Uncertain Justice, Canadian Women and Capital Punishment 1754 - 1953
by F. Murray Greenwood and Beverley Boissery
Toronto, Ontario: Dundurn Press. 2000
Perhaps this book appeared a year too soon. The authors still seem vexed by the possibility of the return of capital punishment in Canada. But since the Burns & Rafay decision of the Supreme Court of Canada, in February 2001, which effectively declared that the death penalty is unconstitutional under Canadian law, we seem to have entered a new phase. Or rather, we have entered the twenty-first century in criminal justice.
Much of Uncertain Justice isn't really about the death penalty, as such. Rather, it is about women and the justice system. It tackles the problem at the high end of the scale. That means that it looks essentially at the crime of murder and the issues that emerge when women are involved. This is a story of battered wives who kill their husbands, women "wronged" by serial adulterers, and victims of sexual abuse or simply of abject poverty driven unwillingly into motherhood who turn on their own offspring in moments of terrifying despair.
One of the themes in this stories is that of the wrongfully convicted. Greenwood and Boissery focus on the issue as one of capital punishment's central weaknesses, even many decades ago when support for the supreme penalty was more widespread. Here they strike a chord which has much contemporary resonance. When the Supreme Court of Canada revisited the matter of capital punishment in the context of an extradition request, in Burns & Rafay, the possibility that innocent people might be convicted weighed heavily in its condemnation of the American justice system. Several compelling studies in the United States in recent years of this phenomenon have contributed to a growing unease with capital punishment even among its keen supporters.
To a large extent, this study uses the death penalty as a foil to get at other important issues that concern women and the Canadian justice system. Thus there is a lengthy discussion of the exclusion of women from juries. They were only allowed on criminal juries in 1972 and, in a few provinces, remained excluded from civil juries until the 1980's. But the authors can only speculate on what the presence of women jurors has done for the fate of women defendants.
This is a series of snapshots of celebrated homicide cases involving women, as the murderers themselves or as accomplices. The earliest must be that of Marie-Josephte Corriveau, who murdered her husband Louis- Helene Dodier in 1763 as a recently-conquered Quebec was adjusting to the rigours of the English criminal justice system. Celebrated in song and folklore in Quebec, the story of la Corriveau has become greatly exaggerated over time. She illustrates one of the authors' points, that women who murder their husbands are treated most harshly, and probably with more venom and disgust than husbands who murder their wives.
The same holds for other manifestations of rebellion or rejection of the patriarchal status quo, such as that of Julia Murdock, convicted of "petty treason" for killing her male employer. Another violent and non-traditional woman, Eleanor Power, was executed in eighteenth century Newfoundland for participating in a brutal robbery. Her hanging was not without its ethnic dimensions too for this Irish immigrant caught by the English courts..
These draconian responses to women who "did not know their place in society" also has a curious reverse side to it. Women in the justice system were also treated with "sham chivalry", vulnerable victims who were often coddled with clemency. There is no shortage of examples of women who were victims of sexual harassment or rape, or those caught amongst the demons of post partum depressions, for whom judges and juries manifested a curious mixture of sexism and sympathy.
Some of this crystallized into legal norms, like the defence of spousal coercion, which applied for most, perhaps all crimes. A woman could plead she was compelled to commit violent crime by a domineering husband, an exception to the general rule that coercion is no defence to a charge of murder. The excuse served Margaret Jordan well in early nineteenth century Halifax, while the rotting, blackened body of her husband, Edward Jordan, dangled for months on a chain at what is now Point Pleasant Park.
Another defence, that of the "battered wife syndrome", took longer to find its place in Canadian jurisprudence. It was only really recognized in the 1990's, decades after the last executions. The Minister of Justice is still reviewing the cases of women in prison who might have benefited from this defence at the time of their trials decades earlier. The authors might not insist enough upon the role that women judges on the Supreme Court of Canada - the first were only appointed in the 1980's - played in this legal evolution.
At a time when a large majority of countries have now rejected the death penalty, women still hold a special place within international standards, with the absolute prohibition of execution of those who are pregnant found in article 6(5) of the International Covenant on Civil and Political Rights. Other human rights and humanitarian law treaties extend this to young mothers. These are obviously measures to protect children, but they also show the ambiguity of our attitudes to women and capital punishment that Greenwood and Boissery tease out in their series of case studies.
The answer, of course, is to use the springboard of this special treatment of women offenders, and the contradictions that it elucidates, to propel forward the call for overall abolition. The stories told by Greenwood and Boissery, of women caught in the web of inequality who were driven to violent crime by frustration, provocation, and sometimes plain self defence, contribute to a more general portrait of what we dearly hope is now nothing more than a sad chapter in the ancient history of criminal justice in Canada.
WILLIAM A. SCHABAS
Irish Centre for Human Rights
National University of Ireland, Galway |
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