Harper recently said in an interview that there are times when he believes the death penalty is appropriate. Despite this, he claims to have no designs to reopen the debate.
Regardless, his comments have effectively done just the opposite of his purported intent. Many people are now talking about the death penalty and when it may or may not be appropriate.
History of the Death Penalty
In Canada, the death penalty was always administered by hanging, except in instances of military penalties, in which case the convicted person was shot. At the beginning of the use of the death penalty in Canada, the punishment was available for a variety of offences, including treason, rape, pedophilia, bestiality, burglary, and homosexuality.
Over time, this list changed. And rightly so: we no longer view homosexuality as a crime, and the Charter protects discrimination against individuals on the basis of sexual orientation as an analogous ground in s.15. By the time of Confederation, only treason, murder, and rape would warrant the death penalty. One of the most notable historic executions for these crimes is the 1885 hanging of Louis Riel for treason. In fact, Riel was the only individual executed for treason after Confederation.
In 1961, homicide offences in Canada were reclassified as “capital”, meaning eligible for the death penalty, and “non-capital”, meaning excluded from the death penalty. Capital murder is what most closely reflects our first-degree murder today. It existed for crimes involving planned and deliberate murder, or murder of a police officer or prison guard. By 1967, Bill C-168 had been introduced which stayed the execution of anyone for capital murder, except those who were convicted of murdering a prison guard or police officer. The stay was originally only intended to last five years, but upon its expiry, it was continued until the ultimate passing of Bill C-84 in 1976. Interestingly, this Bill only narrowly passed.
After 1976, there were still crimes punishable by death under the National Defence Act. These penalties persisted until they were finally removed in 1998.
The Supreme Court of Canada confirmed in 2001 that extradition would not be granted in circumstances where the foreign country will be seeking the death penalty. With a condemnation of that form of punishment as recent as 2001, it is shocking that the Harper government would even consider reopening the debate.
Why Abolish the Death Penalty?
As a criminal defence lawyer, one of my greatest fears is that an innocent client will be convicted and sentenced for a crime he or she did not commit. The danger of wrongful conviction looms ever-large in our society, even despite the fact that there is no longer the death penalty.
I am sure many people know the story of Stephen Truscott, who at only fourteen years old, was sentenced to death for the murder of a classmate. In 2007, he was acquitted by the Ontario Court of Appeal, who cited the case as a miscarriage of justice. Mr. Truscott’s case is not the only instance of wrongful conviction in Canada.
One of my students recently had the opportunity to meet Ivan Henry, a man who was wrongfully convicted following a series of rapes. Mr. Henry is innocent of those crimes, and yet he spent 27 years in prison. My student describes him as a kind, intelligent, and humorous man, who appears to harbour no resentment toward the people who placed him in prison. If he had been convicted one hundred years earlier, he would have been given the death penalty.
While it is an ideal goal to have a justice system in which no one is convicted of a crime he or she did not commit, the reality is that we are not there yet. There is simply no room in our justice system for a penalty so extreme that it cannot be remedied if administered improperly. While harsh prison sentences experienced by innocent souls can be compensated withlarge financial settlements, no amount of money can bring back an innocent person who has lost their life following a wrongful conviction.