criminal-law canada death capital-punishment
What capital offences were repealed in Canada as of 2022?
<p>In Canada, what offences specified death as a possible punishment but were repealed while death was still specified as a penalty? Or are there none?</p>
<p>Specifically, I want to know the set <em>S</em> (which could be ∅) defined as the set containing all elements <em>x</em> that satisfy all of these conditions:</p>
<ul>
<li><em>x</em> was an offence in Canada at any time in the past (before 2022-01-01).</li>
<li><em>x</em> is repealed as of 2022-01-01.</li>
<li><em>x</em> is not currently an offence (if committed on 2022-01-01).</li>
<li>At the latest time when <em>x</em> was an offence, <em>x</em> was punishable by death.</li>
</ul>
<p>The answer to this question is likely to remain the same if 2022-01-01 is replaced by an earlier date if the date is not too much earlier.</p>
<hr />
<p>This question is related to <a href="https://law.stackexchange.com/questions/80699/what-offences-are-punishable-by-death-in-canada-in-2022">What offences are punishable by death in Canada in 2022?</a>
Unlike the related question, this question ignores the enforceability of the death penalty in Canada in 2022 (or even of the enforceability in general of offences in <em>S</em>), since a sentencing judge would likely find the death penalty unconstitutional or unenforceable for some other reason.</p>

<p>No such crimes exist (with the possible exception of some pre-1950 military offenses punishable by death then, that ceased to be military offenses).</p>
<p>There are really two ways such offenses could exist.</p>
<p><strong>Old Decriminalized Offenses</strong></p>
<p>One is for offenses punishable by death between 1867 and 1892 that were repealed in their entirety and were no longer offenses. Outside of military offenses, it appears that no such offenses exist.</p>
<p>One plausible possibility would be the crime of actually being a witch and conducting witchcraft, as opposed to pretending to be one, which did exist in what is now Canada in the colonial era.</p>
<p><a href="https://www.washingtonpost.com/world/2018/12/19/canada-decriminalized-fake-witchcraft-it-was-too-late-white-witch-north/" rel="nofollow noreferrer">As of 2018 shortly before it was decriminalized</a>, Section 365 of Canada’s criminal code said that</p>
<blockquote>
<p>&quot;anyone who pretends to exercise witchcraft, sorcery, enchantment,
conjuration or fortune telling, or claims to have the ability to find
lost or stolen objects, has committed a crime. Punishment can be up to
six months in prison, a $2,000 fine or both.&quot;</p>
<p>The witchcraft law was in place in Canada since the late 1800s and
largely remained unchanged. It originated from a 1735 British law
under which those who pretended to practice witchcraft would be
subjected to a minor punishment. Previously, the British law
classified witchcraft as a felony.</p>
</blockquote>
<p>This implies that prior to the late 1800s (specifically <a href="https://www.washingtonpost.com/world/2018/10/31/canada-pretending-be-witch-is-punishable-offense/" rel="nofollow noreferrer">in 1892</a> when there were many revisions of Canada's criminal laws), that Canadian witchcraft law was substantially similar to British law on the subject, which made being a witch a felony, at a time when most felonies (including witchcraft for most of the time that being a witch was a crime under British law) were capital offenses.</p>
<p>Apparently, however, the death penalty for witchcraft in Canada ended <a href="https://www.quora.com/Were-there-ever-any-witch-trails-in-Canada-especially-in-British-Columbia" rel="nofollow noreferrer">long before it had dominion status in 1867</a>, and it isn't clear that it was ever applied in Canada.</p>
<blockquote>
<p>There were some accusations and trials of people on charges of
witchcraft in New France. In about 1661, a man named Daniel Vuil was
arrested and charged, among other things, with practising sorcery
against a servant girl who had spurned his romantic advances. He also
was accused of selling alcohol to the natives (a serious offence at
that time) and, what would be seen as worst of all at that time,
having been a Protestant, converted to Catholicism and then relapsed
to Protestantism again. He was executed on October 7, 1661, but it was
probably the religious offences that led to his death sentence rather
than the witchcraft charges, the usual punishment for which in New
France would have been banishment, rather than death.</p>
</blockquote>
<p>This also suggests that there might have been offenses related to blasphemy, slavery, or dealings with First Peoples that could have also been death penalty offenses in the 1867-1892 time period. But, slavery was abolished in the British Empire, including Canada, <a href="https://humanrights.ca/story/the-story-of-slavery-in-canadian-history#:%7E:text=Slavery%20itself%20was%20abolished%20everywhere,end%20the%20practice%20of%20slavery." rel="nofollow noreferrer">in 1834</a>, and in many cases, earlier:</p>
<blockquote>
<p>On March 25, 1807, the slave trade was abolished throughout the
British Empire – of which British North America was a part – making it
illegal to buy or sell human beings and ending much of the
transatlantic trade. Slavery itself was abolished everywhere in the
British Empire in 1834. Some Canadian jurisdictions had already taken
measures to restrict or end slavery by that time. In 1793 Upper Canada
(now Ontario) passed an Act intended to gradually end the practice of
slavery. The law made it illegal to bring enslaved people into Upper
Canada and declared that children born to enslaved people would be
freed once they reached 25 years of age, but explicitly did not free
any enslaved people directly. On Prince Edward Island, the complete
abolition of slavery was pronounced by the legislature on 1825, nine
years before the Imperial abolition of 1834.</p>
</blockquote>
<p>But that door is closed because <a href="https://www.thecanadianencyclopedia.ca/en/article/capital-punishment" rel="nofollow noreferrer">this source</a> states:</p>
<blockquote>
<p>In pre-Confederation Canada, hundreds of criminal offences were
punishable by death. By 1865, only murder, treason and rape were still
considered capital offences. In 1962, Ronald Turpin and Arthur Lucas
were the last of 710 prisoners to be executed in Canada since 1859.
After 1976, the death penalty was permitted only for members of the
Armed Forces found guilty of cowardice, desertion, unlawful surrender,
or spying for the enemy. The federal government completely abolished
state executions in 1998. . .</p>
<p>One of the earliest recorded executions in Canada was in 1749 in
newly-founded Halifax. A sailor named Peter Cartcel was charged with
killing a man. He was tried before a general court of Halifax’s
governor and six councillors. He was quickly found guilty and hanged
two days later.</p>
<p>Before 1859, Canada (then British North America) operated under
British law. Some 230 offences, including stealing turnips and being
found disguised in a forest, were punishable by death. By 1865, only
murder, treason and rape were still considered capital offences.</p>
</blockquote>
<p>So, there was no time from July 1, 1867 to 2022 in which any other crimes (except military justice crimes) were punishable by death in an independent Canada. And, no one alive today was alive in one hundred and fifty-seven years ago, in 1865, which is the earliest date when we know for certain that Canada had just four or fewer civilian capital offenses.</p>
<p><a href="https://www.thoughtco.com/history-of-capital-punishment-in-canada-508141" rel="nofollow noreferrer">Another source</a> notes that most remaining capital offenses present in 1867 ceased to be punishable by death even before 1976:</p>
<blockquote>
<p>1865 Crimes of murder, treason, and rape carried the death penalty in
Upper and Lower Canada.</p>
<p>1961 The murder was classified into capital and non-capital offenses.
Capital murder offenses in Canada were premeditated murder and murder
of a police officer, guard or warden in the course of duty. A capital
offense had a mandatory sentence of hanging.</p>
<p>1962 The last executions took place in Canada. Arthur Lucas, convicted
of the premeditated murder of an informer and witness in racket
discipline, and Robert Turpin, convicted of the unpremeditated murder
of a policeman to avoid arrest, were hanged at the Don Jail in
Toronto, Ontario.</p>
<p>1966 Capital punishment in Canada was limited to the killing of
on-duty police officers and prison guards.</p>
</blockquote>
<p>Capital punishment for rape was ended in Canada <a href="https://www.jstor.org/stable/23635977" rel="nofollow noreferrer">with the criminal code of 1954-1955</a>. The same source notes that the number of military offenses punishable by death was greatly narrowed in the National Defense Act of 1950.</p>
<p>But rape was still a crime when the death penalty for it was abolished in 1955, non-premeditated murder was still a serious crime when the death penalty for it was abolished in 1961, and pre-meditated murder was still a serious crime when the death penalty for it was abolished in 1966, and killing an on duty prison guard or police officer was still a crime when the death penalty for it was abolished in 1976.</p>
<p>Likewise treason and piracy continued to be serious crimes when the death penalty for those offenses was abolished and continue to be serious crimes to this day.</p>
<p>So, there were really no civilian crimes post-July 1, 1867 that were decriminalized entirely as opposed to being narrowed or modified as discussed below. The most of the narrowing of the death penalty had already taken place by 1865, two years before Canada was independent.</p>
<p>There was many fewer military offenses punishable by death following the narrowing of the military death penalty in 1950, but one would have to research the <a href="http://www.lareau-legal.ca/NDA1950.pdf" rel="nofollow noreferrer">National Defense Act of 1950</a> further to know if any of the military offenses punishable by death in 1950 ceased to be military offenses at all under that legislation, which apparently amended and restated the <a href="https://en.wikipedia.org/wiki/National_Defence_Act#:%7E:text=The%20National%20Defence%20Act%20establishes,welfare%20needs%20of%20their%20militaries." rel="nofollow noreferrer">National Defense Act of 1922</a>. I suspect that the answer is no, but haven't yet pinned that down.</p>
<p>Certainly, all of the military offenses punishable by death from 1950 to 1999 remain military offenses to this day, even though they are no longer punishable by death.</p>
<p><strong>Narrowed Modern Offenses</strong></p>
<p>The other category is for conduct constituting offenses punishable by death for treason, rape, murder and piracy, in which the definitions of those offenses was narrowed in a way that made, for example, conduct previously punishable as capital murder, now, not a crime.</p>
<p>The example that comes to mind is killing a husband in justifiable self-defense from marital rape, something that is not currently a crime in Canada and which would have been capital murder until the death penalty was abolished for ordinary murder in Canada (basically, prior to 1961).</p>
<p>If marital rape was criminalized before the death penalty for murder was abolished in Canada, this would fit the criteria. But, the death penalty was abolished first.</p>
<p>As noted in the previous related post:</p>
<blockquote>
<p>The penalty for murder, treason, and piracy was lowered to life
imprisonment effective 1976-07-26, and the penalty for various
military offences was lowered to life imprisonment effective
1999-09-01. Anyone convicted of these offences today would suffer life
imprisonment instead of death, so these offences are no longer
punishable by death, even if they were committed before 1976. In
Criminal Law Amendment Act (No. 2), 1976, they also explicitly commute
all death sentences for three particular offences</p>
</blockquote>
<p>The marital exemption from the crime of rape in Canada, however, was passed <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3037117#:%7E:text=immunity%20for%20marital%20rape%20appeared,consent%27%20(emphasis%20added)." rel="nofollow noreferrer">in 1983</a>, when murder was no longer a death penalty offense in Canada outside of military offenses, which are not implicated by the self-defense option for marital rape.</p>
<p>I can't think of other examples where the narrowing of one of the four criminal offenses punishable by death after 1892 would have this effect, so, I think that the second set of possibilities is probably null.</p>
<p><strong>Pre-1950 Military Offenses Are Moot Or Spent</strong></p>
<p>In light of this narrow exception and the prior related question it is also worth noting that military offenses pre-1950 are almost entirely moot or spent.</p>
<p>To commit a military offense prior to 1950, you would have to be generously born prior to 1933 (assuming you enlisted, perhaps illegally, at age 16), making you 89 years of age or older in 2022, and in the lion's share of cases, already dead.</p>
<p>Fewer than 50,000 men in Canada are that old, and fewer than 2,750 men are older than age 100. The oldest man alive in Canada as of June 15, 2022, <a href="https://en.wikipedia.org/wiki/List_of_Canadian_supercentenarians#:%7E:text=As%20of%2015%20June%202022,aged%20113%20years%2C%2028%20days." rel="nofollow noreferrer">was born in 1909</a> and couldn't have committed a Canadian military offense prior to 1925.</p>
<p>Also, the question of whether someone can be tried for military offenses by courts-martial for crimes committed while serving in the military after that person is discharged from military service was apparently an unsettled one <a href="https://www.cbc.ca/news/canada/military-judge-rules-army-can-court-martial-retired-soldier-1.241993" rel="nofollow noreferrer">as of the year 2000 in Canada</a>. (See also <a href="http://www.forces.gc.ca/assets/FORCES_Internet/docs/en/jag/military-justice-overview.pdf" rel="nofollow noreferrer">here</a> outlining Canada's military justice system and not squarely addressing this question). It would appear not, <a href="http://www.forces.gc.ca/assets/FORCES_Internet/docs/en/jag/military-justice-overview.pdf" rel="nofollow noreferrer">since</a>, &quot;The CSD applies to Regular Force members at all times and to Reserve Force members in specified circumstances, such as when on duty, in uniform, in a CAF vehicle, etc. The CSD can also apply to civilians in limited circumstances, such as while accompanying a CAF unit that is on service or active service.&quot;</p>
<p>No one currently in military service in Canada was in military service in Canada prior to 1950. The mandatory retirement age in the Canadian military is <a href="https://ottawacitizen.com/news/local-news/youre-never-too-old-to-serve-says-new-53-year-old-army-private" rel="nofollow noreferrer">60 year of age</a>, implying people who enlisted not earlier than 1979 (assuming a minimum age of enlistment of 17 years at that time). Anyone who committed a military offense in 1949 has been retired from the military for at least 20 years now.</p>
<p><a href="http://www.forces.gc.ca/assets/FORCES_Internet/docs/en/jag/military-justice-overview.pdf" rel="nofollow noreferrer">Also</a>, the Canadian Armed Forces &quot;have no jurisdiction to try any person charged with having committed within Canada the offences of murder, manslaughter, or any offence under the sections of the Criminal Code relating to the abduction of children.&quot;</p>
<p><strong>Capital Punishment Under British Law Which Applied In Canada Until 1859</strong></p>
<p>Prior to 1859, Canada was governed by British law, so its capital punishment history is relevant too, and <a href="https://en.wikipedia.org/wiki/Capital_punishment_in_the_United_Kingdom" rel="nofollow noreferrer">recounted by Wikipedia</a> as follows in the pertinent parts:</p>
<blockquote>
<p>Capital punishment was historically used to punish inherently innocent
things such as unemployment. In 16th-century England, no distinction
was made between vagrants and the jobless; both were simply
categorized as &quot;sturdy beggars&quot;, who were to be punished and moved on.
In 1547, a bill was passed that subjected vagrants to death for the
second offense. During the reign of Henry VIII, as many as 72,000
people are estimated to have been executed.</p>
<p>Sir Samuel Romilly, speaking to the House of Commons on capital
punishment in 1810, declared that &quot;[there is] no country on the face
of the earth in which there [have] been so many different offences
according to law to be punished with death as in England&quot;. Known as
the &quot;Bloody Code&quot;, at its height the criminal law included some 220
crimes punishable by death, including &quot;being in the company of Gypsies
for one month&quot;, &quot;strong evidence of malice in a child aged 7–14 years
of age&quot; and &quot;blacking the face or using a disguise whilst committing a
crime&quot;. Many of these offences had been introduced by the Whig
Oligarchy to protect the property of the wealthy classes that emerged
during the first half of the 18th century, a notable example being the
Black Act of 1723, which created 50 capital offences for various acts
of theft and poaching. Crimes eligible for the death penalty included
shoplifting and stealing sheep, cattle, and horses, and before
abolition of the death penalty for theft in 1832, &quot;English law was
notorious for prescribing the death penalty for a vast range of
offences as slight as the theft of goods valued at twelve pence.&quot;</p>
<p>Whilst executions for murder, burglary and robbery were common, the
death sentences for minor offenders were often not carried out. A
sentence of death could be commuted or respited (permanently
postponed) for reasons such as benefit of clergy, official pardons,
pregnancy of the offender or performance of military or naval duty.
Between 1770 and 1830, an estimated 35,000 death sentences were handed
down in England and Wales, of which 7,000 executions were carried out.</p>
<p>In 1808, Romilly had the death penalty removed for pickpockets and
lesser offenders, starting a process of reform that continued over the
next 50 years. The death penalty was mandatory (although it was
frequently commuted by the government) until the Judgement of Death
Act 1823 gave judges the official power to commute the death penalty
except for treason and murder. The Punishment of Death, etc. Act 1832
reduced the number of capital crimes by two-thirds. In 1832, the death
penalty was abolished for theft, counterfeiting, and forgery except
for the forgery of wills and certain powers of attorney.</p>
<p>Gibbeting was abolished in 1832 and hanging in chains was abolished in
1834. In 1837, the death penalty for forging wills and powers of attorney was abolished. The death penalty for rape and some other
offences was abolished by the Substitution of Punishments of Death Act
in 1841. In 1861, several acts of Parliament (24 &amp; 25 Vict; c. 94 to
c. 100) further reduced the number of civilian capital crimes to five:
murder, treason, espionage, arson in royal dockyards, and piracy with
violence; there were other offences under military law. The death
penalty remained mandatory for treason and murder unless commuted by
the monarch.</p>
<p>The Royal Commission on Capital Punishment 1864–66 concluded (with
dissenting Commissioners) that there was not a case for abolition but
recommended an end to public executions. This proposal was included in
the Capital Punishment Amendment Act 1868. From that date executions
in Great Britain were carried out only in prisons. The punishment of
beheading and quartering those executed for treason was abolished in
1870. The last application of that punishment had been in 1820 and the last sentence to the punishment had been in 1839.</p>
</blockquote>
<p>Notably, capital punishment for rape was apparently abolished in Canada from 1841-1859 and possibly also from 1859-1865, only to be reinstated not later than 1865 when Canada began to be subject to its own laws rather than British law until 1955 when it abolished the death penalty for this crime following example that the British set in 1841.</p>
<p>On the other hand, Canada appears to have never had civilian capital punishment under its own laws for espionage or arson.</p>
