Law360 Canada (June 10, 2026, 1:45 PM EDT) --

Marcel Strigberger

While in practice, a frequent question laypeople asked me was, “Do you support capital punishment?” My answer is that I am a staunch advocate of capital punishment — as long as nobody actually gets executed. In fact, I believe this is doable.

I recently watched a performance of Gilbert and Sullivan’s The Mikado, in which the Lord High Executioner Ko-Ko is ordered by the Mikado to execute someone as there have been no recent executions. Having never actually executed anyone, poor Ko-Ko’s nerve fails him. After some plot twists, Ko-Ko swears an affidavit attesting that he has performed an execution. When the Mikado later finds out that nobody was actually executed, Ko-Ko gets out of the jam by telling him something along the lines of that when the great Mikado orders something done, it is as good as done.

To paraphrase further, the actual doing of the deed is superfluous and unnecessary as the deed is regarded to have been performed after the order is uttered by the Mikado.

I believe jurisdictions that still pursue capital punishment can and should legislate this tamer form of execution. It might go like this:

Upon conviction for a capital offence, the presiding judge would still impose the death penalty sentence and might issue something like a “Writ of Execution.”

The judge could then choose any method of execution deemed appropriate, or even take suggestions from the jury.

A ceremonial execution would then take place.

If, for instance, the jury is in the mood for a bit of French ceremony, the judge might order the accused, we may as well call him Mr. Langly, to be guillotined. As there would be no actual head rolling, the execution could be public to promote the cause for a general deterrence. A guillotine equipped with a rubber blade would be set up in front of the local city hall, a drum roll would sound and chop chop, the execution would be completed.

And do we foresee Charter issues? Cruel and unusual punishment?

No doubt there would be some clown of a convict with a beard who would probably recall Sir Thomas More’s beheading and utter to the executioner something about ensuring his beard isn’t hit in the process and say, “This beard hath not offended.”

I looked at the Charter and saw nothing protecting the rights of a beard. We’re good to go.

After the execution, a doctor would examine the accused. Actually, I do not think this part is necessary, but the government probably needs more records and paperwork. The physician would only conduct a cursory exam, check the man’s heart and ask how he’s feeling. If the guy says, “Okay,” the doctor would tell him, “No you’re not. You’re defunct.” He could take a blood pressure reading that might read: actual, 140 over 85; deemed in law, 0.”

Let me make one thing perfectly clear. Once deemed dead, the accused would suffer all the amenities exclusive to deceased persons. His executor would be able to probate his will. All property jointly held would vest in his survivor. And of course he would no longer receive mail, not consistently anyway. Many of us don’t have to die to be the beneficiaries of this latter service.

His pension rights would cease, he would not be able to incorporate a company and, most punitive, he would be barred from having an Instagram account. How’s that for a general deterrence!

A death certificate would issue, and the fact of his expiration would be duly noted on his driver’s licence, thereby prohibiting him from operating a motor vehicle anywhere. There could be one exception. Montreal. My home. A place where rules on running a red light, speeding and stopping at a stop sign are optional. Noticing the way people drive, I have grave doubts that anybody in that city actually has ever passed a driving test.

The advantages of my suggestions are clear. Aside from the fact that no life gets snuffed out, the process is reversible. If, for example, a convicted man’s innocence is later discovered — and we have seen this happen a number of times — there would be no problem in bringing him back from the dead. His lawyers might apply for something called returnus the corpus. The only problem I foresee is the lawyer getting paid. The deceased could conceivably argue when he returns that he was dead when he hired the lawyer, and therefore, he was incompetent and had no legal status to enter into any contracts. But that’s a problem for us lawyers to iron out.

I feel this method of capital punishment would placate both the proponents and abolitionists of capital punishment.

We have not had the death penalty on the books in Canada for about 50 years, and the last convicted executed goes back to 1960.

Can this idea ever come to fruition? Maybe? In dealing with a hot issue such as capital punishment, you have to think outside the box. Or perhaps outside the gallows.

Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. His book Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging is available on Amazon (e-book) and in paper version. His new(!) book First, Let’s Kill the Lawyer Jokes: An Attorney’s Irreverent Serious Look at the Legal Universe is available on Amazon, Apple and other book places. Visit www.marcelshumour.com. Follow him on X: @MarcelsHumour.

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