COVER

The dead silence after midnight

JANE O'HARA,DANIEL BURKE October 8 1984
COVER

The dead silence after midnight

JANE O'HARA,DANIEL BURKE October 8 1984

HANGING

COVER

Robert Miller

More than eight years after it was abolished in law and almost 22 years after it was last used in a double execution in Toronto’s Don Jail, the hangman’s rope continues to cast a grim shadow across the Canadian political landscape. It swings back and forth over the national consciousness, twisting in the bitter wind of public opinion. And it seems certain to begin tightening next month when the new Progressive Conservative-dominated Parliament assembles amid mounting pressure for a free vote on the restoration of capital punishment. The issue—with all its attendant argument and emotion—is neither dead nor buried in Canada, despite the narrow (130 to 124) parliamentary decision after an impassioned 98hour debate in 1976 to retire the hangman, tear down the gallows and jail first-degree murderers for a mandatory 25 years.

Vengeance: Its opponents denounce capital punishment as a barbaric act of primal vengeance by the state, and they cite the terrible possibility of hanging an innocent person. The case of Donald Marshall Jr., the 31-year-old Cape Breton Indian who served 11 years for a murder he did not commit and who last week accepted $270,000 in compensation from the Nova Scotia government, was the latest reminder that the Canadian justice system is not infallible. And the most responsible supporters of capital punishment concede that there is no proof of the often-repeated claim that it acts as a deterrent to murder.

But there is renewed clamor from individuals and organizations alike for the restoration of the death penalty in Canada, and there is evidence that politicians are listening carefully—even to the point of rethinking their own long-

held views. Former Liberal cabinet minister Eric Kierans, for one, is a lifelong abolitionist who now says that he is wavering. Ontario Premier William Davis, for another, suggested on Sept. 19 that Parliament reconsider the question, saying many Canadians had “a very genuine concern” and that he would “explore my own conscience in some depth.”

The demand for a return to hanging stems from a variety of developments, including: a highly publicized string of recent slayings, most notably those of three Torontoarea policemen and two Manitoba prison guards; the conviction of the sociopathic mass murderer Clifford Olson, who killed 11 children in British Columbia between November, 1980, and July, 1981; and a growing public perception that a rising tide of violence is engulfing the country and ought to be combatted vigorously. Said Edmonton’s Robert Lunney, president of the 525member Canadian Association of Chiefs of Po§ lice, which has f; repeatedly called for res= toration: “There is a

well-defined ground swell of public opinion favoring capital punishment.” Added Metropolitan Toronto Police Chief Jack Marks, proposing a national referendum which the police chiefs’ group formally requested last week: “The issue of reinstalling the death penalty should be decided by the people. It is far too important an issue for politicians, lawyers or even policemen to decide.”

Because opinion polls consistently show that as many as 70 per cent of Canadians favor capital punishment for at least some murderers, many politicians agree with the police that Parliament should restore hanging. For now, Prime Minister Brian Mulroney and Justice Minister John Crosbie—both personally opposed to restoration—and Solicitor General Elmer MacKay—who

favors it—insist that the issue has a low priority for a new government preoccupied with the economy.

But at the same time, Mulroney, Crosbie and MacKay all are committed to allowing, sooner or later, a free vote—in which members of Parliament are governed by their consciences rather than party discipline—on the question of capital punishment. Traditionally, Tory back-benchers have tended to support hanging, while Liberals and New Democrats have tended to oppose it. And the preponderance of Tory members in the new Commons—the party holds 211 of the 282 seats—suggests that a bill to restore hanging would pass.

Indeed, such Tory back-benchers as Bill Domm (Peterborough) and Dan McKenzie (Winnipeg-Assiniboine) are planning to mount early campaigns in caucus for such a bill. One week after the Sept. 4 election, McKenzie wrote Mulroney that the issue was too important to be left until a later parliamentary session. Said McKenzie: “Canadians expect this vote immediately to quell the rising incidence of violence in the country.” But Mulroney, at his first full-scale press conference as Prime Minister, said in Ottawa on Friday that he opposed the police chiefs’ idea of a national referendum, and added that pro-restorationists “ought not to expect one [a vote on such a bill] this autumn.”

Obsolete: Still, the prospect of another debate and a possible reversal of the 1976 decision troubled church leaders and dismayed small-1 liberals. The Canadian Council of Churches in Toronto, which represents 13 Protestant denominations, and the Ottawa-based Canadian Conference of Catholic Bishops are both implacably opposed to the death penalty. Rev. Archibald McCurdy, a United Church of Canada minister and a member of the council’s Inter-Church Task Force on Responsible Alternatives to the Death Penalty, said capital punishment “cannot be substantiated logically, ethically or morally.” Said Roman Catholic Bishop Remi de Roo of Victoria, B.C.: “It is a form of vengeance which is obsolete in today’s world.” Declared Canadian Human Rights Commissioner Gordon Fairweather, a former Conservative member of Parliament: “I am appalled that this is an issue which has returned to the agenda in the 1980s. Back in 1976, I was delighted that Canada joined the ranks of the civilized.”

Among Western countries only Ireland, Liechtenstein and 38 of the 50 United States retain capital punishment for the crime of murder. Britain abolished hanging for all crimes except treason and piracy with violence in 1965. Since then, the British Parliament has defeated repeated attempts to restore the death penalty—the most recent of

which came in July, 1983, shortly after Conservative Prime Minister Margaret Thatcher swept back into office in a landslide. Although polls showed that British public opinion strongly favored restoration and Thatcher voted for capital punishment, the free vote was 368 to 223 against.

But legislators on both sides of the Atlantic have felt free to ignore public opinion on matters of personal conscience ever since English parliamentarian Edmund Burke’s famous 1774 declaration that he owed it to his Bristol constituents to exercise his own judgment (page 56). Indeed, Burke was frequently quoted by Canadian MPS who chose to ignore opinion polls in favor of their own consciences during the 1976 debate, a highlight of which was thenPrime Minister Pierre Trudeau’s eloquent intervention on behalf of the abolitionists. Demanded Trudeau, who drew support from both the Tory leader of the time, Joe Clark, and Clark’s predecessor as leader, Robert Stanfield: “Are we, as a society, so lacking in respect for ourselves, so lacking in hope for human betterment, so socially bankrupt that we are ready to accept state vengeance as our penal philosophy?”

Advocates: The opponents of hanging are eloquent—one British commentator describes the abolitionists as “an elitist conspiracy”—but its advocates are no less passionate and committed. They range from large and powerful lobby groups, including the police chiefs’ association, various police and prison guard unions and organizations representing victims of crime, to concerned individuals such as Valerie Daniels, 39, of Calgary. Daniels, who has worked in media promotion for radio stations but is currently unemployed, said that out of curiosity she attended a murder trial in January, 1983, and it changed her life. Robert Edward Brown, 32, a drifter from Athelstan, Que., and James Edward Peters, 29, a native of Beaverbank, N.S., were each sentenced to 25 years for raping and murdering two young women from the Calgary area. Daniels emerged from the court experience “quite horrified. I was angry at the vicious, brutal slayings.”

Daniels wrote a letter to the editor of the The Calgary Herald calling for the restoration of capital punishment and subsequently got in touch with Tory MP Gordon Taylor (Bow River), who was calling for the execution of Clifford Olson. In March, 1983, Daniels began spending her Saturdays standing in downtown Calgary’s Stephen Avenue Mall, collecting signatures on a petition calling for the return of capital punishment. To date, she has amassed names of 4,300 Canadians, which she has for-

warded to Taylor’s office.

Daniels quotes the Bible (“Whoever sheds the blood of man, by man shall his blood be shed”—Genesis 9:6) and argues that the resumption of capital punishment would act as a deterrent because murderers are cowards. “I think the individual who snatches children off the street, who leaps into a campground enclosure and who pulls up and fires on an unsuspecting police officer is a coward,” she said. “You have no choice but to stretch that neck to save another one.”

Deterrent: But many criminologists and other experts disagree, among them Montreal psychologist Paul Williams, executive director of the John Howard Society of Quebec, which deals with offenders’ problems both inside and outside prison. Said Williams: “In 20 years I never encountered a single convicted murderer for whom capital punishment would have worked as a deterrent. Almost always, murders are committed in a moment of uncontrollable emotion. The concern about capital punishment comes later.” Similarly, Fredericton criminologist Bernard Henheffer, 66, who once witnessed a hanging in New Brunswick, declared: “I was always opposed to capital punishment, but that experience firmed up my views as nothing else might have done. The sheer horror of seeing a person’s life taken from him is an experience one is not likely to forget.”

Like most criminologists, Henheffer, a former professor of criminology and penology at the University of New Brunswick, rejects the deterrent theory. And even Edmonton’s Chief Lunney conceded: “We cannot produce proof [of deterrence]. Statistically, it does not appear to be there.”

But he and most other policemen in Canada want the courts to have the capital punishment option. One reason: unhappiness with the 25-year mandatory sentence, which replaced hanging as the maximum penalty in Canada. Said Lunney: “The corrections people, the psychiatrists, the social scientists who work with the offenders who have been sentenced to these lengthy terms

are now telling us that they cannot handle that, the prisoners cannot handle that, the system cannot handle that.” For his part, Henheffer agreed, saying: “Imagine the hopelessness of someone confined to prison until 2009. How do you deal with that individual?” Jaime Llambías, a Montreal sociologist who visited the maximum security penitentiary at Dorchester, N.B., last year, told Maclean's that at least three “lifers” had declared: “This is worse than death. It is not worth living under these circumstances.” But many of the 1,530 inmates currently serving life sentences in Canada do not share that bleak view (page 54). The capital punishment arguments, pro and con, are being put forward against a statistical background that gives little comfort to the restorationists. The Canadian homicide rate per 100,000 of population reached its zenith in 1975, the year before Parliament abolished hanging. Since then the rate, which includes manslaughter and infanticide as well as murder, has declined to its 1983 level of 2.74 from 3.09 deaths for every 100,000 Canadians. There were 701 homicides in 1975 and 682 last year. From 1967 to 1976 Canada experimented with a partial ban on hanging, restricting the capital punishment option to judges sentencing persons for killing policemen and prison guards. But in the five years before Parliament’s 1976 abolition decision there were 15 police killings, compared to 18 in the subsequent five-year period.

Still, the late-summer series of murderous attacks on policemen triggered widespread outrage within the media and police forces as well as among the general public. Newspapers began editorial campaigns for the restoration of capital punishment. The police, supported by colleagues from across North America, staged massive funerals for their fallen colleagues. Roughly 4,000 policemen mounted an honor guard Sept. 21 in the Ontario community of Milton, 90 km northwest of Toronto, to pay tribute to Metropolitan Toronto Police Const. David Dunmore, 40, who was slain Sept. 18 by 18-year-old Gary White

in a wild shootout. White, dressed in army fatigues and carrying a Belgianmade semiautomatic rifle and 85 rounds of ammunition, was driving a stolen car, apparently on his way to shoot a former girfriend. He managed to wound two policemen besides Dunmore before he himself was shot and killed. Said an anguished Chief Marks, before renewing his call for a return to hanging: “What am I going to tell his [Dunmore’s] wife?”

Earlier, there were large honor guards at the funerals of Peel Regional Police Const. Dwayne Barry Piukkala, 24, stabbed on Aug. 26 while investigating a reported apartment burglary in Brampton, Ont., just west of Toronto, and for York Regional Police Const. Douglas Tribbling, 47, shot five times while responding to a burglary call on Aug. 19 in Markham, Ont., on Toronto’s northeastern outskirts. Police said Piukkala’s assailant shot himself with the policeman’s pistol after mortally wounding Piukkala with a knife. Tribbling’s killer or killers remained at large.

Outrage: There was further public outrage after two Nepean, Ont., policemen, Const. Robin Easey, 30, and Const. Ralph Erfle, 27, were seriously wounded in an ambush in a suburban Ottawa shopping centre on Sept. 1. The constables interrupted three men preparing to rob an armored car. Easey remains in grave condition in a coma. His wife, Glennis, told Maclean's that she had not come to terms with the question of capital punishment. “Honest to God, I don’t know if death is good enough,” she said. “I am still fighting for my husband’s life. I just take it day by day. I am up there at the hospital all day, by his side. I play his favorite music, wear his favorite perfume, wear his favorite color, talk to him about the children, things he knows about and likes. Then I go home for when the kids come home.”

Erfle killed one of Easey’s assailants, Mario Rouleau, 23, of Quebec City, at the scene. Four days later, police raided a Quebec City apartment and charged Robert Gagné, 29, with attempted murder. But a third suspect remained at large.

Although some proponents of capital punishment often cite police and prison guards as two occupations requiring special protection under the law, the police themselves disagree. Said Edmonton’s Lunney: “The Canadian police community has never been of the opinion that capital punishment should be an option reserved only for the killing of police officers or correctional guards. We feel that there are other cases, very extreme cases of murder, for which the capital punishment option would be appropriate.” Said Wayne MacKay of Halifax, a Dalhousie University law

professor specializing in criminology who is an opponent of capital punishment: “I have a difficult time setting up categories with punishments. Police are on the line, but do we want to say that a policeman’s life is worth more than someone else’s?” Said James Hackler of Edmonton, a University of Alberta criminologist: “Police have a boring job. They do not have a dangerous one. They don’t take the risks miners do.”

Supporting that view, Toronto lawyer Leo Adler, writing in the Sept. 27 edition of The Globe and Mail, declared: “Police officers are unique in our society and any violence they suffer rightly deserves to be examined with the aim of lessening their exposure to danger. But we must also keep in mind that as a profession a police officer is statistically safer than a fireman, a miner, a sailor or virtually any other employment that has an element of risk in it.”

Torture: But Halifax criminal lawyer Joel Pink said he believes in capital punishment. “I think everyone who kills a police officer or a prison guard deserves to be hanged,” he said. “Dorchester pen is an absolute hellhole. Put a guy in jail for 25 years without parole, that’s more like torture. Prison can be a slow death.”

But so can hanging. Since Confederation, there have been more than 700 hangings in Canada—the only method of legal execution ever used in the country—and not all of them were swift and efficient. In some cases hangmen have miscalculated to the point where condemned persons have strangled or, as in the case of Thomasina Sarac, who was 40 lb. heavier than the hangman expected at her 1935 execution in Montreal, were decapitated.

Indeed, hanging may be one of the most cruel and drawn-out forms of legal execution used in modern times. According to Henry Schwarzschild of New York City, director of the American Civil Liberties Union’s committee opposing capital punishment: “If Canada reintroduces the death penalty, I can hardly believe they will go with the gallows. It is such an unsatisfactory method. It is so ghastly. Often it doesn’t work properly and the guy just hangs there, choking to death, and the sheriff has to jump on his shoulders to kill him. It is so messy. In a hanging, the victim defecates and urinates over himself. It is seamy stuff.”

Of the 38 states that retain capital punishment—the United States Supreme Court ruled in 1976 that capital punishment was not unconstitutional on the grounds of the Eighth Amendment’s prohibition of “cruel and unusual punishment”—only Delaware, New Hampshire, Washington and Montana allow the gallows. Furthermore, Washington

and Montana offer the alternative of a lethal injection, and there have been no executions in New Hampshire and Delaware for more than 40 years. Of the others, 16 states use the electric chair, eight use the gas chamber, eight use lethal injections exclusively, and Utah and Idaho offer the condemned a choice between the firing squad and a lethal injection.

In the eight years since the Supreme Court ruling, before which there was a nine-year U.S. moratorium on executions, a total of 25 men have been put to death. During the same period, U.S. courts have imposed more than 4,000 death sentences, more than half of which were overturned or reduced on appeal. Now, said Schwarzschild, “the rate of executions is climbing very sharply.” But so is the population on socalled “death rows” in U.S. prisons, where an estimated 1,400 men and women await an uncertain fate. Among them is a 51-year-old grandmother, Marjie Velma Barfield, who was convicted of killing her fiancé with arsenic and whose death sentence became an issue in the North Carolina senatorial race between veteran Republican Jesse Helms and his Democratic opponent, Gov. James B. Hunt, Jr. Barfield is sentenced to die—by her choice of gas or lethal injection—on Nov. 2, four days before the election, and Hunt finally announced last week that he would not intervene to commute the sentence. If her execution proceeds, she will be the first woman put to death in the United States in 22 years.

Death row: Also on death row in the United States is at least one Canadian, Ronald Smith, 26, a native of Red Deer, Alta., who was convicted and sentenced to hang in Montana for the Aug. 4,1983, slaying of two young American Indians. Another Canadian, Stephen Beattie, of Hamilton, Ont., was sentenced to death in Florida for murdering his business partner and two women in 1978. He subsequently committed suicide, in 1981, by hoarding and then taking an overdose of prescription drugs. In a bizarre twist, while Beattie was on death row, his brother, Conservative MP Duncan Beattie (Hamilton Mountain), de-

clared his commitment to the idea of restoring capital punishment in Canada. Duncan Beattie lost his seat in the 1981 general election but won it back again last month, and last week he reiterated his support for a return to hanging in Canada. Said Beattie: “The demand from caucus could be so loud that the government will have no choice but to bring it before the House within the next year.”

If and when the Mulroney government allows a parliamentary debate leading to a free vote on the question of capital punishment, the possibility remains that the Supreme Court of Canada might overrule any subsequent death sentences. The new Charter of Rights and Freedoms specifically precludes “cruel and unusual punishment.” Said Senator Eugene Forsey, a constitutional authority and an abolitionist: “The government could put the question to the Supreme Court or let it come before the court in some particular case, when someone was about to be executed.” In fact, the Supreme Court ruled on the same issue in 1976, when it determined that hanging was not cruel and unusual punishment under the terms of Canada’s Bill of Rights. The difference now is the passage of the Charter in 1982.

Former solicitor general Warren Allmand, a Montreal Liberal, spearheaded the abolitionists’ case in 1976. Last week he recalled the drama leading up to passage of the abolition bill. Said Allmand: “It passed on July 14, 1976—Bastille Day, which I thought was rather significant. It was an important bill and there was a lot of excitement. I had said that if it was defeated, I would resign because you cannot administer a bill which you are opposed to. There was a lot riding on it.” There were 11 men on death row across Canada at the time whose cases were in suspension. Added Allmand: “If the bill had been defeated, some of them would have been subject to hanging. Some had killed policemen and guards, and their sentences could not have been commuted.” He has not changed his view on the subject. “You cannot run a country on revenge,” he said.

Indeed, the conflict between intellect and passion is one that has characterized previous debates on capital punishment and can be expected to characterize the next. Said Dalhousie University’s MacKay: “I think as a society we take a step back when we advocate the death penalty. Intellectually, this is the position I take. But I have a young baby and other kids, and if anybody ever murdered them, I don’t know what my position would be—which, of course, is the classic attack on liberals.” Added Montreal criminal lawyer Pierre Poupart: “Except just after the crime, when any human being would revolt and try to kill the murderer, life goes on. After a while the family realizes that all that could be done had been done.”

Victims: But Edmonton real estate agent Gary Rosenfeldt, whose 16-yearold son, Daryn, was one of Clifford Olson’s victims, argued that “there is a very small percentage of the population who are bleeding hearts.” Added Rosenfeldt, who is currently president of the Alberta chapter of the crime victims’ rights organization, Victims of Violence: “I cannot believe the thinking of these people that violence breeds violence. I believe that when you put a convicted murderer to death you are eliminating a blight from the country.” Rosenfeldt said he was shocked by Justice Minister Crosbie’s comment that the economy was the country’s number 1 priority. Said Rosenfeldt: “I thought, ‘Tell that to the family of the next murder victim.’ ”

The lawyer who defended Olson, Robert Shantz of Vancouver, said that Olson himself favors capital punishment. Declared Shantz, who described his former client as a sociopathic criminal: “He has always advocated capital punishment if you talk to him. You can sit down with him and he will say, T think they should kill all those crooks. It’s not safe out there.’ He says it without any real insight into the paradox he had put himself into.”

For his part, restorationist William Morrison, a sociology professor and chairman of the justice and law enforcement program at the University of Winnipeg, declared: “Mass murderers like Clifford Olson deserve no compassion from society. Keeping them alive is a waste of energy and money. Instead, the money should be spent on prevention and identification of potential murderers. Most young people who become murderers have a drive to hate and anger that brings them into contact with the law before they kill.” Added Morrison: “Parliament copped out the last time.”

With correspondents ’ reports.