Miller et al. v. The Queen

Miller et al. v. The Queen
Collection
Supreme Court Judgments
Date
1976-10-05
Report
[1977] 2 SCR 680
Judges
Laskin, Bora; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; de Grandpré, Louis-Philippe
On appeal from
British Columbia
Subjects
Criminal law
Decision Content
SUPREME COURT OF CANADA
Miller et al. v. The Queen, [1977] 2 S.C.R. 680
Date: 1976-10-05
John Harvey Miller and Vincent John Roger Cockriell Appellants;
and
Her Majesty The Queen Respondent.
1976: June 22, 23; 1976: October 5.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Criminal law — Murder of policeman while acting in course of his duties — Mandatory sentence of death — Death penalty not cruel and unusual punishment within meaning of s. 2(b) of Canadian Bill of Rights, 1960 (Can.), c. 44 — Criminal Code, R.S.C. 1970, c. C-34, ss. 214(2), 218(1) (am. 1973, c. 38) — Criminal Law Amendment Act (No. 2), 1974-75-76, c. 105.
On a joint charge of unlawfully committing "murder punishable by death" in the killing of a policeman while acting in the course of his duties, the two appellants were convicted at trial and sentenced to death pursuant to ss. 214(2) and 218(1) of the Criminal Code. On appeal, the majority of the Court of Appeal held, inter alia, that the death penalty was not cruel and unusual punishment within the meaning of s. 2(b) of the Canadian Bill of Rights and that, accordingly, ss. 214(2) and 218(1) of the Code were not inoperative by virtue of the application of the said s. 2(b) of the Bill of Rights. Following the hearing of the appeals to this Court, the Criminal Law Amendment Act (No. 2), 1976, was enacted, whereby, inter alia, the death penalty provisions of the Criminal Code were repealed. Section 25(2) provides that if "after the coming into force of this Act, an appeal against conviction by a person under a sentence of death upon the coming into force of this Act for murder punishable by death is dismissed, that sentence thereupon becomes a sentence of imprisonment for life for first degree murder without eligibility for parole until he has served twenty-five years of his sen­tence." The Act came into force on July 26, 1976.
Held: The appeals should be dismissed.
Per Curiam: Notwithstanding the provisions of the 1976 Act, the question as to whether the death penalty in this case constituted cruel and unusual punishment remained of more than academic importance. If s. 2(b) of the Bill of Rights had already had the effect of rendering ss. 214 and 218 inoperative, then these appellants could not have been found guilty of "murder punishable by death" and, as the law then stood, the only sentence which could have been imposed would have been one of imprisonment for life under s. 214(3). The question therefore became one of first importance to the appellants because if these appeals were to be allowed rather than dismissed, and if the convictions "for murder punishable by death" were to be quashed, there would be no provision rendering either of the appellants ineligible "for parole until he had served twenty-five years of his sentence". Whether or not the appellants were to be denied parole for the first twenty-five years of their sentences therefore depended upon whether or not ss. ,214 and 218 of the Code were rendered inoperative by s. 2(b) of the Bill of Rights.
Per Laskin C.J. and Spence and Dickson JJ.: Section 5(2) of the Canadian Bill of Rights provides for its application to federal law, whether enacted before or after the effective date of the Bill of Rights. What is more, the Bill of Rights cannot be governed in its interpretation and application by the course of parlia­mentary legislation, especially post-Canadian Bill of Rights legislation. It is rather that the legislation of Parliament falls to be tested as to its operative effect by what the Bill of Rights prescribes; otherwise, the Bill of Rights becomes merely an interpretation statute, yield­ing to a contrary intention in legislation measured against it.
It is s. 2 of the Bill of Rights which gives force to s. 1 and hence, especially since the prescriptions of s. 2 are stated to be effective "in particular", their import should not be diminished by reference to what is more generally prescribed in s. 1. Section 2(b), therefore, must be considered in its own terms as providing that "no law of Canada should be construed or applied so as to impose or authorize the imposition of cruel and unusual treatment or punishment".
Although the words of s. 2(b) have application to methods of punishment, whether the punishement be death or not, they cannot reasonably be limited to methods. It would be patent, for example, that death as a mandatory penalty today for theft would be offensive to s. 2(b). That is because there are social and moral considerations that enter into the scope and application of s. 2(b). Harshness of punishment and its severity in consequences are relative to the offence involved but, that being said, there may still be a question whether the punishment prescribed is so excessive as to outrage standards of decency.
The words "cruel and unusual" should not be treated as conjunctive in the sense of requiring a rigidly separate assessment of each word, each of whose meanings must be met before they become effective against challenged legislation, but rather as interacting expressions colour­ing each other, so to speak, and hence to be considered together as a compendious expression of a norm.
The four grounds of challenge to the death penalty offered by the appellants were respectively, that (1) it is unusually severe and hence degrading to human dignity and worth; (2) it is arbitrarily imposed; (3) it is not acceptable to a large segment of the population and (4) it is excessive in that it cannot be shown that it has had any deterrent effect on murder that would not be real­ized by a punishment that was not so final. Grounds (2) and (3) were completely without merit, and grounds (1) and (4) must also be rejected. The mandatory death penalty for the murder of a policeman or a prison guard is not cruel and unusual punishment within s. 2(b) of the Canadian Bill of Rights.
Per Martland, Judson, Ritchie, Pigeon and de Grandpré JJ.: The effect of s. 2(b) of the Bill of Rights must be considered in the light of s. 1. The declaration of the right of the individual not to be deprived of life which is contained in s. 1(a) is clearly qualified by the words "except by due process of law", which appear to contemplate a process whereby an individual may be deprived of life. At the time when the Bill of Rights was enacted there did not exist and had never existed in Canada the right not to be deprived of life in the case of an individual who had been convicted of "murder pun­ishable by death" by the duly recorded verdict of a properly instructed jury; the "existing right" guaranteed by s. 1(a) can only relate to individuals who have not undergone the process of such a trial and conviction.
Accepting the proposition that s. 2 did not create new rights, it cannot be that Parliament intended to create anew the absolute right not to be deprived of life under any circumstances by providing that no law of Canada was to be applied so as "to impose or authorize the imposition of cruel and unusual treatment or punishment". If so construed the section would prevent the infringement of a right which had never existed and would thus run contrary to the purpose for which it was enacted.
The fact that Parliament has on three occasions since the enactment of the Bill of Rights seen fit to retain the death penalty as part of the Criminal Code constitutes strong evidence that it had never intended that the word "punishment" as employed in s. 2(b) should preclude punishment by death in the case of an individual who has been duly convicted of murder. If it were otherwise it would mean in light of s. 5(2) that the provisions for punishment by death contained in the amendments had been rendered inoperative in advance of their enactment. That proposition could not be accepted.
Accordingly, the "cruel and unusual treatment or punishment" referred to in s. 2(b) of the Bill of Rights does not include punishment by death for murder and it was neither the intention nor the effect of that section to render inoperative the death penalty provisions of the Criminal Code.
The words "cruel and unusual" as they are employed in s. 2(b) are to be read conjunctively and refer to "treatment or punishment" which is both cruel and unusual. The death penalty for murder cannot be said to be unusual punishment in the ordinary accepted mean­ing of that word.
Per Beetz J.: It was unnecessary, for the purpose of this case, to decide whether or not s. 2 of the Bill of Rights creates new rights or is subordinate to s. 1. However, as stated by Ritchie J., s. 1 throws some light on s. 2, and the words "cruel and unusual" in s. 2(b) are to be read conjunctively and refer to "treatment or punishment" which is both cruel and unusual and pun­ishment by death for murder is not contrary to s. 2(b).
[Brownridge v. The Queen, [1972] S.C.R. 926; Curr v. The Queen, [1972] S.C.R. 889; R. v. Drybones, [1970] S.C.R, 282; Hogan v. The Queen, [1975] 2 S.C.R. 574; A.-G. of Canada v. Lavell, [1974] S.C.R. 1349; R. v. Burnshine, [1975] S.C.R. 693; A.-G. of Canada v. Canard, [1976] 1 S.C.R. 170; Runyowa v. The Queen, [1966] 1 All E.R. 633; Furman v. Georgia (1972), 408 U.S. 238; Gregg v. Georgia (1976), 44 U.S. LW 5230; Woodson and Waxton v. North Carolina (1976), 44 U.S. LW 5267; Jurek v. Texas (1976), 44 U.S. LW 5262; Roberts v. Louisiana (1976), 44 U.S. LW 5281, referred to.]
Criminal law — Joint charge — Failure of defence by one accused of abandonment of intention to associate himself with criminal purpose before crime committed — Errors alleged in conduct of trial — No substantial wrong or miscarriage of justice — Application of s. 613(1)(b)(iii) of Criminal Code.
[R. v. Whitehouse, [1941] 1 W.W.R. 112; R. v. Côté, [1964] S.C.R. 358; R. v. Black, [1966] 1 O.R. 683; Brooks v. The King, [1927] S.C.R. 633; Ambrose v. The Queen (1976), 30 C.C.C. (2d) 97, referred to.] APPEALS from a judgment of the Court of Appeal for British Columbia[1], dismissing the appeals of the appellants from their conviction on a joint charge of unlawfully committing "murder punishable by death". Appeals dismissed.
T. L. Robertson, for the appellant, John Harvey Miller,
J. Wood and J. B. Clarke, for the appellant, Vincent John Roger Cockriell.
F. J. Rowan and H. Foster, for the respondent.
E. L. Greenspan, for the intervenant, Canadian Civil Liberties Association.
W. G. Burke-Robertson, Q.C., for the interve­nant, Attorney General of Newfoundland.
The judgment of Laskin C.J. and Spence and Dickson JJ. was delivered by
THE CHIEF JUSTICE—This Court is confronted for the first time with a contention that the death penalty, mandatorily imposed in this case on the two appellants upon their conviction of the murder of a policeman, is cruel and unusual punishment within s, 2 (b) of the Canadian Bill of Rights and that, consequently, s. 218 (1) of the Criminal Code, which prescribes that punishment, must yield to the overriding provisions of s. 2 (b). If the appellants should succeed in their contention, the result would be that capital murder, that is murder for which the punishment is death, could not be retained or included as part of Canadian criminal law so long as s. 2 (b) of the Canadian Bill of Rights was applicable; and we would and could have only non-capital murder, punishable now by life imprisonment as a mandatory penalty.
It is mere coincidence that on the very day on which the hearing of this appeal commenced the House of Commons gave second reading to a bill to abolish capital punishment. The bill was subse­quently passed into law; and although the result is that the two accused, if their convictions are upheld by the rejection of all grounds of appeal urged against them, will not be liable to execution, that does not foreclose this Court from considering the question whether the Canadian Bill of Rights precludes the operation of federal legislation making it mandatory to sentence to death a person or persons convicted of killing policemen or prison guards acting in the course of their duties, as provided by ss. 214 (2) and 218 (1) of the Crimi­nal Code, provisions which have now been superseded by amending legislation. I have nothing to add to what my brother Ritchie has said about the effect of the abolition legislation on the posi­tion of the two appellants.
We are not concerned here with the method of execution, which in this country has been by hang­ing, no argument having been addressed to it; nor are we concerned directly with whether the sen­tences herein would have been carried out or would have been commuted, as have other death sentences for more than the past decade. The issue is whether federal legislation may authorize the imposition of the penalty of death for the murder of policemen or prison guards in the face of the proscription of the Canadian Bill of Rights against "the imposition of cruel and unusual treatment or punishment". It is patent to me that if such a penalty cannot properly be authorized and imposed (that is, in the absence of a parliamentary declaration in avoidance of the application of the Canadian Bill of Rights) for the murder of policemen and prison guards, I am unable to appreciate how it can be authorized and imposed in respect of the murder of anyone else, whatever the status or position of that person.
I have had the advantage of seeing the reasons prepared by my brother Ritchie in which he takes a view of s. 1 of the Canadian Bill of Rights that subordinates s. 2 to that opening declaratory sec­tion, with the result (having regard to the provi­sions enacted by Parliament touching culpable homicide since the enactment of the Canadian Bill of Rights in 1960) that he finds that the word "punishment" could not have been intended to exclude the penalty of death for murder.
My approach is different, although I come to the same conclusion as does my brother Ritchie that it is not offensive to s. 2 (b) of the Canadian Bill of Rights to prescribe the death penalty as a punishment to be mandatorily imposed for the murder of a policeman or prison guard.
Section 5(2) of the Canadian Bill of Rights provides for its application to federal law, whether enacted before or after the effective date of the Canadian Bill of Rights, and this Court has acted on this provision to test the operative effect of federal legislation in the face of the Canadian Bill of Rights although enacted subsequent to it: see, for example, Brownridge v. The Queen[2]; and cf. Curr v. The Queen[3], at p. 893. What is more, it seems to me that the Canadian Bill of Rights cannot be governed in its interpretation and application by the course of parliamentary legisla­tion, especially post-Canadian Bill of Rights legis­lation. It is rather that the legislation of Parlia­ment falls to be tested as to its operative effect by what the Canadian Bill of Rights prescribes; otherwise, the Canadian Bill of Rights becomes merely an interpretation statute, yielding to a con­trary intention in legislation measured against it. This Court rejected such an approach in its majority judgment in the Drybones[4] case, and it reaffirmed its rejection of that approach in both the majority and minority judgments in Hogan v. The Queen[5].
Although this moves the problem of the applica­tion of the Canadian Bill of Rights to a common plane, it by no means determines the scope of its application, nor its force in particular cases. Such decisions of this Court as Attorney-General of Canada v. Lavell[6]; R. v. Burnshine[7], and Attor­ney-General of Canada v. Canard[8], show this in no uncertain fashion.
I take the same view here as I expressed in the majority judgment of this Court in Curr v. The Queen[9], at p. 896, that is, that it is s. 2 of the Canadian Bill of Rights which gives force to s. 1 and hence, especially since the prescriptions of s. 2 are stated to be effective "in particular", I would not diminish their import by reference to what is more generally prescribed in s. 1. I turn, therefore, to a consideration of s. 2 (b) in its own terms as providing that "no law of Canada shall be con­strued or applied so as to impose or authorize the imposition of cruel and unusual treatment or punishment".
In the original draft bill, introduced in 1958 and superseded by a revised draft in 1960 (after being left for public examination for more than a year), the forerunner of s. 2(b) was a reproduction of s. 4(2) of the Universal Declaration of Human Rights which forbids "the imposition of torture, or cruel, inhuman or degrading treatment or punishment". A similar provision was found in the consti­tution of Southern Rhodesia of 1961 and was the subject of consideration by the Privy Council in Runyowa v. Reginam[10], on appeal from a judg­ment of the Federal Supreme Court of the then Federation of Rhodesia and Nyasaland. The Privy Council was of the opinion that the formulation in the then Southern Rhodesian Constitution was manifestly different from the "cruel and unusual punishment" provisions of the American Constitu­tion and that, accordingly, American decisions, to which the Privy Council was referred, although helpful, were not directly enough in point in respect of the different conceptions involved in the Southern Rhodesian provisions.
In the particular case, the Judicial Committee, affirming the Federal Supreme Court, concluded that the mandatory death penalty imposed upon a person convicted of complicity in arson did not offend the Constitution, having regard particularly to a qualifying provision that "nothing ... done under the authority of any written law shall be held to be ... in contravention of this section [forbidding torture or inhuman or degrading pun­ishment or other treatment] to the extent that the law in question authorizes the doing of anything by way of punishment or other treatment which might lawfully have been so done in Southern Rhodesia immediately before the appointed day". It is obvious that this decision, having regard to its foundation, can be of no assistance in the present case.
In its present formulation, s. 2(b) is in the language of the English Bill of Rights of 1688 and of the eighth amendment to the American Consti­tution. Although the words have application to methods of punishment, whether the punishment be death or not, and there are indications that this was what they were aimed at when originally adopted in England and in the United States, they cannot reasonably be limited to methods, which at one time in history included decapitation, disem­bowelling and drawing and quartering. It would be patent to me, for example, that death as a mandatory penalty today for theft would be offensive to s. 2(b). That is because there are social and moral considerations that enter into the scope and application of s. 2(b). Harshness of punishment and its severity in consequences are relative to the offence involved but, that being said, there may still be a question (to which history too may be called in aid of its resolution) whether the punishment prescribed is so excessive as to outrage stand­ards of decency. This is not a precise formula for s. 2(b), but I doubt whether a more precise one can be found.
Two main submissions were made by the appel­lants and by the intervenor Canadian Civil Liberties Association on the proper approach to the words "cruel and unusual punishment". They supported the view expressed by McIntyre J.A. in dissent that the words should be treated disjunc­tively, a construction which would strengthen their sterilizing effect upon s. 218(1) and allied provi­sions of the Criminal Code. However, in the course of the oral argument, counsel for the appellants stated that they would not insist on a disjunctive interpretation, in effect abandoning that point.
McIntyre J.A., in stating that the words should be given a disjunctive meaning, invoked American judicial decisions and academic writings on those decisions to support that view. Robertson J.A., who spoke for the other four members of the five judge Court assumed for the sake of argument (as he said) that hanging is cruel punishment, and then proceeded to consider whether death as punishment for murder was "unusual". He concluded, having regard to the fact that death was the punishment for murder in England from time immemorial and that it was known in Canada before Confederation and had been continuously prescribed since then, that it could not be con­sidered "unusual" within s. 2(b), notwithstanding the consistent practice of commutation by the federal Cabinet since 1962. It is clear that Robertson J.A. looked upon the key words of s. 2(b) as being conjunctive. Earlier in his reasons on the effect of the Canadian Bill of Rights he concluded that because of differences in methods of interpre­tation and in permissible resort to extrinsic ma­terial in the construction of the American Consti­tution and of the Canadian statutory Bill of Rights, he did not find American decisions relevant.
At the time that he wrote, the leading American decision was Furman v. Georgia[11], and indeed this was still the leading decision at the time that this Court heard the present appeal. Shortly after the hearing, a number of other judgments on the question of the compatibility of the death penalty with the eighth (and through it with the four­teenth) amendment were handed down by the Supreme Court of the United States, among them Gregg v. Georgia[12] and Woodson and Waxton v. North Carolina[13]. There were three companion cases to these two, of which I would mention Jurek v. Texas[14] and Roberts v. Louisiana[15], principally because of the dissenting reasons of White J. in this last-mentioned case.
The various judgments in the Supreme Court of the United States, which I would not discount as being irrelevant here, do lend support to the view that "cruel and unusual" are not treated there as conjunctive in the sense of requiring a rigidly separate assessment of each word, each of whose meanings must be met before they become effec­tive against challenged legislation, but rather as interacting expressions colouring each other, so to speak, and hence to be considered together as a compendious expression of a norm. I think this to be a reasonable appraisal, in line with the duty of the Court not to whittle down the protections of the Canadian Bill of Rights by a narrow construc­tion of what is a quasi-constitutional document.
Since we are concerned here with a situation where the death penalty is mandatory, I need not embark on any consideration of questions of uneven application of authorized punishments or questions of discretionary, arbitrary or capricious application of the death penalty. It cannot be argued that arbitrariness or capriciousness resides in the limitation of the death penalty to the murder of policemen and prison guards, persons who are specially entrusted with the enforcement of the criminal law and with the custody and supervision of convicted persons. The progressive restriction of the situations in which the death penalty could be imposed in this country (prior to its recent abolition for civil as opposed to military offences, with which we are not here concerned), does not point to an erratic imposition when it was mandatory in the narrow classes of cases for which it was authorized.
In Furman v. Georgia, only two members of the Supreme Court of the United States, Brennan and Marshall JJ., were of the opinion that the death penalty was per se unconstitutional, and they adhered to this view in the two recent cases of Gregg v. Georgia and Woodson and Waxton v. North Carolina. The other three members of the Court, who with Justices Brennan and Marshall formed the majority in the five to four Furman decision, based themselves on the view that there was a broad discretion given to the jury as the sentencing tribunal to impose the death penalty or not for several crimes (which varied as among different states), and this discretion, not clearly guided by legislative direction, resulted in discriminatory and wanton and even freakish sentenc­ing which was, moreover, so infrequent in relation to the number of cases in which it could have been imposed as to make any particular death sentence cruel and unusual.
I pause here to draw attention to two important differences, relevant in this case, between Canadi­an and American criminal law. First, there is one Criminal Code for the whole of Canada; the crimi­nal law is within exclusive federal jurisdiction, unlike the case in the United States where it is, in general, within state jurisdiction and hence varies from state to state. Second, there is no provision in Canadian criminal law for sentencing by juries. It appears to me that the reproach of arbitrariness and capriciousness in sentencing, which was con­sidered in the Furman case, embraced also an issue of equality before the law when related to the alleged randomness of jury practices in dealing with the death penalty. Even so, four members of the Court in the Furman case were of the opinion that the death penalty was not cruel and unusual punishment, although wide discretionary authority was vested in juries to impose it.
In its recent judgment. in Gregg v. Georgia, the Supreme Court of the United States not only dealt with the question whether the death penalty is per se unconstitutional, and determined, with only Jus­tices Brennan and Marshall dissenting on this point, that it was not, but it also dealt with the validity of new Georgia legislation designed to overcome the infirmities that were present in the legislation reviewed in the Furman case. On this point too the Court was of opinion, the two dis­sents being a fortiori on the matter, that Georgia's new scheme had adequate standards for the jury as sentencing tribunal, especially when its determina­tions were subject to scrutiny and review by the Georgia Supreme Court as to whether, inter alla, a death sentence was excessive or disproportionate as compared with the disposition of similar cases, having regard to the crime and to the accused.
It was on the per se position of Justice Brennan that the appellants in the present case particularly relied and, no doubt, they would have invoked the majority judgment of the Supreme Court of the United States in Woodson and Waxton v. North Carolina had it been delivered at the time of their submissions to this Court. I turn, therefore, first to the contentions based on Justice Brennan's views, and I shall deal thereafter with the Woodson and Waxton case.
The per se argument must, it seems to me, have in view the imposition of the death penalty for the most heinous of offences, and murder is certainly of that class; the per se contention is of little validity when addressed to, say, simple assault, because other considerations come into play in such a case in determining whether the death sentence would be cruel and unusual punishment. Approaching the issue on this basis, I note that four grounds of challenge to the death penalty are offered by the appellants and they are, respective­ly, that (1) the death penalty is unusually severe and hence degrading to human dignity and worth; (2) it is arbitrarily imposed; (3) it is not acceptable to a large segment of the population and (4) it is excessive in that it cannot be shown that it has had any deterrent effect on murder that would not be realized by a punishment that was not so final.
The contention of arbitrary imposition seems odd in a Canadian context when imposition of the penalty is mandatory for capital murder as hereto—fore defined. I do not, moreover, see any arbitrari­ness in imposition by reason of Cabinet review to determine whether to exercise the prerogative of mercy, a review which relates to the individual case, although there has been a consistent policy of commutation since 1962. Again, the contention of unacceptability to a large segment of the Canadian population appears to me to be asking this Court to define and apply s. 2(b) by a statistical measure of approval or disapproval of the death penalty. This is not what s. 2(b) prescribes. In my opinion, grounds (2) and (3) are completely without merit,
Ground (4), excessiveness, is posited on an as­sertion that the death penalty must be cruel and unusual if it cannot be shown to be an effective deterrent to the commission of the offence for which it is prescribed. The same issue is raised in a somewhat different fashion by the Canadian Civil Liberties Association which contended that the death penalty is not a "fit" penalty because the purposes of punishment would be served equally well by lesser punishment; and if it is not a fit penalty, that is some evidence that it is cruel and unusual. Indeed, so the argument runs, such a conclusion is warranted by the severity of the penalty and its affront to human dignity. This last assertion engages ground (1) of the submission of the appellants, although it too is made separately by the Canadian Civil. Liberties Association.
The contentions of severity and excessiveness advanced by the appellants and by the intervenor were supported by them by drawing on the reasons of Brennan J. in the Furman case who took as his guiding principle that "a punishment must not be so severe as to be degrading to the dignity of human beings" and, further, that the fundamental premise of the constitutional prohibition against cruel and unusual punishments is that "even the vilest criminal remains a human being possessed of common human dignity". The appellants and the intervenor pointed to the preamble of the Canadi­an Bill of Rights in its reference to "the dignity and worth of the human being" as reflecting this same sentiment.
On the aforementioned principle, Justice Bren­nan propounded a cumulative test, which repre­sented the arguments addressed to this Court by the appellants and the intervenor, and it was in these words:
If a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substan­tially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Clause that the State may not inflict inhuman and uncivilized punishments upon those con­victed of crimes.
The appellants did not advance their submissions as being necessarily cumulative, but I take from their contentions that if severity and excessiveness (as they conceived them) were established, that should be enough to sustain their attack on the death penalty in the present case. I am prepared to accept this premise, but I am unable to agree that the conclusion that they urge is well-founded.
In a general sense, all punishment by way of imprisonment or otherwise is degrading, but socie­ty cannot be expected to tolerate without sanction breaches of the criminal law merely because pun­ishment degrades the criminal. What we are con­cerned with here is not mere degradation by which society expresses its reprobation of criminal behaviour but the extent of it, related of course to the offence and at times to the offender. The enormity and the irreversibility of a death penalty when carried out certainly bespeak its undue sever­ity in the abstract, but the present case is con­cerned with proportionality, with mandatory application of the death penalty not to an entire range of the most heinous of offences, that is, murder, but to particular and narrow instances of it specially selected by Parliament as meriting the drastic penalty of death.
The fact that Parliament has, since the hearing of these appeals, abolished the death penalty for any type of murder does not mean that this Court must, ex post facto, conclude that the death penal­ty as previously prescribed was "cruel and unusual punishment" so as to render the previous prescrip­tion inoperative. In exercising the jurisdiction over the operation and application of federal law, as committed to it under the Canadian Bill of Rights, this Court may certainly consider the course of parliamentary enactments and the state of the statute book as of the time when it comes to a decision, but it would abdicate its function if it surrendered to parliamentary policy without making an independent assessment of the compatibility of a particular policy, reflected in a chal­lenged statute, with the Canadian Bill of Rights, regardless of a subsequent change in that policy by Parliament. Such a change, always open the Par­liament, does not signal a previous abridgement of the Canadian Bill of Rights. The appellants and the intervenor would sub­sume the question of proportionality under what to them was the larger issue of penal policy, contend­ing in that connection that the purposes of punishment, conceived generally as being for the protec­tion of society through prevention, deterrence and reformation, would be equally well served by pro­viding for a lesser punishment, such as life impris­onment. They submit data designed to show that there is no convincing proof of general deterrence, so far as murder is concerned, by reason of the imposition of capital punishment. I do not (indeed it is impossible to) disagree with this contention, but it is based on two premises, neither of which I find acceptable.
The first of these is that the issue of cruel and unusual punishment in this case is to be resolved not only as a question of fact respecting deter­rence, but that the burden of proof (or disproof) is on Parliament. In my opinion, the data presented by the appellants and by the intervenor cannot have been lost on Parliament when it first nar­rowed the situations in which the death penalty for murder was mandatory and, more recently, abol­ished the death penalty for all types of murder. That did not mean, however, that Parliament acted on a firm basis of fact but rather that it considered the data in arriving at a legislative judgment, a judgment which cannot be said to have been limited by or to the factor of deterrence. Indeed, while I agree that there is no convincing proof of general deterrence as submitted by the appellants and the intervenor, it may equally be said, at least in respect of the narrow situations with which we are concerned in this case, that there is no convincing proof that deterrence has had no impact. The number of murders of policemen and prison guards has been, fortunately, rela­tively small, and there are no persuasive statistics for a conclusion one way or the other, certainly not a conclusion that Parliament could not reasonably believe, when it limited the mandatory death penalty to the murder of policemen and prison guards, that there would be a deterrent effect. There is no question of any burden of proof resting on Parliament, especially when dealing with a penalty that has been known and imposed mandatorily over so long a period.
This brings me to the second unacceptable premise which appears to be that deterrence should be the governing consideration in assessing the mandatory death penalty under s.2(b), and that small regard, at the best, should be paid to retribution or to the social outrage which may reasonably find expression in a penal policy of a mandatory death penalty for the murder of policemen and prison guards. It is not difficult to appreciate that the kind of revulsion that an order­ly society may feel against murder, and especially murder of policemen and prison guards, may express itself in a correspondingly severe sanction that would be deemed inappropriate for less griev­ous offences. In short, as was said by Justice Stewart in Gregg v. Georgia, "the decision that capital punishment may be the appropriate sanc­tion in extreme cases is an expression of the com­munity's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death" (44 U.S. LW at p. 5239).
It is certainly arguable that the mandatory death penalty, considered as mere vengeance, should be regarded as cruel and unusual punishment within s. 2(b), having regard to its enormity and its irreversibility, its incompatibility with any aim of rehabilitation and its physical and mental pain. I do not think, however, that it can be said that Parliament, in limiting the mandatory death penalty to the murder of policemen and prison guards, had only vengeance in view. There was obviously the consideration that persons in such special positions would have a sense of protection by reason of the grave penalty that would follow their murder and, further, that the mandatory penalty would be, to some extent at least, a deterrent as, for example, to a prison inmate already serving a life sentence but tempted to escape even if this meant committing murder. It was open to Parliament to act on these additional consider­ations in limiting the mandatory death penalty as it did, and I am unable to say that they were not acted upon. On this view, I cannot find that there was no social purpose served by the mandatory death penalty so as to make it offensive to s. 2(b).
The appellants sought to strengthen their posi­tion by invoking the public conscience or public morality as reflecting a revulsion against capital punishment. No doubt, this is a strongly held position by an undetermined section of the public so far as the death penalty in general is concerned but the issue is not so free of debate as to enable me to say that the moral position is clear. Indeed, I can, I believe, properly take judicial notice of the fact that there is a substantial opinion that the imposition of the death penalty for the murder of policemen or prison guards is neither shocking nor abhorrent. This is adequate ground for being wary about interfering with a legislative policy that prescribes the death penalty in such cases.
I wish, finally, to say a word about the recent Woodson and Waxton case. There the Supreme Court of the United States, by a bare majority, set aside mandatory death penalties imposed upon the petitioners under North Carolina law when they were found guilty of first-degree murder by reason of a killing in the course of a robbery. Again, as in Furman and in Gregg, seven members of the Court refused to hold that the death sentence was uncon­stitutional under any circumstances. However, three members of the Court who, with Justices Brennan and Marshall, formed the majority for the decision in the case, held that a mandatory death sentence for a broad category of homicidal offences was cruel and unusual punishment. In reaching this conclusion, the three Justices, Stewart, Powell and Stevens JJ., reviewed the history of the mandatory death penalty in the various states, a history which showed a progressive relaxation of mandatory imposition to enable juries to exercise discretion in individual cases. The Justices regarded this relaxation and the substitution of discre­tionary sentencing as indicating the aversion of society at large to the mandatory death penalty, and its reintroduction was not an adequate response to the vice of the legislation in the Furman case, namely that the discretion was unguided. A further element in the position of the three Justices was that the mandatory death sen­tence, having regard to the irretrievable nature of the death penalty compared with other forms of present-day punishment, did not leave room for individual assessment of each convicted person. As they put it,
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