INTRODUCTION

Capital punishment, or the death penalty, is the execution of a person by the state as punishment for a criminal conviction. Since this is such a serious and irreversible punishment, it is a very contentious issue with strong opinions from both supporters and detractors. This article will provide an overview of the issues surrounding the death penalty with a focus on the Canadian experience.

THE HISTORY OF CAPITAL PUNISHMENT IN CANADA

Prior to 1869, many offences were punishable by death in Canada including murder, rape, robbery with wounding, buggery of animal or beast, assault, casting away a ship, and unlawful abuse of a girl under ten. As of 1869, only three crimes were punishable by death: murder, rape, and treason.

The first serious effort to abolish the death penalty began in 1914 with a private Member’s bill submitted by Robert Bickerdike who argued passionately against the death penalty. The bill was defeated that time and then reintroduced and defeated in 1915, 1916, and 1917. In 1950, another private Member’s bill to amend the Criminal Code was introduced and struck down. The same bill was introduced again in 1953 but likewise withdrawn. That year, a Senate Committee was formed to investigate capital punishment, specifically to determine the feasibility of the abolition of capital punishment, and to make recommendations on the issue. The Committee’s report was released in 1956 and recommended retaining capital punishment but removing it for children under 18 years of age. In 1961, legislation was passed which reclassified murder into two categories, capital and non-capital offences. Capital murder was defined as planned or intentional murder, murder that occurred during another violent crime, or the murder of a police officer or correctional officer while on duty. All other murder was thus non-capital. Under these new definitions, only capital murder was eligible for the death penalty.

The last people to be executed in Canada were Robert Turpin and Arthur Lucas on December 10, 1962. At that time, there was significant debate in Canada about the acceptability of using the death penalty. In 1967, a moratorium was placed on the death penalty except for murders of correctional and police officers while on duty. On July 14, 1976, Bill C-84 was passed which abolished the death penalty in Canada and replaced it with life imprisonment. The one exception remained under the National Defence Act where the death penalty was a sentencing option, although never used, until it was removed in 1998.

During the moratorium period from 1967 to 1976, the Governor General commuted all death sentences to life imprisonment. Throughout Canada’s history, the Cabinet reviewed all death sentences and decided whether to commute them under “prerogative of mercy.” If the Cabinet decided to commute a sentence, a recommendation was made to the Governor General who had the final say on the matter. From 1957 to 1962, 80% of death sentences were commuted to life sentences by the Conservative government of the time. Once the Liberals gained power in 1963, no one else was executed in Canada. In total, 1,481 people have been sentenced to death in Canada; of those only 710 were executed – 697 males and 13 females. The only method of execution ever used in Canada was hanging.

In 1987, a motion was introduced in the House of Commons to reintroduce the death penalty but it was defeated in a free vote of 148 to 127. This motion marked the last parliamentary move to reinstate the death penalty to date, although there has been considerable debate on the issue within the Canadian public.

THE LAW ON MURDER TODAY

First degree murder, which replaced capital murder, includes:

  • Murders that are planned and deliberate;
  • Contract killings;
  • When the victim is a police or correctional officer who is on duty;
  • And when the murder is committed during another crime such as kidnapping, hijacking, hostage taking, or sexual assault.

The punishment for first degree murder today is life imprisonment without the possibility of parole for 25 years. Second degree murder, which replaced non-capital murder, includes all murder that is not first degree. Second degree murder also carries a sentence of life imprisonment; however, the time before one becomes eligible for parole ranges from 10 to 25 years.

Section 745.6 of the Criminal Code of Canada, commonly known as the Faint Hope Clause, allows those serving life sentences who have served at least 15 years to apply to have their parole ineligibility reduced so that they may apply for parole. Offenders apply to the Chief Justice in their province. If the Chief Justice determines there is a chance for parole the case is heard by a jury and, if the jury unanimously concludes that the parole eligibility should be reduced, the case goes before the National Parole board at a time no earlier than the jury determines. Those convicted of multiple murders are not eligible to have their parole eligibility period reduced.

In December 2011, Bill S-6 came into force repealing the Faint Hope Clause from the Criminal Code.  Offenders sentenced for a murder committed on or after December 2, 2011, will not be eligible to apply for parole before the parole eligibility date determined when they were sentenced.

PUBLIC OPINION

Public opinion in Canada on the acceptability of the death penalty has varied over the years. One public opinion survey indicated that 73% of Canadians supported the reintroduction of the death penalty in 1987, while another poll the same year indicated 61%. In 1995, a study found that 69% of Canadians moderately or strongly supported the return of the death penalty. Some, however, question the true prevalence of the support, suggesting that it is “a mile wide and an inch deep”; in other words, common but without meaningful support.

A 2000 survey using a combination of mail in surveys and telephone interviews for a total of 3,651 completed surveys across Canada, found that 45% of Canadians supported capital punishment. In a more recent poll, Angus Reid conducted an online survey of 1,002 Canadians in 2012; the results found 63% believed that capital punishment is sometimes appropriate, 23% believed capital punishment is never warranted and 8% believed it is always appropriate. It is important to note that surveys of the Canadian public are not always truly representative of the population and results should be interpreted with caution. That said it would appear that over the last few decades public support of the death penalty has held on average around a little over half of those surveyed.

ARGUMENTS

There are many perspectives on the merits of the death penalty. Let us look at some of the major issues:

Brutalization: The brutalization effect is a theory based on the idea that executions devalue human life and “demonstrate that it is correct and appropriate to kill those who have gravely offended us”. The hypothesis of this theory is that capital punishment actually increases the number of homicides in society. Several studies have examined this idea and have found either no evidence for a brutalization effect or a minor brutalization effect directly after an execution. Thus, the research is mixed and unclear on the issue of whether executions can send the message that human life is less valuable and therefore make it more acceptable to kill.

Deterrence: The deterrent effect supposes that executions send a message to potential criminals and reduce crime through the threat of severe punishment. There is a large amount of research on whether executions actually deter crime or not. Generally the evidence is conflicting; with some studies indicating that there is a deterrent effect and some that there is not. Researchers often debate the most appropriate research methods to use and the statistical methods best suited to the issue. Therefore, one study using certain methods will find a deterrent effect and another will not. In general, there is no strong evidence for or against deterrence. Some argue that capital punishment might only have an effect on planned murders, while other serious violent crimes are often done in the heat of the moment when one does not think about the consequences.

Religion: The major faiths of the world have varied perspectives on the death penalty. One of the more common bible quotes raised in this issue is “An eye for an eye, a tooth for a tooth”. This could be interpreted to mean that if someone has deliberately planned and committed the murder of an innocent person, then taking the life of the person who took a life is just. Conversely, Jesus is quoted as saying “whoever slaps you on your right cheek, turn the other to him also”. This could be interpreted to mean that if someone harms you do not retaliate and harm them back. There are many arguments that could be made for or against the death penalty using Christian principles and texts. There is no clear consensus among Christian leaders.

Similarly, other religions have complex views on the issue, which might be interpreted in many different ways. Chapter 10 of the Dhammapada, a major Buddhist text, states that “everyone fears punishment; everyone fears death, just as you do. Therefore do not kill or cause to kill. Everyone fears punishment; everyone loves life, as you do. Therefore do not kill or cause to kill.” This quote clearly argues that killing others for punishment is not the answer. Alternatively however, “if the suffering of many disappears because of the suffering of one, then a compassionate person should induce that suffering for the sake of others”. This clearly argues that making one person suffer to alleviate the suffering of many is just. Similar arguments for and against the death penalty are present throughout other religions such as Hinduism and Islam.

Capital Punishment as Inhumane, Cruel and Unusual Punishment: Some consider the death penalty to constitute cruel and unusual punishment. The long waiting period; having to sit in jail for many years, sometimes fifteen or twenty, awaiting multiple appeals, knowing that you have been sentenced to die; is cruel enough in itself for some to oppose the death penalty. Death row phenomenon, the harmful effects experienced from solitary confinement while on death row, and death row syndrome, the resulting psychological harm that can occur as a consequence of living on death row, are two principles opponents of the death sentence cite as evidence of cruelty. Both experiences involve extensive trauma that can have long lasting psychological consequences, especially for a person who is later exonerated or has their sentence commuted to life. In 2013, 2,979 people were being held on the sentence of death in the United States. The three states with the most people on death row were California with 735, Florida with 398, and Texas with 273.

During executions things have been known to go wrong that put the offender through a great deal of pain. The use of lethal injections in the United States has come under heavy scrutiny since the European Union banned the export of the standard lethal injection drugs in 2011. This ban caused U.S. prisons to lose as suppliers the last large-scale manufacturers of sodium thiopental, a key anesthetic in lethal injections. As a result of this drug shortage, some states have begun using experimental drug combinations to perform lethal injections. In early 2015, the U.S. Supreme Court agreed to hear a constitutional challenge from an Oklahoma inmate regarding the use of a certain combination of lethal injection drugs after the botched execution of another inmate. The Court eventually ruled that the use of these drugs was not unconstitutional.

Chance That Innocent People May be Executed: There are many cases of wrongful convictions in Canada in which, if they had been cases prior to the abolishment of the death penalty, those wrongfully convicted could have faced the death penalty. For instance, David Milgaard was sentenced to life in prison in 1970 and spent 23 years in prison before being exonerated of murder in 1997. One of the more famous cases in Canada of wrongful convictions is that of Steven Truscott. Truscott, 14, was sentenced to hang in December 1959 for the murder of a classmate. His hanging was postponed to February to allow for an appeal. Prior to the appeal his death sentence was commuted to life imprisonment. In 2007, he was formally acquitted of all charges. With the presence of the death penalty in Canada, it is possible that these innocent men could have been executed.

In the United States, there are dozens of cases of people who have been on death row but later found innocent or had their sentences commuted to life imprisonment, sometimes quite close to the date of their execution. Some argue that this shows the system works while others argue the fact they were convicted but were really innocent in the first place means the system is flawed. On the other side, it is also argued that with the increase in technology such as DNA evidence, the chances of wrongful convictions today are very slim. According to the Death Penalty Information Centre, even with the advances in technology the death sentences in several cases have been dismissed or the accused given an acquittal or pardon in recent years.

Cost of Capital Punishment vs. Life Imprisonment: A common argument against life imprisonment is that it costs a lot of money to keep someone in jail for their entire lives. In fact, capital punishment costs more due to the extensive appeal process. According to some, capital punishment costs too much and since life in prison still protects society and still gives victims justice, that life in prison is the better option. Although costs vary from state to state, the financial figures show that death penalty cases cost significantly more than similar cases where the death penalty in not sought. A 2015 study from Seattle University showed that in Washington State a death penalty case costs an average of $3.07 million versus $2.01 million for a similar non-death penalty case. Similar studies in 2014 from several states including Nevada, Kansas, and Colorado show that death penalty cases cost more money and take more time to proceed through trial than non-death penalty cases.

Death Penalty and Race: Some argue that black people are over represented on death row and because of this the death penalty system as a whole is racist. Blacks represented 41.75% of the death row population in 2014 and 34% of all those executed since 1976, yet make up only 13.2% of the population according to 2013 U.S. Census data. It is important to keep in mind that statistics also indicate that black people are over represented as offenders of murder and manslaughter with the Federal Bureau of Investigation reporting 37.7% of homicide offenders in 2011 were known to be black. This is not directly related to the issue of capital punishment but suggests an over representation of black offenders within the criminal justice system as whole.

Change in Murder Rate Since the Abolition of Capital Punishment: In 1975, the murder rate in Canada peaked at 3.03 per 100,000 after seeing increases for several years. While the homicide rate fluctuates from year to year, the homicide rate has been fairly steady for the two decades. The most recent figures from Statistics Canada indicate that 2013 had the lowest homicide rate since 1966 at 1.44 per 100,000. Although it is not clear what contributed to the fall since 1975, it clearly was not the deterrent of the death penalty.

IS CAPITAL PUNISHMENT UNCONSTITUTIONAL?

Is capital punishment unconstitutional? Does it violate a person’s guaranteed right to be free of cruel and unusual punishment, and the right to life, liberty and security of the person? Many people find it ironic that anyone would consider the death penalty to be cruel and unusual punishment given the nature of the crimes many convicts have been sentenced to death for but others argue that it is hypocritical, constitutes a form of torture, and violates the Charter of Rights and Freedoms.

The Supreme Court of Canada has had to deal with the issue of capital punishment. Although in Canada capital punishment was eliminated before the Charter of 1982, the case of Charles Ng brought the issue to the attention of the Supreme Court. Ng, a Hong Kong citizen, had abducted, tortured and murdered a number of people in California before managing to escape to Canada. He was arrested after shooting a security guard in the hand in a struggle when he was caught shoplifting. Ng argued that he should not be sent back to the United States as he would face the death penalty. If Canada did send him back to a country that may execute him, it would be cruel and unusual punishment. In 1991, the Federal Government asked for an advisory opinion on whether the decision to extradite Ng back to the United States would be unconstitutional, a violation of section 7 or 12 of the Canadian Charter of Rights and Freedoms. The Supreme Court responded in the negative with four of three judges ruling it was not a violation of the Charter to extradite a person to a country where they might face the death penalty.

In 2001, the Supreme Court made another ruling in United States v. Burns which found that the extradition of an individual to a state where they might face the death penalty, without an assurance the death penalty would not be used, would be a violation of section 7 of the Charter and would not be justified under section 1 of the Charter. Article 6 of the Extradition Act allows the Justice Minister to seek assurances that the death penalty would not be imposed or carried out if a person would be extradited from Canada. Therefore, without this assurance from the extraditing country, the Supreme Court found that extradition would be a violation of fundamental justice and right of liberty and security of the person as set out in section 7 of the Charter. This decision is obviously a complete reversal of the Ng extradition decision. This decision does not itself state that the use of the death penalty in Canada would be unconstitutional, but is certainly suggests so. Any attempt by Parliament to reinstate capital punishment would very likely face a serious charter challenge in the Supreme Court.


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