Capital Punishment

Under British law prevailing in Canada until 1859, some 230 offences, including stealing turnips and being found disguised in a forest, were punishable by death. By 1865 only murder, TREASON and RAPE were capital offences. The drive either to limit or abolish capital punishment began in 1914, when Robert Bickerdike presented a private member's bill calling for its abolition, but the law remained unchanged despite frequent submissions to Parliament. In 1967, a government bill to apply mandatory life imprisonment in all murder cases, except when the victim was an on-duty police officer or prison guard, was passed by a vote of 105 to 70 for a 5-year trial period. This legislation was again sustained in 1973, supported by a 13-vote majority. By a majority of 6 votes, the House of Commons abolished hanging in 1976 (although under the National Defence Act capital punishment can still be used for cowardice, desertion, unlawful surrender and spying for the enemy). In 1962, Ronald Turpin and Arthur Lucas were the last prisoners to suffer execution in Canada.

Vigorous Debate
Recently there has been a vigorous public debate over whether capital punishment should be reinstated. Although those in favour claim it is an effective deterrent to HOMICIDE, among other reasons, the majority of studies in Western societies conclude that murder rates have remained stable or declined with the decreasing use of capital punishment. Neither abolition nor reintroduction of capital punishment have been shown to affect homicide rates significantly. In a historic vote on 30 June 1987, Parliament voted 148-127 not to restore the death penalty, effectively quashing any attempt to restore it in the near future. Subsequently, a Commons justice committee was struck to shape a decent and practical alternative that keeps DANGEROUS OFFENDERS in prison and allows for a more efficacious use of parole that better protects society.

"Faint Hope Clause"
Another recent debate has concerned a statutory provision enacted in connection with the abolition of capital punishment. This is s745 of the Criminal Code, the "faint hope clause." Section 745 applies to offenders sentenced to life imprisonment without parole eligibility for 15 years or more; offenders convicted of high treason or first degree murder, not eligible for parole for 25 years; and offenders convicted of second degree murder, whose parole eligibility is set between 10 and 25 years. After serving at least 15 years, an offender may apply to the appropriate Chief Justice of the province where he was convicted for a reduction of his parole eligibility period. The Chief Justice then designates a superior court judge to empanel a 12-member jury (which represents the community and its conscience) to hear and determine the application.

The jury is to consider the offender's character, his conduct while serving his sentence, the nature of his offence, other matters the judge deems relevant, and, under pending legislation, information from persons immediately affected by the offence, such as members of victims' families. The jury may reduce or terminate the offender's parole eligibility period (by a two-thirds majority vote), or may deny the application. The offender may appeal the jury's determination directly to the Supreme Court of Canada.

Purposes of s745
The purposes of s745 are to provide "lifers" with an opportunity to earn early release, to provide an incentive for good institutional behaviour, and to allow a reduction of sentence in light of changed circumstances. Despite these humanitarian and institutional justifications, the prospect of convicted serial killers such as Clifford Olson or Paul Bernardo becoming eligible for parole after serving only 15 years prompted a call for the repeal of s745. In June 1996, the Liberal government introduced a bill which would amend s745 by 1) making multiple murderers ineligible to make the application, 2) requiring offenders to persuade a judge that the hearing has a reasonable chance of success before allowing the jury hearing and 3) requiring jury unanimity before parole eligibility is reduced.

Author PAUL GENDREAU AND WAYNE RENKE

Links to Other Sites
You and the law - Community Legal Information on the Web
An extensive listing of websites providing general legal information that may be of interest to Canadians. From University of Toronto’s Bora Laskin Law Library.

Capital Punishment in Canada
A fact sheet about the history of the death penalty in Canada from the website for the federal Department of Justice.

Capital punishment
A CBC feature report on capital punishment in Canada.