Miller et al. v. The Queen, [1977] 2 SCR 680

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Amendment Act (No. 2), 1976, was enacted, whereby, inter alia, the death penalty provisions of the Criminal Code were repealed.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

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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

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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

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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.]

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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,

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

[Page 697]

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

[Page 698]

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,

While the prevailing practice of individualizing sen­tencing determinations generally reflects simply enlight­ened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment … requires consideration of the character and record of the individual offender and the circumstances of the par­ticular offence as a constitutionally indispensable part of the process of inflicting the penalty of death.

Justice Stewart, who wrote the reasons in which Justices Powell and Stevens concurred, made an express reservation in a footnote of "a mandatory death penalty statute limited to an extremely narrow category of homicide, such as murder by a prisoner serving a life sentence, defined in large part in terms of the character or record of the offender", and stated that no opinion was being expressed as to the constitutionality of such a statute. Whether the Canadian statute in issue here would, if found in the United States, lead to a different result than that reached in Woodson and Waxton may be speculative, especially in view of the decision of the Supreme Court of the United States in the companion case of Jurek v, Texas where a Texas statute limiting the death penalty to five specific situations, was upheld; but it should be noted that the gist of that decision (from which only Brennan and Marshall JJ. dissented) lay in the view of the Court that the capital sentencing procedure prescribed by the statute met constitu­tional standards by requiring what was referred to as "individualized sentencing determinations".

[Page 699]

The Canadian Criminal Code's death penalty offences are not only narrower than those in Jurek v. Texas but, what is more, there is no such legislative history in Canada, as there is in the United States, of a discretionary sentencing proce­dure in respect of the death penalty, exhibiting over the years a move away from provisions which originally prescribed mandatory death sentences.

It is also I think of prime importance here that the widest judicial review is open in capital cases; there is an unqualified right of appeal by an accused to this Court on any ground of law or fact or mixed law and fact: see Criminal Code, s. 619. I am, therefore, unable to accept the reasons given in Woodson and Waxton against the constitution­ality of a mandatory death sentence as having persuasive force here. The considerations which underlie the reasons of Stewart J. do not apply here, having regard to our history, the limited range of capital offences, the absence of any prac­tice of jury sentencing and the broad scope of judicial review, not to mention the reserve power of the Government to commute death sentences.

The same observations apply to the majority judgment of the Supreme Court of the United States in Roberts v. Louisiana which concerned a mandatory death penalty statute narrower in its definition of first-degree murder than that in the Woodson and Waxton case and where the result was the same as in that case. The Louisiana statute involved in the Roberts case is broader in its definition of death penalty offences than the Canadian provision in issue here, but like the Canadian provision it makes the death penalty mandatory for those offences, whereas previously the jury was authorized to return a verdict of "guilty without capital punishment". In comment­ing on this change in the law, White J. in his dissenting reasons, concurred in by the Chief Jus­tice and by Justices Blackmun and Rehnquist, observed:

[Page 700]

The difference between a jury having and not having the lawful discretion to spare the life of the defendant is apparent and fundamental. It is undeniable that the unfettered discretion of the jury to save the defendant from death was a major contributing factor in the developments which led us to invalidate the death penal­ty in Furman v. Georgia. This factor Louisiana has now sought to eliminate by making the death penalty com­pulsory upon a verdict of guilty in first-degree murder cases. As I see it, we are now in no position to rule that the State's present law, having eliminated the overt discretionary power of juries, suffers from the same constitutional infirmities which led this Court to invali­date the Georgia death penalty statute in Furman v.

Georgia.

I refer to one other matter dealt with by White J. because it relates to submissions made by the intervenor in the present case respecting the allegedly arbitrary imposition of the death penalty because of (1) prosecutorial discretion in the choice of a charge and in acceptance of a plea of guilty to a lesser charge and (2) jury "discretion" in the range of verdicts open to it on a charge of murder. These submissions were also made in Roberts v. Louisiana and, in my opinion, were effectively disposed of by White J. in his reasons at pp. 5287 and 5288 of 44 U.S. LW. The discretion of a prosecutor is part of the normal criminal process and it cannot be assumed that it will be incompetently or dishonestly exercised. Again, juries do not have unfettered discretion to convict of a lesser included offence but must be guided by the evidence, and the Criminal Code provisions for review by appellate courts are there to ensure against unreasonable or unfounded jury verdicts.

None of the contentions made against the death penalty in the present case persuades me that it is cruel and unusual punishment within s. 2(b) of the Canadian Bill of Rights, and I would reject this ground of appeal.

As to the other grounds urged in this Court, I am in agreement with my brother Ritchie that

[Page 701]

there is no reversible error, and I would, accord­ingly, dismiss the two appeals.

The judgment of Martland, Judson, Ritchie, Pigeon and de Grandpré JJ. was delivered by

RITCHIE J.—These are appeals from a judg­ment of the Court of Appeal of British Columbia dismissing the appeals of the two appellants from their conviction at a trial held before Mr. Justice Kirke Smith sitting with a jury, 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 in the County of Westmin­ster in the Province of British Columbia on March 29, 1974.

In rendering judgment on behalf of the majority of the Court of Appeal of British Columbia, Rob­ertson J.A., considered six grounds of appeal alleg­ing errors in the charge of the learned trial judge and also a seventh ground which was set out in the factum filed on behalf of Cockriell as follows:

7. It is respectfully submitted that the provisions of the Criminal Code, R.S.C. 1970, c. C-34 and amend­ments thereto relating to murder punishable by death are rendered inoperative by reason of their infringement of section 2(b) of the Bill of Rights, R.S.C. 1970, Appendix III.

The majority of the Court of Appeal found that s. 2(b) of the Canadian Bill of Rights did not have this effect and accordingly when the present appeals were asserted to this Court, the same question, being one of law, was asserted as a ground of appeal and was phrased as follows:

The majority of the Court of Appeal for the Province of British Columbia erred in holding that the death penalty is not cruel and unusual punishment within the meaning of Section 2(b) of the Bill of Rights, being R.S.C. 1970, Appendix III; and that accordingly the said majority of the Court of Appeal for the Province of British Columbia erred in holding that Section 214(2) and Section 218(1) of the Criminal Code of Canada, being R.S.C. 1970, C-34 and amendments thereto (namely S.C. 1973, c. 38 section 2(2) and Section 3(1)) were not inoperative by virtue of the application of the said Section 2(b) of the Bill of Rights.

[Page 702]

In view of the far-reaching importance of this submission the Attorneys General of the Provinces were advised that it would be raised on this appeal and the Province of Newfoundland intervened in accordance with Rule 60 of the Supreme Court Rules and was represented at the hearing. Leave was also granted by Mr. Justice Spence for the intervention of the Canadian Civil Liberties Asso­ciation. For these reasons, and in view of the fact that the dissenting judgment of McIntyre J.A., in the Court of Appeal, is based almost exclusively on this ground, it appears to me to be desirable to deal with it before considering the errors alleged in the charge to the jury, all of which were also argued at length.

The relevant portions of the sections of the Criminal Code which the appellants allege to have been rendered inoperative by the Canadian Bill of Rights read as follows:

214. (1) Murder is punishable by death or is punishable by imprisonment for life.

(2) Murder is punishable by death, in respect of any person, where such person by his own act caused or assisted in causing the death of

(a) a police officer, police constable, constable, sheriff, deputy sheriff, sheriff's officer or other person employed for the preservation and maintenance of the public peace, acting in the course of his duties, ... or counselled or procured another person to do any act causing or assisting in causing the death.

(3) All murder other than murder punishable by death is punishable by imprisonment for life. [1973, c. 38, s. 2.]

218. (1) Every one who commits murder punishable by death is guilty of an indictable offence and shall be sentenced to death.

The section of the Bill of Rights which is invoked by the appellants reads as follows:

2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular,

[Page 703]

no law of Canada shall be construed or applied so as to .. .

(b) impose or authorize the imposition of cruel and unusual treatment or punishment .. .

It is to be remembered that the expression "law of Canada" as used in the Bill of Rights is defined in s. 5(2) as meaning "an Act of the Parliament of Canada enacted before or after the coming into force of this Act ...".

The effect of s. 2(b) of the Bill of Rights must be considered in light of s. 1 which provides:

1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and funda­mental freedoms, namely,

(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;

(The emphasis is my own.)

At the outset it should be stated that these reasons for judgment are not concerned with the moral issue involved in the retention or abolition of capital punishment.

The answer to the question of whether or not the death penalty sections of the Criminal Code are to be retained as a feature of the administration of justice in Canada lies with Parliament, and since the hearing of this appeal Parliament has repealed those sections, but the question of whether, at the time when this murder was committed and the appellants were tried, convicted and sentenced to death, Parliament had already, by enacting s. 2(b) and s. 5(2) of the Bill of Rights "recognized and declared" that no law of Canada was to be applied so as to impose punishment by death, is a question for the Courts and this was the only question argued in this area in this appeal.

I subscribe to the analysis of the meaning and effect of ss. 1 and 2 of the Bill of Rights to be found in the reasons for judgment of Mr. Justice Martland, speaking for the majority of this Court

[Page 704]

in The Queen v. Burnshine[16], at p. 705 where, after noting that the Bill of Rights "by its express wording ... declared and continued existing rights and freedoms", he went on to say:

It was those existing rights and freedoms which were not to be infringed by any federal statute. Section 2 did not create new rights. Its purpose was to prevent infringement of existing rights. It did particularize in paras. (a) to (g), certain rights which were a part of the rights

declared in s. I . The declaration of the right of the individual not

to be deprived of life which is contained in s. I (a) is clearly qualified by the words "except by due process of law", which appear to me 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 and, in my view, 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 as I do 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. As I have said, the abolition of the death penalty is a matter for Parliament and is not to be achieved by such an oblique method as that sug­gested by the appellants.

In seeking to determine the intention of Parlia­ment in enacting s. 2(b), I think it is pertinent to observe that since the Bill of Rights was enacted Parliament had amended the provisions of the Criminal Code defining the types of culpable homicide which are punishable by death on three occasions. In this regard it must be noted that

[Page 705]

within a year after the Bill of Rights had been enacted, the same Parliament passed An Act to amend the Criminal Code by 1960-61 (Can.), c. 44, and by s. 2 re-enacted s. 206(1) of the former Code in the following terms:

Every one who commits capital murder is guilty of an indictable offence and shall be sentenced to death.

The death penalty was also recognized in the amendments to the Criminal Code, 1967-68, c. 15, and 1973-74, c. 38, by which ss. 214 and 218 were enacted as they existed at the times relevant to this appeal. None of these amendments contained any declaration that it was to operate notwithstanding the Bill of Rights.

In my view the fact that Parliament saw fit to retain the death penalty as part of the Criminal Code after the enactment of the Bill of Rights constitutes strong evidence of the fact that it had never been 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. I cannot accept that proposition.

For these reasons I have concluded that 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 that it was neither the intention nor the effect of that section to render inoperative the death penalty provisions of the Criminal Code.

Having reached this conclusion I do not find it necessary, in considering the meaning of "cruel and unusual treatment or punishment" as employed in s. 2(b) of the Bill of Rights, to make any assessment of current community standards of morality or of the deterrent effect of the death penalty. These matters in my view raise what are essentially questions of policy and as such they are of necessity considerations effecting the decision of

[Page 706]

Parliament as to whether or not the death penalty should be retained; but in the view which I take they do not arise in considering the question of law here at issue which is whether the provisions of s. 2(b) of the Bill of Rights preclude the imposition of punishment by death for murder of a police officer as provided in ss, 214 and 218 of the Criminal Code in force at the time of this murder.

In my opinion the words "cruel and unusual" as they are employed in s. 2(b) of the Bill of Rights are to be read conjunctively and refer to "treatment or punishment" which is both cruel and unusual. In this latter regard I share the view of Mr. Justice Robertson that, having regard to the fact that the death penalty for murder had been a part of the law of England from time immemorial and that, at the time when this murder was com­mitted and the trial was held, it had been a feature of the criminal law of Canada since Confedera­tion, it cannot be said to have been an "unusual" punishment in the ordinary accepted meaning of that word.

The dissenting reasons for judgment of Mr. Justice McIntyre, are, however, predicated on his conclusion that the death penalty constitutes cruel and unusual punishment. This opinion is in large measure based on decisions rendered by the Supreme Court of the United States in construing the words "cruel and unusual punishment" as they occur in the 8th and 14th amendments to the United States Constitution, and he places great reliance on the case of Furman v. The State of Georgia[17], where it was held that the imposition of the death penalty did constitute cruel and unusual punishment. Even if I found it necessary to enter upon a discussion of these cases in the United States Supreme Court, I would be disinclined to adopt them as applicable in interpreting s. 2(b) of the Canadian Bill of Rights.

Although the phrase "cruel and unusual punish­ments" is to be found in the English Bill of Rights of 1688 and the use of the words "cruel and unusual" in this context in both the Canadian Bill of Rights

[Page 707]

and the United States Constitution no doubt owes its origin to that source, I am nonethe­less satisfied that these two latter documents differ so radically in their purpose and content that judgments rendered in interpretation of one are of little value in interpreting the other. In view, however, of the stress placed on the case of Furman in Mr. Justice McIntyre's decision, I think it perti­nent to observe that since the argument of this appeal the United States Supreme Court has ren­dered decisions holding that "the imposition of the death penalty is not per se cruel and unusual punishment violative of the 8th and 14th amend­ments". I refer particularly to the cases of Gregg v. Georgia; Roberts v. Louisiana, and Woodson et al. v. North Carolina, all of which were decided on July 2, 1976, and which also recognized that the mandatory death penalty imposed in certain States did violate the provisions of the Constitution to which I have referred.

The circumstances surrounding the death of the police officer in this case and the course of the joint trial of the two appellants before Mr. Justice Kirke Smith are set out at length in the reasons for judgment delivered by Robertson J.A. which are now conveniently reported at pp. 2 to 61 of [1975] 6 W.W.R., (hereinafter referred to as "the Report") and I am accordingly relieved of the task of restating them in detail. The case presented by the Crown is fully described at pp. 7 and 8 of the Report, and the essential facts appear to me to be that the appellants, who were jointly charged with "murder punishable by death", had been together in an automobile in the early hours of March 29, 1974, after having spent the previous evening drinking at a beer parlour and at the home of some friends. The evidence admitted at the trial indi­cates that they bore a grudge against the police and having talked of shooting a police officer, they took with them a loaded rifle and drove the car to the Town of Cloverdale where they intentionally drew themselves to the attention of the police by their method of driving and by the appellant Cock­riell throwing a beer bottle out of the car through the window of the local Court House. When a police officer followed them in his police car with flashing lights Miller, who was driving, pulled over to the shoulder of the road and stopped. When the

[Page 708]

police officer got out of his car and came over to ask Miller for his driver's licence and then asked him to get out of his car, the loaded, cocked rifle which was resting on Miller's arms was discharged by Cockriell pulling the trigger. The bullet struck the police officer in the chest causing his death.

The defences of the two appellants are described at p. 4 of the Report of Mr. Justice Robertson's reasons as follows:

The theory of Miller's defence was that he never intended anything by what he said about shooting a policeman: it was drunk talk; that he was too drunk to form the intention to shoot the policeman; that he had no idea that Cockriell would ever do such a thing and that what Cockriell did was an accident; and that in fact Miller did not do it.

The theory of Cockriell's defence was that he never formed any intention to shoot a policeman: his talk was just drunk talk for the purpose of attracting attention; that he did not know the gun was loaded; that if he ever had any intention, he had abandoned it before the event; and that in any event the rifle was discharged by accident. (He did not rely on drunkenness.)

The defence of abandonment was advanced in this Court on Cockriell's behalf, but there is no evidence to indicate that he at any time com­municated "his intention to abandon the common purpose" to his associate, Miller, and "timely com­munication" of such intention amounting, where "practicable and reasonable", to "unequivocal notice" has been characterized as "an essential element" of this defence by Sloan J.A. in R. v. Whitehouse (Elias Savage)[18], at pp. 115 and 116. This view was recently unanimously adopted in the Court of Criminal Appeal in England in R. v. Becerra and Cooper, decided on December 16, 1975, but as yet unreported, and as I share it, I cannot find any ground for holding that Cockriell had abandoned his intention to associate himself with the criminal purpose before the crime was committed.

The learned trial judge refused to order separate trials for the appellants or to sever their defences,

[Page 709]

and after a lengthy trial the jury convicted both Miller and Cockriell.

In appealing to the Court of Appeal the errors alleged in the conduct of the trial concerned a failure so to order separate trials and separate defences, alleged misdirection as to the admissibil­ity and use of certain evidence, failure to review the theories of the defences and misdirection as to drunkenness in the case of Miller.

In the course of his reasons for judgment in the Court of Appeal, Robertson J.A. expressed the opinion that the trial judge should have instructed the jury specifically that

... Miller could, though otherwise guilty of the same offence, [i.e. murder] be convicted of manslaughter if the jury were of the opinion that, because of drunken­ness, he was unable to form the necessary intent.

He went on to say:

However, in view of the fact that earlier the Judge had stated the proposition correctly, and of the fact that the evidence showed only some degree of effect on Miller of the beer that he had drunk, I cannot consider the error to be of significance.

Mr. Justice Robertson went on to say at p. 43 of the Report:

Limiting myself to the arguments presented, I can see no error in the charge on the verdicts that were open, except for the misdirection I have referred to with respect to Miller and drunkenness. However, in my consideration of the record to ascertain whether there are present any other grounds upon which either of the convictions ought to be set aside, there has occurred to me a point that, in my respectful opinion, indicates a misdirection of the jury by the learned trial Judge in his charge, particularly with respect to Miller.

This latter point concerned the interaction of s. 214 and s. 21 of the Criminal Code which reads as follows:

21. (1) Every one is a party to an offence who

(a) actually commits it,

(b) does or omits to do anything for the purpose of aiding any person to commit it, or

(c) abets any person in committing it.

[Page 710]

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

This further ground which presented itself to Mr. Justice Robertson is summarized at pp. 44 and 45 of the Report where he says:

There is a marked difference between parts of s. 214(2) and parts of s. 21. The latter has not anywhere in it the words "by his own act". Section 214(2) uses the words "assisted", "counselled" and "procured", while s. 21(1) uses the words "aiding" and "abets".... Section 21(2) (which does use the word "assist") can have no application to the first class of murder in s. 214(2) because it is designed to make responsible as a party one who has not "by his own act" committed the offence and so is inconsistent with that class. Section 214(2) is, therefore, its own code and neither subsection of s. 21 can be applied to it. But there is nothing in s. 21 that is inconsistent with s. 214(3) and so s. 21 may be applied in a case of murder punishable otherwise than by death.

It follows that, where a person commits the murder of a police officer acting in the course of his duties but the case does not fall within s. 214(2), it will fall within s. 214(3) and the murder will be punishable by imprisonment for life.

In concluding his observations in this regard, Mr. Justice Robertson says of the trial judge at p. 50:

He later instructed the jury that the verdicts that it was open to them to find were guilty of murder punishable by death, guilty of manslaughter and not guilty. He said nothing about guilty of murder punishable by imprisonment for life being a verdict open to the jury in the case of Miller, and this was error, as I have shown.

The authories [sic] to which reference is made in support of this argument are R. v. Côté[19], and R. v. Black[20], both of which are concerned with the effect of s. 202 of the former Criminal Code (1953-54 (Can.), c. 51)

[Page 711]

and in each of which the alleged murder had been committed in the course of robbery. With the greatest respect, I do not consider these authorities to be applicable to the present circumstances and I would not wish to be taken as affirming the reasons for judgment of the majority of the Court of Appeal in this regard.

In any event, after a careful review of all the grounds of appeal taken by each appellant, Mr. Justice Robertson saw fit to apply the provisions of s. 613(1)(b)(iii) of the Criminal Code and found that no substantial wrong or miscarriage of justice had occurred. The following passage appears at p. 59 of the Report where he said:

Earlier in these reasons I set out a number of passages from the evidence of the two accused given under oath in open court at the trial and I followed them with a summary that began with this sentence: "This evidence of the accused themselves (with the gaps filled in by other evidence about which there is no dispute) presents a damning prima facie picture of a deliberate murder". Without more, that body of evidence is such that no jury properly instructed could reach any conclusion but that both accused were guilty. It is so complete that nothing in the post-arrest statements that was not either repeated or confirmed in the accuseds' evidence at trial added anything of an inculpatory nature to which there was any substantial significance.

In applying the provisions of s. 613(1)(b)(iii) of the Criminal Code, Mr. Justice Robertson found that the Crown had discharged the onus which is now generally accepted as the test in such cases and which was stated by this Court in Brooks v. The King[21], and recently restated by Mr. Justice Spence in Ambrose v. The Queen, as yet unreported[22]:

... the onus is upon the Crown to satisfy the Court that the jury, charged as it should have been, could not, as reasonable men, have done otherwise than find the appellant guilty.

The penultimate paragraph of Mr. Justice Rob­ertson's reasons for judgment, with which I agree, is phrased as follows:

[Page 712]

I can now answer the questions that I put to myself and my answers are these. Had there been no misdirec­tion; (i) the verdicts would necessarily have been the same; (ii) the jury, as reasonable men, could not have done otherwise than find the accused guilty; and (iii) there is no possibility that the jury would have had a reasonable doubt as to the guilt of either of the accused.

For all these reasons I would dismiss this appeal.

In conclusion it appears to me to be desirable to consider the "transitional" provisions of the Criminal Law Amendment Act (No. 2), 1976, being the statute repealing the death penalty provisions of the Criminal Code which was enacted after the hearing of these appeals and to which reference is made in the earlier part of these reasons. The relevant provisions are found in s. 25(1) and (2) of that Act.

Section 25(1) reads as follows:

25. (1) If, on the day this Act comes into force, any person is under a sentence of death for murder punishable by death that has not been commuted, 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.

This section applies to any person under sentence of death at the time when the Act "comes into force" whose sentence has not been commuted, and I think that such a person is to be taken as being one who has either not appealed against conviction or whose rights to appeal have been exhausted or abandoned before seeking to invoke the authority of the Governor in Council to com­mute the sentence in accordance with s. 684(1) of the Code. On the other hand the case of persons like the appellants who have appealed and whose appeals have not been disposed of until after the coming into force of the Act, is separately dealt with under s. 25(2) which in my view applies directly and with full force to the present case. That section reads as follows:

25. (2) 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

[Page 713]

for first degree murder without eligibility for parole until he has served twenty-five years of his sentence.

The Act of which this section is a part came into force on July 26, 1976, (Canada Gazette, Part II, vol. 110, No. 15), at which time an appeal was outstanding against the convictions of the two appellants for "murder punishable by death" and they were both "under sentence of death". It follows that if these appeals are dismissed the sentences of death will thereupon become sen­tences of imprisonment for life for first degree murder without eligibility for parole until they have each served twenty five years of their respective sentences.

There is no doubt that the enactment of s. 25 and the repeal of ss. 214 and 218 of the Criminal Code by ss. 4 and 5 of the same Act makes any discussion of whether or not punishment by death is cruel and unusual an academic one in so far as future cases are concerned,' but the contention advanced on behalf of the appellants that ss. 214 and 218 of the Code as they stood at the time of the murder and of the trial and both appeals were made inoperative by s. 2(b) of the Bill of Rights, is not disposed of by s. 25 of the new Act.

As I have already indicated, the indictable offence of "murder punishable by death" was created by s. 218(1) of the Code as it stood before the 1976 amendment in the following terms:

218. (1) Every one who commits murder punishable by death is guilty of an offence and shall be sentenced to death.

and the former s. 214 which defined the type of murder punishable by death also provided in its concluding section 214(3) that "all murder other than murder punishable by death is punishable by imprisonment for life".

If effect were given to the argument that ss. 214 and 218 of the Code had been rendered inoperative by the provisions of s. 2(b) of the Bill of Rights, then it would follow that the Court, acting under the law as it then existed, should "allow the appeal, quash the conviction for murder punishable by death and substitute a conviction for murder punishable by life imprisonment", which is

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the order sought by the appellants under this head of their appeal.

In the result, by allowing the appeal on this ground, the Court would have performed the func­tion of rendering ss. 214 and 218 inoperative, which end was achieved by Parliament when it repealed these sections.

It will be observed that s. 25(2) only applies to "a person under sentence of death ... for murder punishable by death" and it is only such a person whose 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". 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 becomes 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 are to be denied parole for the first twenty-five years of their sentences therefore depends upon whether or not ss. 214 and 218 of the Code were rendered inoperative by s. 2(b) of the Bill of Rights, and the answer to this latter question is by no means an academic one.

It is for these reasons that I have considered it important, notwithstanding the provisions of the 1976 Act, to develop the argument that when the provisions of s. 2(b) of the Bill are read in light of those of s. 1(a), it becomes apparent that Parlia­ment did not thereby intend to create any right in the individual not to be deprived of life if he were duly convicted of "murder punishable by death", on the ground that such deprivation constituted cruel and unusual treatment.

BEETZ J.—I do not find it necessary, for the purpose of this case, to express any view as to

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whether or not s. 2 of the Canadian Bill of Rights creates new rights or as to whether or not it is subordinate to s. 1.

However, I do agree with Mr. Justice Ritchie that s. 1 throws some light on s. 2, that the words "cruel and unusual" in s. 2(6) are to be read conjunctively and refer to "treatment or punishment" which is both cruel and unusual and that punishment by death for murder is not contrary to s. 2(b).

I also agree with Mr. Justice Ritchie on the effect of the Criminal Law Amendment Act (No. 2), 1976 and on the merits of this case.

I would dismiss the appeals.

Appeals dismissed.

Solicitors for the appellant, John Harvey Miller: Rankin, Robertson & Co., Vancouver.

Solicitors for the appellant, Vincent John Roger Cockriell: Deverell, Harrop & Co., Vancouver.

Solicitors for the respondent: Rowan & Cram, Vancouver.