of diminished responsibility.
Again, the question was asked whether or not, if a mentally retarded person was persuaded, encouraged and, indeed, led by a person in full control of his faculties into committing a robbery in a bank in the course of which he armed himself and killed, that would be capital murder. That, of course, would depend upon whether the person in full possession of his mental faculties counselled

or procured the doing of the act which resulted in the death. On the basis of the general outline of the case presented by the hon. lady, I would say that the probability would be that the jury would find that the other person did so counsel or procure so as to make it capital murder, but again it would be a question to be determined on the basis of the facts.
The hon. member for Nickel Belt criticized us because he said we had no public document to substantiate the views of the government as incorporated in the bill. On an earlier occasion and again this afternoon I have endeavoured to summarize the process by which we arrived at our decision in principle. We did so after a review of the Gowers commission report, our own parliamentary committee's report, the vast volume of other writings and speeches on the subject, debates in this house and views as expressed in the country. On the basis of that study and analysis we reached our decision in principle as to what we should do, which was that we should divide murder into two categories, capital and non-capital. Accordingly we have produced a bill which carries that into effect and we now bring it before the house for the judgment of the house.
We are prepared to defend the decision we have made both in general and in detail. As I have said, surely after all these years the House of Commons is in a position now where it is appropriate that it should be asked to make up its mind on the question of how it wants to deal with murder. The hon. member's criticism also seemed to have been based on the assumption-
Mr- Godin: Before the minister proceeds, may I ask a question?


Edmund Davie Fulton: Yes.


Osias.-J. Godin: Does he realize that my reference was to the phraseology of clause 1 which we were discussing? I realize that the minister has derived his information from many sources in so far as the general principle of the bill is concerned, but I believe we are agreed that we have no documentation or information which indicates to us where the minister obtained his phraseology for clause 1.


Edmund Davie Fulton: I doubt very much if you would ever find, on a subject of this kind where to some extent a new approach has been adopted, anything on which you could rest your case. It seems to me that what you have to do is decide, in principle, just what you want to do and then produce a bill which, in its drafting, will carry that principle into effect, carry into effect what was the intent when you gave instructions
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that the bill should be prepared. Our examination and re-examination of this bill has satisfied us it does carry into effect the decision I have endeavoured to outline to the committee as to what we should do with this difficult problem of capital punishment for murder.
The hon. member for Nickel Belt did raise a particular question with regard to the implication of the words "in respect of any person". I took it from what he said this afternoon, and from what he asked me again more recently, that he had in mind this phrase related to the person killed. May I point out to him that if he will read the clause,
Murder is capital murder, in respect of any person, where
(a) it is planned and deliberate on the part of such person,-
he will find this makes it clear that the person referred to in both cases is the person committing the murder or carrying out the killing.


Osias.-J. Godin: I do not like to be annoying, but the minister seems to read the phrase as though it were two phrases. He says, "in both instances". The minister knows that this is one phrase. If you have paragraph (a), it is simply for the construction of the statute and does not break the phrase. If you say that murder is capital murder in respect of any person, you may find that the reference is to the person who has been killed, and if you go on to the next phrase, "on the part of such person", you will find you are referring to the person who has been killed.


Edmund Davie Fulton: If my hon. friend will read the clause, I am sure he will realize that "person" there refers to the person doing the killing. It says:
Murder Is capital murder, in respect of any person, where
(a) it is planned and deliberate on the part of such person,-
Obviously the two words "person" refer to the same person and the only person that could be contemplated or affected would be the person who does the killing. Then, paragraph (b) says:
it is within section 202 and such person
(i) by his own act caused or assisted in causing the bodily harm from which the death ensued,-
I can assure my hon. friend that if he would read the clause carefully he could not come to any conclusion other than that the person referred to there is the person causing the death.


Osias.-J. Godin: Would the minister refer to the French translation of that paragraph in which the words "a l'egard de" are used?

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Edmund Davie Fulton: My hon. friend has read the last line, and let me read the whole thing in French.
(Translation):
That section states:
Murder is capital murder, in respect of any person, where
(a)	it is planned and deliberate on the part of such person, or
(b)	it is within section 202 and such person (i) by his own act caused or assisted in causing
the bodily harm from which the death ensued.
Therefore, it is clear that in all cases, the person referred to is the person who caused the murder.
(Text):
Then, the hon. member for St. Denis-


Osias.-J. Godin: To assist the committee, would the minister-


Edmund Davie Fulton: -no, going back to what the hon. member for Nickel Belt said, I believe he should be satisfied now that since the planning and deliberation has to be on the part of the person causing the death that should take care of the case he brought to our attention of a possible death resulting to somebody other than the person it was planned to kill. The question is, was the murder planned and deliberate on the part of the person causing it, and that is the question for the jury.
The hon. member for St. Denis raised a question about the situation that might develop if five or more persons robbed a bank. My answer to him would be that if they planned to kill in the course of the robbery, then all would be liable for capital murder. If, on the other hand, they planned to rob only, then only the one who kills is liable for capital murder. Unless the others counselled or procured a killing, all the others would be liable to non-capital murder so they would not escape a murder charge.
The Leader of the Opposition raised a number of points, but I think I have covered a great many of them in my general remarks or in references to questions from other members. However, he did, in his criticism of the bill, appear to suggest that we retained capital punishment because in our view it had a deterrent effect. One or two other hon. members made that argument. May I remind the committee that in my introductory remarks on second reading I pointed out that while we felt there was no validity in the view that a deterrent did apply in respect of the bill, we rested it on grounds far wider than that, and that was the fact that for a deliberate killing society is entitled, and indeed the protection of society demands, the sanction of the death penalty.

I think, Mr. Chairman, that covers most of the questions that were raised. Others no doubt will be raised in the course of considering the further clauses, and I shall be glad to deal with them at that time.


Mr. Roberge:: May I call it six o'clock?
At six o'clock the committee took recess.


[Stage Direction]
AFTER RECESS

The committee resumed at 7.30 p.m.
Gabriel Roberge: Mr. Chairman, at the outset of my remarks I should like to state that when the Minister of Justice introduced Bill No. C-92 last Tuesday he did so in an extensive and very comprehensive manner. It is not because he has spoken today that I have made up my mind, but it has helped me somewhat to finally decide what I should do. Unfortunately on the second day of the debate last week I was unavoidably absent from the house because of circumstances beyond my control and I was not able to participate in the vote on the principle of this bill.
(Translation):
Mr. Chairman, when considering a bill as important as the one before us, it is always extremely difficult to form an opinion. Last year, we had the advantage of listening, for two days, to the discussion of the bill of the hon. member for York-Scar-borough (Mr. McGee). We also had the opportunity of studying, or at least of reading the bill proposed by the hon. member for Maisonneuve-Rosemont (Mr. Deschatelets) and the legislation submitted by the hon. member for Burnaby-Richmond (Mr. Drysdale), if I am not mistaken in the name of his riding.
With the help of those three drafts and of last year's discussion, I have been able to come to a decision, though it was quite difficult, I admit.
As I said, the problem is a very complex one. Society, of course, has to be protected. But it is also important to see that innocents are not put to death.
It did happen in the past, I think-my little experience does not allow me to prove it-but I suppose it did happen in some cases that people, having been found guilty, were put to death though they were innocent. This is the sort of thing we must try to avoid.
I do not wish at this time to follow the Prime Minister of this country in the statement he made this afternoon and take up all those reasons after him to comment on them or criticize them.

Mr. Chairman, in spite of the attitude which the Prime Minister and the Minister of Justice took this afternoon, I still believe, like others who spoke before me, that this bill should be submitted to a special committee. It is true that a joint committee of the house and of the other place did some work with regard to this matter in 1954 and in 1955. It is also true, as I said earlier, that the bill was discussed last year, but, here in this house, we are called upon to take the best possible decision. Notwithstanding the position taken by the minister, I think that in order to arrive at the best possible decision, we must make the best use of whatever means are afforded by the rules of this house to form our opinion.
We want opinions freely expressed and to this end we should exhaust all means of persuasion trying to drive home the merit of this bill and, for the moment, that of the first clause.
I am a lawyer myself, as are many members of this house. However, several members have not had experience in court. I am sure too that none of my colleagues have ever known what it was to be indicted or to serve as a juryman.
During my short legal career, I have had occasion to defend a person accused of murder. An attorney is always in a difficult situation in such cases whether he acts for the crown or for the defence. That is why parliament and the committee must take every possible means within the purview of the rules to arrive at a sound and logical decision.
I feel that the best way to make this measure as efficient as possible would be to refer the bill and clause 1 to a special committee.
Mr. Chairman, the principle of this bill is included in clause 1; it is the core of the bill, and for that reason I can now say how I would have voted had I been here last Wednesday.
Most or at least many of the members from my province on this side of the house voted against the bill. It is a matter of conscience. Their decision was dictated to them by their conscience, by the studies they made, and I certainly cannot blame them. Nor can I blame those who voted differently. As for me, I would have endorsed the principle of the bill and for the following reason.
Mr. Chairman, members of this house are legislators. This afternoon, we witnessed a short and untimely intervention on the part
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of the hon. member for Pontiac-Temiscamin-gue (Mr. Martineau) parliamentary secretary to the Prime Minister, and, in order to help him, I should like to read into Hansard the definition of "legislator" given by the Nouveau Larousse Illustre. I quote:
Legislator: One who gives laws to the people.
Why are we here? To give laws to the people of Canada. This is our sole function. We are not here to administer the laws: that is the task of the judiciary.


Paul Raymond Martineau: Nobody denies it.


Osias.-J. Godin: Why ask the question then?


Paul Raymond Martineau: You do not have the floor.


Gabriel Roberge: The laws are administered by the judiciary. Therefore on the principle that those who sit in this house were chosen to draft the laws and to give them to the population, I need no other justification to make me endorse this bill. As pointed out, last week and again today, by my colleague for Maisonneuve-Rosemont (Mr. Deschate-lets), it is probably true that when applied this bill will not prove as effective as expected. But that is not our problem. Our particular responsibility is to prepare such an act as we think should be prepared.
I feel, Mr. Chairman, that clause 1 in the Bill C-92 is good, since it provides for a division of murders into categories. Too often, in the past, individuals were charged with murder and convicted of murder, while they should have been convicted of manslaughter. Too often also individuals were prosecuted for manslaughter when the proper charge should have been one of murder. I think that danger is being warded off by the definition of capital murder and non-capital murder found in clause 1 of this bin. I do not mean by that that I am personally satisfied with the classes as described in clause 1. Far from that. On the contrary, quite a number of clauses of the bill do not satisfy me, and besides I shall have the opportunity of making a few remarks in connection with other sections of this bill. However, for the moment, I should like to limit myself as much as possible to section 1.
As I have just pointed out, the law now provides for cases of murder and manslaughter. Perhaps it might be useful, in making my point, to recall that murder is the intentional act of killing, of voluntarily taking the life of another person, while manslaughter or unintentional homicide is the involuntary act, although culpable, of taking the life of another person.

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This bill includes capital and non-capital murders, manslaughter or unintentional culpable homicide remaining as described in our statutes.
On the other hand, Mr. Chairman, looking at this bill, and more particularly at section 1, as it now reads, I note one difficulty. And to better illustrate it, I will read again into Hansard what the minister had to say on May 23 last when he paraphrased clause No. 1 and gave us distinctions which are made by the bill according to him. As found at page 5223 of Hansard for May 23, he stated:
We have accordingly started on the basis that there are two broad types of killing. The first is where the death does not result from any act of deliberation on the part of the person causing it but can be said to be Impulsive or non-deliberate, in the sense of being in no way within the prior contemplation of that person. It is our view that the death penalty ought not to be the consequence in these cases, and accordingly although the crime may be murder, it is classed as non-capital and a sentence of life imprisonment only is provided.
The other type of killing is the case where death is caused deliberately or as a result of a planned act of the person causing it. All these cases are classed as capital murder and for these cases, but for these cases only, the sentence of death will follow automatically on conviction.
Mr. Chairman, I wish to emphasize again the following words:
_deliberately or as a result of a planned act
of the person causing it.
Mr. Chairman, in the course of the discussion today, some hon. members who spoke before me dealt with that aspect of section 1, particularly the wording of that section. The hon. member for Berthier-Maskinonge-Dela-naudiere (Mr. Paul) suggested this morning to the minister an amendment to the French version of the bill. At present the bill speaks of a murder which is "projete et deliber6", the hon. member has suggested that it should say "projete, prepare et delibere".
I understand that, just a few minutes before the six o'clock recess, the minister said that he would examine that problem with the Secretary of State (Mr. Dorion) and that he would make the proper correction to the French version, if necessary.
However, that is not the point I wish to make, Mr. Chairman. In fact, I do not think anyone mentioned this question.
In the course of his remarks, this afternoon, the Minister of Justice went further than he did last Tuesday. In reply to various objections, he spoke of "planned and deliberate" murder, and I noticed that every time he spoke on that point this afternoon, he stressed the words "planned and deliberate" while, last Tuesday, as reported in the French

edition of Hansard, he spoke of cases where death was deliberate or ensued from a premeditated act. I feel there is a great difference there.
(Text):


Edmund Davie Fulton: Perhaps the hon. gentleman would permit me to say a word in explanation here. In my remarks during debate on second reading I took pains to point out that there are two circumstances which make a murder a capital murder. One is, where the killing itself was planned and deliberate. The other is where the murder is done in the course of an act which imports the element of deliberation-an act that is of such a generally deliberate or stealthy nature that we think the law should make it clear that it imports the element of deliberation. It was in the discussion of these categories of capital murder that I used the words, which the hon. gentleman has quoted this evening, as contained in Hansard for last Tuesday. I did not go into detail this afternoon in respect of those words when I said the killing must be planned and deliberate. Perhaps, to have been perfectly accurate, I should have gone on to say; or, where the killing occurs in the course of the commission of one of those crimes outlined in section 202. However, I think the bill is clear on that point.
(Translation):


Gabriel Roberge: I wish to thank the minister for his remarks. Incidentally, I would not want to be unfair to the minister, because it is probably true that when he discussed the deliberate causing of death, he was probably referring to paragraph (a) of the bill, and when he discussed premeditation, he was probably referring to paragraph (b). While that may be true, I do not think it alters the point of my argument. Also, for the benefit of the committee and in support of the point made by my hon. colleague from Nickel Belt (Mr. Godin), I must say there is a significant difference between the meaning of the French words and that of the English words.
While it is true that the judiciary is there to interpret the law, it is also true that the lawmakers are here to make the laws as clear as possible. I therefore think that from that point of view, it is important to look into the definition of the words. I understand that in section l(2)(a) of the bill, the word "projecte" and the word "delibere" are used as adjectives. With respect to the word "delibere", here is the meaning given to this word in its adjectival form by the Larousse dictionary:
-easy, free, determined-

Then the dictionary gives an example:
By deliberate intent, with intention, purposely.
Now here is what is meant, according to the French dictionary, by the verb "deliberer":
To consult together, to reflect inwardly for the purpose of reaching a decision.
And I stress this part of the definition of the verb:
-to reflect inwardly for the purpose of reaching a decision.
Now let us look at the definition given in the Oxford dictionary for the same word used as an adjective:
(Text):
deliberate,-
The adjective.
Intentional; considered, not impulsive; slow in deciding, cautious-
And the verb:
Consider, think carefully, take counsel, consult, hold debate.
(Translation):
And now, the verb "deliberate":
In my opinion, both dictionaries do not give the same definition and I do not think we can rely on any other source of information than dictionaries for the definition or the meaning of words. Now, the English word "deliberate" seems to imply a more or less lengthy period of time which is certainly not only an instant, while the French word "delibere" does not seem to make such a distinction. Indeed, I think it is possible to deliberate only one second and, in such a case, murder still is deliberate.
I will now go a little further. If it is true that a homicide must be deliberate to be considered as a murder under the present law, the same thing can be said about the bill under consideration.
In my opinion, the word "deliberate" in the English version implies lengthy and planned deliberation, a debate within the criminal's mind, if you wish, whereas the word "deliberation" as defined by French dictionaries could mean reflection which took only a flick of an instant.
Is it possible, however, to separate the words "planned" and "deliberate" used in the bill? That is why I was pointing out a while ago that when the minister was speaking about "planned and deliberate" murder, this afternoon, he was coupling the two words every time he used the expression.
If, after having decided to kill someone, I plan my deed and then I carry it out, it
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is obvious that the homicide I have committed is deliberate; however, I could have taken a decision after hasty deliberation, without any preconceived plan. In that case, is it a capital or a non-capital murder? This question has been haunting me all day long.
Nowhere have I heard an appropriate answer but it seems, at first sight, that to have a capital murder, it should be both "planned" and "deliberate", whereas if it is simply a "deliberate" and not a "planned" murder, you have non-capital murder.
Is this the right answer? Is this the true meaning of the bill? I do not know, but I am asking the minister to clear up this point. I should like him to enlighten us on this matter.
He said this afternoon that it is up to the judiciary to interpret the law. That is true, but the legislator is responsible for enacting the law. Therefore, it rests with the government or its representative, in the person of the present minister, to set forth his opinion. I therefore think the minister owes us as much clarification as possible on the bearing of the words he himself conceived and on the meaning given to them by those who drafted this bill with him.
Mr. Chairman, I should like to end these few remarks by repeating what I said at the beginning on account of the possible ambiguity, on account of the two meanings that can be given to the words "planned" and "deliberate", taken together or separately, the minister must listen to our pleas and agree to refer this bill to a special committee of the house.
According to the minister, delays might result. That might be the case. But special committees meet often enough, as often as two or three times daily, to make it possible for certain studies to be done in the special committee, by calling before it witnesses, experts, that is people with a vast experience in criminal law, who would give to members of the committee all the explanations possible.
It would also be an opportunity to meet the officer or officers who looked after the preparation of the bill or did prepare it. Obviously the person who supervised the preparation of the bill is the Minister of Justice, but he is not the one who prepared it They are the officers of the department.
In my opinion, these people should be called to appear before the select committee so that we may know what they mean exactly by that word, since it is only in this way that we will be able to decide what our position should be concerning clause 1.

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(Text):


Mr. Drysdale:: Mr. Chairman, I rise at this time to make one or two comments on the first clause of this bill. Since I have been interested in capital punishment I have already put my views on the record by the introduction of a bill based on the United Kingdom legislation but adapted to Canadian conditions. I agree with the minister in the adoption and the adaptation of the principles expressed in this legislation, but I feel this is the time for the committee to do the final polishing of the words placed before us which seek to put the principles into legislative expression.
In his introductory remarks on capital punishment the minister indicated that generally speaking he believed it was a deterrent to rational people. He also left the logical implication that those who find themselves in the unfortunate position of having committed capital murder are in the circle of what one could call irrational people by the very fact that they find themselves in this position. If we assume then the premise that those people who find themselves in the position of having committed capital murder are in varying degrees irrational, I think it requires an extremely close examination to find out which people within that circle are the ones the court decides shall suffer the supreme penalty. My own feeling on this particular matter, Mr. Chairman, is that I should like to approach the problem from a slightly different direction.
We have indicated positively what the crime consists of by saying that it must be planned and deliberate. In order to delineate very carefully what the words "planned and deliberate" mean we have to give consideration to some of the defences advanced, such as insanity and drunkenness. The first one I shall more particularly deal with is the defence of insanity. Under section 16 of the Criminal Code we are still operating basically under M'Naghten's rule, which described legal insanity. This rule is now some 118 years old. I am concerned with whether or not during this whole period of 118 years this rule has been entirely effective. We are faced first with the medical aspects of insanity which are far ahead of the legal understanding of the situation. I am very much concerned over this gap. It is particularly important, Mr. Chairman, because mens rea is the prime ingredient required to prove a capital murder case. In the United States in 1954, in a case called the Durham case, they attempted to define much more clearly the psychoses and neuroses of insanity which would lead to the crime being committed. I 	.
suggest that under the present criminal legislation here there is not the same degree of flexibility that they have in the United States.
My first suggestion to the minister would be-although this is perhaps not the appropriate time to do it-that consideration be given to setting up a committee to study insanity both from the juridical and medical point of view with a view to up-dating the sections which deal at present with legal insanity.
The second point that I should like to deal with, Mr. Chairman, is the fact that in a capital murder case the death penalty is prescribed in section 642 of the Criminal Code. In prescribing the death penalty, I would suggest that the penalty and the method are inextricably interwoven. I have already gone on record and suggested that a suitable method of the death penalty is the gas chamber. The hon. member for Essex East and the Leader of the Opposition both indirectly raised this matter by suggesting that perhaps there should be another form of capital punishment.


Frank Charles McGee: Will the hon. member permit a question?


John Andrew W. Drysdale: Yes.


Frank Charles McGee: Let us assume that the hon. member, as I understood him, agrees with the deterrent argument for capital punishment. Would he not agree, then, that hanging as a form of execution because, according to many hon. members, it is less humane than the gas chamber, would have a greater deterrent effect?


John Andrew W. Drysdale: Not necessarily, no. My own opinion is that there happens to be confusion between the penalty itself and the method of carrying it out. I feel there is that confusion, as illustrated by the hon. member for Vancouver East. He was extremely moderate in this particular debate but in past instances when we have discussed capital punishment usually his first words were, "Have you ever seen a man hanged?" Then he would proceed to register the emotional aspect. I think the two things are completely severable, the death penalty and the way it is carried out.
Both the hon. member for Essex East and the Leader of the Opposition suggested that some consideration should be given to this aspect of the matter. I would suggest that this is not the time when consideration should be given to this matter, particularly when we are dealing with clause 1. I say this for the particular reason that the Criminal Code sets out what the crime shall be but it is up to the various provinces to carry out the method of execution.

I would make a second suggestion to the Minister of Justice. In June or September he is expecting to meet with the various attorneys general to discuss the British North America Act and at that particular time he might make an informal poll among the attorneys general to see what their attitude is towards the establishing of a gas chamber, for example, and whether one should be located in each province or whether there should be a central place of execution. Since the cost involved in the method of execution would have to be borne by the provincial authorities, I think it is imperative that they first be consulted.


Julia Verlyn (Judy) LaMarsh: Is the hon. member aware that section 642 of the Criminal Code sets out the manner in which the individual shall be sentenced, namely, that he is to be hanged by the neck until dead?


John Andrew W. Drysdale: I thank the hon. lady. Perhaps I did not make the situation too clear. It was for that reason that I indicated there would have to be agreement between the federal and the provincial governments. Under the code the federal government sets out the method, and I have already suggested that I think the method should be changed to the gas chamber. Then I suggested that since the provincial governments would have to bear the cost of responsibility of carrying out the method of execution, whatever the method may be, the Minister of Justice might take the opportunity when he meets the provincial attorneys general to ascertain at that time whether they favour an alternative form of execution.


Julia Verlyn (Judy) LaMarsh: May I ask a further question? Would the hon. member agree that if it should be provided that there be one place only in Canada for the carrying out of executions this would obviate the necessity of dealing with the provincial governments who now have to provide the facilities to carry out the sentence?


John Andrew W. Drysdale: If there were one central place of execution such as a gas chamber, for example, I think the only place it could be constructed would be in the Northwest Territories where the federal government does have jurisdiction. I think the question of whether there should be a central place of execution or whether there should be one in each province is a matter that would have to be discussed. The minister can correct me if I am wrong, but I understand the Northwest Territories is the only place where the government has responsibility in the event that hanging is necessary. Otherwise these matters come under the jurisdiction of the various provinces.
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There is another point I wish to make briefly before I sit down. It seems to me, as has been indicated by other members who have spoken, that the two key words in the clause are "planned" and "deliberate". In the light of the definitions I have been able to find I am wondering about the necessity for the use of the word "planned" and whether the word "and" is likely to be judicially interpreted as "or". In trying to find a definition of the word "deliberate" the only success I had was in Black's Law Dictionary, fourth edition. The cases referred to are United States cases but I suggest that the reasoning would probably be equally as applicable to Canadian courts. I quote part of the definition of "deliberate" as found on page 513:
By the use of this word, in describing a crime, the idea is conveyed that the perpetrator weighs the motives for the act and its consequences, the nature of the crime, or other things connected with his intentions, with a view to a decision thereon; that he carefully considers all these; and that the act is not suddenly committed. It implies that the perpetrator must be capable of the exercise of such mental powers as are called into use by deliberation and the consideration and weighing of motives and consequences.
Using that particular definition, it appears to me that the idea of planning or something having been planned is incorporated. Perhaps I might read one more definition that is given here:
"Deliberation" and "premeditation" are of the same character of mental operations, differing only-in degree. Deliberation is but prolonged premeditation. In other words, in law, deliberation is premeditation in a cool state of the blood, or, where there has been heat of passion, it is premeditation continued beyond the period within which there has been time for the blood to cool, in the given case. Deliberation is not only to think of beforehand, which may be but for an instant, but the inclination to do the act is considered, weighed, pondered upon, for such a length of time after a provocation is given as the jury may find was sufficient for the blood to cool. One in a heat of passion may premeditate without deliberating. Deliberation is only exercised in a cool state of the blood, while premeditation may be either in that state of the blood or in the heat of passion.
Incidentally, I think this might also answer the question raised by the hon. member for York-Scarborough who wanted the idea of cold-bloodedness included so that it could be said that it was a planned, deliberate and coldblooded murder. I think this definition clearly incorporates under "deliberate" the idea of cold-bloodedness. On a very cursory examination, it does not appear to me that the word "planned" is necessary. I wonder whether the minister would give this point careful consideration because although I am making these criticisms I do so on the basis that it is our task in this committee to produce the best possible legislation covering these particular points. I think the onus is on every

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member to try to make valid, positive criticisms in order that we will have the best legislation possible.


Edmund Davie Fulton: Mr. Chairman, several hon. members have suggested that I should attempt to define the words "planned and deliberate" as used in this clause. I think there is very great danger in attempting such a definition precisely because, as I have said, in the final analysis the courts interpret and are the proper authorities to interpret the words of a statute. Of course, in considering the import of words it must be realized that their applications-not their meaning but their application-will vary from case to case depending upon the circumstances of that case. The evidence of what took place has to be weighed and the jury, subject to direction from the judge, will then have to apply their minds to whether or not the circumstances in that case show that there was a planned and deliberate murder.
However, I have no objection to indicating the concept that we worked out and have asked the experts to incorporate into the technical language of a bill. The purpose of using the expression "planned and deliberate" was to add something to the usual idea of intent or mens rea or malice aforethought. That something is an element of greater premeditation than the expressions I have mentioned necessarily connote. Because the words "deliberate and premeditated" in the United States have tended in some states to be equated to mere intent, we selected words which in our view would and do make plain that something more than intent formed on the spur of the moment and under a sudden passion or impulse is required to constitute capital murder. So it will be appreciated that instead of using the words "deliberate and premeditated" we have used the words "planned and deliberate" in order to give expression to the thought that something more than mere intent or mens rea or malice aforethought, as they have been interpreted, is involved.
We all know the meaning of "planned" and of "deliberate". They import the idea of the mind making and carrying out a project not thrust upon it by sudden passion or impulse. I think a time element is present but it may vary from case to case. Plans may be conceived and carried out very quickly but they must be plans and not merely impulses. When the words are applied to a specific set of facts, as they always will be in practice, I do not think a judge will have too much trouble explaining or a jury understand the definition. Finally, I suggest that "deliberate" has no direct bearing on the question of mental capacity, which remains as it is now.
[Mr. Drysdale.l
We have also, Mr. Chairman, given some consideration to the point raised first by the hon. member for Berthier-Maskinonge-Delanaudiere and referred to recently by the hon. member for Megantic, namely, the question of whether or not the French translation, "projete et delibere", did carry into effective language the concept I have outlined as the concept involved in the English words, "planned and deliberate". It has been suggested to me that possibly they do not as accurately reflect the concept as those words in the English text. It will be appreciated, as I said earlier, that this is a very technical question, the determination of whether or not certain words or certain phrases in French have exactly the same meaning in that language as phrases or words in the English language. I am not in the least qualified to express an opinion on this matter, and I would normally be guided entirely by the opinion of the translators who are trained in this work.
However, after some discussion I am advised that it may well be conceded that the words "planned and deliberate" in English would be better rendered or rather the concept of that phrase would be better rendered by the French words "projete et premedite" rather than the words "projete et delibere." I am informed, too, that the French word "premedite" used in this context does not have the rather restricted meaning of the English word "premeditated" as it has been interpreted judicially. We would be quite prepared, therefore, to consider substitution of the words "projete et premedite" for the words "projete et delibere."
There is only one other comment I should like to make in connection with this clause, in response to a suggestion made by hon. members in connection with the position of prison officers and police officers. I believe it was the hon. member for Niagara Falls who first raised the question of whether the killing of a prison officer in the course of a riot where the purpose of the riot was not directly to escape or effect rescue from the prison but was, shall we say, in the course of protest against conditions in the prison, would be considered capital murder. The hon. member suggested that an inmate acting on impulse might kill a guard, and asked would that be capital murder. I ventured the suggestion earlier this afternoon that it would probably be regarded as capital murder, one or the other of the two types of capital murder, namely as a killing committed in the course of an attempt to escape or effect a rescue, or as a planned and deliberate murder. In the case of an inmate, particularly one who may have smuggled a

weapon into the prison, and then used it in the course of a riot, a killing with it would very likely result in a jury finding that the killing was planned and deliberate under those circumstances. I do, however, want to make clear that it was our intention to cover such circumstances. It is our view that by reference to those offences under section 202, plus the provision regarding a planned and deliberate carrying out of murder, such a case is covered as being capital murder. However, lest there be any doubt on the matter I will be quite prepared to consider an amendment to add a specific provision making it clear that the killing of a prison officer by an inmate in those circumstances is capital murder because that would not change the intent with which we started out in this bill. Similarly, in so far as the killing of a police officer in the course of his duty is concerned, that situation might be specifically covered also. I am not suggesting here a final drafting of such an amendment. I believe these situations are covered now because section 202 refers to a killing in the course of resisting lawful arrest. I think in most circumstances where one could envisage a person killing a police officer, the police officer would be acting in the course of his duty and the situation would, therefore, come under that general coverage.
As I have said, it is our intention that these situations should be included. However, I understand that several hon. members of experience are concerned, so I see no harm in making it perfectly clear by a special reference to both the position of the prison officer and the police officer, and we will be glad to consider the drafting of such a provision.


Paul Joseph James Martin: While the minister is on this aspect of the matter, and since he is dealing with the meaning of "planned and deliberate", is he going to deal with the question I raised as to whether or not a person has to be in control of his reason. A man could not be in control of his reason but could plan a murder, could be deliberate in its execution, and yet he would come within the definition of "planned and deliberate". Could the minister indicate whether or not that definition presupposes the man is in control of his reason?


Edmund Davie Fulton: I think I answered that in what I said about "planned and deliberate". I have suggested that this wording has no direct bearing on mental capacity, the definition of which remains as it is now in the law with respect to the defence of insanity. Whether a person is or is not responsible for his act, it seems to me that defence is defined in the
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code and that the word "deliberate" has no direct bearing on the question of mental capacity.


Jean-Paul Deschatelets: If I understood the minister correctly, I believe he has acknowledged that the position taken by the hon. member for Niagara Falls was well taken. Do I understand that the minister will accept an amendment drafted by the hon. member for Niagara Falls to cover the point raised?


Edmund Davie Fulton: No, I said we would be prepared to consider the matter overnight and bring in an amendment to cover the point raised by the hon. member for Niagara Falls. My answer earlier was that we think it is covered. Since, however, we intend it to be covered, we have no objection to having a provision so worded that we can all agree the situation is covered.


Jean-Paul Deschatelets: Would the minister have any objection to the hon. member for Niagara Falls moving an amendment tomorrow after it is drafted by his officers?


Edmund Davie Fulton: I would be glad indeed to have the support of the hon. member for the appropriate amendment.


Frank Charles McGee: Mr. Chairman, before the Minister of Justice is influenced by any more suggestions along the line of extending the application of this bill, which some of us thought was moving in the other direction, I should like to discuss this question of "planned and deliberate". I wonder whether we can take it from what the Prime Minister said this afternoon that in effect we now have three degrees of murder, or in a sense four. If a death occurs there are four consequences. Starting from the bottom, they are manslaughter, non-capital murder, capital murder with a recommendation for mercy, which would presumably mean imprisonment for life unless a cabinet directive indicated that a different course should be taken according to a later clause of the bill, and finally capital murder punishable by hanging.
Frankly I approve of the tendency in this bill to put more responsibility into the hands of the jury. In the minister's review of the history of capital punishment and its former very broad application down to its very limited application today, he made reference to the fact that in the early days juries were reluctant to bring in verdicts of guilty in cases like the frivolous crimes of stealing a few shillings, pickpocketing, and so on. It was because of the action of juries and, as the minister pointed out, some enlightened bankers a little later on, that finally pressure was brought to bear which reduced the application of the death penalty at that time.

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If through this bill we put into the hands of the jury the additional question of fact, as the minister expressed it earlier today, of determining as a matter of fact whether a murder is planned and deliberate, it seems to me we should perhaps use language which will have a more complete meaning to a jury.
I suggested last week, when the discussion in committee first began, that perhaps "coldblooded" might be another adjective to add to the description that in my view the majority of people in this country have in mind. I have selected and discarded a number of other words since that time and have come up with two specific suggestions, that a murder to qualify as capital murder should be vicious, cold-blooded, planned and deliberate.
To support that suggestion I offer on the one hand the suggestion that words to persons who must, to qualify for jury duty, be not learned in the law will carry a different sort of weight than the rather confining language of law generally. It seems to me that juries will be able to better understand the implications of the words "vicious and cold-blooded" than the simpler words "planned and deliberate" that are proposed at the present time.
I offer as one of the few examples an editorial in the Toronto Telegram of May 16, 1961, where the caption is "Murder in cold blood". In other words, it seems to me that is what we must have in this law, if we are handing over so much more responsibility to juries. Like the hon. member for Parkdale and other hon. members, I have great confidence in the jury system and certainly the way in which this system has been responsible for various reforms in connection with capital punishment over the years.
It seems to me that the question at the top rung of the ladder, if you like, should include a more precise and generally better understood description of what I believe this parliament had in mind in describing the type of murder for which capital punishment should be the penalty and what I am very confident is in the minds of the majority of Canadians who have expressed their opinions on this matter on a continuing basis in recent years. I do not know at what point I should move this form of amendment, but perhaps now is as good a time as any.
I should like to go on to ask what is, perhaps, a layman's question about the word "or". I wonder whether the minister could answer this question before I proceed. In clause 1 (2) (a) it is said:
it is planned and deliberate on the part of such person, or
Then you go on to subclause (b). It seems to me there might be some merit in changing that word "or" to "and", and perhaps the

minister would point out the reason for the use of the word "or" rather than the word "and".


Edmund Davie Fulton: The use of the word "or" there is appropriate because it is our intention to make these alternatives. Therefore the conjunction "or" is used rather than the conjunction "and" because if "and" were used you would have to prove that the murder had both these elements; in other words, that not only was it planned and deliberate but also that the killing took place in the course of the commission or the attempted commission of another crime. This to us is not at all appropriate.
The crime in mind may have been the crime of murder, which has no relation at all to any other crime. Therefore we do not want to provide that capital murder must have both elements. All we want to provide is that capital murder is a killing which is itself planned or deliberate, or a killing which occurs in the course of committing other crimes which by their nature import not only an element of violence and, as it were, defiance of society, but also the element of deliberation; that is, the person embarked on a course of deliberation, stealth or violence and in the course of carrying it out he killed. In our view that imports the element of deliberation which we feel should be present to constitute capital murder.
We do not intend to provide, and it would be a mistake to provide, that not only must the killing itself be planned and deliberate but it must take place in the course of the commission of another offence in order to be capital murder. That would be the effect if we used the word "and" instead of "or".


Frank Charles McGee: I thank the minister very much for that reply. I refer to the reply he gave earlier in connection with this question of diminishing responsibility which I raised. The minister will recall that on May 23 the hon. member for Charlevoix, in his speech on second reading, made a specific proposal to which I have not found any reply on the part of the minister.
The hon. member for Charlevoix was concerned, as are a great many hon. members of this committee, about the question of the contradiction mentioned by the hon. member for Burnaby-Richmond. I refer to the fact that the M'Naghten rules, while they may have served a very important purpose, were in fact brought into being not in the normal course of the process of law but because of a directive brought into being in 1843 when the science of psychiatry and the knowledge of the workings of the human mind were in their earliest stages. It has been argued by some that the M'Naghten rules have

been fairly successful and if one criticizes them the reply is, "If you do not like the M'Naghten rules, what have you to offer as an improvement or an alternative?"
I am not too concerned about the definition, if there is no better one available to apply, in terms of determining sanity or insanity in law, but I am most anxious that this question of sanity should not be concerned in the capital murder category. There has been much discussion of the United Kingdom homicide act of 1957 and I notice that several hon. members of the Liberal party in particular seem to be greatly enamoured of that act. I would caution them, as the minister has already pointed out, that this particular bill was subject to the most strenuous criticism at several points on its inception and in the debates in the United Kingdom parliament and that it has been under continuing fire ever since it became law. There are serious flaws in it, and, as I said on second reading, the bill put forward by the minister in an attempt to find a middle point is a far more intelligent and successful attempt to accomplish the intentions of the government than the homicide act of 1957.
I would point out, however, that one of the features of that act which has been praised and been the subject of favourable comment was, in effect, the removal from the picture of capital punishment of the application of the M'Naghten rules by specifically designating-the clause was quoted, I believe, by the hon. member for Niagara Falls-
2. (1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.
It seems to me that this would have considerable merit. It would allow the application of the M'Naghten rules to come into force with respect to non-capital murder only, and the question of sanity in terms of the law in capital cases would be determined by this definition which, I suggest, is an improvement.
As I mentioned earlier, the hon. member for Charlevoix put forward the proposal that a board of psychiatrists be established at some point in the judicial system to determine sanity outside the application of the M'Naghten rules. I may be wrong, but I do not recall the minister having offered an opinion concerning the desirability of an examining board being introduced at some point in the process of the law to determine medical sanity as opposed to legal sanity according to M'Naghten.
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John Andrew W. Drysdale: The minister has indicated he is prepared to amend the section dealing with the specific case of murders committed in the course of a prison break, murders of prison officers. If I may refer to my own bill, No. C-38, clause 2 paragraphs (b), (c), (d) and (e) I think he will find something there on which to base his amendment.
I wonder if the minister has felt that the definition of a weapon as contained in the Criminal Code is wide enough to cover death caused by an explosion whether of a bomb, dynamite or other material. The definition in the code, though intended to be general, seems to refer to a specific type of weapon such as a revolver.


Edmund Davie Fulton: I thank the hon. member for Burnaby-Richmond for the helpful work he has done on his bill. We shall certainly have a look at it. In reply to the hon. member for York-Scarborough and his reference to the question of possible statutory provision for a board of psychiatrists, we have considered that possibility. It was also discussed by the royal commission on the law of insanity as a defence in criminal cases. We came to the conclusion that there was no need to make statutory provision for such a body. We thought the situation would be more open and flexible if we left the law as it is at the moment, bearing in mind that the provinces are responsible for the enforcement of this branch of the criminal law as they are of others. It would mean imposing upon them a liability for maintaining boards of psychiatrists. Some of the provinces do, in effect, maintain them; others do not. This would introduce a degree of rigidity which it is not necessary to have in view of the essential fact that at the present time in the course of any case it is open to the crown or to the accused to raise the question of the mental competence of the accused and then to introduce psychiatric evidence in that connection.
In reply to the question raised by the hon. member for Burnaby-Richmond with regard to the definition of the weapon, we have examined that point and reached the conclusion that it would not be desirable, nor would it be necessary to be at all specific in that regard. Killing by an explosive such as a bomb is surely covered by the general provision regarding deliberate or planned murder. For example, if anyone successfully plants a bomb in a plane he surely cannot be thought to be guilty of anything other than a planned and deliberate killing. Similarly, if the accused plants a bomb somewhere on the surface of the earth that could only be a planned and deliberate killing, we felt it was not necessary to broaden the definition of "weapon" so as to take care of that case.

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Frank Charles McGee: I appreciate the point the minister made concerning the rigidity of the system which might be imposed on the provincial authorities by the establishment of boards of psychiatrists, but I have had some experience of the problem caused by psychiatric evidence while I was acting in the capacity of a juror. I recall that during one trial the prisoner apparently went to sleep in the dock. An issue then arose which assumed the form of a trial within a trial. The defence argued to the effect that if a man could fall asleep in a courtroom when he was on trial for his life this was prima facie evidence of insanity of some sort. We heard some learned argument on both sides for and against this proposition. We then retired to the jury room in this trial within a trial, as I have said, to decide the question whether the accused was really asleep or whether he was only pretending to be asleep. This was an interesting diversion, but how can any group of persons looking at another person decide whether in fact that person is asleep or pretending to be asleep? Since there was no conclusive evidence it was virtually impossible to decide. However, we came to the conclusion that since the matter of insanity would be arising later in any event we would decide, for the time being at any rate, that there was a possibility of malingering. But after the psychiatrists had confronted the jury-and this jury was made up of persons from many walks of life with various backgrounds, degrees of education and vocabulary-by the time we had heard the psychiatric evidence presented by both sides, members of the jury quite frankly were more confused than before the presentation of this psychiatric evidence.
Having had that experience, coupled with the opinion expressed in different articles which I have read along this line, I have come to the conclusion that the hon. member for Charlevoix may be right in his suggestion regarding the establishment of such a board.
I should also like to state that the minister has not acknowledged-perhaps he does not agree-that there are findings within the application of the M'Naghten rule, which should apply, nor has he given any reason why a clause, similar to the diminished responsibility clause in the British act, should not be inserted into this proposed new legislation. He did say earlier this afternoon that a recommendation to include such a clause was not put forth by either the Gowers commission or our parliamentary committee. With great respect, however, I would submit that is not a powerful argument for its exclusion, because the principles included in this bill itself are not included either in the Gowers
commission recommendations or the recommendations put forward by the Canadian parliamentary committee.


Edmund Davie Fulton: Mr. Chairman, I am not quite sure I appreciate the point the hon. member for York-Scarborough is trying to make. I do not know whether he is referring to the desirability of having the examination of a person, who has been sentenced to death, carried out by a board of psychiatrists, or referring to the desirability of examining every person who faces a capital murder charge, carried out by a board of psychiatrists. If he is referring to the desirability of having every person examined by a psychiatrist, that person having been sentenced to death, I should remind him of the practice which has been, for many years, and is being carried out, of having a psychiatrist retained by the federal government examine persons in precisely those circumstances. The cabinet receives a full report from that psychiatrist, which is available to it in its consideration of the question of exercising clemency.
We have one psychiatrist for all English speaking Canadians who journeys around the country examining persons sentenced to death. There is another psychiatrist who examines all French speaking individuals who are similarly condemned. We obtain adequate and thorough consideration in respect of the psychiatric condition of condemned men in this way, as well as a degree of uniformity in approach, which I think is most desirable in these cases. In addition, of course, any psychiatric evidence given at the trial is available to the cabinet, and it is the practice of the federal government psychiatrists to consult, generally speaking, with others who have given psychiatric evidence, if that individual feels that consultation is helpful.
With regard to the doctrine of diminished responsibility, I realize that views vary, but I should like to refer to this question again, if for no other reason than to correct a misstatement I made this afternoon. I believe I said that both the Gowers commission, of the United Kingdom, and our own parliamentary committee had made recommendations against the adoption of that doctrine. To be completely accurate, I should have said that the Gowers commission recommended against the importation of this law into England, although it said it had no objection to its application as then incorporated in the law of Scotland. It did, however, recommend against its extension. In Canada it was not our parliamentary committee which made the recommendation against it, because it did not deal with the subject at all. The royal commission on the law of insanity recommended, as found

at page 46 of their report, conclusion No. 11, against the adoption of the law of diminished responsibility in Canada.
I was asked earlier by the hon. member for York-Scarborough why we used the word "or", as against the use of the word "and", in one of the clauses of the bill. Perhaps I should have based my explanation on a simile, which I now do. There are certain events taking place across the country today, where the choice to be made is between a Liberal or Conservative candidate; one or the other must win. Therefore, we say one or the other, because they cannot both win, which would be the effect if we used the word "and". It must be either one or the other. The committee will be pleased to know that in the riding of Restigouche-Madawaska the Conservative candidate has won.


Osias.-J. Godin: Mr. Chairman, I rise to make a few more remarks concerning this proposed legislation, prompted by the remarks made by the Prime Minister this afternoon, as well as by the fact that the Minister of Justice has involuntarily omitted to comment on a remark which I made concerning paragraph (i) 1, or 1 (i).
The Prime Minister made it quite clear by his remarks this afternoon that he felt something should be done in Canada to assure that no one who was convicted on circumstantial evidence of the crime of murder, or any other crime, should lose his life because of it. This feeling is shared by most hon. members of this house, as well as the majority of citizens of Canada. However, I felt the Prime Minister was blowing both hot and cold, because as clause 1 of this proposed measure now exists, there is no effort represented there, on the part of the government, to pass a law which would prevent the conviction and execution of any individual on solely circumstantial evidence. One always realizes the horror of the situation when a man is sentenced to death, because there is always the possibility that an innocent man will lose his life. In spite of this fact, and the words of the Prime Minister this afternoon, we find nowhere in this bill, as presented to us at this time, a clause representing any effort on the part of the government, to eradicate the possibility of such a thing taking place. I suggest that many people in this country, and more specifically a judge, with whom I recently spoke, have objection to the present law, which is not changed substantially by this bill, in this respect, because it does not include a high degree of security or safeguard, so that individuals in this country will not be convicted or hanged on circumstantial evidence. While I must admit there is no portion of
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this bill which deals with the subject, clause 1 does attempt to segregate crimes in respect of which capital punishment applies. This is one problem for which there is no solution contained in this bill.
As one reads clause 1 one sees that something is being done to try to do away with capital punishment by the back door. If clause 1 is passed in the form in which it now reads, murder in Canada will from now on be punished by life imprisonment, with certain exceptions. This may be of interest to certain hon. members who have made quite a plea for the retention of capital punishment up to a certain point. The punishment for murder in Canada from now on will be life imprisonment except for the offences enumerated in clause 1. I feel there should be two ways of referring to it, namely capital murder and non-capital murder. It seems to me we could retain the phraseology that murder is punishable by life imprisonment and upon a verdict of capital murder being found the penalty is death. This would solve the problem.
I make these remarks with the reservation that it is my opinion that clause 7 should be removed. If clause 7 disappears from this bill there would be no point in enumerating both capital murder and non-capital murder. To introduce the new terminology a verdict of capital murder would suffice.
As I have said, I rose to speak again because the minister-I know he is a busy man -did not answer my remarks on clause (2)(i). I have had occasion to discuss this question with other people learned in the law. They have indicated to me that the responsibility of the accomplice is not the same in clause (2)(i) as in clause (lXii) and (iii). This means that if the crime of murder is committed by hitting a person with an object the accomplice has a greater responsibility for the crime and could be found guilty of murder in such cases much more readily than in other cases such as choking or stopping a person's breath, where the act is repeated. We do not find in clause (l)(i) any reference to the stopping of a person's breath. The clause stops abruptly after the simple words "assisted in causing the bodily harm from which death ensued". This does not necessarily mean assisted in applying force which caused the bodily harm and which itself was the cause of stopping the breath. I feel sure the minister will see my point. I suggest that after the words "assisted in causing the bodily harm" in clause (lXi), there should be added the words "assisted in applying the force causing bodily harm". The physical act of stopping the breath or administering

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the stupefying thing would place the accomplice under the same degree of responsibility. I feel the minister should have no objection to this.
The minister tried to answer my query about paragraph (a) which deals with a person who has been killed but not the person who has committed the offence. I realize that the intention of the minister and of parliament is undoubtedly to amend the code so that the person who commits the offence is the person who is referred to. If a murder is a capital offence if the person committing it has deliberately done so, why not say it? Why use the phrase "in respect of any person"? When the reference is to the person committing the offence, why say "in respect of any person" in an important clause such as this? For this reason alone I am still prepared to say that it is an ambiguous clause and that lawyers will debate it and will say that the murder must be deliberate as to the person who is killed. If he kills the wrong person you cannot hang the person committing the offence, particularly if he can be found guilty of committing another type of murder. I repeat, the clause is ambiguous. I say that I might construe the meaning to be the opposite of that which the minister would give to it. Why does he not use the words "the person who committed" and let us be done with it? Then it would not be "in respect of any person" who could be the person killed or the person doing the killing.


Frank Charles McGee: Will the hon. member permit a question? This is the question I said I was going to ask this afternoon and did not. He suggested debate would take place among lawyers as to what "in respect of any person" means, and who that person is. Does the hon. member seriously think that lawyers will debate the matter as to whether you are going to hang the accused or the victim? Does it not boil down to this?


Osias.-J. Godin: I am sorry; the hon. member does not seem to grasp the argument I am making.


Jean-Paul Deschatelets: Don't worry; he is going to be executed at the next federal election.


Osias.-J. Godin: The murder to be deliberate and planned must be so in respect of any person. I realize that we do not want to so amend the code that the person who is proved to have committed murder will be sentenced for capital murder. An argument must be made to show that it was deliberate as to the person who has been killed. I realize that it is a simple argument as far as phraseology is concerned; but there is no doubt that the

second part and the first part, for that matter, of the clause are ambiguous.
We now come to paragraph (b). I recall that a moment ago the hon. member for York-Scarborough indicated that he would like to see the word "and" included in order to couple the two subparagraphs together. When you get down to paragraph (2) (ii) you find that the person by his own act must have administered or assisted in the act. The murder refers to the guilt of the person who applies the force, but I just wonder in the first instance what gain there is in using the phraseology which does not say exactly what parliament intends. Of course, people on juries are not lawyers. As everyone knows, lawyers are barred from sitting on juries. Jurors are not versed in the law nor in the terminology of the law, and they may be affected by the argument which I am making now. I state that we have at least confused matters in this sentence and I do not think we can afford to do that.
As I have said to the Minister of Justice, there are certain amendments I should like to see introduced in clause 1 which will at the same time cover the intentions with respect to the offence as indicated by the minister. Mind you, I do not suggest that what we set forth in clause 1 will never be changed. I realize that laws of this nature can be close to perfection but not absolutely perfect. I also realize that the minister is very tired. I should like to read him my conception of clause 1 so that he can sleep on it and possibly come back tomorrow prepared to change the odd word. I am sure he can do so without changing the principle of the bill and at the same time make the meaning clearer to those ordinary Canadians who will sit on juries and to whom these clauses will be read from time to time. If he has this suggestion before him it may very well be that tomorrow he will be prepared to introduce these ordinary words which will mean something definite and will not leave jurymen in the position of having to spend some time wondering what a phrase actually does mean. I am pleased to read to the minister my version of clause 1 taking into consideration the elimination of clause 7. Clause 1 as I should like to see it worded would read as follows:
1. The Criminal Code is amended by adding thereto, immediately after section 202 thereof, the following section:-
Of course, the clause I suggest could possibly fit in after other clauses but as the minister has decided to place his clause on this point immediately following I will continue with mine;
A verdict of guilty of capital murder shall be rendered where

(a) the said murder is planned and deliberate on the part of the person committing it;
(b) the said murder is within section 202 and such person
(i) by his own act caused or assisted-
Here is a change.
-in applying the force or threat of force causing the bodily harm from which the death ensued.
The rest of the section would remain as it is except that subsection 3 would disappear. With these remarks I am prepared to leave my reflections with the Minister of Justice.


Edmund Davie Fulton: I thank the hon. member for his solicitude. I can assure him I am not tired. "Tired" is not the right word, I think, to describe my reactions as I listen to some of the things that are said. We will certainly have a look at the hon. member's draft. If we think it improves the section we will be glad to say so and to make the appropriate change. I can assure him, however, that this section was not drafted carelessly or in haste or without any consideration of the sort of point that the hon. member has raised. I do suggest to him that where we speak of a person who by his own act does these things the ordinary juryman will have no difficulty in deciding that we mean the person who caused the death and not the person who was killed.


Mr. Spencer:: Mr. Chairman, sub-section 2(a) of clause 1 of the bill gives me some concern. I do not know whether this point was raised before, as I was not in the house in the early part of the evening, but I have reference to the use of the conjunction "and" between the words "planned" and "deliberate". I do not consider these two words as being synonymous. The word "planned", I think, does not admit of much doubt as to its meaning. I think any murder which is planned must be deliberate, that is, the killing must follow as a deliberate act. But I do not think that a murder which is deliberate need have been planned. I think there is a distinction. May I refer to the considered remarks of the minister when he introduced the bill. As found on page 5223 of Hansard, he said:
In carrying out the delicate but important task of bringing the law into line with our convictions in this field, we have concentrated our attention on producing a system which represents a rational and logical application of those principles of law upon which I have touched. We have accordingly started on the basis that there are two broad types of killing. The first is where the death does not result from any act of deliberation on the part of the person causing it-
At that point I wish to note that the word "planned" was not used.
-but can be said to be impulsive or nondeliberate, in the sense of being in no way within the prior contemplation of that person. It is our
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view that the death penalty ought not to be the consequence in these cases, and accordingly although the crime may be murder, it is classed as non-capital and a sentence of life imprisonment only is provided.
I point out, Mr. Chairman, that the view expressed there was that in order for the murder to be classed as non-capital it must be impulsive and non-deliberate and no reference is made to the fact that it must not be planned. The minister went on to say:
The other type of killing is the case where death is caused deliberately-
Then the word "or" is used.
-or as the result of a planned act of the person causing it. All these cases are classed as capital murder and for these cases, but for these cases only, the sentence of death will follow automatically on conviction.
My desire is that an explanation be given why the word "or" should not be used instead of the conjunction "and" because from the explanation given by the minister it appears to me that there are such things as murders which, in the one case, are deliberate and murders which, in the other case, are both deliberate and previously planned.
I think it might be of importance to read another paragraph which follows a little further on in which reference is made to the second type of murder. The minister said:
The second is the category in which, although a killing itself may not have been consciously and initially planned, yet the course of action embarked upon or planned had within it such an element of criminality and violence, as well as of deliberation or stealth, that the killing must properly be regarded-
Then, I emphasize these words:
-as deliberate by the person who did it or who counselled or procured the doing of the act which caused it.
These words, of course, have reference to paragraph (b) of subclause 2 which deals with murders which fall within section 202. In the case of these murders, you will note that it is capital murder where death follows the commission or the attempt to commit certain definite offences. The deaths that ensue need not be planned or deliberate. The deaths result during the commission of the offences and if death is caused by an individual, by his own act, then that killing is considered to be capital murder.
My concern is that in the explanation the planning and deliberateness were not considered to be a necessary combination. The deliberateness, in itself, would justify capital punishment, and that was the construction I took from the remarks that were made. If you used deliberateness in the commission of the murder then, that alone, would be sufficient to classify it as capital murder.

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Edmund Davie Fulton: Mr. Chairman, a little earlier this evening I gave the committee an outline of the concept we had in mind which we have translated into legal terms by the use of the words "planned and deliberate". I said it was our view that what was necessary was something more than what was usually involved in intent or mens rea or malice aforethought. I pointed out also that the words "deliberate and premeditated" in the United States have tended in some states at any rate to be interpreted as meaning not much more than mens rea or intent as those words are defined in a legal sense. We wanted something more than that.
I would point out a significant passage in the Gowers commission report which draws attention to the fact that in most jurisdictions where there are degrees of murder, the division of the degrees is based on the original enactment of the commonwealth of Pennsylvania which has carried into legal form this concept that murder which is deliberate and premeditated, to use their words, should be capital and other types of murder non-capital. The actual words are that "all murder which shall be perpetrated by means of poison, by lying in wait or by any other kinds of deliberate and premeditated killings are capital murders." As I say, most jurisdictions where this kind of division has been attempted use words based on that definition, and generally the words are "deliberate and premeditated".
We felt, as I say, that while this country would not necessarily follow the pattern of the law of the United States, nevertheless they both spring from common roots and the tendency there has been to narrow the interpretation of "deliberate and premeditated". We wanted, therefore, to find another word that would import an element of something beyond mere intent or mens rea and we felt the words "planned and deliberate" best achieved that purpose. I do not think there can be much argument that something which is deliberate might well not be planned and deliberate in the legal meaning. Somebody might pull a gun and deliberately squeeze the trigger. This may well be the result of an impulse and therefore, in the sense of being a planned murder, would not fall within the definition. As I have tried to indicate, we feel that the words "planned and deliberate", not planned or deliberate, bring in this concept of something more than a mere formation of intent.


Paul Joseph James Martin: I was very interested in the observations of the hon. member for Essex West who, I know, is a good lawyer. I could see that he was troubled by this particular combination of words. He says that he had understood that capital murder

might consist of a deliberate act that was not planned. It is now clear from what the minister has said that what is intended Is a combination of two states of mind,. if I may refer to "planned and deliberate" in that context, in order to constitute capital murder. If I understood the minister correctly in what he has just said, in order to constitute capital murder, the act must not only be planned but it must also be deliberate. It must not only be deliberate, but it must also be planned. I take it that is the situation? I cannot see the minister clearly.


Edmund Davie Fulton: I will deal with my hon. friend's remarks when he has finished so I know the whole of the implication he is trying to take from these words.


Paul Joseph James Martin: I had understood the situation this way. The hon. member for Essex West had put it differently and I understood from what the minister said earlier and from what he has now said, that my judgment was confirmed, that you must have both of these states of mind present, "planned and deliberate", and if you omit one then it is not capital murder.


Edmund Davie Fulton: I have no quarrel with that summation, Mr. Chairman.


Jacques Flynn: Shall clause 1 carry?


Edmund Davie Fulton: No, Mr. Chairman, I indicated that we would consider introducing an amendment to the clause to cover the case of prison guards and police officers, so perhaps clause 1 could stand.
Clause 1 stands.
On clause 2-Punishment for capital murder.


John Andrew W. Drysdale: I should like to make one point in connection with clause 2, paragraph (3), which deals with the apparent age of the accused. I wonder, in the interests of clarity, if it might not be advisable to have the clause read something like this:
Notwithstanding subsection (1), any person who is under the age of 18 years or who appears to the court to be under the age of 18 years-
The other sections of the Criminal Code appear to specify the age and it is only when there is no way of being certain of the actual age that they rely on the appearance. As the section reads, if a person appears to the court to be, for example, 19 years of age and is actually 17 years of age, under this particular section he would be guilty of capital murder and hanged, whereas I think the inference is that the actual age of the person who has the appearance of being 18 years of age should be considered.


Mr. Baldwin:: Mr. Chairman, before the minister comments I wonder whether he would answer another question I have in mind. The wording in the subsection to which the hon. member referred is "appears to the court". I therefore conclude that this is not a question of fact to be decided by a jury but that the judge, who might well be substituted for the word "court", will have the determination of that particular issue?


Edmund Davie Fulton: Yes, Mr. Chairman. To deal with the last question first, that is the intention, because as will be seen from reading subclause 3, it does not affect conviction but only sentence. The jury may convict of capital murder, but the provision is that no person who appears to be under the age of 18 shall be sentenced to death.
To go back to the question of the hon. member for Burnaby-Richmond, it seems to us, and I think on good ground, that where there is certainty about the age of the accused there would be no difficulty. The case where this provision becomes applicable and important is where there is uncertainty about the age of the accused. Surely if, for instance, a birth certificate were produced there would be no uncertainty about the age of the accused, unless that birth certificate was shown to have been fraudulently acquired.
Therefore it would appear to the court from the evidence of the birth certificate that the accused is under 18 years of age and there would be no doubt about it. But supposing there were no birth certificate. In that case the matter of the evidence as to his apparent age becomes important.
In that case I think it is important to have this provision, because it may well be that a person who looks to be more than 18 years of age might be shown by other evidence to be not more than 18 or to be under 18. So I think it is important to have this provision in this way. While it is not absolutely conclusive of the matter, I would point out that this is the wording of the corresponding provision in the homicide act of 1957 in the United Kingdom. That provision reads:
Sentence of death shall not be pronounced on or recorded against a person convicted of an offence who appears to the court to have been under the age of 18 years at the time the offence was committed,-


John Andrew W. Drysdale: Mr. Chairman, I wonder attention I could just draw this matter to the atention of the minister. My only desire is for clarity and uniformity. Section 12 of the Criminal Code says:
No person shall be convicted of an offence in respect of an act or omission on his part while he was under the age of seven years.
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They specify that. Then section 565, subsection 2 says:
In the absence of other evidence, or by way of corroboration of other evidence, a jury, judge, justice or magistrate, as the case may be, may infer the age of a child or young person from his appearance.
All I was seeking to do was clarify what I considered to be an ambiguity. If there is the usual strict, statutory interpretation I would suggest that the statute at present permits the very situation I have suggested, because all it provides is for the judge to infer what the age is; there is no provision for using the best evidence such as a birth certificate or other evidence of that kind.


Edmund Davie Fulton: Mr. Chairman, I think my hon. friend has overlooked the very words he has read. Section 565 (2) says:
In the absence of other evidence, or by way of corroboration of other evidence, a jury, judge, justice or magistrate, as the case may be, may infer the age of a child or young person from his appearance.
If there were no birth certificate, there would be other evidence and it seems to me the ordinary rules of best evidence would apply.


John Andrew W. Drysdale: Yes, but that word is not contained in section 206 (3). I was referring to the fact that the two types of sections are used, the first one where the age is specified and the second one which says that if you cannot ascertain the age you infer it. All I sought to bring in was a specific reference to the age.


Edmund Davie Fulton: Surely section 565 is one of general application. It starts by saying:
In any proceedings to which this act applies-
That is the Criminal Code, and certainly the Criminal Code applies to proceedings here. Section 565 is one of general application, and it says that in the absence of other evidence the age may be inferred from appearance. That is why it is stated here that a person who appears to the court to have been under the age of 18 years at the time of committing the offence shall not be sentenced to death.
The court will reach its conclusion on the evidence. If there is firm evidence such as a birth certificate, there is no question. In the absence of that, the court may make an inference as to his age from the appearance of the accused.


Paul Joseph James Martin: Surely what is intended in subclauses 2 and 3 is that anyone who is under the age of 18 years, or appears to the court to have been under the age of 18 years at the time he committed a capital murder shall not be sentenced to death.

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The hon. member for Burnaby-Richmond has suggested that section 206(3) of the Criminal Code should read:
a person who was or appears to the court to have been under the age of 18,-
Is that the language the hon. gentleman proposed?


John Andrew W. Drysdale: I suggested, "a person who is under the age of 18 years or who appears to the court to have been under the age of 18 years."


Paul Joseph James Martin: The phraseology I have is that section 206(3) should read:
a person who was or appears to the court to have been under the age of 18-
While our wording is slightly different, the amendment is the same. It seems to me that the suggestion made by the hon. member for Burnaby-Richmond completes the subclause as I am sure the minister intends. If it is left as it is, a person who is in fact under 18 years of age and may not appear to be under 18 years of age does not come within the provision of the subclause.
Surely we want to make sure that a person who in fact is under 18 years of age or who appears to be under 18 years of age shall not be sentenced to death. The only way we can do that is by including words similar to those proposed by the hon. member for Burnaby-Richmond or by accepting the words I have proposed, otherwise we are excluding from the subclause a person who is in fact under 18 years of age and who may not appear to be under 18 years of age.


Edmund Davie Fulton: Not at all, Mr. Chairman. The word "appears" is used here and it is used, as is always the case in statutes and legal proceedings, as a term of art.
My hon. friend will be familiar with the expression used in judgments, "It appearing to the court", so and so. That means the court is satisfied upon evidence that such and such a set of circumstances exists.
The effect of this is that where it is made to appear to the court that the person was under the age of 18 years at the time he committed the offence, there shall be no sentence of death. So of course this applies to a person who was actually under the age of 18 years, although he may not look it. The best evidence to make it appear to the court that he is under the age of 18 years is, of course, a birth certificate; but if there is no birth certificate, any other relevant evidence may be admitted to establish the circumstances.


Julia Verlyn (Judy) LaMarsh: Mr. Chairman, I have some remarks to make with respect to section 206 (1). I wish to first thank the minister for

the graciousness of his remarks and for considering some of the proposals which I and other hon. members put forward earlier today with respect to the preceding clause. I hope the minister may greet the remarks I have to make now with as much approval.
There is in this phrase an opportunity, perhaps by an addition to it, to do something which is in the spirit of the statement made by the minister when he introduced this bill, that is to comply with the feeling which is abroad in the country and the feeling which appears to be agreed upon by most of the members of this committee. It is a simple amendment, but one with far-reaching effects. I have prepared an amendment which in a moment I shall read, and I shall send copies to the minister.
It will be recalled that a parliamentary committee which sat in 1954 and 1955, and of which the minister was a member, at least in 1954, heard several witnesses and, in particular, two, Dr. MacLean of Welland and Mr. Clinton Duffy of California in the United States, and both of them gave evidence gruesome in detail and horrible in concept of different methods of capital punishment. My amendment is to add to the words "shall be sentenced to death" which appear in section 206(1) the following words: "in a central lethal gas chamber".
It goes without saying that the amendment if approved will call for further conseqen-tial amendments by the minister including perhaps the deletion of section 642. I believe this amendment would have the approval of most hon. members and certainly of the hon. member for Burnaby-Richmond who mentioned this matter an hour or two ago. If we are to retain the death penalty and to accept what the minister has said as to a feeling abroad in the country with respect to capital punishment for some crimes it would appear it is encumbent upon us to ascertain which is the most honourable way of carrying out this sentence-the most efficient way not only of destroying human life but of preserving the body for those to whom it still may have some significance, namely the family, besides being less brutalizing in its effect upon society itself.
It may be noted that I have used the word "central" as a description of the place where the executions are to be carried out. I have had some limited experience of the capital punishment carried out in the county of Welland. It was described by Dr. MacLean in his evidence at page 645 of the report of the special committee of this house and the other place which sat in 1954, and I have had the opportunity to observe the brutalizing effect on members of that community,

not only members of the bar and those associated with the work of the court such as jurymen or employees of the penal system but the public generally which knew that on a certain day within the court house, which is located in the centre of the city, capital punishment would be carried out. This has a most debilitating effect on those employed by the court-


Jacques Flynn: I am sorry to interrupt the hon. lady but did I understand her to say she proposed to move this amendment? If so, I think I must ask the committee to express its views as to the propriety of such an amendment because I remember that when the debate on second reading took place Mr. Speaker expressed doubt as to the propriety of discussing the question of the method of execution. Therefore, we might save time if we found out whether the committee was in agreement regarding a discussion of this amendment and whether it is within the scope of the bill.


Edmund Davie Fulton: I was in the process of looking up the authorities which I propose to lay before you in connection with that very point, because it appears to me very doubtful indeed whether this amendment is in order. You have called to our attention the fact that Mr. Speaker has already ruled that the question of the method of execution was not relevant to the principles of the bill and therefore could not be discussed on second reading. I have been looking up the authorities in order to find the precise ruling which, if I recall it correctly, says that amendments which cannot be moved on second reading because they are not germane to the subject matter cannot be moved in committee. I have not yet been able to put my finger on that authority but I am certain the rule exists.
If this amendment were ruled to be in order we would certainly be carried into something which is far beyond the scope of this bill. The bill proposes to divide murder into two classes, capital and non-capital, and to make certain changes in the procedure as to trial and sentence. It is absolutely silent on the method of execution. The hon. member for Niagara Falls herself directed our attention earlier to the fact that this involved a different section of the act, a section not mentioned in this bill, which discusses the question of the method of execution. Therefore I think that what I have said becomes completely obvious and that to discuss the method of execution is not only outside the bill but, in particular, outside the scope of the clause presently under discussion.
I would refer Your Honour to all the authorities, particularly those appearing in Beauchesne's fourth edition at page 171 on the
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question of relevancy which, I submit, applies equally in committee as it does in the house.


John Andrew W. Drysdale: The hon. lady referred to me in the course of her remarks. I did intimate in the course of the discussion that the two matters were interwoven on an emotional plane and then I went on to state the reasons why I thought this was not an appropriate matter-this question of the method of capital punishment-to be discussed on this occasion. But the minister could, I suggested, bring the matter to the attention of the various provincial attorneys general. The alteration of the method of capital punishment would require a change being made to an entirely different section of the Criminal Code. That is one aspect of this question. But there is a second aspect. An onus would rest on the various provinces to reach a decision as to the construction of a gas chamber, its cost, maintenance and so on. I felt that the two matters were separate. I merely mentioned the subject to the minister as one which might be brought up at a later date.
As far as the accused man is concerned I do not feel it makes any difference whether he goes to his death by hanging or by the gas chamber. I suggested the greatest effect would be on the people who remained, the idea suggested by a gas chamber in the minds of some people being equivalent to putting a person to sleep. I pointed out clearly at the time why I did not think we could proceed to discuss this question. I support the idea, but I do not think this is the time to put forward such an amendment as the hon. lady proposes.


Paul Joseph James Martin: I do not know that I intend to take issue with the minister on his interpretation of the rules but the matter raised by the hon. member for Niagara Falls is one to which not only she but many in this house attach a great deal of importance.
The committee is always the master of its own rules, as the house is master of its own rules. If the committee was prepared to regard this matter as one that should be included in the bill, and if there was no objection taken, there would be no difficulties, under our procedures, in putting forward an amendment like this. Perhaps it is true that the minister must take the lead in the matter, but does he not think that, in view of the strong case put forward by the hon. member for Niagara Falls; because of the views that exist in this house in respect of the matter, and because of the strong public opinion which exists in this country in this regard, that we might well agree in this committee that this particular matter should be dealt with this way? Our rules surely are not intended to preclude us from taking a reasonable course, but are intended to guide us

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generally in debate. There have been occasions when the rules have been made subservient to the public interest on an expression by the committee of its desire to supplant these rules to meet a particular purpose. I suggest to the minister that this is the kind of case where that kind of plea could be made with some great justification.


Herbert Wilfred Herridge: Mr. Chairman, I have been very quiet today because I am not versed in the obscure technical definitions of the legal language in which the hon. minister and other members of the legal profession have been indulging today. However, I can understand this type of amendment as it is within my comprehension. I must compliment the hon. member for Niagara Falls for her amendment, which I think does represent a large body of public opinion in this country, which indicates a desire for something to be done to remedy the present inhuman practice. I think her arguments were logical.


Edmund Davie Fulton: Mr. Chairman, I hesitate to interrupt such an experienced member as my old friend from Kootenay West, but I think the question as to whether or not the amendment was in order has been raised, but not yet decided.


Mr. Benidickson:: Oh, come, you are just an old Tory.


Edmund Davie Fulton: I suggest the hon. member for Kootenay West might perhaps be happier if he knew whether or not his remarks were in order before he proceeded with them.


Herbert Wilfred Herridge: I was rather following the lead given by the hon. member for Essex East, who expressed some doubt in his own mind as to this being in order, but wanted to express his opinion. I intend to do so as well, very briefly.


Jacques Flynn: Order. May I point out that the hon. member for Essex East appealed to the minister to accept the amendment, notwithstanding the rules. That is what I understood him to suggest.


Paul Joseph James Martin: Oh, no. What I had suggested, Mr. Chairman, was that the committee was master of its rules, as the house is master of its rules, and could agree to suspend the rules, but that the lead in the matter must obviously come from the minister.


Jacques Flynn: That is what I intended to indicate. There is a difference between that course and the course followed by the hon. member for Kootenay West, which was rather a discussion in regard to the merits of the amendment.


Herbert Wilfred Herridge: Mr. Chairman, I wish to conclude my very brief remarks. I think there is a difference without a distinction as between what was said by the hon. member for Essex East and what I have to say.
I should like, however, to express the wholehearted support of this group for the amendment, its intention and purpose, however it is achieved. I too think that it is quite gallant on the part of that hon. member, and in regard to this question, the member for Niagara Falls and the member for Kootenay West are two hearts beating as one.


Gerald William Baldwin: Mr. Chairman, I should just like very briefly to lend my support to the position taken by the minister. In doing so, I should draw to your attention the fact that these sections, which are now being considered to amend the Criminal Code, are sections under part (v), which deals with the enumeration of offences, and the punishment. The sections dealing with penalties and forfeitures are contained in part XX of the code. Part XX is almost a separate code in itself dealing with capital punishment. Sections 642 to 653 of the Criminal Code inclusive, deal only with the question of capital punishment; how, where, and in what manner it shall be carried out. They are quite distinct and separate matters from the enumeration and definitions of criminal offences. I do not think it would be helpful at this time to introduce arguments which deal with the method of execution, as related to the question of what shall or shall not be capital or non-capital murder.
(Translation):


Jean-Paul Deschatelets: Could I make a remark, Mr. Chairman?
The fourth line of section 2 of the bill under consideration ends with the words:
*-shall be sentenced to death.
The hon. member for Niagara Falls (Miss LaMarsh) has suggested that section 2 be amended by adding the words "in the gas chamber". I cannot think of a more appropriate amendment.
The Minister of Justice and the hon. member who has just resumed his seat are far from having convinced me that the amendment is out of order. If it is out of order, I should like to know according to what section of the standing orders so that we may discuss the point.
(Text):


Edmund Davie Fulton: Mr. Chairman, I do not know whether I can be of much more assistance to you in respect of the point of order, and perhaps I should only address myself to the

rather novel suggestion made by the hon. member for Essex East, that I should take the lead in inviting the committee to go beyond what the rules authorize. I think that is a suggestion which more appropriately should be carried out by the hon. gentleman who made it, than by myself.
Quite apart from its propriety, I find myself unable to accept it for reasons which were alluded to by the hon. member for Burnaby-Richmond. This whole question is one in which, in my view, it would be essential to have discussions with the provinces before any such change was adopted. I do not debate the merits of the proposal, but whatever the change, whether it involves the central place or the method of execution, since the provinces have that responsibility, I do not think it would be in order, nor courteous in matters of this kind, to do so without first of all discussing it with the provinces. I think that is essential to the proper administration of the law. I am therefore, not in a position to accept the suggestion that we should here embark upon a debate which is not only out of order, but which, in my view, deals with a matter in respect of which I am not at the moment in the position to properly express an opinion.


Gabriel Roberge: Following those remarks of the minister, Mr. Chairman, I should like to ask him a question based on section 642 of the Criminal Code, which provides that the death sentence will be carried out by hanging the condemned individual by the neck until he is dead. Could the minister tell us when this section was enacted, or the preceding similar section, whether the provinces were consulted in respect of that method?


Edmund Davie Fulton: Mr. Chairman, I am afraid that took place somewhat before my time, although I feel it has been included in the code for a good many years. I am afraid I cannot help my hon. friend by informing him how long it has been there. It certainly has been there as long as I have been alive, and I have escaped its effects so far. My impression is that it has been included in the code since its enactment, and feel it originally came from some pre-confederation statute. However, this does not seem to me to affect the question of relevance. I merely say that in a matter of this kind, where the provinces are charged with the responsibility of carrying out this task, it would not be appropriate to make a fundamental change in the method by which it is done, without prior consultation with the provinces. I have not said anything about veto. Although the responsibility and authority resides here, there are ways and ways of exercising authority, and I think it would be inappropirate to make such a change 90205-6-351
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without having discussed the matter with the provinces on a previous occasion, at least to obtain their views.


Julia Verlyn (Judy) LaMarsh: I must confess I hesitate to rise on a point of order since I have not done so before. But in the first instance the minister said that the proposed amendment is not germane to the subject matter of the bill. The hon. member for Peace River made the remark that the clause which is now under discussion is one which, of course, does not enumerate any offences. They have already been enumerated in the preceding clause which is standing at the moment. This clause deals with what happens to someone who is convicted of capital murder or of noncapital murder, and what happens to someone who is convicted notwithstanding the fact that he is under the age of 18 years. The various subclauses certainly say how the body is to be disposed of in one way or another.
I would not have raised this at all on the second reading of the bill or in the general discussion of clause 1, because I agree with the opinions which have been expressed that this is not the proper place to do it. We are now discussing section 206 of the Criminal Code. Subclause 1 of section 2 of this bill which repeals section 206 of the code and the other subclauses are the ones which deal with the disposition of a human body after a certain sentence. I would therefore suggest to the members of this committee that the way in which a body is disposed of is most germane to the whole bill and to the clause which we are discussing at the moment. That being so, should the chairman rule that the amendment is in order I should like to conclude my remarks on the merits of the clause.


Edmund Davie Fulton: One other point; if the suggestion in the amendment, if I understood it correctly, is that the federal government should set up a central place of execution, that, it seems to me, would impose a charge upon the revenues and would have to be preceded by a resolution.


Jacques Flynn: Yes. First, I must point out to the minister that if a substantive amendment is moved I would have to deal with it then, but I do not think the amendment as it is at present would involve any expenditure.
I wish to point out first that this problem was raised by Mr. Speaker on May 23, as can be seen by referring to page 5233 of Hansard, where Mr. Speaker said:
The hon. member may continue in this regard with the permission of the house, but it seems to me that the question of the abolition of capital punishment in certain types of murder is quite a different subject from the method of carrying out such a sentence. I am unable to find any reference

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in the bill itself to this subject, and I feel that by allowing the hon. member to continue I would be allowing two debates in one.
That was the first time the question was raised. I may say that I myself, either during second reading of the bill or in committee, have allowed some references to be made when I considered those references were deploring the fact that section 642 of the Criminal Code was not being amended at the same time as are other sections of the code. Of course, I agree with the hon. member for Essex East that if the committee is unanimous and willing to dispense with the rules, that can be done-


Some hon. Members:: Dispense.


Jacques Flynn: -because the committee is master of its own rules; but as long as they are not amended they must be applied.
First of all, X refer hon. members to May's Parliamentary Practice, sixteenth edition, at page 421, where we find these words which I think are very clear:
Stated generally, no matter ought to be raised in debate on a question which would be irrelevant, if moved as an amendment, and an amendment cannot be used for importing arguments which would be irrelevant to the main question.
I may indicate that Mr. Speaker ruled that discussion of the method of capital punishment was not relevant to the main question. I may also refer hon. members to citation 203 of Beauchesne at page 171, to which the minister referred before. I do not think I need to quote anything from Beauchesne.
The purpose of clause 1 of the bill is to divide murder into two kinds, namely capital and non-capital murder. The purpose of clause 2, to which the amendment is proposed, is to set out the punishment for capital murder and non-capital murder. I think there is an essential distinction between punishment and the method of carrying out punishment, although there is some connection between the two. That is obvious, but the distinction must be made and established. It is obvious to me that these are two different problems because section 642 of the Criminal Code, which deals with the method of punishment, is not amended by the amending bill now under consideration. Therefore, it seems to me quite clear that under these circumstances and for the reasons I have given the amendment is out of order.


Osias.-J. Godin: Mr. Chairman, I should like to say a few words on clause 2. I was much impressed by the remarks of the hon. member for Essex East and the hon. member for Bumaby-Richmond who had something to say concerning the use of the simple word "appears" in the clause as proposed. I realize it is a word that is very common in our
[The Chairman.]
courts. The word "appears" is more or less similar to or has the same significance as "finding". I would agree, if the section dealt with the problem which pertained to a finding only which does not cover the appearance of a person.
I should like to make this distinction for the benefit of the minister and state that possibly he should rephrase it to make sure that the judge and jury, who are the court in this case and who would have to make this finding of fact, would have the knowledge that they did find this after hearing the evidence. If this fact is not reasonably established they can refer to the appearance of the accused because there is a difference between appearing to a court if the theft is over $100, which is determined without any relationship whatsoever to the appearance of the person accused of that theft.
I feel in a sense it is a different proposition to place in a statute "if it appears to the court that the person was under 18 when he committed the offence", which on many occasions would have to be determined by the physical appearance of the accused, which is not necessary if the theft is over $100. For that reason I think the statute could be made clearer. I do not say that no judge or no jury could construe the words "appears to the court" in the sense that the minister has indicated they oftentimes are construed. But it seems to me that certainly some effort should be made to make that distinction clearer in this case so that no one would make an argument based solely on the fact that if the person appears to be under 18, no matter whether the crown proves that he is 18.
What would be the interpretation of a jury if the man has a certificate, or the crown produces a birth certificate indicating that he is over 18 when he looks like a 14-year-old? Surely the lawyer is entitled to say that this boy appears, and appeared at the time of the commission of the offence, to be under 18. Why should you defeat that exemption by simply saying that he is 18? If a person is in fact proven to be 18 he can be sentenced to capital punishment and if he appears to be under 18 he should be exempt. I think this is most pertinent under the circumstances and I believe the minister should pay some attention to the remarks made by the two hon. members and not create a section wherein proof by the crown of the actual fact is excluded.
I should also like to make certain remarks concerning an accused whose mental capacity can reasonably be established to the satisfaction of the jury to be that of a person under the age of 18. It seems to me that guilt does not attach to a birth certificate-the

age of the accused-as much as it attaches to the capacity of the person who committed the crime. If we are going to exempt people under 18 from punishment by death, I feel that the minister should be able to find a way to exempt those people as to whom it has been reasonably established that their mental age is that of a person under the age of 18. In my view that is a better criterion of the guilt of the person who committed the crime of murder than a birth certificate is. A person with a birth certificate indicating an age of 17 might have the mental capacity of a person of 25 but he would be exempt from capital punishment whereas an accused 22 years old might have the mental capacity of a person of 12 or 14 but could not receive the exemption granted to the other accused. Therefore I think it is only fair that the minister should see fit to add after the provision respecting proof of age the words "or has the mental capacity of a person less than 18 years".


Edmund Davie Fulton: Mr. Chairman, it seems to me that the hon. member has introduced an entirely new concept in that he wants the law to cover the mental age of the accused which, of course, may well be related to the question of his sanity or his mental competence. What we have in mind here is purely the physical age as it is made to appear to the court, and for the reasons I have summarized adequately, I believe, in reply to the hon. member for Essex East we are convinced after reflection that the words used with reference to the age appearing to the court are the proper words to use because we realize the possibility that there may not be a birth certificate. If there is a birth certificate, that is the best evidence of what the age is and it will then follow that his age is as established by the birth certificate, but since that may not be available the other evidence may become relevant and may be required and it is such evidence that makes it appear to the court what the age is.


Gabriel Roberge: Mr. Chairman, my remarks at this time have to do with subsection 4 of the new section 206, which reads in part as follows:
. . . the sentence of imprisonment for life prescribed by this section is a minimum punishment.
According to my recollection and to the best of my knowledge there is nothing in the present code that prescribes imprisonment for life as a minimum punishment. The presiding judge has discretion whether to impose imprisonment for life or for a lesser term. I may not be correct in that assumption but I think I am. Would the minister advise 90205-6-351J
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us if he has considered whether this minimum punishment will be subject to revision either by the governor in council or by the national parole board?


Edmund Davie Fulton: I did not quite hear the last part of my hon. friend's question.


Gabriel Roberge: Will it be possible for the minimum sentence of life imprisonment under that section to be revised by the national parole board or by the governor in council as the case may be?


Edmund Davie Fulton: The question the hon. member
has asked seems to me to relate to the general question of the effect of a sentence of life imprisonment for murder or the commutation of a sentence of death to life imprisonment. The regulations of the parole board now provide that in the case of a sentence of life imprisonment there shall ordinarily be no parole before seven years have been served. Similarly, they provide that when a sentence of death is commuted to life imprisonment there shall ordinarily be no parole until ten years have actually been served. I want to make it clear that there are minimum periods. It does not mean there will be parole at the end of seven or ten years respectively.


Gabriel Roberge: Are these periods of seven years and ten years provided in the parole board act or the regulations?


Edmund Davie Fulton: At the moment they are in the regulations which are approved by the governor in council. As I was saying, this does not mean that parole is automatic at the end of seven or ten years respectively. Parliament has entrusted to the parole board, however, the determination of whether or when a man is qualified and fit to be paroled. The other point that it is important to bear in mind in this discussion is that when a man is paroled who has been serving a sentence of life imprisonment, whether imposed by the court or as the result of commutation of the death sentence, that is his sentence. His sentence is life and if he is paroled he is under the supervision of the parole board for the balance of the sentence.
Therefore the impression should not be allowed to go abroad that when paroled, perhaps after the end of seven or ten years only, these persons are not subject to supervision, that they are completely free and that they would be liable therefore to go off, and fall into bad habits again and revert to those circumstances which led to their first crime. They are under the supervision of the parole board. There has to be a nice balance in these cases because, since the object of parole as well as the object of other portions of our reform program is to rehabilitate, one must



S564 HOUSE OF COMMONS

[Stage Direction]
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be careful not to make the conditions of parole or supervision so obvious that in effect they prevent that person from ever becoming truly rehabilitated in society.
The parole board has this in mind and, of course, as a man makes progress and it becomes more and more obvious he is truly rehabilitated and re-established in society, then by progressive stages the degree of supervision is relaxed. The essential point is that there is authority in the Parole Act to supervise for the balance of the term, and here the term is life imprisonment. Again, as I have said, it should not be taken that because the regulations prescribe a minimum of seven or 10 years respectively, parole would be automatic at the end of this period. The record establishes that the average period served is appreciably longer than either of these two periods provided by the regulations before a man subject to life imprisonment is out on parole.
John Andrew W. Drysdale: Can the minister clarify whether or not it is possible for a person sentenced to life imprisonment to be under parole for the rest of his natural life?


Edmund Davie Fulton: Yes, this is a fact. Parliament in enacting the Parole Act two years ago approved of the principle that an independent parole board should determine whether and if or when a man is ready to be paroled.


Gabriel Roberge: I agree completely with the minister in so far as the parole board is concerned. The parole board has the power to consider life termers and it may release them under certain conditions. However, the minister spoke of ordinary life termers. The point with which I am concerned here is that the bill before us specifies that imprisonment for life is to be a minimum punishment. Is there a difference between a minimum punishment of imprisonment for life and an ordinary term of imprisonment for life?


Edmund Davie Fulton: The purpose of the provision in paragraph 4 relates to part XX of the Criminal Code. This is to ensure that a sentence of this kind, life imprisonment, cannot be changed to probation or a suspended sentence, and the sentence actually has to be served.


Gabriel Roberge: If I understand correctly, then, the sentence has to be served fully and the parole board may not intervene?


Edmund Davie Fulton: No, Mr. Chairman, this provision relates only to part XX of the code. Its application is only with respect to the provisions of part XX. A sentence of life imprisonment cannot be suspended, changed to probation or changed to a term of years. It is a sentence of life imprisonment but

the Parole Act provides that anyone serving a term of imprisonment, and this is a term of imprisonment, may be released from the institution >and serve the balance of his term outside the institution on the authority of the parole board.


John Andrew W. Drysdale: Is there any conflict with section 656 of the code, which provides for the commutation of a sentence? The section reads:
The governor in council may commute a sentence of death to imprisonment in the penitentiary for life, or for any term of years not less than two years, or to imprisonment in a prison other than a penitentiary for a period of less than two years.
Does the commutation provision override the life imprisonment provision?


Edmund Davie Fulton: No, Mr. Chairman, because the only case in which the governor in council can commute is a sentence of death. This is a case where there has not been a sentence of life imprisonment imposed, but the sentence of the court is a sentence of death. Then, if the governor in council commutes it he may, as my hon. friend points out, commute it to any one of a number of different sentences. The universal practice, however, so far as I know is to commute it to a term of life imprisonment.
Certainly, now that we have a parole board it would always be the case that it would be made life imprisonment because then the parole board determines, in accordance with well worked out principles, where and when he is eligible for release from the institution so that he may serve the balance of his term outside under supervision.


Gabriel Roberge: I have here the Parole Act of 1958, section 6, subsection (1), of which reads as follows:
The board shall at the times prescribed by the regulations
(a) review the case of every inmate serving a sentence of imprisonment of two years or more, whether or not an application has been made by or on behalf of the inmate,-
Now, if I am not mistaken, when this act was before this parliament, there was no such minimum sentence as imprisonment for life. Therefore this type of sentence we are now considering was not contemplated when section 6 of the Parole Act was enacted. It is for this reason I asked the minister the last question, and I am still not clear about his answer. It is true that the clause before us refers to part XX of the code in so far as it relates to imprisonment and deals with where the imprisonment will be carried out, either in a penitentiary or a common prison or part in one and part in the other. Right now, I do not see anything in sections 633, 634 or 635 of the code, apart from probation, that did exist before we enacted the Parole

Act. Right now, if a man is on probation under the Parole Act, it is, as a matter of fact, a ticket of leave and he is supervised by social workers.
May I call it 10.30, Mr. Chairman?
Progress reported.



BUSINESS OF THE HOUSE

Lionel Chevrier: On Saturday the house
leader announced a long list of items of legislation but said nothing about the estimates for the rest of the week. I wonder if we might get some indication of what we will take up tomorrow and Wednesday, and also the departments which we will consider during the rest of the week?


Gordon Minto Churchill: The intention is to carry on with legislation tomorrow, commencing with Bill No. C-92 on which fair progress has been made. The Minister of Justice has to leave sometime in the afternoon and perhaps before his departure the house would be able to complete consideration of Bill No. C-92. However, if we have not reached the other bill, No. C-97, to amend the Combines Investigation Act and Criminal Code, and the resolution dealing with the Exchequer Court Act, we will have to postpone those; but retaining the same order that I announced
Business of the House
on Saturday, the fourth item will be Bill No. C-77 concerning the rehabilitation of agricultural lands, etc., the fifth item will be Bill No. C-93, an act to amend the Freight Rates Reduction Act, and as a sixth item we will have the bill which received first reading today, to amend the Food and Drugs Act.


Lionel Chevrier: May I at this point indicate to the house leader that the Minister of Transport will be engaged in the committee on the Canada Shipping Act tomorrow afternoon, where he was detained for the greater part of today. I do not know how he is going to be in that committee and deal with the Freight Rates Reduction Act as well.


Gordon Minto Churchill: We may not reach the Freight Rates Reduction Act until the evening, after the supper hour.
The progress made tomorrow will determine what we do on Wednesday. I should like to hold open whether or not we continue with legislation. On Thursday, Friday and Saturday we will be dealing with estimates in this order, mines and technical surveys, Secretary of State, fisheries and public works.
At 10.35 p.m. the house adjourned, without question put, pursuant to special order.

Tuesday, May 30, 1961