- The Empire Club of Canada Addresses (Toronto, Canada), 25 Nov 1954, p. 76-92
- Maloney, Arthur and Sedgwick, Joseph, Speaker
- Media Type
- Item Type
- The case against the death penalty: Mr. Arthur Maloney:
First, some humorous stories in connection with this discussion. Some facts and figures. Motives that lie behind the murders committed in Canada over a 20-year period. Some Provincial statistics. The question of executive clemency. Contrasting the use made in Canada of this privilege of executive clemency with the corresponding use made in England. Some figures to assist in determining the arguments for and against the death penalty. Jurisdictions throughout the world that have experimented with the abolition of the death penalty. The aspect of the inequality of the imposition of the death penalty, with illustrative examples. The defence of a convicted murderer too often involving the first experience in the courtroom of a young lawyer. Differences in trial judges. The lack of a deterrent effect of the death penalty. The speaker's belief that the death penalty should be done away with.
The case for the death penalty: Mr. Sedgwick:
Looking at the experience of other civilizations similar to our own with regard to the death penalty. The lack of meaning in statistics. A response to Mr. Maloney's arguments. Safeguards existing now against the risk of judicial miscarriage, including the Court of Criminal Appeal. The issue of economics. The dangers involved in incarcerating a murderer. Some cases to consider. The deterrent effect. The role of the jury. The speaker's belief that the death penalty should be retained "for those cases of murder most foul."
- Date of Original
- 25 Nov 1954
- Language of Item
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- Full Text
- "THE DEATH PENALTY--FOR AND AGAINST"
The case against the death penalty by ARTHUR MALONEY, ESQ., Q.C.
The case for the death penalty by JOSEPH SEDGWICK, ESQ., Q.C.
Thursday, November 25th, 1954
CHAIRMAN: The President, Mr. James H. Joyce.
MR. JOYCE: Some 275 people have been hanged in Canada in the past 25 years, for having committed murder. Has this deterred others from commiting the same crime? Should we execute murderers? Should capital punishment be abolished? These are very controversial questions which have been occupying the attention of many Canadians for some time.
A joint committee of the Senate and the House of Commons commenced hearings last January in an attempt to find an answer to the above questions and others which would help decide whether Canada should abolish capital punishment. It sat until the middle of June and will resume its hearings again within the next few months.
To enable our members better to understand the problem, your Executive asked two well known and able Toronto lawyers--Mr. Arthur Maloney, Q.C., and Mr. Joseph Sedgwick, Q.C., to come and discuss both sides of this controversial topic. They very kindly consented and we appreciate it as they are both very busy men.
Mr. Arthur Maloney, Q.C., who will speak first, will present the case against the death penalty. He is National Chairman of the Committee on the Administration of Criminal Justice for the Canadian Bar Association. Born 35 years ago, he graduated from the University of Toronto in 1940, was admitted to the Bar of Ontario in 1943 and became a Queen's Counsel in January 1954.
Mr. Joseph Sedgwick, Q.C., who will speak second, will present the case for the death penalty. Born in 1898, Mr. Sedgwick was with the Canadian Infantry in World War 1, was called to the Bar of Ontario in 1923 and became a K.C. in 1933. He was a solicitor in the Department of the Attorney General from 1929 to 1937, when he resumed private practice. He was a Royal Commissioner on the Royal Commission that completely revised the Canadian Criminal Code.
I will now ask Mr. Maloney to present his case . . .
MR. MALONEY: In a discussion on the question of the death penalty it is never out of place to remind your audience of one or two of the humourous stories that are sometimes told in connection with it.
One that occurred to me to tell you today is the story of the notorious gunman who finally came into the clutches of the law and was convicted of murder and sentenced to be hanged. The night of his execution arrived, a solemn procession formed outside the cell and he was led to the foot of the thirteen steps that led to the gallows. He mounted them, one by one, until he came to the thirteenth which gave way beneath him. Fortunately, he was able to grasp the railing beside him and when about inches from the trap door he turned around to the Governor and he said, "This damned thing ain't safe."
Now, before making a few comments about the question generally and the views I entertain about it, there are a few facts and figures which it might assist you to hear, because it helps you to know approximately how many and what types of persons you are talking about when you are talking about any subject, and especially when you are talking about the subject of the death penalty.
In Canada, for the twenty year period, between 1930 and 1949, 407 persons were sentenced to death. Of that number, 220 only were actually hanged. Out of that group, 88 had their sentences commuted by the Minister of Justice or, as I should say more accurately, the Governor-in-Council, to imprisonment for life, and 99 of these original 407 cases had their cases otherwise disposed of, which means by way of Appeals to Provincial Appellate Courts, or their death before the date of execution had arrived.
Now 69 percent of the original number of 407 cases were those in which juries had recommended mercy, and of the number in which the juries had recommended mercy, their recommendation was not respected in approximately 27.6 percent of the cases.
So, bear in mind, if ever you should form a member of a Jury panel, not only, first of all, are you entitled to recommend mercy, but secondly, according to past history, in about 27 percent of those cases your recommendation will be disregarded.
Now, it is of interest to know the motives that lie behind the murders committed in the country in the twenty year period. Here are some of the figures:
Of the total group, wife murders make up only 8 percent; husband murders, 1.6 percent; parent murders, 3.2 percent; sweetheart murders, 1.3 percent; mistress murders, 4.8 percent; children, .9 percent; sex assaults, 5.5 percent; robbery, 32.7 percent; revenge or jealousy, 13.9 percent; escaping custody or arrest, 1.3 percent; policemen, 4.8 percent; and the rest, of various categories, 22 percent.
In the Province of Ontario, if you want to bring it closer to home, in the twenty year period in question, of the original total group of 407 I mentioned, 96 of those persons sentenced to death came from Ontario. 31 had sentences commuted with the result that 65 persons in that twenty year period were actually executed.
In Quebec during the corresponding period, 73 persons were sentenced to death. 15 had their sentences commuted, and 58 were ultimately executed.
The question of executive clemency which is a question with which I suppose most of you are familiar is one I will occasionally refer to in another connection in a moment. Executive clemency is the last final right a person convicted of murder in our country has to save himself from the gallows.
In other words, the trial is over, he is convicted, all rights of appeal are exhausted ... there remains but one appeal left . . . that is to the Governor-General-in-Council who acts on recommendation of the Federal Cabinet which in turn acts on the recommendation made by the SolicitorGeneral, as a general rule.
Now, it is interesting to contrast the use made in Canada of this privilege of executive clemency with the corresponding use made in England. In 1930 to 1939, dealing with this ten year period, here is what you find by way of contrast. In England between 1930 and 1939, 156 separate sentences were reviewed by the Executive. Of those 47 percent were commuted to imprisonment for life. In Canada between 1930 and 1939, 167 persons had their sentences reviewed by the Executive and only 25 percent were commuted.
In England in the ten year interval between 1940 and 1949, 220 sentences of death were reviewed by the Executive and 43 percent commuted. In Canada in the same ten year interval, 141 had sentences of death reviewed but only 32 percent had those sentences so commuted.
Those are some figures that might assist you in determining the arguments for and against the death penalty. The conduct of murderers who have been convicted of murder, sentenced to death and whose sentences were commuted to imprisonment for life and were released on parole after they have served a certain portion of their sentences is of some interest.
In England between 1934 and 1948, about a fifteen year period, 129 such persons were discharged from prison on parole. 112 are today reported to be doing well ... three not heard from . . . fourteen reconvicted (only one for murder), the rest for burglary, theft, fraud, using a false name. The one convicted of a second murder is the celebrated case of Walter Howlett. The particulars of this case I shall not trouble to tell you about except to state the fact that the error involved was his release from prison in the first place, because he was a mental case.
Now the figures in Canada, certainly of the conduct of released convicted murderers whose sentences have been commuted is not as accurate. All we know is that the average of failures estimated in Canada has fluctuated around three percent, and so far as I know, no convicted murderer who has been released or is back in custody, has committed in Canada a second murder.
Now, with those factual observations, I would like to move on very briefly to some other aspects of the problem. The question of the death penalty is one that has been disputed, as you well know, for many, many centuries. It is a subject of great controversy in Canada today, because of the appointment of the Committee to investigate the question . . . the Joint Committee of the House of Commons and of the Senate.
The case for the death penalty has always found adherents. As a matter of fact, in England in 1838 it was possible to hang a man who stole five shillings or more. Today you and I would be appalled if we ever heard of such a thing being done. Yet, actually it was seriously debated and debated for years before abolition of the death penalty for that crime. In order to persuade his fellow legislators to vote against the abolition of the death penalty for theft, the Lord Justice of England said in 1838, when he was asked to concur in a vote to abolish the death penalty for theft of five shillings or more: "My Lords, if you suffer this Bill to pass we shall not know where to stand. We shall not know whether on hands, head or feet. Repeal this law and no man can trust himself for more than an hour out of doors, lest every vestige of his property be swept away by the hardened robbers."
So I say the controversy over this subject has gone on for centuries. I must admit my opposition to the penalty of death is an instinctive one, as is the feeling in the hearts of those that would support it. I have long had an instinctive aversion to it. It was not long before I realized I could not recruit much support from my fellow man if all I could point to him was my own instinct in the matter, so I approached the question with the aim of someone who wants to find facts and figures that will support him, and it is a subject I naturally approached with some diffidence, fearful of what the results would be.
You can imagine how reassured and how confident I felt when the research that I made satisfied me, as I submit it will satisfy you, that sentiment and emotion are not, as some people feel, the only factors on the side of those who would abolish the death penalty. Sentiment and emotion are also on the side of those who would retain it, because scientific data that is being scientifically acquired states, and empirical knowledge satisfies me as I submit it will satisfy you, that the death penalty has no deterrent effect.
Now, to me there is but one basis on which the death penalty can be justified ... that is if it proves to have a deterrent effect. I think no matter what our instincts are, no matter what our feelings in regard to it may be, if it is proved to have the effect of deterring others from committing crime we must bury our own aversions and our deep instincts and submit to the imposition of this penalty, but I submit to you that the facts reveal otherwise, and that to attempt to justify the retention of the death penalty on any other basis than its deterrent effect is inconceivable.
I can't imagine any one of you saying it is lawful to retain the death penalty on some revengeful basis. That leads to the question, does it deter?
Too often we are inclined to answer by saying "Yes." When asked why we say Yes, we say, "Because it would deter me." That is the fallacy that lies at the root of the thinking of everyone, in my submission, who favours the retention of the death penalty. You say it would deter, because it would deter you. The fact is the average murderer is a man very unlike you, a man with whom you have nothing in common ... a man with whom you would share no interests . . . and what would deter him would not have the slightest effect on you, and what would deter you would not have the slightest effect on him. That, I submit, is one of the real fallacies in the argument of those who would retain the death penalty and the retention of the death penalty or otherwise should not be determined by that subjective test, but it should be determined instead by a cold, impersonal study of the facts as we know them.
Now, thirty-six jurisdictions throughout the world, sprawled across Europe, the United States, South America. Asia and Africa, have experimented with the abolition of the death penalty. People of all races and creeds, people of all colours, people from cold climates and people from hot climates, people from countries mainly industrial and people from countries mainly agricultural, all have experimented with abolition, thirty-six of them, and they boast of having done so because they have done so successfully.
Surely a cross section of so many countries is something with which we of Canada can make an effective comparison for the purpose of determining what we should do ourselves.
I am not going to trouble you with any further statistics. Statistics are easily available to anyone who wants to consult them. The most general available reference of most recent date is the Report of the Royal Commission on Capital Punishment in 1953. If anyone is interested in reading it you should address a letter to Her Majesty's Stationer, in London, and have a copy forwarded to you.
Just before I conclude, this is a question, as you know, which can be discussed in many aspects, under many headings. It cannot be discussed under any aspect very thoroughly in the short interval of time given to speakers at a meeting of this nature. There is one aspect, perhaps two, on which I would like very briefly to touch before I conclude.
One aspect of the death penalty that rather shocks me is the inequality of its imposition. That inequality reflects itself in a number of ways. In the vast majority of cases convicted murderers are men who are poor and in many cases . . . far too many . . . they are defended by inadequate legal help.
I have in mind the case of four convicted murderers who were defended by a lawyer about whose sanity we all entertained doubts. This lawyer is now dead and it makes it less embarrassing to discuss the case. In 1950 in a case tried before the late Hon. Mr. Justice Green, the wife of this lawyer brought an action to have her marriage annulled on the grounds that at the time it was solemnized her husband was insane and in the judgment given by the late Mr. Justice Green, he says in his formal judgment the marriage should be declared null and void on the grounds the man was at the time of celebration of the form of marriage incapable of contracting the said marriage by reason of his mental incapacity.
The date of the marriage was March 5, 1946. In September 1946 he defended a convicted murderer. On February 8th, 1947, he defended a convicted murderer. On March 4th, 1947, he defended a convicted murderer. At a later date, I do not have the exact date, in 1947, he defended a convicted murderer. Every one was sentenced to death, and in December 1948 he was committed to a mental institution.
Those are hard things to say but they must be said. They demonstrate the inequality of the imposition of the death penalty.
Apart all together from that, a defence of the convicted murderer too often involves the first experience in the courtroom for a young lawyer, just out of law school.
That is one aspect of the inequality. Another aspect of the inequality is the difference in the vigour with which the prosecution is conducted, the difference in the fairness with which a prosecution is conducted, and with which police investigation is conducted. Contrast on the one hand, the celebrated case of Mrs. Bell, the fairness with which that prosecution was conducted by Counsel for the Crown ... not a single detail was held from the Defence there was an exhaustive preliminary hearing before the trial ... not a single thing was done of which anyone could be critical. No matter what the outcome of that case she never could have complained about a lack of fairness on the part of the prosecution . . . Contrast that with another case which I am not at liberty to name, but with which I had personal experience, in which the very opposite occurred . . . deliberate efforts to conceal facts from the Defence, deliberate efforts to take the Defence by surprise.
So there is another aspect in which there is an inequality about the imposition of the penalty of death. Then, too, to a lesser degree, not inequality, but the difference in men ... the difference in trial judges. They are human ... they have a difference in temperament ... a difference in outlook. Some have an aversion to the death penalty, some are opposed to it, some are in favour of it. It is not disrespectful of a Judge to say that your chances, if you are defending a man charged with murder, are likely to be more successful if tried before Judge A, rather than Judge B. This is another aspect of the inequality.
Take too, the difference in locale. Urban juries are invariably more adverse to the death penalty than are rural juries.
I have in mind a case, not too long ago, of a young man in the Province of Quebec, convicted of a murder of another young man as a result of a jealous quarrel over the affections of a young lady. I suggest to you if that case had been tried before a Toronto jury and the same facts brought forward, I suggest that man would now be serving a sentence for manslaughter.
There is an inequality throughout the country in the chances of acquittal for murder and conviction for manslaughter.
Now, I am reminded when I talk about that of an incident that again arose in connection with the trial of Mrs. Bell. You recall one juryman there expressed aversion to the death penalty. I hope no one misunderstood what was done there. The exception taken to his conduct was not for having opposition to the death penalty but for refusing to be sworn. It was refusing to be sworn that was held to be improper by the Trial Judge, not his views of opposition to the penalty of death. Those are not views of which anyone need be ashamed.
In conclusion, not having by any means exhausted the subject, as I sometimes wish I had an opportunity to do, although it would take too long a time to do, I submit a fair study of all the facts will satisfy you that the death penalty has no proved deterrent effect, that in its application it is unequal, and that in this country, civilized as we boast of being, it should be done away with and should be done away with now.
PRESIDENT: Thank you very much, Mr. Maloney. I will now call on Mr. Joseph Sedgwick, Q.C., to present the case for the death penalty.
MR. SEDGWICK: It is never easy to follow Mr. Maloney, and it is particularly difficult to do so when one is dealing with this subject which he has made so peculiarly his own. Indeed, I sometimes think the present interest in the abolition of the death penalty as being largely attributable to the effort that Mr. Arthur Maloney has put forth and I have on occasion described it as the Maloney Crusade.
What Mr. Maloney said in his opening is quite true ... it is difficult to approach the subject with any degree of logic. In fact, in what may well be called the classic plea for the abolition of Capital Punishment, Lord Templewood's "The Shadow of the Gallows", that humane and experienced gentlemen, who was for some years Home Secretary in England, makes it clear that most people who have any decided views on the subject have those views more by instinct than by logical process.
Mr. Maloney quoted to you some statistics and there are many statistics showing the incidence of capital crime in those countries that have abolished the death penalty as compared with those that have not done so. Really and truly, they prove nothing. As Mr. Quentin Hogg said in the debate on the matter in the British House ... and it was a most helpful debate . . . he said, "Statistics are not cogent ... patiently, honourably and scrupulously collected as they have been, they only befuddle us." He went on to say that he preferred to look into his own heart, and there he found that if he were a professional burglar, with terms of penal servitude behind him and no death penalty to fear, he would take the chance of carrying a gun and shooting any witness of his crime. He added that against the result of this heart searching, "neither Dr. Jung nor the statistics will convince me to the contrary."
But one does get a little help, if not from statistics, at least from the experience of other civilizations similar to our own. One finds, for instance, that New Zealand did abolish the death penalty, tacitly, by not enforcing it, from 1936 to 1941, and specifically by legislation from 1941 to 1950. Then in 1950, and I believe as a result of two atrocious murders that shocked the public conscience, the death penalty was restored in that Commonwealth whose people are greatly similar to our own.
To argue that there were more murders during the period when the death penalty was enforced than during a similar period when it was not is to make no argument at all. Murder is not a crime susceptible to mathematical measurement, by which I mean that the factors are not constant ... the times, the economics, many things are to be considered ... and while of course it is possible to say actuarially that so many people will die in a given decade, it is not and never has been possible to say that so many people will be murdered.
This is not the first time I have taken this side of the question. I have debated it before with Mr. Maloney and I debated it very recently with a most eminent member of our Canadian Bar, a specialist in criminal cases, Mr. G. Arthur Martin, and I recall in the course of his talk , . . he took the side Mr. Maloney takes . . . he said "I must be frank to say that no conclusive case either in favour of the retention of capital punishment or in favour of its abolition can be based only on statistics. The incidence of crime in a given place at a given time depends on many factors, the principal one being the economic and cultural level the community has attained."
Apart from the statistical argument, which is almost always used by the advocates of abolition, there is the other argument that Mr. Maloney stressed ... that is the awful finality of it. That is true. One cannot call back from "the unanswering legion of the dead". But it is also true that the risk of judicial miscarriage on that level of crime is so slight as to be negligible, and no proponent of abolition can cite a case within the last fifty years at least of a person hanged and later proved, or reasonably suspected to be, innocent. There are so many safeguards existing now that did not exist at the start of this century.
I was interested in Mr. Maloney's story of the mad lawyer and I think I have in mind the deceased gentleman to whom he has reference. All I can say about that, lawyers do not after all try cases . . . they merely present them and even though a man may be in some respects quite mad, he may be in other respects sane and I think in respect of being an advocate, completely competent, and the mere fact he defended successively a number of people charged with murder would at least indicate those unfortunate persons had considerable confidence in his ability.
However, apart from the advocate, and there is no level of advocacy ... no level at all ... you can't say of one man he is superbly competent and another incompetent. Apart from that there are so many safeguards and, as Mr. Maloney told you, we now have a Court of Criminal Appeal and I think I am safe in saying no person ever convicted of murder fails to appeal. In every case he does appeal his case is reviewed with the utmost care by a bench, in this Province at least, of five judges. Then, if there is still doubt, by right in certain cases, and by leave in others, the case may be carried to the Supreme Court of Canada, where there will be am equally careful and exhaustive inquiry, by a bench consisting of nine judges, and there the matter is again canvassed with the greatest of care, and I feel confident, in my mind at least, that if there is any reasonable doubt whatsoever that doubt is resolved in favour of the accused person, even at the Appelate level.
And finally, and Mr. Maloney referred to this also, there is complete review of the matter by the Department of Justice, and there is a right exercised . . . I think Mr. Maloney said . . . in something like twenty-six percent of the cases to reprieve the convicted person, even at the last moment, after all appeals have been heard and dismissed.
I can only say in my own experience at the Bar for almost a third of a century, during which time I have appeared both for the Crown and the accused, and in a number of murder cases, I cannot think of a case where the capital penalty was inflicted and there remained even a scintilla of doubt as to the guilt of the culprit.
Then another argument that Mr. Maloney did not touch on, but that I have heard many refer to, is that hanging is a brutal thing. I have never witnessed a hanging and have not the slightest intention of so doing, therefore I can have no very convincing opinion. You will hear that argument advanced and I can only tell you it is said by those most competent to judge that it is quick and painless extinction.
In England some years ago the Home Office made a careful study of the matter, and issued a somewhat macabre but interesting report which concludes, "there is no record during the present century of any failure or mishap in connection with an execution, and as now carried out execution by hanging can be regarded as speedy and certain."
I have, of course, read of hangings, I have read of electrocutions, I have read of guilottinings, and also of the methods practised in some of the States of the Union, where I think they are killed by cyanide pottasium or something of that sort, and I can only say one seems about as humane as the other, and in any event the method of execution is hardly pertinent to a discussion of whether you " have executions or not. It should be no part of the argument to discuss how they should be carried out.
Of course it should be argued that the extreme privacy that surrounds executions today adds to their horror, rather than taking away from it, and we might consider the advisability of going back to public executions. I am not to be taken as saying I favour that course, but there is quite an argument to be made for it, and those who still read that great literary pundit of the 19th century, Dr. Samuel Johnson, may recall that he defended public hangings with some vigour, as being in the public interest. He said, "They object that the old method drew together a number of spectators. Sir, executions are intended to draw spectators. If they do not draw spectators, they don't answer their purpose. The old method was most satisfactory to all parties; the public was gratified by a procession; the criminal was supported by it. Why is all this to be swept away?"
May I say a word about the economics of the whole matter. In this we are all interested, as taxpayers. If murderers are not to be executed, what then is to be done with them? The only alternative I have ever heard suggested is that they should be imprisoned, some say for life, some say for a period long enough to ensure reform. Mr. Maloney, with his customary honesty, suggested to you that one man who was committed for murder and was reformed, went out and committed murder a second time, which is an argument hardly in favour of releasing people convicted of a crime. If a murderer is to be incarcerated for the whole of his life, is that lingering death a more humane thing than the speedy execution of the gallows? What hope is there for such a man who knows he must drag out his days, whether twenty, thirty, forty or fifty years, within the stone walls of the penal institution? Or, if after a period of imprisonment he is to be released ... and I believe in States where they do release people after they have been convicted of murder, the average time served is sixteen years-there are statistics about that, too ... if he is to be released after fifteen or sixteen or twenty years, what assurance has society of his reformation? Can we be sure in a critical moment he will not again turn to the gun or the knife?
Again, to take the extreme case, and that is the case of the lifer who is confined in a penal institution, and who knows he will never be released by process of law, why should he not kill to get out? Why should he not kill a warden or guard, or make his escape if he can, knowing nothing will be done except that he will be put back in prison if caught? And supposing such a one does make good his escape, why should he, when at liberty, scruple to kill again, for protection from recapture, for gain, or for mere caprice, as he has nothing whatsoever to lose.
While certainly I do not want to propose to weigh human life against money, why should society pay, year after year, to keep such a person in confinement when we know there is not the slightest possibility that he will ever make any return to society, any contribution to society in return for his keep.
I do not know the accurate cost of keeping a prisoner in an institution such as Kingston. My guess would be that it would be about $2000 a year, presuming we kept a man there for forty years, society will spend some $80,000 for a completely useless individual, useless at least in so far as any contribution he may make to society is concerned. All I can say is it is too much to pay for too little.
As Mr. Justice Keiller Mackay said, when discussing the same subject not long ago, and I must completely agree with him, "Is it not time that the state should begin by asking, not necessarily what is good for the murderer but, on the other hand, what is necessary for the good order of society and the preservation of the lives and safety of its citizens?" Or, as an eminent judge said many years ago, he had always believed if you hanged a man when he was young he would not bother you when he was old.
Finally, coming back to my starting injunction, I ask you to search your own hearts. Don't be convinced by rhetoric . . . either Mr. Maloney's or mine . . . or by statistics, which at best are a very dull guide, but decide what each of us, as individuals, would do if murder came home to you and your family. Consider, for instance the specific case, the case of a man called O'Donnell, who was hanged in Toronto not many years ago. A sex degenerate, he had been convicted on more than one occasion of crimes against young girls. Finally, he raped and murdered a young girl and he was convicted and executed. Suppose that girl had been your daughter or mine, what punishment do you think would have been fitting for the murderer?
Consider the case of Seddon, the poisoner ... another case in all the books on crime ... the man who deliberately planned the murder, the painful death of a woman who trusted him and who had made over her few pitiful savings to him in return for an annuity, and he poisoned her so by shortening her life he would not have any long time to have to pay the annuity he had traded for her savings. Do you think that such a mean monster as that should be kept alive at the public expense for fifteen or twenty years, and then should be released, again to plot murder, if he so saw fit, and with no punishment to fear except being returned to prison?
Mr. Maloney says that the death penalty, that the gallows has no deterrent effect. I can only echo what Mr. Quinton Hogg said, "I think it would deter me" and when Mr. Maloney says murderers are not, generally speaking, of the class to which you gentlemen here are privileged to belong, certainly he is overlooking the case of Seddon who belonged to what is called the middle or upper class.
One could multiply examples. I have neither time nor inclination. Indeed, referring to a case that Mr. Maloney defended with ability, the case of Suchan and Jackson, who were tried for what I thought the unprovoked murder of a gallant and unarmed officer, Detective Sergeant Edward Tong, they were hanged, and I think rightly hanged. I think society owes a duty to protect itself. I think society owes a duty to its police, and I think the police are entitled to feel that taking, as they do, their lives in their hands, if one is killed by people bent on crime, that condign punishment will be visited on the murderer.
And lastly, I am not sure that I favour the compulsory death penalty. Mr. Maloney pointed out to you that juries have a right or privilege, whichever you may describe it as, of recommending mercy and that in a large percentage of the cases where there is such a recommendation, the Department gives weight to it, but certainly not in all.
In some States of the Union to the south of us, and in some other jurisdictions, the jury have a final duty to decide on the penalty. They can bring in a verdict of murder in the first degree which is followed by the compulsory imposition of the death penalty or maybe some lesser degree of murder, in which case only a term of imprisonment is imposed or, in some cases, the jury may specifically recommend mercy and the Judge is bound to accede to the recommendation. I am not sure I wouldn't favour such a course. I think it may be the twelve men of the jury should have the right to say whether the convicted person is to be hanged or imprisoned.
With that limitation, I strongly favour retaining the death penalty for those cases of murder most foul.
THANKS OF THE MEETING were expressed by the Honourable J. W. Pickup, Chief Justice of Ontario.