The Ottawa Citizen from Ottawa, Ontario, Canada • 13

ft irv; i i. 1 The Ottawa Citizen -Wednesday, January 20, 1960 Page 13- CAPITAL PUNISHMENT 4 -I Top Lawyers Favor "Life" Over Death iGZj-r Mr. Mirsky lays most stress on his opinion that murderers are psychopathic they are ill or sick persons "and no such person should be hanged. Mr. Hughes would substitute life imprisonment for the death penalty, emphatically defining 'life' as the natural life of the convicted person without any provision for parole of any kind.

Mr. Mirsky suggested that, after a minimum of 10 years, a convicted murderer might be paroled on the certificate of a trained prison psychiatrist that it would be safe for him to be returned to society. Mr. Hughes thinks the Dicfenbaker government, by commuting about 85 percent of capital sentences in the past 18 months, has merely educating jnibliq opinion toward abolition capital- punishment and will act at this session to amend the law. Mr.

Mirsky thinks the government, by its indirect Tneth'od of commuting so many capital cases, has brought the law into disrespect and that, positively, without' further delay, the government should move to have Parliament abolish capital punishment in all respects. By J. A. Hume Citizen Stiff Writer Two of Ottawa's leading lawyers in the practice of criminal law Roydon Hughes, QC and John Mirsky, QC are in firm agreement that capital punishment, the death penalty for convicted murderers, should be abolished in Canada without further delay. However, in rcqucrted, independently prepared summaries of their views, supplemented by separate interviews, Mr.

Hughes and Mr. Mirsky expressed vayingr opinions on other angles of the 'controversial problem on which Parliament-is expected to get this session. Both agreed that death penalty. Vactu-, ally does not operate as a deterrent to crime" and also that the retribution angle as to re(en-J tion of the death penalty should, no longer be valid The gradation "variation "of views" as between Mr. Hushes anfl Mr.

Mirslcy might be summed up briefly. Mr. Hughes' conviction for abolition of the death penalty rests chiefly on moral and religious grounds that even the state has no moral right to take human life. 1 4P-' Saa PARK SITE Vast Underground Hughes, Q.C.: park area. On the upper left, can be seen the recently opened Hall of Christ Church Cathedral.

may cost as much as $500,000, gardens, trees and shrubs, a fountain, and containing Wellington Street, just off the picture right, the new National Library Photo by Newton NCC planning and park officials are now engaged jn preparing detailed plans for a new terraced park in the triangle formed by Bay, Sparks, and Wellington streets. The picture is taken looking westward from the roof of the Department of Trade and Commerce in the western unit of the twin Veterans Memorial Buildings. On the left is the section of Sparks Street which the City has closed by way of NCC Buying Sussex Sites choice of death or life imprisonment, would choose death." "By life imprisonment," The Citizen asked, "you mean imprisonment for the natural life of the convicted murderer, without any parole?" "I do indeed," Mr. Hughes replied emphatically. "A convicted murderer, in my firm, considered opinion, should be confined in prison until he dies subject, of course, to reasonable exercise of the Royal prerogative of mercy." Speaking of Prime Minister Diefenbaker as "a deeply religious man" and "a lawyer with long experience in criminal law," Mr.

Hughes expressed surprise he had not had his government take action, before now, to have capital punishment abolished. "The Prime Minister is an astute politician," llr. Hughes concluded. "In having the government commute so many capita' sentences in the past 18 months, Mr. Diefenbaker may merely have been educating public opinion by accustoming it to the dropping of the death penalty.

"Thus, at the new session of Parliament, the Prime Minister and the government may come out strongly for abolition of capital punishment, I sincerely hope that will be the case." ohn Mirsky, i FOR TERRACED and Alexander Street site of two residential buildings is the latest to be bought by the NCC on Sussex, it was learned. The premises, occupied by tenants, have not yet been vacated. The property purchased from Fred Blackburn, last surviving member of a family that had extensive land holdings in that area is directly opposite the French Embassy and a short distance south of the Prime Minister's residence. Located on the site is a rambling stucco dwelling at Sussex and a white frame house at 41 Sussex. Control Whole Area It is understood the NCC also is taking steps towards the acquisition of properties at the north east corner of the Sussex-Alex heard of instances, both In the United States and in Great Britain, in which innocent persons have been executed.

I am greatly conscious of the shortcomings in the administration of the criminal law. I do not feel, therefore, that a punishment as final and conclusive as execution should be continued. In my view, the deterrent argument has no foundation in fact and as to the sound argument, a convicted murderer can be removed from society by imprisonment." By way of more precise expansion of Mr. Mirsky's views, The Citizen interviewed him as follows: Question Would you abolish capital punishment without reservation of any kind such as for treason, armed piracy, or the killing of a police officer? Answer "I cannot make any exception for the death penalty to be invoked because my feelings are so deep rooted that all murderers are psycopathic and execution does not act as a deterrent. These persons are ill, sick.

I cannot, consistently, favor the hanging of a sick person." By imprisonment do you mean, for the natural life of the convicted murderer or "life' imprisonment in the legal sense with possible parole for good behaviour after an indefinite term in prison? A "I believe a man who com-mitts murder should be punished by a substantial term of imprisonment because he has committed a grave offence and he should be removed from society as a potential threat. I suggest there should be a minimum of ten years imprisonment to constitute punishment. At the expiration of that period, a murderer's liberty should depend upon the opinion of a competent prison psychiatrist. Such a trained official should decide, having regard to the necessary protection of the public, whether it would be in order that the prisoner be released on parole." What about the case, some years ago, of the notorious bank robber and killer, "Red" Ryan, who was killed in committing another bank robbery after his release on parole? A "I don't think in Ryan's time they had prison psychiatrists. Now all Canadian pentitentiaries have such officials.

Of course, the parole procedure would have to deal in probabilities. The prisoner should remain in custody until a prison psychiatrist is satisfied the man no longer constitutes a menace to society. I would point out, adding to the above the cliff, Cathedral The park with terraced benches, possibly wall. On to the lower will be built. Roydon Roydon Hughes' views were given The Citizen in the following memorandum: "There is no doubt that the 20th century has brought about many cnanges in our social institutions and in our legislation.

Modern thought has given to both the lower and middle classes a jr greater share of the world's 1 bounty. We have thus become more liberal in our thinking and this approach has been reflected also in our attitude towards crime. "The gratitude of all the people of the world is long overdue to the leaders of this enlightened movement in England, which country, for centuries, has been the bastion of justice in giving a fair trial to an accused person. Even Great Britain has overlooked, until recently, the more important aspect of rehabilitation of an accused in considering sentences whilst being mindful of the broad administration of justice among beings. "One must always remember that, between the 15th and ISih centuries, our ancestors in the British Isles were of the firm opinion that the best way to punish a law-breaker was to get rid of him.

As one author facetiously said 'This they did in one of two ways: either they transported him to a new world via the Atlantic (to Australia), or they transported him to the next world via Tyburn. Transportation as a punishment has been abolished for many years', but hanging, or deprivation of life by some means, is still with us and still advocated by many. "In England today the death sentence has been abolished except in a few isolated instances (killing a police officer, treason, and armed piracy). "It is my firm opinion that it should not lie in the hands of mortal man to take the life of a human being, either by the barbaric method of hanging or by any substitution therefor. "A skilled, conscientious physician or surgeon is not permitted to hasten death or to relieve the torment and suffering of one who is under his care and who is doomed, after a lengthy ordeal, to death in any event.

"Why then should it be left to judges and juries to decree death to an unfortunate who has transgressed the law of man, probably as a result of lack of guidance in his early youth or due to some breakdown in our social system concerning Jess fortunate persons? "Justice, as we mortals know it, is the best that our combined brains can devise. But legislators, in applying their minds in coming to any decision, call upon Divine assistance in their deliberations in Parliament. Surely, this in itself is tacit admission that we are all fallible and capable of making errors. "Is not the taking of a human life (by the state through the death penalty) a serious error if a less violent form of punish-ment, such as life imprisonment, is a reasonable alternative? "To outlaw war and the taking needlessly of human lives is presently the serious purpose of all world powers. Then let us start to clean our own house and show a little more humanity to our less fortunate fellow men.

"Let us abolish the taking of human life and leave it to Him, the Judge who gives life, to take away same. "In this way we can be certain that at no time will theie be any mistakes made by any part or member of our judicial machinery as part of the democratic system which we are pledged to support and under which we should be proud to live." Expanding his views, in a supplementary Citizen interview, Mr. Hughes emphasized there had always been "a deep feeling within him" against capital punishment. "Our legislators say a man is it a a is it of 1 Parking Greber's Imaginative, long-range plans for urban renewal of Ottawa's downtown area, bounded by Elgin, Bay, Queen, and Wellington streets, have recently been outlined by Jacques Greber of Paris, NCC planning adviser, in expanded form. Mr.

Greber's recommendations, embracing "vast underground parking facilities" future building go far beyond the preliminary $30,000 Sparks street shopping mall, proposed for a trial from May 14 to September 3, on a 50-50 cost basis between merchants and the city. NCC officials this morning indicated Commission approval in principle of the overall objectives of the latest Greber report filed after his September-October visit here. It is likely NCC planning officials will give "technical assistance" in completion of the downtown improvement project. NCC officials pointed out that, while the Commission may have a moral obligation in the far-reaching project, it could not accept Mr. Greber's observation the Commission has "a duty" to assist in urban renewal.

Other Highlights Three other highlight Greber recommendations, on all of which the NCC already has taken "constructive embraced the following: 1 Sparks Street development, from Bay westward, as "a double garden" for the Sparks, Bay, Wellington Street triangle. 2 Establishment, through zoning bylaws by the municipalities concerned, of a one-mile margin of rural territory on the outer perimeter of the Green Belt to guard against "undesirable urban sprawl." 3 Development, with NCC cooperation, of about 12 satellite municipalities, inside and outside the Green Belt, to combat "suburban low grade development" in the National Capital Area of 1,800 square miles. Garden Endorsed The NCC has already accepted Mr. Greber's reiterated recommendation on the Wellington triangle park. The city has co-operated in this garden plan by closing Sparks Street from Bay to Wellington Street.

The park, to cost possibly $500,000, will lie in front of the planned National Library, immediately west of the Trade and Commerce Department (Veterans Memorial Building), and below the cliff on which stand Christ Church Anglican Cathedral and St. Peter's Lutheran Church. Mr. Greber's suggestion for municipal zoning on the outer fringe of the Green Belt was welcomed by NCC officials today. However, this zoning must be authorized by the individual municipalities concerned.

The NCC, it was emphasized, has been extending active co-operation to neighboring municipalities for some time past on their planning and zoning problems. "Gradual and patient improvement (in Capital development) is going ahead," Mr. Greber -b-scrved. "Fortunately, through a number of improvements recommended in the 1951 (Greber) Master Plan," he commented, "the railway obstacles are gradually disappearing; street cars are also being replaced by flexible buses; new bridges and new arteries, such as the Queensway, will free congested streets from blighting conditions." "buty Of NCC" Mr. Greber cited it as being "the duty of the National Capital Commission to prepare for drastic but flexible renovations, where the pattern of the street system with its narrow blocks, calls for a gradual, block-after-block transformation of the Facilities NCC Idea structure of the built-up downtown area." "It might seem that such a program may be just a dream," Mr.

Greber went on. "In fact, it wouid be simply utopical if the progress of approach of such a drastic program would lack the patience and the seriousness of a previous and deep investigation. So many factors are involved: existing property, pedestrian safety, automobile traffic and parking, climatic conditions and execution costs. But the lack of action at the opportune i a might denegerate in an irreparable blight. "The only condition of success is to start by the easiest and almost obvious operations.

Principally that is to convince the present (Sparks Street) owners and commercial firms that the purchasing capacity will be immensely increased by creating shopping facilities and adequate approaches in view of transforming shopping conditions into pleasure and relief, instead of being a tiresome necessity." Shopping Promenade Speaking of a Sparks Shopping Promenade, Mr. Greber emphasized that approaches for deliveries and pedestrian communications could be provided by Wellington and, especially. Queen Streets. The topography permits of treating the blocks with slight differences of he stressed, "with easy automohile entrances to underground parking spaces." He visualized long-range re-planning of some existing Sparks Street buildings, which would "double the shopping creating "covered passages for pedestrians between Wellington, Sparks, and Queen, with a picturesque aspect in plan and in elevation, with some open ciurts and garden treatment." He pictured also connections for underground parking in the Sparks area with future under ground parking under Parliament Hill. Grouping Proposed "Successfully to carry out such a complicated program," Mr.

Greber summed up on the down town redevelopment," it will be essential to create a committee grouping the land owners and commercial firms of the blocks facing Sparks Street, from Elgin to Bay Streets. Such a committee should act under local leadership and with, if required, NCC technical assistance in preparing proposals and undertaking the improvement work." Now is the opportune time, Mr, Greber claimed, for gradual re-planning or remodelling of some of the important downtown Ottawa sections. This is part of "desirable flexibility" for accommodating a total population "which might reach 1,000,000 for the Ottawa-Hull Urban area by the end of this century." Mr. Greber warned that "during recent years, the available land remaining within the limits of the urban area has been gradually covered and soon will be entirely built up to the permitted density ratio, established in the zoning plan." His last warning was that "Ottawa's downtown area, the most intense and developed part of the old Bytown, has come now to the point that it might degenerate ate into a congested and uncomfortable part of the city." Posticus Hazard WELLINGTON, N. Z.

(CP)-On the average two postmen are bitten by dogs every week in New Zealand. The post office says most of the bites are not severe enough to involve absence from work. New Zealand postmen treat dogs as an occupational hazard. Roydon Hughes to be punished by taking his life," Mr. Hughes commented.

"I know of no place where God gave that power. I just don't understand it. God ssys that doctors cannot take life, in a good cause, by euthanasia (mercy killing). "It is abhorrent to me, on moral and religious grounds, that the state can take a man's life. Our capital punishment laws should be brought into line with our religious views." Mr.

Hughes said he had made a practice never to accept a client in a capital case unless he felt the accused were telling him the truth and had some legal justification according to our laws. "I have never aspired to take capital cases," he went on. "I am always nervous about such cases. I don't like to be part of any process (legal though it may be) in the taking of a human life. "It is an axiomatic principle of British justice that an accused is innocent until proven guilty.

Proven guilty of what? Guilty of law made by man! Of course, you have the possibility of the Scot's verdict 'not proven'. "If a client can afford fees for good psychiatrist and good counsel, who carefully prepare his case, frequently an accused can be saved from hanging and, instead, be given life imprisonment. "Some use the argument as to the retention of capital punishment 'Why should the state and the taxpayer pay for the imprisonment of convicted How much would it add in dollars and cents to keep confined for life all the convicted murderers Canada might have? In my view, you can't reduce anything as sacred as the life or death of an individual to a matter of dollars and cents. Think of what we spend as a nation on other things. Why, the sum thrown away on the abandoned Arrow plane would have paid to keep all Canadian kids under proper supervision for the next 100 years!" "What about the claim that the death penalty is a deterrent?" The Citizen asked.

"I don't think the death penalty a deterrent," Mr. Hughes replied. "I don't believe that, actually, it works out that way. "Any person who commits murder is acting irrationally. The old insanity rule laid down by Justice McNaghten in England, back in the 1800's, still is followed.

It appears as Section 16 in our Criminal Code 'that a person is insane who suffers from a disease of the mind to the extent renders him incapable of appreciating the nature and quality an act or omission or of knowing that an act or omission is wrong'. Insanity, which can be such a fine distinction, must be proven to the reasonable satisfaction of the jury. "Why not imprison these irrational persons for the crime they have committed, the same as insane persons have to be kept in protective custody? I am sure, from my experience, that convicted murderers, given the A ander intersection. The properties concerned are said to be 8 to 18 Alexander Street and 31 to 37 Sussex Drive. The mayor's remarks came at yesterday's Board of Control meeting during consideration of a request that the processing of the Sussex zonirg bylaw be deferred.

"The NCC now has practically full control of property all along Sussex Drive from City Hall to the Rideau Hall gate," observed the mayor. "They (NCC officials) say that it is the only way they can regulate construction." The move to zone Sussex Drive came last fall during a belated and unsuccessful attempt to prevent the demolition of a historic stone building at Sussex Drive and Bruyere Street. A service station now stands on this site. the quantum of recidivism (repeater) as to murder in the United States is only a fraction of one percent compared with as high as 70 percent for other crimes." How would you rationalize your references to murders being the result ol sudden provocation or a psychopathic mind in the case of a group of men, after days or even weeks of cold blooded planning, committing a bank robbery in which one or more persons were killed? A "I would still say that such bank robbers and murders would be pscychopathic in planning to commit such an offence so foreign to the normal mind. They are abnormal or sick persons in even planning to commit acts so foreign to accepted concepts of morality in that they might result in taking of a human life.

The average person revolts at the thought of taking even the life of a puppy or kitten." What comment have you on on the existing situation where-under capital punishment is the law of the land yet, since June, 1957, the federal government has acted to commute 80 percent of the death sentences for murder? A "It is, in my opinion, highly unsatisfactory that life or death for convicted murders should be so at the discretion of the gover-nor-in-council (the cabinet). As long as the death penalty for murder is provided by law, the law should be applied, subject to the reasonable exercise of the Royal prerogative of mercy; The present situation destroys respect for the law and creates false hopes on the part of the condemned man. It is the essence of the law that it be consistent, that it be known and applicable to all. I hope Parliament will act, without further delay, to abolish the death penalty for murder." Do you think Canadian public opinion today overwhelmingly, or even strongly, favors abolition of capital punishment? A "No, I can not say that I do. From those to whom I have spoken, I think their views on the question are about evenly divided." Tomorrow: The views of Dr.

John E. Read, retired judge of the International Court of Justice at the Hague. BLACKBURN Bob Blackburn's column will return to this space shortly. By W. M.

Arnott Citizen Staff Writer The National Capital Commission, attempting to avert the possibility of more commercial development on Sussex Drive, is stepping up its purchase of properties along this artery. Mayor Nelms said at yesterday's Board of Control meeting that discussions he held this week with Howard Kennedy, chairman, and other NCC officials convinced him that "the NCC is picking up property as fast as it is possible to do so." This action caaie at a time when the city was processing a zoning bylaw to restrict the use of land, and buildings on Sussex Drive from St. Patrick Street to Itideau Hall Gate. Property at the south east corner of the intersection of Sussex John Mirsky years, I cannot believe in capital punishment. "I believe what I have expressed is fortified by whatever satisfies that are available.

We all know that convicted murderers have been executed in Canada ever since the introduction of criminal law in this country, yet persons continue to kill. I have read that in England, in the early 19th century, certain thefts were punishable by hanging. During the hanging spectacle, which took place in public, pickpockets circulated in the crowd and committed the very oflbnce for which the victim was hung. "I have observed that on many occasions, both in Canada and the, United States, the acquittal or conviction of a person accused of piurder depended upon his or her ability to retain more experienced and usually more expensive counsel. Surely this is an invidious situation.

"In spite of the affection I have for law, I still feel it is not a perfect science. Its perfection is impossible because of the emotions which are aroused during the trial. There is the biased witness, the affronted witness, the super-intelligent witness, and the perjurer. On occasions, the incompetency or the mistakes made by counsel, the attitude of the presiding judge, all may have a very real affect on the outcome of the criminal prosecution. These things we must accept in order to maintain our society.

The finality of an execution is something we do not have to accept. of course, believe in punishment. I. of course, believe that the murderer should be punished and removed as a potential source of harm. However, I have mm 83 John Mirsky summed up his views as follows: "I am of the opinion that capital punishment, or the taking of a human life by the state (they both mean the same), can only be justified on either or both of the following grounds: 1 It acts as a deterrent to others who may be disposed to kill.

2 It eliminates from society a potentially dangerous person. "I am afraid that there is a third reason for capital punishment in the minds of some persons the old concept of retribution 'An eye for an eye and a tooth for a tooth'. I hope we are too civilized to deal with the problem on the basis of this type of thinking. The sense of retribution is morally wrong as a basis for capital punishment.0' It went out with the New Testament. "Removing a potential killer from society is simple and is done every day by imprisoning him.

There are those who say that imprisonment is expensive and costs the taxpayer money. I cannot accept "that as an argument for the state taking a life. The cost of imprisoning murderers would be a mere bagatelle contrasted with the vast sums of money being spent everywhere to prolong the life of man. Is it not a matter of the value to be placed on the dignity of the human individual? "Considerably more ground for argument is presented as to the deterrent angle. But, does capital punishment, in fact, act as a deterrent? In my opinion and on the basis of my limited knowledge of the homicidal mind I am completely satisfied that it docs not.

"In the murder trials in which I have participated the killings were the result of either a sudden provocation or a psychopathic mind. Some of the most civilized persons I have known have given vent to violence (although not murder) in the face of provocation. For such a person I think that execution is a penalty far in excess of the culpability and is not justified. "By far the bulk of murders are committed by psychopathic or emotionally disturbed persons. They are sick people and I do not believe that hanging cures an illness.

I do not believe that a psychopath or an emotionally disturbed person is deterred at the prospect of being executed for his crime. Having this belief based on my legal experience with criminals over the past 20.