The Death Penalty in Canada: Ethnicity, Abolition and the Current Debate1
Since Canada’s Confederation, 1,533 people have been sentenced to death, and 710 of those were executed (McKenzie, 1979, 2). All executions followed convictions for murder (with the exception of one conviction for high treason, of Louis Riel). Executions took the form of hanging. In examining Canada’s experience of capital punishment, it is important to consider the historical context since Confederation and the significant events, such as the North-West Rebellion, that took place. To give one example, in 1885, eight members of the Cree band were convicted of ‘massacr[ing] several whites’ during the North-West Rebellion and were consequently executed by public hanging (Anderson, 1973, 37). This is the largest mass execution recorded to have taken place since Confederation in 1867.
In examining the Canadian experience, many significant questions remain unanswered. For instance, how objectively was the death penalty administered, and how fairly was clemency granted or denied? The underlying relationship between Indigenous peoples and white settlers is an important context to bear in mind when examining the manner in which the death sentence was administered at the turn of the twentieth century. For the significant issue of state-sanctioned execution, it seems there has been limited scrutiny with regard to its historical application.
The aim of this chapter is to bring together multi-disciplinary commentary and government statistics which collectively trace the practice of capital punishment since Confederation. This chapter will provide an analysis of the application of the death sentence to ethnic minorities and females. The final section will consider contemporary issues. Although the death penalty was abolished in 1976, the Canadian government’s attitude in death penalty cases, as well as internationally, appears to be flailing somewhat.
This review begins with an examination of the historical context. Colonization and subsequent British rule have negatively impacted the lives of Aboriginal2 peoples, a trend which arguably remains today. For instance, Michael Jackson QC succinctly summarizes such effects:
The native people of Canada have, over the course of the last two centuries, been moved to the margins of their own territories and of our ‘just’ society. This process of dispossession and marginalization has carried with it enormous costs of which crime and alcoholism are but two items on a long list. (Jackson, 1989, 218)
The consequence of such marginalization is seen in the disproportionate over-representation of Aboriginal people in the criminal justice system and prisons. As the Supreme Court of Canada acknowledged in R v. Williams: ‘There is evidence that … widespread racism has translated into systemic discrimination in the criminal justice system.’3 Similarly, in R v. Gladue, the same court referred to the ‘drastic overrepresentation’ of Aboriginal people within the criminal justice system as a ‘crisis’.4 The Supreme Court of Canada summarized the context as follows:
The unbalanced ratio of imprisonment for Aboriginal offenders flows from a number of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for Aboriginal people. It arises also from bias against Aboriginal people and from an unfortunate institutional approach that is more inclined to refuse bail and to impose more and longer prison terms for Aboriginal offenders.5
Bearing the contemporary perception in mind, the relationship between the Aboriginal peoples and European settlers may have had an impact upon the application of the death penalty. For instance, Anderson (1973) describes how in 1852 the ‘lurking menace of powerful Indian tribes’ led to the shooting of a newly settled sheepherder. The two accused were tracked down, assembled on a ship at Vancouver Island for a brief trial, and executed the following day (Anderson, 1973, 21). In discussing the British Columbia experience of capital punishment in the period until 1870, Anderson concludes: ‘needless to say, the majority of victims were Indian’ (Anderson, 1973, 21).
Avio (1988) notes the apparent government policy of the Ministry of Indian Affairs to recommend against commutation of sentence because ‘special deterrence’ was required for this ethnic group (Avio, 1988, 341). Avio’s study relies on anecdotal evidence stemming from court transcripts of capital cases. It suggests there were racial undertones in the judges’ references to non-white offenders in capital cases. For instance, in a 1951 case, the victim was described as a ‘Chinaman’ (Avio, 1988, 341). In a subsequent 1953 case, a trial judge suggested that the defendant’s ‘Indian blood was inflamed with the beer he had drunk’, implying that ‘Indians’ were more aggressive than Anglo-Canadians (Avio, 1988, 341). Another judge in 1942 took exception to Eastern European immigrants:
We have in these Slavic immigrants in Western Canada many of [the offender’s] type, with low moral standards, a bullying cruel type, greatly given to drink, especially of the home brews they concoct. They quarrel and fight and have little regard for the consequences …. When they are crossed they seek reprisals and vengeance …. Fear of punishment is the only deterrent they regard with any respect.6
Boyd (1988, 61–2) makes similar assertions regarding prejudices against minority groups in both the trial and commutation process. He references three case files that raise such issues, respectively comprising a Jewish defendant, a homosexual and a defendant belonging to the Doukhobor sect. In each case, Boyd (1988) highlights how the defendant’s character was considered in terms of stereotypes pertaining to his religion or sexuality. In the first, the judge’s address to the jury and the submissions of defence counsel referred to the defendant and his witnesses as ‘Hebrews’. The judge stated: ‘I carefully instructed the jury that they were not in any way to be influenced by the fact that the witnesses for the accused were Hebrews …’.7 One may infer from this statement that public consciousness, including that of the judge himself, regarded a ‘Hebrew’s’ testimony as inferior to that of, for example, Christian members of the community. With regard to the second case file, Boyd criticizes the court proceedings for focusing on the homosexuality of the defendant (Boyd, 1988, 62). A psychiatrist testified at the trial, describing how the defendant ‘has shown features which I encounter typically in homosexuals’ (Boyd, 1988, 62). In this case, Boyd notes that a strong case was made to support a commutation of the death sentence to life imprisonment. The evidence apparently established a defence of provocation, influence of alcohol and actions carried in passion rather than cold blood. Despite these circumstances, the defendant was executed. The final case concerned an individual of the Doukhobor faith. Members of the Doukhobor community settled in British Columbia during the late nineteenth century, and remained an unpopular group into the mid-twentieth century. The case file records the police description of the defendant as a ‘typical Doukhobor’, and even defence counsel referred to Doukhobor witnesses as ‘inclined to colour their statements’ (Boyd, 1988, 107, 109).8 All three of these defendants were executed.
In some cases, it seems that rather than cast blame on minority groups, there may also have been an incentive on the part of the government to seek clemency. In the late nineteenth century, in cases concerning Aboriginal defendants, for instance, there may have been an underlying influence upon the decision maker to ‘keep the peace’. A letter dated 1894 from the Deputy Superintendent General of Indian Affairs in Ottawa made a plea for clemency regarding the case of ‘two Indians’ who were sentenced to death for ‘murder of a white man’.9 The letter suggested that there had been criticism relating to the ‘fairness of the law as applied to Indians’. The Deputy Superintendent reasoned as follows: ‘I would add an expression of my desire, that everything possible may be done in the premises consistent with the demands of justice, to maintain a state of good feeling between the Indians and the white people in British Columbia.’10
This bid for clemency was successful, as Peter and Jack had their sentences commuted to life imprisonment.
Carol Strange (1992) considers death sentences in Aboriginal cases to reflect ‘wilful indifference toward inter-Native conflict’, as well as ‘example making’ in the cases where white people were the victims (Strange, 1992, 12). This statement is certainly highlighted in the case of Louis Riel, who was convicted of treason following the North-West Rebellion in 1885. This rebellion involved armed conflict between Métis people, who were defending their right to self-governance against the Canadian government (Strange, 1992, 9). Louis Riel was executed by public hanging. Eight more Aboriginal people were also executed following convictions for murder, during events that led to the armed conflicts of the North-West Rebellion. The prime minister of the time made this remark about Louis Riel: ‘the execution of the Indian … ought to convince the Red man that the White man governs’.11
Contrarily, clemency may also have been applied in a way that perpetuated overt racism. Strange argues that the application of clemency was selective, and based in some cases on ‘racist paternalism’ (Strange, 1992, 11). Specifically, she argues that murders that were carried out as part of ‘traditional rituals’ with the intention of dispensing evil spirits were treated more leniently (Strange, 1992, 11). Strange’s overarching argument is that the practice of execution in Aboriginal cases was first used to oppress these peoples, and subsequently to placate them with the full force of the law (Strange, 1992, 12).
The case of Donald Marshall, Jr involved the realization of a wrongful conviction of an Aboriginal person as a result of racism at every stage of the criminal justice process. In 1971, Marshall was convicted of murder (at this time the Canadian government had imposed a moratorium on the death penalty). Marshall was later acquitted in 1983, after serving 11 years in prison. The Royal Commission tasked with determining why he was wrongfully convicted made critical findings against Canada’s criminal justice system:
The tragedy of this failure is compounded by evidence that this miscarriage of justice could – and should – have been prevented, or at least corrected quickly, if those involved in the system had carried out their duties in a professional and/or competent manner. That they did not is due, in part at least, to the fact that Donald Marshall, Jr. is a Native. (Royal Commission on the Donald Marshall Jr Prosecution, 1989, 1)
This potential arbitrary application of the death penalty is also demonstrated by the recent public ‘expression of regret’ by the British Columbia provincial government relating to two Aboriginal men now considered to have been wrongly executed in 1869 (CBC News, 2012).
Further to ethnicity, gender also seems to have influenced the manner in which the death penalty was administered in Canada. The application of the death penalty to women has been criticized for its chivalrous undertones (Erickson, 2011). Erickson notes that in the Prairies region of Canada between 1912 and 1942, 12 women were sentenced to death, but only two were executed (Erickson, 2011, 213). She attributes this selective leniency to the chivalrous attitudes that permeated the appeals put forward by the public, the media, pressure groups, and ultimately, the clemency decision-maker (Erickson, 2011, 213). She also points out for comparison that in the same period, 58% of men in the region who were sentenced to death were executed (Erickson, 2011, 213).
Canadian courts have considered the potentially arbitrary application of the death penalty. In 1975, the British Columbia Court of Appeal examined the lawfulness of the death penalty in the case of Miller and Cockriell. The appellants sought to challenge their death sentences on the ground, inter alia, that capital punishment had become unlawful, in violation of the prohibition against cruel and unusual treatment under the newly introduced Bill of Rights.12 The appeal was unsuccessful at the British Columbia Court of Appeal and subsequently at the Supreme Court of Canada. Interestingly, at the Court of Appeal level, Justice McIntyre (dissenting) suggested that the granting of mercy in capital cases was arbitrarily applied. Firstly, he argued that women were more likely than men to be granted mercy: ‘My examination of Canadian statistics entered into evidence indicates that the same inequality has appeared in Canada. Since 1867, 669 men and 12 women have been executed in Canada. The conclusion that some element of arbitrary choice contributed to this disparity is in my view inescapable.’13
Secondly, Justice McIntyre found no difference between the circumstances of those whose sentences were commuted and those who were executed.14 Building on these findings, one explanation may be provided by Chandler (1976). Following a statistical analysis of capital cases, he concluded that ethnicity affects the final disposition in capital cases in Canada. Chandler points out that whites of English or Scottish origin were under-represented in executions and overrepresented in commutations (Chandler, 1976, 216). Contrarily, ‘blacks’ and Germans were associated with the converse trend (Chandler 1976, 216). Avio (1988) made similar findings as to the disparity in the commutation of sentences with reference to gender and ethnicity. He concluded that this was ‘inequality of treatment based upon gender’, and also found the ‘unprincipled factor’ of ethnicity to play a role (Avio, 1988, 339–40). In examining archival files and controlling for all other factors, he found that an individual classified as ‘Native’ was six times more likely to be executed compared to Anglo-Canadians (Avio, 1988, 340). Furthermore, men were 17 times more likely to be executed in comparison to women. Comparisons of ‘non-white’ offenders to ‘white’ offenders revealed that ‘non-whites’ were 14 times more likely to be executed (Avio, 1988, 340–41). He also found higher likelihoods of executions for other ethnic groups (mainly Eastern European nationalities) (Avio, 1988, 340–41).
There are limited statistics within government records pertaining to the representation of Aboriginal people amongst those sentenced to death. This gap in statistics is perhaps due to the fact that the death penalty has been abolished for some thirty years, and as such, it may no longer be considered a pressing issue. As discussed, research exploring ethnicity and gender as they intersect with the application of the death penalty has been undertaken, but with reference to specific time periods. Avio’s (1988) review of archival case files was limited to the period 1926–57. Chandler (1976) reviewed cases in the period 1946–67 with reference to the final commutation decisions of capital defendants (Chandler, 1976: 216). With these studies in mind, the following section will consider the representation of ethnic and gender groups within capital cases and the number of executions for the broader period 1867–1976.
The basis of this discussion is a list compiled by Archives Canada (Gadoury and Lechasseur, 1994). It purports to be a complete list of capital defendants and final dispositions for all Department of Justice capital files since Confederation in 1867. For the purpose of this section, this list will be referred to as ‘the data’.
The data comprises 1,533 capital defendants. The ethnic origin of the defendant is listed in 53% of the case references. Execution is recorded as the final result in 675 cases (44% of capital cases). It is expected that some executions were not recorded in the original case files, as the official number of executions is 710 (McKenzie, 1979). Most of these may be accounted for in noting that 31 cases reference the interrogative term ‘hanging?’ under the ‘Result’ heading.
The majority of offences are convictions for murder. A small number of defendants were convicted of rape (28), piracy (four), high treason (two) and burglary (three).
This analysis assumes that the data, as well as the individual files of the Department of Justice, are accurate. In accepting the data as such, the following limitations are borne in mind:
• The description of an individual as ‘Indian’ is referenced, but it is not clear whether every Aboriginal defendant was consistently categorised as such in the original case files.
• There are references to ‘Negro’ and ‘coloured’ defendants, but no references to ‘white’ defendants.
• There are references to the nationality of the defendant when he or she is non-Canadian or French-Canadian, but there are no references to ‘Canadian’ defendants.
• The level of detail relating to the crime varies, and little is known about the characteristics of victims.
• In some cases, information is missing – such as the final disposition or details of the crime.
It is also important to consider that there many factors that play a part in the final disposition of death penalty cases, such as government policy and changes to the law. For example, in 1961, the Criminal Code was amended by Bill C-92, which divided murder offences into capital and non-capital offences. The former retained the mandatory sentence of death, and the latter entailed life imprisonment (Jayewardene, 1977, 3). This amendment was passed at a time when the abolition movement was gaining stride. Indeed, the last executions took place in 1962, and in 1964, all death sentences were commuted to life imprisonment (Jayewardene, 1977, 4). Another factor to consider is that different governments of the time may have shown varying amounts of leniency (Boyd, 1988). During 1952–57, the Liberal Louis St. Laurent government commuted 45% of capital cases (Boyd, 1988, 32). The subsequent conservative government of Diefenbaker increased the rate of commutations during 1958–62 to 82% (Boyd, 1988, 32). Prior to 1952, commutation was far less frequent (Boyd, 1988, 32).
With these limitations in mind, an overview will be undertaken to assess the demographics of capital defendants in Canada, during 1867–1976. The aim of this discussion is to broadly explore the application of capital punishment as it intersects with ethnicity, country of origin and gender.
Capital defendants are grouped below according to ethnic origins. Only groups representing more than five capital defendants are included. For this analysis, cases within the data that reference the defendant as ‘Indian’ or ‘Eskimo’ are grouped together as ‘Aboriginal’. References to ‘half-blood’, ‘negro’, ‘coloured’ or ‘mulatto’ are similarly grouped together as ‘people of colour’. Further investigation would be needed to ascertain the extent to which such labels were emphasized during the trial and commutation process. The final disposition (executed, commuted or other15) for each group is also tabulated.