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u.s. v. burns
Minister of JusticeAppellant
v.
Glen Sebastian Burns and Atif Ahmad Rafay Respondents
and
Amnesty International,
the International Centre for Criminal Law & Human Rights,
the Criminal Lawyers Association,
the Washington Association of Criminal Defence Lawyers and
the Senate of the Republic of Italy Interveners
Indexed as: United States v. Burns
Neutral citation: 2001 SCC 7.File No.: 26129.
Hearing: March 22, 1999.
Present: Lamer C.J. and L'Heureux-Dubé, Gonthier, Cory, McLachlin,
Iacobucci, Major,
Bastarache and Binnie JJ.
Rehearing: May 23, 2000; February 15, 2001.
Present: McLachlin C.J. and L'Heureux-Dubé, Gonthier, Iacobucci,
Major, Bastarache, Binnie,
Arbour and LeBel JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Constitutional law -- Charter of Rights -- Mobility
rights -- Extradition -- Surrender of
Canadian fugitives to foreign state -- Fugitives wanted in connection with
triple murder in
U.S. -- Minister of Justice deciding to extradite fugitives without obtaining
assurances from
U.S. authorities that death penalty would not be imposed -- Whether extradition
without
assurances infringed fugitives' constitutional rights to remain in or enter
Canada -- Canadian
Charter of Rights and Freedoms, s. 6(1) -- Extradition Act, R.S.C. 1985,
c. E-23, s. 25.
Constitutional law -- Charter of Rights -- Application
-- Cruel and unusual punishment --
Extradition -- Surrender of Canadian fugitives to foreign state -- Fugitives
wanted in
connection with triple murder in U.S. -- Minister of Justice deciding to
extradite fugitives
without obtaining assurances from U.S. authorities that death penalty would
not be imposed
-- Whether constitutional guarantee against cruel and unusual punishment
engaged --
Canadian Charter of Rights and Freedoms, ss. 12, 32(1).
Constitutional law -- Charter of Rights
-- Fundamental justice -- Extradition --
Surrender of Canadian fugitives to foreign state -- Fugitives wanted in
connection with triple
murder in U.S. -- Minister of Justice deciding to extradite fugitives without
obtaining
assurances from U.S. authorities that death penalty would not be imposed
-- Fugitives
deprived of their rights to liberty and security of person by extradition
order -- Whether
threatened deprivation of fugitives' rights in accordance with principles
of fundamental
justice -- If not, whether extradition without assurances justifiable as
reasonable in free and
democratic society -- Canadian Charter of Rights and Freedoms, ss. 1, 7
-- Extradition Act,
R.S.C., 1985, c. E-23, s. 25 -- Extradition Treaty between Canada and the
United States of
America, Can. T.S. 1976 No. 3, Art. 6.
The respondents are each wanted on three counts of aggravated first degree
murder in the State of
Washington. If found guilty, they will face either the death penalty or
life in prison without the
possibility of parole. The respondents are both Canadian citizens and were
18 years old when the
father, mother and sister of the respondent Rafay were found bludgeoned
to death in their home in
Bellevue, Washington, in July 1994. Both Burns and Rafay, who had been friends
at high school in
British Columbia, admit that they were at the Rafay home on the night of
the murders. They claim to
have gone out on the evening of July 12, 1994 and when they returned, they
say, they found the
bodies of the three murdered Rafay family members. Thereafter, the respondents
returned to
Canada. As a result of investigative work by undercover RCMP officers, they
were eventually
arrested. The Attorney General of British Columbia decided against a prosecution
in that province.
United States authorities commenced proceedings to extradite the respondents
to the State of
Washington for trial. The Minister of Justice for Canada, after evaluating
the respondents' particular
circumstances, including their age and their Canadian nationality, ordered
their extradition pursuant to
s. 25 of the Extradition Act without seeking assurances from the United
States under Article 6 of
the extradition treaty between the two countries that the death penalty
would not be imposed, or, if
imposed, would not be carried out. The British Columbia Court of Appeal,
in a majority decision,
ruled that the unconditional extradition order would violate the mobility
rights of the respondents
under s. 6(1) of the Canadian Charter of Rights and Freedoms. The Court
of Appeal therefore
set aside the Minister's decision and directed him to seek assurances as
a condition of surrender. On
further appeal to this Court,
Held: The appeal should be dismissed.
Section 25 of the Extradition Act creates a broad
ministerial discretion whether to surrender a
fugitive, and if so, on what terms. While constitutionally valid, the Minister's
discretion is limited by
the Charter. The authority of the Minister under s. 25 is predicated on
the existence of an
extradition treaty. In respect of seeking assurances under Article 6 of
the treaty, the Minister took
the position that assurances were not to be sought routinely in every case
in which the death penalty
was applicable; such assurances should be sought only in circumstances where
the particular facts of
the case warranted that special exercise of discretion. Although it is generally
for the Minister, not the
court, to assess the weight of competing considerations in extradition policy,
the availability of the
death penalty opens up a different dimension. Death penalty cases are uniquely
bound up with basic
constitutional values and the court is the guardian of the Constitution.
The death penalty is a justice issue and is only
marginally a mobility rights issue. Section 6(1) of
the Charter, standing alone, does not invalidate an extradition without
assurances. Although
extradition is a prima facie infringement of the s. 6(1) right of every
Canadian citizen to "remain in"
Canada, efforts to stretch mobility rights to cover the death penalty controversy
are misplaced.
Nor is s. 12 of the Charter ("cruel and unusual
treatment or punishment") the most appropriate
head of relief. The Charter guarantees certain rights and freedoms from
infringement by "the
Parliament and government of Canada" and "the legislature and government
of each province" (s.
32(1)). The Canadian government would not itself inflict capital punishment,
although its decision to
extradite without assurances would be a necessary link in the chain of causation
to that potential
result. However, the degree of causal remoteness between the extradition
order to face trial and the
potential imposition of capital punishment as one of many possible outcomes
to this prosecution
makes this a case more appropriately reviewed under s. 7 of the Charter.
The values underlying
various sections of the Charter, including s. 12, form part of the balancing
process engaged in under
s. 7.
Section 7 ("fundamental justice") applies because
the extradition order would, if implemented,
deprive the respondents of their rights of liberty and security of the person
since their lives are
potentially at risk. The issue is whether the threatened deprivation is
in accordance with the principles
of fundamental justice. Section 7 is concerned not only with the act of
extradition, but also with its
potential consequences. The balancing process set out in Kindler and Ng
is the proper analytical
approach. The "shocks the conscience" language signals the possibility that
even though the rights of
the fugitive are to be considered in the context of other applicable principles
of fundamental justice,
which are normally of sufficient importance to uphold the extradition, a
particular treatment or
punishment may sufficiently violate our sense of fundamental justice as
to tilt the balance against
extradition. The rule is not that departures from fundamental justice are
to be tolerated unless in a
particular case it shocks the conscience. An extradition that violates the
principles of fundamental
justice will always shock the conscience.
The important inquiry is to determine what constitutes
the applicable principles of fundamental
justice in the extradition context. The outcome of the appeal turns on an
appreciation of these
principles, which in turn are derived from the basic tenets of our legal
system. While these basic
tenets have not changed since 1991 when Kindler and Ng were decided, their
application 10 years
later must take note of factual developments in Canada and in relevant foreign
jurisdictions.
In this case, it is said that a number of factors
favour extradition without assurances: (1)
individuals accused of a crime should be brought to trial to determine the
truth of the charges, the
concern being that if assurances are sought and refused, the Canadian government
could face the
possibility that the respondents might avoid a trial altogether; (2) justice
is best served by a trial in the
jurisdiction where the crime was allegedly committed and the harmful impact
felt; (3) individuals who
choose to leave Canada leave behind Canadian law and procedures and must
generally accept the
local law, procedure and punishments which the foreign state applies to
its own residents; and (4)
extradition is based on the principles of comity and fairness to other cooperating
states in rendering
mutual assistance in bringing fugitives to justice, subject to the principle
that the fugitive must be able
to receive a fair trial in the requesting state.
Countervailing factors favour extradition only
with assurances. First, in Canada, the death penalty
has been rejected as an acceptable element of criminal justice. Capital
punishment engages the
underlying values of the prohibition against cruel and unusual punishment.
It is final and irreversible.
Its imposition has been described as arbitrary and its deterrent value has
been doubted. Second, at
the international level, the abolition of the death penalty has emerged
as a major Canadian initiative
and reflects a concern increasingly shared by most of the world's democracies.
Canada's support of
international initiatives opposing extradition without assurances, combined
with its international
advocacy of the abolition of the death penalty itself, leads to the conclusion
that in the Canadian view
of fundamental justice, capital punishment is unjust and should be stopped.
While the evidence does
not establish an international law norm against the death penalty, or against
extradition to face the
death penalty, it does show significant movement towards acceptance internationally
of a principle of
fundamental justice Canada has already adopted internally -- namely, the
abolition of capital
punishment. International experience thus confirms the validity of concerns
expressed in the
Canadian Parliament about capital punishment. It also shows that a rule
requiring that assurances be
obtained prior to extradition in death penalty cases not only accords with
Canada's principled
advocacy on the international level, but also is consistent with the practice
of other countries with
which Canada generally invites comparison, apart from the retentionist jurisdictions
in the United
States.
Third, almost all jurisdictions treat some personal
characteristics of the fugitive as mitigating
factors in death penalty cases. Canada's ratification of various international
instruments prohibiting
the execution of individuals who were under the age of 18 at the time of
the commission of the
offence, and the language of the new Extradition Act which permits the Minister
in certain
circumstances to refuse to surrender persons who were under 18 at the time
of the offence, support
the conclusion that some degree of leniency for youth is an accepted value
in the administration of
justice. Accordingly, even though the respondents were 18 at the time of
the crime, their relative
youth constitutes a mitigating circumstance in this case, albeit of limited
weight.
Fourth, the accelerating concern about potential
wrongful convictions is a factor of increased
weight since Kindler and Ng were decided. The avoidance of conviction and
punishment of the
innocent has long been in the forefront of "the basic tenets of our legal
system". The recent and
continuing disclosures of wrongful convictions for murder in Canada and
the United States provide
tragic testimony to the fallibility of the legal system, despite its elaborate
safeguards for the protection
of the innocent. This history weighs powerfully in the balance against extradition
without assurances
when fugitives are sought to be tried for murder by a retentionist state,
however similar in other
respects to our own legal system.
Fifth, the "death row phenomenon" is another
factor that weighs against extradition without
assurances. The finality of the death penalty, combined with the determination
of the criminal justice
system to try to satisfy itself that the conviction is not wrongful, inevitably
produces lengthy delays,
and the associated psychological trauma to death row inhabitants, many of
whom may ultimately be
shown to be innocent. The "death row phenomenon" is not a controlling factor
in the s. 7 balance,
but even many of those who regard its horrors as self-inflicted concede
that it is a relevant
consideration.
Factors for and against extradition without assurances
must be balanced under s. 7. The
objectives sought to be advanced by extradition without assurances would
be as well served by
extradition with assurances. There is no convincing argument that exposure
of the respondents to
death in prison by execution advances Canada's public interest in a way
that the alternative, eventual
death in prison by natural causes, would not. Other abolitionist countries
do not, in general, extradite
without assurances.
Extradition of the respondents without assurances
cannot be justified under s. 1 of the Charter.
While the government objective of advancing mutual assistance in the fight
against crime is entirely
legitimate, the Minister has not shown that extraditing the respondents
to face the death penalty
without assurances is necessary to achieve that objective. There is no suggestion
in the evidence that
asking for assurances would undermine Canada's international obligations
or good relations with
neighbouring states. The extradition treaty between Canada and the United
States explicitly provides
for a request for assurances and Canada would be in full compliance with
its international obligations
by making it. As well, while international criminal law enforcement including
the need to ensure that
Canada does not become a "safe haven" for dangerous fugitives is a legitimate
objective, there is no
evidence that extradition to face life in prison without release or parole
provides a lesser deterrent to
those seeking a "safe haven" than does the death penalty. Whether fugitives
are returned to a foreign
country to face the death penalty or to face eventual death in prison from
natural causes, they are
equally prevented from using Canada as a "safe haven". Elimination of a
"safe haven" depends on
vigorous law enforcement rather than on infliction of the death penalty
by a foreign state after the
fugitive has been removed from this country.
A review of the factors for and against unconditional
extradition therefore leads to the conclusion
that assurances are constitutionally required in all but exceptional cases.
This case does not present
the exceptional circumstances that must be shown. A balance which tilted
in favour of extradition
without assurances in Kindler and Ng now tilts against the constitutionality
of such an outcome.
Cases Cited
Explained: Kindler v. Canada (Minister of Justice),
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Gregg v.
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5 C.C.C. (3d)
364; Eur. Court H.R., Soering case, judgment of 7 July 1989, Series A No.
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Bentley (Deceased), [1998] E.W.J. No. 1165 (QL); R. v. Mattan, [1998] E.W.J.
No. 4668 (QL);
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(1998); Knight v.
Florida, 120 S. Ct. 459 (1999); R. v. Oakes, [1986] 1 S.C.R. 103.
Statutes and Regulations Cited
Act to Amend the National Defence Act, S.C. 1998, c. 35.
Protocol to the American Convention on Human Rights to Abolish the Death
Penalty, O.A.S.
Treaty Series No. 73 (1990), OEA/Ser.L.V/II.82 doc.6 rev.1 at 80 (1992);
[1990] I.L.M. 1447.
Canadian Charter of Rights and Freedoms, ss. 1, 6(1), 7, 11(d), 12, 32(1).
Constitution Act, 1982, s. 52(1).
Convention on the Rights of the Child, Can. T.S. 1992 No. 3, Art. 37(a).
Criminal Appeal Act 1995 (U.K.), 1995, c. 35.
Criminal Code, R.S.C. 1985, c. C-46.
Criminal Law Amendment Act (No. 2), 1976, S.C. 1974-75-76, c. 105.
European Convention on Extradition, E.T.S. No. 24, Art. 11.
European Convention for the Protection of Human Rights and Fundamental Freedoms,
213
U.N.T.S. 222.
Extradition Act, R.S.C. 1985, c. E-23, s. 25 [rep. & sub. 1992, c.
13, s. 5].
Extradition Act, S.C. 1999, c. 18, s. 47.
Extradition Treaty between Canada and the United States of America, Can.
T.S. 1976 No. 3,
Art. 6, 17 bis [ad. Can. T.S. 1991 No. 37, Art. VII].
International Covenant on Civil and Political Rights with Optional Protocol,
Can. T.S. 1976
No. 47, Art. 6(5).
Protocol amending the Treaty on Extradition between the Government of
Canada and the
Government of the United States of America, Can. T.S. 1991 No. 37, Art.
VII.
Protocol No. 6 to the Convention for the Protection of Human Rights and
Fundamental
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Rome Statute of the International Criminal Court, A/CONF.183/9, 17 July, 1998.
Second Optional Protocol to the International Covenant on Civil and Political
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APPEAL from a judgment of the British Columbia
Court of Appeal (1997), 94 B.C.A.C. 59,
152 W.A.C. 59, 116 C.C.C. (3d) 524, 8 C.R. (5th) 393, 45 C.R.R. (2d) 30,
[1997] B.C.J. No.
1558 (QL), finding that the unconditional extradition order was unconstitutional.
Appeal dismissed.
S. David Frankel, Q.C., and Deborah J. Strachan, for the appellant.
Edward L. Greenspan, Q.C., and Alison Wheeler, for the respondent Burns.
Marlys A. Edwardh, Clayton Ruby, Jill Copeland
and A. Breese Davies, for the respondent
Rafay.
David Matas and Mark Hecht, for the intervener Amnesty International.
Written submissions by Martin W. Mason, for the intervener the
International Centre for Criminal Law & Human Rights.
Michael Lomer and James Lockyer, for the intervener the Criminal Lawyers Association.
Richard C. C. Peck, Q.C., and Nikos Harris, for
the intervener the Washington Association of
Criminal Defence Lawyers.
Written submissions by Lorne Waldman, for the intervener the Senate of the Italian Republic.
Solicitors for the appellant: The Attorney General of Canada, Ottawa.
Solicitors for the respondent Burns: Greenspan, Henein & White, Toronto.
Solicitors for the respondent Rafay: Ruby & Edwardh, Toronto.
Solicitor for the intervener Amnesty International: David Matas, Winnipeg.
Solicitors for the intervener International Centre
for Criminal Law & Human Rights:
Gowling Strathy & Henderson, Ottawa.
Solicitors for the intervener Criminal Lawyers Association: Pinkofsky & Lockyer, Toronto.
Solicitors for the intervener Washington Association
of Criminal Defence Lawyers: Peck
Tammen, Vancouver.
Solicitors for the intervener Senate of the Republic
of Italy: Jackman, Waldman &
Associates, Toronto.
CITATION
Before publication in the S.C.R., this judgment should be cited using the
neutral citation: United
States v. Burns, 2001 SCC 7. Once the judgment is published in the S.C.R.,
the neutral citation
should be used as a parallel citation: United States v. Burns, [2001] x
S.C.R. xxx, 2001 SCC 7.
THE COURT --
1 Legal systems have to live with the possibility
of error. The unique feature of capital punishment
is that it puts beyond recall the possibility of correction. In recent years,
aided by the advances in the
forensic sciences, including DNA testing, the courts and governments in
this country and elsewhere
have come to acknowledge a number of instances of wrongful convictions for
murder despite all of
the careful safeguards put in place for the protection of the innocent.
The instances in Canada are
few, but if capital punishment had been carried out, the result could have
been the killing by the
government of innocent individuals. The names of Marshall, Milgaard, Morin,
Sophonow and
Parsons signal prudence and caution in a murder case. Other countries have
also experienced
revelations of wrongful convictions, including states of the United States
where the death penalty is
still imposed and carried into execution.
2 The possibility of a miscarriage of justice
is but one of many factors in the balancing process
which governs the decision by the Minister of Justice to extradite two Canadian
citizens, Glen
Sebastian Burns and Atif Ahmad Rafay, to the United States. A competing
principle of fundamental
justice is that Canadians who are accused of crimes in the United States
can ordinarily expect to be
dealt with under the law which the citizens of that jurisdiction have collectively
determined to apply to
offences committed within their territory, including the set punishment.
3 Awareness of the potential for miscarriages
of justice, together with broader public concerns
about the taking of life by the state, as well as doubts about the effectiveness
of the death penalty as
a deterrent to murder in comparison with life in prison without parole for
25 years, led Canada to
abolish the death penalty for all but a handful of military offences in
1976, and subsequently to
abolish the death penalty for all offences in 1998.
4 The abolitionist view is shared by some, but
not a majority, of the United States. Michigan,
Rhode Island and Wisconsin in fact abolished the death penalty for murder
in the 1840s and 1850s,
years before the first European state, Portugal, did so, and over a century
before Canada did. At
present, 12 states are abolitionist while 38 states retain the death penalty.
The State of Washington,
in which the respondents are wanted for trial on charges of aggravated first
degree murder, is a
retentionist state.
5 The extradition of the respondents is sought
pursuant to the Extradition Treaty between
Canada and the United States of America, Can. T.S. 1976 No. 3 (the "treaty"
or the "extradition
treaty") which permits the requested state (in this case Canada) to refuse
extradition of fugitives
unless provided with assurances that if extradited and convicted they will
not suffer the death penalty.
The Minister declined to seek such assurances because of his policy that
assurances should only be
sought in exceptional circumstances, which he decided did not exist in this
case.
6 The respondents contend that Canada's principled
abolition of the death penalty at home, and
its spirited advocacy of abolition internationally, confirm Canadian acceptance
of abolition as a
fundamental principle of our criminal justice system. This principle, they
say, combined with the
respondents' Canadian citizenship and the fact that they were 18 years old
at the time of the alleged
offences, constitutionally prohibits the Minister from extraditing them
to a foreign jurisdiction without
assurances that they will not face a penalty which Canada, as a society,
does not permit within its
own borders.
7 The Minister contends, on the other hand, that
persons who are found to commit crimes in
foreign countries forfeit the benefit of Canada's abolitionist policy. The
Constitution does not require
Canada, on this view, to project its internal values onto the world stage,
and to insist as a condition
of extradition that a requesting state view capital punishment in the same
light as our domestic legal
system does.
8 We agree that the Canadian Charter of Rights
and Freedoms does not lay down a
constitutional prohibition in all cases against extradition unless assurances
are given that the death
penalty will not be imposed. The Minister is required (as he did here) to
balance on a case-by-case
basis those factors that favour extradition with assurances against competing
factors that favour
extradition without assurances. We hold, however, for the reasons which
follow, that such
assurances are constitutionally required in all but exceptional cases. We
further hold that this case
does not present the exceptional circumstances that must be shown before
the Minister could
constitutionally extradite without assurances. By insisting on assurances,
Canada would not be acting
in disregard of international extradition obligations undertaken by the
Canadian government, but
rather exercising a treaty right explicitly agreed to by the United States.
We thus agree with the
result, though not the reasons, reached by a majority of the judges of the
British Columbia Court of
Appeal in this case. The Minister's appeal must therefore be dismissed.
I. Facts
9 The crimes alleged against the respondents were,
as the Minister contends, "brutal and shocking
coldblooded murder[s]". The father, mother and sister of the respondent
Rafay were found
bludgeoned to death in their home in Bellevue, Washington, in July 1994.
Both Burns and Rafay,
who had been friends at high school in British Columbia, admit that they
were at the Rafay home on
the night of the murders. They claim to have gone out on the evening of
July 12, 1994 and when they
returned, they say, they found the bodies of the three murdered Rafay family
members. The house,
they say, appeared to have been burgled.
10 However, if the confessions allegedly made
by the respondents to undercover RCMP officers
are to be believed, the three members of the Rafay family were bludgeoned
to death by the
respondent Burns while the respondent Rafay watched. Burns allegedly told
an undercover RCMP
officer that he had killed the three victims with a baseball bat while wearing
only underwear so as not
to get blood on his clothes. Rafay's father, Tariq Rafay, and mother, Sultana
Rafay, were beaten to
death in their bedroom. The force used was so violent that blood was spattered
on all four walls and
the ceiling of the room. The respondent Rafay's sister, Basma Rafay, was
beaten about the head and
left for dead in the lower level of the house. She later died in hospital.
Burns allegedly explained that
following the attacks, he had a shower at the Rafay home to clean off the
victims' blood. The
discovery of hairs with Caucasian characteristics in the shower near the
master bedroom, where the
two parents were killed, supports this story. There is also evidence of
dilute blood covering large
sections of the shower stall. The respondents allegedly told the police
that they drove around the
municipality disposing of various items used in the killings as well as
some of the parents' electronic
devices, apparently to feign a burglary. The respondent Rafay is also alleged
to have told the officer
the killings were "a necessary sacrifice in order that he could get what
he wanted in life". With the
death of all other members of his family, Rafay stood to inherit his parents'
assets and the proceeds
of their life insurance. Burns, it is alleged, participated in exchange
for a share in the proceeds under
an agreement with Rafay. He was, the prosecution alleges, a contract killer.
11 The Bellevue police suspected both of the respondents
but did not have enough evidence to
charge them. When the respondents returned to Canada, the Bellevue police
sought the cooperation
of the RCMP in their investigation of the murders. The RCMP initiated an
elaborate and in the end,
they say, productive undercover operation. An RCMP officer posed as a crime
boss and
subsequently testified that, after gaining the confidence of the respondents,
he repeatedly challenged
them to put to rest his professed scepticism about their stomach for serious
violence. The
respondents are alleged to have tried to reassure him by bragging about
their respective roles in the
Bellevue murders.
12 The respondents assert their innocence. They
claim that in making their alleged confessions to
the police they were play-acting as much as the undercover policeman to
whom they confessed. At
this stage of the criminal process in Washington, they are entitled to the
presumption of innocence.
What to make of it all will be up to a jury in the State of Washington.
13 The respondents were arrested in British Columbia
and a committal order was issued for their
extradition pending the decision of the Minister of Justice on surrender.
The then Minister, Allan
Rock, signed an unconditional Order for Surrender to have both of the respondents
extradited to the
State of Washington to stand trial without assurances in respect of the
death penalty. If found guilty,
the respondents will face either life in prison without the possibility
of parole or the death penalty.
Washington State provides for execution by lethal injection unless the condemned
individual elects
execution by hanging (Revised Code of Washington §10.95.180(1)).
II. The Minister's Decision
14 An extradition matter does not reach the Minister
until an extradition judge has determined that
the offence falls within the scope of the treaty and there is a prima facie
case that the fugitive has
committed the crime with which he or she has been charged in the foreign
jurisdiction (Argentina v.
Mellino, [1987] 1 S.C.R. 536, at p. 553). At that stage, the Minister, after
hearing representations,
makes a decision under s. 25(1) of the Extradition Act, R.S.C. 1985, c.
E-23, whether or not to
surrender the fugitive, and if so on what terms.
15 Here, the Minister proceeded on the assumption
that the death penalty would be sought by the
prosecutors in the State of Washington.
16 The respondents submitted to the Minister that
s. 6(1) of the Charter grants them the right to
stay in Canada and that as a result, he was required to consider whether
the respondents could be
prosecuted in Canada rather than extradited, as permitted by Article 17
bis of the extradition treaty
and as contemplated as a possible option by this Court in United States
of America v. Cotroni,
[1989] 1 S.C.R. 1469. Although there was some evidence that the murders
were planned in
Canada, no killings occurred here. Canadian prosecutors concluded that Canada
could only
prosecute the respondents for conspiracy to commit murder. The decision
to lay charges in Canada
was within the exclusive jurisdiction of the Attorney General of British
Columbia, who had decided,
prior to this matter going to the federal Minister, that there was insufficient
evidence to support a
conspiracy charge.
17 The respondents also submitted to the Minister
that he was required by ss. 6(1), 7 and 12 of
the Charter to seek assurances that the death penalty would not be imposed.
They argued that their
unconditional extradition to face the death penalty would "shock the Canadian
conscience" because
of their age (18 years at the time of the offence) and their nationality
(Canadian). The respondents
sought to distinguish Kindler v. Canada (Minister of Justice), [1991] 2
S.C.R. 779, and
Reference Re Ng Extradition (Can.), [1991] 2 S.C.R. 858, primarily on the
basis that, unlike the
fugitives in those cases, the respondents have the benefit of s. 6(1) of
the Charter by virtue of being
Canadian citizens. They were not foreigners seeking to use Canada as a "safe
haven". Canada
instead is their country of origin and the Canadian government does not,
according to the
respondents, have the right to expel them when they face the risk of never
returning. This, they
maintained, would amount to exile and banishment contrary to s. 6(1) of
the Charter: Canada v.
Schmidt, [1987] 1 S.C.R. 500, and Cotroni, supra.
18 The Minister stated that assurances should
be sought only in circumstances where the
particular facts of the case warrant a special exercise of discretion and
that assurances should not be
sought routinely pursuant to Article 6 of the treaty in every case in which
the death penalty is
applicable. The Minister found that the factors outlined in Kindler did
not mandate that assurances
be sought here. The age of the respondents, although "youthful", qualified
them as adults in the
Canadian criminal system. The Minister thought Canadian citizenship was
not itself a "special
circumstance" to allow the respondents to escape from the full weight of
the sentencing process in
the United States where the murders were committed.
19 The Minister also rejected the respondents'
claim that extradition without assurances would
constitute exile and banishment. Extradition to face the death penalty does
not amount to banishment
since the underlying purpose of extradition is simply to face criminal prosecution.
The Minister felt
that Canada should not permit itself to become a safe haven for persons
seeking to escape justice,
even Canadians. Furthermore, there would be no exile because the respondents,
once the criminal
matters had been dealt with fully, would not be prevented by the Canadian
government from
returning to this country. In the end, Canadian nationality was simply one
of several factors that the
Minister considered, but it was not determinative. As stated, the Minister
signed the extradition order
without seeking or obtaining assurances.
III. British Columbia Court of Appeal
20 The British Columbia Court of Appeal set aside
the Minister's decision and directed the
Minister to seek the assurances described in Article 6 of the extradition
treaty as a condition of
surrender (Hollinrake J.A. dissenting): (1997), 94 B.C.A.C. 59. Donald J.A.,
with whom
McEachern C.J.B.C. concurred, noted that if the respondents are put to death
in the State of
Washington, they will no longer be able to exercise a right of return under
s. 6(1) of the Charter. He
rejected the submissions of counsel for the Minister that the death penalty
is not a part of the
extradition process, which does no more than commit to trial. The causal
connection between
surrender and deprivation of the s. 6(1) right was to him "obvious and incontestable",
stating at para.
30:
The Kindler analysis is inapplicable to Canadian
citizens facing the death penalty because the
government, in the person of the Minister, has an obligation not to force
citizens out of the country
with the jeopardy of never returning. This is a different and higher duty
than that pertaining to aliens.
21 Donald J.A. rejected the notion that life in
prison without the possibility of parole, the only
alternative to the death penalty in the State of Washington, would also
violate s. 6(1) of the Charter
since "where there is life there is hope" (para. 27). He distinguished Kindler
on the basis that
Canadian citizens are perfectly entitled to view Canada as a safe haven.
"One's country", he said, "is
properly considered a haven, and access to its constitutional protections
is a feature of citizenship"
(para. 54).
22 With regard to ss. 7 and 12 of the Charter,
Donald J.A. felt bound by this Court's decisions in
Kindler and Ng and determined that these sections were of no assistance
to the respondents since
they apply, if at all, to Canadian citizens and non-citizens alike.
23 Donald J.A. went on to find that, not only
was s. 6(1) of the Charter breached by the
unconditional surrender, but as a matter of administrative law the Minister
failed to exercise his
discretion properly when he refused to seek assurances under Article 6 of
the treaty. Instead of
stating that assurances would only be sought in "special" cases, the Minister
was required to
determine in each case what is appropriate having regard to the circumstances
"without being
fettered by rules designed to deal with an imagined case load" (para. 43).
Applying this latter test,
Donald J.A. found that the Minister should have placed more weight on the
young age and Canadian
nationality of the respondents and sought assurances before signing the
extradition order.
24 Hollinrake J.A., dissenting, would not have
interfered with the Minister's decision. He found
that Kindler and Ng were controlling, even where the fugitives are Canadian
citizens. It would be the
State of Washington, not the Minister, that would deny the respondents their
s. 6 Charter rights if
they were, in the end, to be executed.
IV. Relevant Constitutional and Statutory Provisions
25Canadian Charter of Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out
in it subject only to such reasonable limits prescribed by law as can be
demonstrably justified in a
free and democratic society.
6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.
...
7. Everyone has the right to life, liberty and
security of the person and the right not to be deprived
thereof except in accordance with the principles of fundamental justice.
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
32. (1) This Charter applies
(a) to the Parliament and government of Canada
in respect of all matters within the authority of
Parliament including all matters relating to the Yukon Territory and Northwest
Territories; and
(b) to the legislature and government of each
province in respect of all matters within the authority
of the legislature of each province.
Constitution Act, 1982
52. (1) The Constitution of Canada is the supreme
law of Canada, and any law that is
inconsistent with the provisions of the Constitution is, to the extent of
the inconsistency, of no force
or effect.
Extradition Act, R.S.C. 1985, c. E-23 (as am. by S.C. 1992, c. 13)
25. (1) Subject to this Part, the Minister of
Justice, on the requisition of a foreign state, may,
within a period of ninety days after the date of a fugitive's committal
for surrender, under the hand
and seal of the Minister, order the fugitive to be surrendered to the person
or persons who are, in the
Minister's opinion, duly authorized to receive the fugitive in the name
and on behalf of the foreign
state, and the fugitive shall be so surrendered accordingly.
V. Relevant Provisions from International Documents
26Extradition Treaty between Canada and the Government
of the United States of
America (amended by an Exchange of Notes), Can. T.S. 1976 No. 3, in force
March 22, 1976
Article 6
When the offense for which extradition is requested
is punishable by death under the laws of the
requesting State and the laws of the requested State do not permit such
punishment for that offense,
extradition may be refused unless the requesting State provides such assurances
as the requested
State considers sufficient that the death penalty shall not be imposed,
or, if imposed, shall not be
executed.
Protocol amending the Treaty on Extradition between
the Government of Canada and the
Government of the United States of America, Can. T.S. 1991 No. 37 (in force
November 26,
1991), Article VII
Article 17 bis
If both contracting Parties have jurisdiction
to prosecute the person for the offense for which
extradition is sought, the executive authority of the requested State, after
consulting with the
executive authority of the requesting State, shall decide whether to extradite
the person or to submit
the case to its competent authorities for the purpose of prosecution. In
making its decision, the
requested State shall consider all relevant factors, including but not limited
to:
(i)the place where the act was committed or intended
to be committed or the injury occurred or
was intended to occur;
(ii) the respective interests of the Contracting Parties;
(iii) the nationality of the victim or the intended victim; and
(iv) the availability and location of the evidence.
VI. Revised Code of Washington
2710.95.030. Sentences for aggravated first degree murder
(1) Except as provided in subsection (2) of this
section, any person convicted of the crime of
aggravated first degree murder shall be sentenced to life imprisonment without
possibility of release
or parole. A person sentenced to life imprisonment under this section shall
not have that sentence
suspended, deferred, or commuted by any judicial officer and the indeterminate
sentence review
board or its successor may not parole such prisoner nor reduce the period
of confinement in any
manner whatsoever including but not limited to any sort of good-time calculation.
The department of
social and health services or its successor or any executive official may
not permit such prisoner to
participate in any sort of release or furlough program.
(2) If, pursuant to a special sentencing proceeding
held under RCW 10.95.050, the trier of fact
finds that there are not sufficient mitigating circumstances to merit leniency,
the sentence shall be
death.
10.95.040. Special sentencing proceeding -- Notice -- Filing -- Service
(1) If a person is charged with aggravated first
degree murder as defined by RCW 10.95.020,
the prosecuting attorney shall file written notice of a special sentencing
proceeding to determine
whether or not the death penalty should be imposed when there is reason
to believe that there are
not sufficient mitigating circumstances to merit leniency.
(2) The notice of special sentencing proceeding
shall be filed and served on the defendant or the
defendant's attorney within thirty days after the defendant's arraignment
upon the charge of
aggravated first degree murder unless the court, for good cause shown, extends
or reopens the
period for filing and service of the notice. Except with the consent of
the prosecuting attorney, during
the period in which the prosecuting attorney may file the notice of special
sentencing proceeding, the
defendant may not tender a plea of guilty to the charge of aggravated first
degree murder nor may
the court accept a plea of guilty to the charge of aggravated first degree
murder or any lesser
included offense.
(3) If a notice of special sentencing proceeding
is not filed and served as provided in this section,
the prosecuting attorney may not request the death penalty.
10.95.180. Death Penalty -- How executed
(1) The punishment of death shall be supervised
by the superintendent of the penitentiary and
shall be inflicted by intravenous injection of a substance or substances
in a lethal quantity sufficient to
cause death and until the defendant is dead, or, at the election of the
defendant, by hanging by the
neck until the defendant is dead. In any case, death shall be pronounced
by a licensed physician.
VII. Analysis
28 The evidence amply justifies the extradition
of the respondents to Washington State to stand
trial on charges of aggravated first degree murder. Under the law of that
state, a conviction would
carry a minimum sentence of imprisonment for life without the possibility
of release or parole. If the
prosecutors were to seek the death penalty, they would have the burden of
persuading the jury that
"there are not sufficient mitigating circumstances" in favour of the respondents.
If the jury is so
satisfied, the death penalty would be administered by lethal injection or
(at the option of the
convicted individual), by hanging. If the jury is not so satisfied, the
convicted murderer is locked up
for life without any possibility of release or parole. An individual convicted
of aggravated first degree
murder in Washington State thus will either die in prison by execution or
will die in prison eventually
by other causes. Those are the possibilities. Apart from executive clemency,
the State of Washington
does not hold out the possibility (or even the "faint hope") of eventual
freedom.
29 The respondents' position is that the death
penalty is so horrific, the chances of error are so
high, the death row phenomenon is so repugnant, and the impossibility of
correction is so draconian,
that it is simply unacceptable that Canada should participate, however indirectly,
in its imposition.
While the government of Canada would not itself administer the lethal injection
or erect the gallows,
no executions can or will occur without the act of extradition by the Canadian
government. The
Minister's decision is a prior and essential step in a process that may
lead to death by execution.
30 The root questions here are whether the Constitution
supports the Minister's position that
assurances need only be sought in exceptional cases, or whether the Constitution
supports the
respondents' position that assurances must always be sought barring exceptional
circumstances, and
if so, whether such exceptional circumstances are present in this case.
31 In order to get to the heart of the argument
on this appeal, it will be useful to deal initially with
the Minister's powers and responsibilities under the Extradition Act, and
then move to the Charter
issue (s. 6 mobility rights) on which the respondents succeeded in the British
Columbia Court of
Appeal. We reject the s. 6 argument, for reasons to be discussed. We will
then consider the other
grounds on which the respondents constructed their constitutional argument
against extradition
without assurances, namely s. 12 ("cruel and unusual treatment or punishment")
and s. 7 ("life, liberty
and security of the person"). In the end, we conclude that the respondents
are entitled to succeed on
the sole ground that their extradition to face the death penalty would,
in the present circumstances,
violate their rights guaranteed by s. 7 of the Charter.
1 The Extradition Act Confers a Broad Statutory Discretion on the Minister.
32 The appeal reaches this Court by way of a judicial
review of the exercise by the Minister of his
discretion under s. 25(1) of the Extradition Act which we reproduce for
ease of reference:
25. (1) Subject to this Part, the Minister of
Justice, on the requisition of a foreign state, may,
within a period of ninety days after the date of a fugitive's committal
for surrender, under the hand
and seal of the Minister, order the fugitive to be surrendered to the person
or persons who are, in the
Minister's opinion, duly authorized to receive the fugitive in the name
and on behalf of the foreign
state, and the fugitive shall be so surrendered accordingly.
Section 25 creates a broad discretion which the
Minister must exercise in accordance with the
dictates of the Charter: Kindler, supra, at p. 846; Schmidt, supra, at pp.
520-21; Idziak v.
Canada (Minister of Justice), [1992] 3 S.C.R. 631, at pp. 655-56; and see
generally Operation
Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; Slaight Communications
Inc. v. Davidson,
[1989] 1 S.C.R. 1038; and Dagenais v. Canadian Broadcasting Corp., [1994]
3 S.C.R. 835.
None of the parties to this litigation has attacked the constitutional validity
of this discretion which has
previously been found by a majority of this Court to pass Charter scrutiny:
see Kindler, supra. In
that case, the Court recognized that the Minister's discretion was limited
by the Charter, and that the
Charter required a balancing on the facts of each case of the applicable
principles of fundamental
justice. We affirm the correctness of the balancing test, and for reasons
which will become apparent,
we conclude that in the circumstances of this case the application of the
balancing test and the
ultimate requirement of adherence to "the basic tenets of our legal system"
(Re B.C. Motor Vehicle
Act, [1985] 2 S.C.R. 486, at p. 503) require the Minister to seek assurances.
33 The authority of the Minister under s. 25 is
predicated on the existence of an extradition treaty
(s. 3). The extradition treaty in question here was concluded by Canada
and the United States in
1971 at a time when Canada still retained the death penalty, although no
executions had been carried
out since 1962. In the United States executions, which had occurred at the
rate of about 50 per year
in the late 1950s, "slowed to a trickle and then stopped" in the 1960s (W.S.
White, "Capital
Punishment's Future" (1993), 91 Mich. L. Rev. 1429). A de facto moratorium
occurred
commencing June 1967. This was reinforced five years later when the Supreme
Court of the United
States, in Furman v. Georgia, 408 U.S. 238 (1972), declared the death penalty
regime of the
State of Georgia to be unconstitutional. By 1976, the year in which the
extradition treaty was ratified
and came into force, there had been a realignment of positions. Canada had
abolished the death
penalty for all but a few military crimes (Criminal Law Amendment Act (No.
2), 1976, S.C.
1974-75-76, c. 105). In the same year the United States Supreme Court declared
that the death
penalty could be constitutional if appropriate procedural safeguards are
put in place: Gregg v.
Georgia, 428 U.S. 153 (1976). Executions resumed on January 17, 1977 when
Gary Gilmore was
shot by a firing squad in Utah (H.H. Haines, Against Capital Punishment:
The Anti-Death
Penalty Movement in America, 1972-1994 (1996), at p. 211). In recognition,
perhaps, of this
fluid state of affairs the parties agreed that the extradition treaty should
include Article 6 in respect of
seeking assurances. As set out above, Article 6 provides as follows:
When the offense for which extradition is requested
is punishable by death under the laws of the
requesting State and the laws of the requested State do not permit such
punishment for that offense,
extradition may be refused unless the requesting State provides such assurances
as the requested
State considers sufficient that the death penalty shall not be imposed,
or, if imposed, shall not be
executed.
34 In his decision, the then Minister said that
where a committal judge under the Act is satisfied
that the requesting state has made out a prima facie case against the fugitive,
he will approach the
issue
from the premise that assurances should be sought
only in circumstances where the particular
facts of the case warrant that special exercise of discretion. Such assurances
are not to be sought
routinely in every case in which the death penalty is applicable.
As stated, the Minister saw nothing in the circumstances
here to warrant asking for such
assurances.
35 The question is not whether we agree with the
Minister's decision. The only issue under the
Charter is whether, as a matter of constitutional law, the Minister had
the power to decide as he
did. The Charter does not give the Court a general mandate to set Canada's
foreign policy on
extradition. Yet the Court is the guardian of the Constitution and death
penalty cases are uniquely
bound up with basic constitutional values. While the death penalty arises
as a possibility only in a
small fraction of the extradition cases dealt with by the Minister and departmental
officials, it raises
issues of fundamental importance to Canadian society.
2 The Minister Is Responsible for the Performance
of Canada's International Law
Enforcement Obligations.
36 The Court has historically exercised restraint
in the judicial review of extradition decisions, as
McLachlin J. (as she then was) noted in Kindler, supra, at p. 849:
In recognition of the various and complex considerations
which necessarily enter into the
extradition process, this Court has developed a more cautious approach in
the review of executive
decisions in the extradition area, holding that judicial scrutiny should
not be over-exacting. As the
majority in Schmidt pointed out, the reviewing court must recognize that
extradition involves interests
and complexities with which judges may not be well equipped to deal (p.
523). The superior
placement of the executive to assess and consider the competing interests
involved in particular
extradition cases suggests that courts should be especially careful before
striking down provisions
conferring discretion on the executive. Thus the court must be "extremely
circumspect" to avoid
undue interference with an area where the executive is well placed to make
these sorts of decisions:
Schmidt, at p. 523. It must, moreover, avoid extraterritorial application
of the Charter: Schmidt,
supra.
La Forest J. expressed similar views in Kindler, supra, at p. 837.
37 The customary deference to the Minister's extradition
decisions is rooted in the recognition of
Canada's strong interest in international law enforcement activities: Cotroni,
supra, at p. 1485, cited
by McLachlin J. in Kindler, at pp. 843-44; Libman v. The Queen, [1985] 2
S.C.R. 178, at p.
214; Idziak, supra, at p. 662. The respondents do not quarrel with these
general observations.
Their argument is that despite McLachlin J.'s caution in Kindler that "the
court must be 'extremely
circumspect' to avoid undue interference with an area where the executive
is well placed to make
these sorts of decisions", a constitutional requirement of assurances does
not undermine in any
significant way the achievement of Canada's mutual assistance objectives.
The executive negotiated
Article 6 of the extradition treaty, the United States agreed to it, and
both parties must therefore
have regarded its exercise as consistent with the fulfilment of their mutual
assistance obligations.
38 We affirm that it is generally for the Minister,
not the Court, to assess the weight of competing
considerations in extradition policy, but the availability of the death
penalty, like death itself, opens up
a different dimension. The difficulties and occasional miscarriages of the
criminal law are located in
an area of human experience that falls squarely within "the inherent domain
of the judiciary as
guardian of the justice system": Re B.C. Motor Vehicle Act, supra, at p.
503. It is from this
perspective, recognizing the unique finality and irreversibility of the
death penalty, that the
constitutionality of the Minister's decision falls to be decided.
3 Section 6(1) ("Mobility Rights") of the Charter
Does Not Invalidate an Extradition
Without Assurances.
39 It is convenient at this point to address the
Minister's argument that extradition with or without
assurances has nothing to do with the respondents' rights, as Canadian citizens,
to enter or remain in
Canada. Traditionally, nationality has afforded no defence to extradition
from Canada. Sir William
Buell Richards, the first Chief Justice of Canada, when sitting on the Court
of Common Pleas of
Upper Canada two years prior to Confederation, dealt with this issue in
a review of a warrant of
commitment for the extradition of a British subject to the United States:
Whatever may be considered to have been the general
rule in relation to a government
surrendering its own subjects to a foreign government, I cannot say that
I have any doubt, that under
the treaty and our own statutes, a British subject who is in other respects
brought within the law,
cannot legally demand that he ought not to be surrendered merely because
he is a natural born
subject of Her Majesty. [Emphasis added.]
(Re Burley (1865), 1 U.C.L.J. 34, at p. 46)
40 The present Minister contends that, from a policy
as well as a legal perspective, the nationality
of the fugitive ought to remain an irrelevant consideration. Otherwise,
she argues, it could mean that if
Burns were a Canadian citizen and Rafay were not, only the latter would
be extradited to face the
death penalty, despite the allegation that it was Burns who did the actual
killing.
41 We affirm that extradition is a prima facie
infringement of the s. 6(1) right of every Canadian
citizen to "remain in" Canada: Cotroni, supra, at pp. 1480-81. The respondents
will not, on this
occasion, leave their homeland willingly. Their forcible removal must be
justified under s. 1 of the
Charter (Re Federal Republic of Germany and Rauca (1983), 41 O.R. (2d) 225
(C.A.), cited
with approval in Schmidt, supra, at p. 520, and by La Forest J. in Cotroni,
supra, at pp. 1482-83;
United States v. Whitley (1994), 94 C.C.C. (3d) 99 (Ont. C.A.), at p. 110,
aff'd [1996] 1 S.C.R.
467; United States of America v. Swystun (1987), 40 C.C.C. (3d) 222 (Man.
Q.B.), cited with
approval in Cotroni, supra, at p. 1498; and Re Decter and United States
of America (1983), 5
C.C.C. (3d) 364 (N.S.S.C.T.D.).
42 The issue of s. 1justification was considered
by this Court in Cotroni, supra, and Kindler,
supra. In Cotroni, the two fugitives were Canadian citizens who were alleged
to have participated in
a conspiracy to import and distribute heroin in the United States. They
argued that s. 6(1) of the
Charter required that they be prosecuted in Canada rather than in the United
States. La Forest J.,
writing for a five member majority, disagreed. He found that the prima facie
violation of s. 6 could
be saved under s. 1 because the concerns addressed by the extradition legislation
were pressing and
substantial. Further, the extradition of the respondents was rationally
connected to the important
objectives of international law enforcement, it impaired the s. 6(1) right
as little as reasonably
possible, and such pressing and substantial concerns justified the peripheral
Charter infringement in
that case. It is helpful to quote his precise language at p. 1490:
As against this somewhat peripheral Charter infringement
must be weighed the importance of the
objectives sought by extradition -- the investigation, prosecution, repression
and punishment of both
national and transnational crimes for the protection of the public. These
objectives, we saw, are of
pressing and substantial concern. They are, in fact, essential to the maintenance
of a free and
democratic society. In my view, they warrant the limited interference with
the right guaranteed by s.
6(1) to remain in Canada. That right, it seems to me, is infringed as little
as possible, or at the very
least as little as reasonably possible.
43 Subsequently, in Kindler, La Forest J. expressed
the concern that if Canada did not have the
"right and duty" to extradite or expel undesirable aliens, "Canada could
become a haven for criminals
and others whom we legitimately do not wish to have among us" (p. 834).
While expressed in
connection with aliens, the concern could also apply to citizens, even though
citizens, unlike aliens,
enjoy the added protection of s. 6. We accept that when the respondents
are in British Columbia
they are "at home". They are also using "home" as a safe haven. A murderer
who flees the scene of a
crime across an international boundary is seeking a "safe haven" irrespective
of whether he or she
holds citizenship in the state from which flight commenced, or in the destination
state, or in neither. In
all cases, the international boundary is to some extent an obstacle to law
enforcement. Equally, to the
extent the "safe haven" argument seeks to make Canada a safer place by returning
to face justice in a
foreign country fugitives who are considered dangerous, citizenship is irrelevant
because the
objective is advanced by extraditing Canadian fugitives as much as it is
by extraditing persons of
other nationalities.
44 The respondents contend that to satisfy the
Charter requirement that their s. 6 mobility rights
be impaired "as minimally as possible" the Minister is obliged to seek assurances.
Extradition without
assurances, they say, is not minimal impairment. Such assurances, however,
would not uphold a
"right to remain". Extradition with assurances would result in the forcible
removal of the respondents
from Canada as much as extradition without assurances.
45 A case that raised some of the same s. 6(1)
concerns as the present appeal is Re Federal
Republic of Germany and Rauca, supra, which was cited with approval by La
Forest J. for the
majority in both Cotroni, supra, at pp. 1482-83 and Schmidt, supra, at p.
520. In Rauca, the
Ontario Court of Appeal rejected the claim by Rauca that his extradition
to Germany to face charges
of aiding and abetting the murder of several thousand civilians during the
Second World War
violated s. 6(1). Rauca was a naturalized Canadian citizen and was 74 years
old at the time of the
decision of that court. If convicted, he was expected to be sentenced to
life in prison in Germany.
Given the usual span of human existence, it was clear that Rauca would not
only be denied a right to
"remain" in Canada but, if convicted in Germany, could never thereafter
exercise a right to "enter"
Canada. Nevertheless, the extradition of Rauca was held to be a justifiable
limitation on the s. 6(1)
right. Leave was granted to Rauca to appeal this ruling to this Court but
he voluntarily submitted to
the extradition before the appeal was heard and was returned to Germany,
where he died before
trial.
46 The death penalty was not at issue in Rauca,
but viewed uniquely from the perspective of s.
6(1) mobility rights, death in a foreign prison by natural causes would
be as effective a deprivation of
a "right to return" as death in the foreign prison by capital punishment.
47 The respondents, unless acquitted, will be
subject to life in prison without possibility of release
or parole. The Revised Code of Washington §10.95.030 could scarcely
be more emphatic:
(1) Except as provided in subsection (2) of this
section [the death penalty], any person convicted
of the crime of aggravated first degree murder shall be sentenced to life
imprisonment without
possibility of release or parole. A person sentenced to life imprisonment
under this section shall not
have that sentence suspended, deferred, or commuted by any judicial officer
and the indeterminate
sentence review board or its successor may not parole such prisoner nor
reduce the period of
confinement in any manner whatsoever including but not limited to any sort
of good-time calculation.
The department of social and health services or its successor or any executive
official may not permit
such prisoner to participate in any sort of release or furlough program.
[Emphasis added.]
The evidence is that the practice in Washington
State conforms to the statutory provision. Thus,
the relevant law contemplates that whether assurances are obtained or not,
the fugitive, if convicted,
will equally be unable to return to or "enter" Canada. In neither case would
the bar to return be
imposed by the Government of Canada.
48 Donald J.A. considered that prisoner exchange
programs or possible legislative change in
Washington State do at least create "a faint hope" of return because, as
he says, "where there is life
there is hope" (at para. 27). He also refers to the possibility of delayed
executive clemency. The
possible eventuality of legislative change or other exceptional relief in
a foreign jurisdiction from a
punishment that may never be imposed are events that are also remote from
the making of an
extradition order. In our view, with respect, efforts to stretch mobility
rights to cover the death
penalty controversy are misplaced. The real issue here is the death penalty.
The death penalty is
overwhelmingly a justice issue and only marginally a mobility rights issue.
The death penalty issue
should be confronted directly and it should be confronted under s. 7 of
the Charter.
49 As the s. 1 justification for a breach of s.
6(1) parallels that for a breach of s. 7 in any event, a
more ample discussion of the s. 1 arguments will be deferred until s. 7
has been considered.
4 Section 12 ("Cruel and Unusual Treatment or
Punishment") is not Directly Engaged in
this Appeal Except as a Value to be Considered in the Section 7 Balance.
50 Section 12 of the Charter guarantees the respondents
"the right not to be subjected to any
cruel and unusual treatment or punishment". Concerns about the death penalty
raise the question of
whether its imposition would offend this provision. A threshold question,
however, is whether in the
circumstances of this case s. 12 can even apply, since it would be the State
of Washington and not
the government of Canada that would impose and carry out the death sentence.
51 The Charter only guarantees certain rights
and freedoms from infringement by "the Parliament
and government of Canada" (s. 32(1)(a)) and "the legislature and government
of each province" (s.
32(1)(b)). The role played by s. 32 in the extradition context was discussed
by La Forest J. in
Schmidt, supra, at p. 518:
There can be no doubt that the actions undertaken
by the Government of Canada in extradition
as in other matters are subject to scrutiny under the Charter (s. 32). Equally,
though, there cannot
be any doubt that the Charter does not govern the actions of a foreign country:
see, for example,
Spencer v. The Queen, [1985] 2 S.C.R. 278. In particular the Charter cannot
be given
extraterritorial effect to govern how criminal proceedings in a foreign
country are to be conducted.
See also: Mellino, supra, at p. 547; United States
v. Allard, [1987] 1 S.C.R. 564, at p. 571;
and United States of America v. Dynar, [1997] 2 S.C.R. 462, at para. 123.
52 Nevertheless, counsel for the respondents suggest
that Canada cannot avoid shouldering
responsibility for the imposition of the death penalty just because it would
be a foreign government, if
anyone, that puts the respondents to death. The French text of s. 12 guarantees
to the respondents
"la protection contre tous traitements ou peines cruels et inusités".
The guarantee of
"protection", it could be argued, imposes an affirmative obligation on the
Canadian state to protect
against infliction of the death penalty whether by Canada or by any other
government.
53 There is some support for this view in the
decision of the European Court of Human Rights in
Soering (Eur. Court H.R., Soering case, judgment of 7 July 1989, Series
A No. 161, at para. 91):
In sum, the decision by a Contracting State to
extradite a fugitive may give rise to an issue under
Article 3 [of the European Convention for the Protection of Human Rights
and Fundamental
Freedoms, which is equivalent to section 12 of our Charter], and hence engage
the responsibility of
that State under the Convention, where substantial grounds have been shown
for believing that the
person concerned, if extradited, faces a real risk of being subjected to
torture or to inhuman or
degrading treatment or punishment in the requesting country.
54 The "responsibility of th[e] State" is certainly
engaged under the Charter by a ministerial
decision to extradite without assurances. While the Canadian government
would not itself inflict
capital punishment, its decision to extradite without assurances would be
a necessary link in the chain
of causation to that potential result. The question is whether the linkage
is strong enough and direct
enough to invoke s. 12 in an extradition proceeding, especially where, as
here, there are many
potential outcomes other than capital punishment.
55 The view previously taken by this Court is
that the proper place for the "state responsibility"
debate is under s. 7. We affirm the correctness of that approach.
56 This issue was extensively canvassed in Kindler
and Ng. The Court concluded that extradition
by the Canadian government did not violate the guarantee against cruel and
unusual punishment
because the only action by the Canadian government was to hand the fugitives
over to law
enforcement authorities in the United States, not to impose the death penalty.
La Forest J.,
concurring, stated in Kindler, supra, at p. 831:
The Minister's actions do not constitute cruel
and unusual punishment. The execution, if it
ultimately takes place, will be in the United States under American law
against an American citizen in
respect of an offence that took place in the United States. It does not
result from any initiative taken
by the Canadian Government. Canada's connection with the matter results
from the fact that the
fugitive came here of his own free will, and the question to be determined
is whether the action of the
Canadian Government in returning him to his own country infringes his liberty
and security in an
impermissible way.
And further, McLachlin J. stated at pp. 845-46:
[T]his Court has emphasized that we must avoid
extraterritorial application of the guarantees in
our Charter under the guise of ruling extradition procedures unconstitutional.
...
The punishment, if any, to which the fugitive
is ultimately subject will be punishment imposed, not
by the Government of Canada, but by the foreign state. To put it another
way, the effect of any
Canadian law or government act is too remote from the possible imposition
of the penalty
complained of to attract the attention of s. 12. To apply s. 12 directly
to the act of surrender to a
foreign country where a particular penalty may be imposed, is to overshoot
the purpose of the
guarantee and to cast the net of the Charter broadly in extraterritorial
waters. [Emphasis added.]
57 In our view, the degree of causal remoteness
between the extradition order to face trial and the
potential imposition of capital punishment as one of many possible outcomes
to this prosecution
make this a case more appropriately reviewed under s. 7 than under s. 12.
It must be kept in mind
that the values underlying various sections of the Charter, including s.
12, form part of the balancing
process engaged in under s. 7. In Kindler, supra, both McLachlin J. and
La Forest J. specifically
recognized that s. 12 informs the interpretation of s. 7: Kindler, supra,
at pp. 831 and 847;
Schmidt, supra, at p. 522; Re B.C. Motor Vehicle Act, supra; R. v. Hebert,
[1990] 2 S.C.R.
151.
5 The Outcome of this Appeal is Governed by Section
7 of the Charter ("Fundamental
Justice").
58 Section 7 of the Charter provides that:
7. Everyone has the right to life, liberty and
security of the person and the right not to be deprived
thereof except in accordance with the principles of fundamental justice.
59 It is evident that the respondents are deprived
of their liberty and security of the person by the
extradition order: Kindler, supra, at p. 831. Their lives are potentially
at risk. The issue is whether
the threatened deprivation is in accordance with the principles of fundamental
justice.
60 This Court has recognized from the outset that
the punishment or treatment reasonably
anticipated in the requesting country is clearly relevant. Section 7 is
concerned not only with the act
of extraditing, but also the potential consequences of the act of extradition.
This principle was
recognized in the extradition context by La Forest J. in Schmidt, supra,
at p. 522:
I have no doubt either that in some circumstances
the manner in which the foreign state will deal
with the fugitive on surrender, whether that course of conduct is justifiable
or not under the law of
that country, may be such that it would violate the principles of fundamental
justice to surrender an
accused under those circumstances. To make the point, I need only refer
to a case that arose before
the European Commission on Human Rights, Altun v. Germany (1983), 5 E.H.R.R.
611, where it
was established that prosecution in the requesting country might involve
the infliction of torture.
Situations falling far short of this may well arise where the nature of
the criminal procedures or
penalties in a foreign country sufficiently shocks the conscience as to
make a decision to surrender a
fugitive for trial there one that breaches the principles of fundamental
justice enshrined in s. 7.
[Emphasis added.]
61 In their submissions on whether extradition
without assurances is contrary to the principles of
fundamental justice, the parties drew heavily on the decisions in Kindler
and Ng. It may be helpful to
recall the facts of those cases. Kindler was an American citizen who had
escaped to Canada after
being convicted in Pennsylvania for the brutal murder of an 18-year old
who was scheduled to testify
against him in a burglary case. The jury which convicted Kindler had recommended
that he face the
death penalty. Prior to being sentenced, he escaped to Canada. After seven
months as a fugitive in
Quebec, Kindler was captured and escaped again. After remaining at large
for nearly two years,
Kindler was recaptured. Judicial review of Kindler's surrender order was
dismissed by this Court
even though (unlike this case) the death penalty was no longer simply a
possibility. It had already
been recommended by the jury. Nevertheless, we held that the Minister was
entitled to extradite
without assurances.
62 In the companion appeal, the respondent Ng
was a British subject born in Hong Kong and
subsequently resident in the United States. He had been arrested in Calgary
after shooting at two
department store security guards who tried to apprehend him for shoplifting.
Once his identity was
established, he was extradited to the State of California to face numerous
charges of murder. He has
since been convicted and sentenced to death for murdering 11 people -- six
men, three women and
two baby boys -- during what one newspaper described as a "spree of sexual
torture and murder in
rural California". In that case, as well, the Minister was held to have
the power, though not the duty,
to extradite without assurances.
63 The respondents submit that even if the analytical
framework developed in Kindler and Ng is
accepted (i.e., balancing "the conflicting considerations" or "factors":
Kindler, at p. 850), the result
of those cases should not determine the outcome here. Kindler and Ng should
either be
distinguished on the facts or revisited on the weight to be given to the
"factor" of capital punishment
because of changed circumstances in the 10 years since those cases were
decided.
6 The Proper Analytical Approach (the "Balancing
Process") Was Set Out by this Court in
its decisions in Kindler and Ng.
64 It is important to recognize that neither Kindler
nor Ng provides a blanket approval to
extraditions to face the death penalty. In Kindler, La Forest J., at p.
833, referred to a s. 7
"balancing process" in which "the global context must be kept squarely in
mind". At p. 835, he
acknowledged the possible existence of circumstances that "may constitutionally
vitiate an order for
surrender".
65 It is inherent in the Kindler and Ng balancing
process that the outcome may well vary from
case to case depending on the mix of contextual factors put into the balance.
Some of these factors
will be very specific, such as the mental condition of a particular fugitive.
Other factors will be more
general, such as the difficulties, both practical and philosophic, associated
with the death penalty.
Some of these factors will be unchanging; others will evolve over time.
The outcome of this appeal
turns more on the practical and philosophic difficulties associated with
the death penalty that have
increasingly preoccupied the courts and legislators in Canada, the United
States and elsewhere
rather than on the specific circumstances of the respondents in this case.
Our analysis will lead to the
conclusion that in the absence of exceptional circumstances, which we refrain
from trying to
anticipate, assurances in death penalty cases are always constitutionally
required.
66 The Minister approached this extradition decision
on the basis of the law laid down in Kindler
and Ng and related cases. Having regard to some of the expressions used
in the case law, he
concluded that the possibility of the death penalty does not pose a situation
that is "simply
unacceptable" (Allard, supra, at p. 572), nor would surrender of the respondents
without
assurances "shock the conscience of Canadians" (Schmidt, supra, at p. 522;
Kindler, supra, and
Ng, supra) or violate "the Canadian sense of what is fair and right" (per
McLachlin J. in Kindler,
supra, at p. 850). A similar pre-Charter formulation was applied in a death
penalty case under the
Canadian Bill of Rights, S.C. 1960, c. 44, where Laskin C.J. asked "whether
the punishment
prescribed is so excessive as to outrage standards of decency" in Miller
v. The Queen, [1977] 2
S.C.R. 680, at p. 688.
67 While we affirm that the "balancing process"
set out in Kindler and Ng is the correct
approach, the phrase "shocks the conscience" and equivalent expressions
are not to be taken out of
context or equated to opinion polls. The words were intended to underline
the very exceptional
nature of circumstances that would constitutionally limit the Minister's
decision in extradition cases.
The words were not intended to signal an abdication by judges of their constitutional
responsibilities
in matters involving fundamental principles of justice. In this respect,
Canadian courts share the duty
described by President Arthur Chaskalson of the Constitutional Court of
South Africa in declaring
unconstitutional the death penalty in that country:
Public opinion may have some relevance to the
enquiry, but, in itself, it is no substitute for the
duty vested in the Courts to interpret the Constitution and to uphold its
provisions without fear or
favour. If public opinion were to be decisive, there would be no need for
constitutional adjudication.
The protection of rights could then be left to Parliament, which has a mandate
from the public, and is
answerable to the public for the way its mandate is exercised.... The very
reason for establishing the
new legal order, and for vesting the power of judicial review of all legislation
in the courts, was to
protect the rights of minorities and others who cannot protect their rights
adequately through the
democratic process. Those who are entitled to claim this protection include
the social outcasts and
marginalised people of our society. It is only if there is a willingness
to protect the worst and weakest
amongst us that all of us can be secure that our own rights will be protected.
(S. v. Makwanyane (1995), (3) S.A. 391, at para. 88)
68 Use of the "shocks the conscience" terminology
was intended to convey the exceptional weight
of a factor such as the youth, insanity, mental retardation or pregnancy
of a fugitive which, because
of its paramount importance, may control the outcome of the Kindler balancing
test on the facts of a
particular case. The terminology should not be allowed to obscure the ultimate
assessment that is
required: namely whether or not the extradition is in accordance with the
principles of fundamental
justice. The rule is not that departures from fundamental justice are to
be tolerated unless in a
particular case it shocks the conscience. An extradition that violates the
principles of fundamental
justice will always shock the conscience. The important inquiry is to determine
what constitutes the
applicable principles of fundamental justice in the extradition context.
69 The "shocks the conscience" language signals
the possibility that even though the rights of the
fugitive are to be considered in the context of other applicable principles
of fundamental justice,
which are normally of sufficient importance to uphold the extradition, a
particular treatment or
punishment may sufficiently violate our sense of fundamental justice as
to tilt the balance against
extradition. Examples might include stoning to death individuals taken in
adultery, or lopping off the
hands of a thief. The punishment is so extreme that it becomes the controlling
issue in the extradition
and overwhelms the rest of the analysis. The respondents contend that now,
unlike perhaps in 1991
when Kindler and Ng were decided, capital punishment is the issue.
7 The Principles of Fundamental Justice are to
be Found in "The Basic Tenets of Our Legal
System".
70 The content of the "principles of fundamental
justice" was initially explored by Lamer J. (as he
then was) in Re B.C. Motor Vehicle Act, supra, at p. 503:
... the principles of fundamental justice are
to be found in the basic tenets of our legal system.
They do not lie in the realm of general public policy but in the inherent
domain of the judiciary as
guardian of the justice system. Such an approach to the interpretation of
"principles of fundamental
justice" is consistent with the wording and structure of s. 7, the context
of the section, i.e., ss. 8 to
14, and the character and larger objects of the Charter itself. It provides
meaningful content for the
s. 7 guarantee all the while avoiding adjudication of policy matters. [Emphasis
added.]
71 The distinction between "general public policy"
on the one hand and "the inherent domain of
the judiciary as guardian of the justice system" is of particular importance
in a death penalty case.
The broader aspects of the death penalty controversy, including the role
of retribution and
deterrence in society, and the view that capital punishment is inconsistent
with the sanctity of human
life, are embedded in the basic tenets of our legal system, but they also
reflect philosophic positions
informed by beliefs and social science evidence outside "the inherent domain
of the judiciary". The
narrower aspects of the controversy are concerned with the investigation,
prosecution, defence,
appeal and sentencing of a person within the framework of the criminal law.
They bear on the
protection of the innocent, the avoidance of miscarriages of justice, and
the rectification of
miscarriages of justice where they are found to exist. These considerations
are central to the
preoccupation of the courts, and directly engage the responsibility of judges
"as guardian[s] of the
justice system". We regard the present controversy in Canada and the United
States over possible
miscarriages of justice in murder convictions (discussed more fully below)
as falling within the second
category, and therefore as engaging the special responsibility of the judiciary
for the protection of the
innocent.
8 Factors that Arguably Favour Extradition Without Assurances
72 Within this overall approach, a number of the
"basic tenets of our legal system" relevant to this
appeal may be found in previous extradition cases:
- that individuals accused of a crime should
be brought to trial to determine the truth of the
charges (see Cotroni, supra, at pp. 1487 and 1495), the concern in this
case being that if
assurances are sought and refused, the Canadian government could face the
possibility that the
respondents might avoid a trial altogether;
- that justice is best served by a trial in the
jurisdiction where the crime was allegedly committed
and the harmful impact felt (Mellino, supra, at pp. 555 and 558; Idziak,
supra, at p. 662; and see
Cotroni, supra, at p. 1488);
- that individuals who choose to leave Canada
leave behind Canadian law and procedures and
must generally accept the local law, procedure and punishments which the
foreign state applies to its
own residents. As Wilson J., dissenting in the result in Cotroni, supra,
stated at p. 1510: "A
Canadian citizen who leaves Canada for another state must expect that he
will be answerable to the
justice system of that state in respect of his conduct there". See also
R. v. Harrer, [1995] 3 S.C.R.
562, at para. 50; R. v. Terry, [1996] 2 S.C.R. 207, at para. 24; Schreiber
v. Canada (Attorney
General), [1998] 1 S.C.R. 841, at para. 23, per Lamer C.J.; Ross v. United
States of America
(1994), 93 C.C.C. 500, at p. 535, per Taylor J.A.;
- that extradition is based on the principles
of comity and fairness to other cooperating states in
rendering mutual assistance in bringing fugitives to justice (Mellino, supra,
at p. 551; and see Idziak,
supra, at p. 663); subject to the principle that the fugitive must be able
to receive a fair trial in the
requesting state (Mellino, supra, at p. 558; Allard, supra, at p. 571).
73 A state seeking Canadian cooperation today
may be asked to yield up a fugitive tomorrow.
The extradition treaty is part of an international network of mutual assistance
that enables states to
deal both with crimes in their own jurisdiction and transnational crimes
with elements that occur in
more than one jurisdiction. Given the ease of movement of people and things
from state to state,
Canada needs the help of the international community to fight serious crime
within our own borders.
Some of the states from whom we seek cooperation may not share our constitutional
values. Their
cooperation is nevertheless important. The Minister points out that Canada
satisfies itself that certain
minimum standards of criminal justice exist in the foreign state before
it makes an extradition treaty in
the first place.
74 The Minister argues, very fairly, that expressions
of judicial deference to ministerial extradition
decisions extend in an unbroken line from Schmidt to Kindler. Such deference,
taken together with
the proposition that an individual (including a Canadian) who commits crimes
in another state "must
expect [to be] answerable to the justice system of that state in respect
of his conduct there"
(Cotroni, supra, p. 1510), provides a sufficient basis, the Minister says,
for upholding the
extradition without assurances.
9 Countervailing Factors that Arguably Favour Extradition Only with Assurances
75 We now turn to the factors that appear to weigh
against extradition without assurances that the
death penalty will not be imposed.
(a)Principles of Criminal Justice as Applied in Canada
76 The death penalty has been rejected as an acceptable
element of criminal justice by the
Canadian people, speaking through their elected federal representatives,
after years of protracted
debate. Canada has not executed anyone since 1962. Parliament abolished
the last legal vestiges of
the death penalty in 1998 (An Act to Amend the National Defence Act, S.C.
1998, c. 35) some
seven years after the decisions of this Court in Kindler and Ng. In his
letter to the respondents, the
Minister of Justice emphasized that "in Canada, Parliament has decided that
capital punishment is not
an appropriate penalty for crimes committed here, and I am firmly committed
to that position."
77 While government policy at any particular moment
may or may not be consistent with
principles of fundamental justice, the fact that successive governments
and Parliaments over a period
of almost 40 years have refused to inflict the death penalty reflects, we
believe, a fundamental
Canadian principle about the appropriate limits of the criminal justice
system.
78 We are not called upon in this appeal to determine
whether capital punishment would, if
authorised by the Canadian Parliament, violate s. 12 of the Charter ("cruel
and unusual treatment or
punishment"), and if so in what circumstances. It is, however, incontestable
that capital punishment,
whether or not it violates s. 12 of the Charter, and whether or not it could
be upheld under s. 1,
engages the underlying values of the prohibition against cruel and unusual
punishment. It is final. It is
irreversible. Its imposition has been described as arbitrary. Its deterrent
value has been doubted. Its
implementation necessarily causes psychological and physical suffering.
It has been rejected by the
Canadian Parliament for offences committed within Canada. Its potential
imposition in this case is
thus a factor that weighs against extradition without assurances.
(b)The Abolition of the Death Penalty Has Emerged
as a Major Canadian Initiative at the
International Level, and Reflects a Concern Increasingly Shared by Most
of the World's
Democracies.
79 In Re B.C. Motor Vehicle Act, supra, Lamer
J. expressly recognized that international law
and opinion is of use to the courts in elucidating the scope of fundamental
justice, at p. 512:
[Principles of fundamental justice] represent
principles which have been recognized by the
common law, the international conventions and by the very fact of entrenchment
in the Charter, as
essential elements of a system for the administration of justice which is
founded upon the belief in the
dignity and worth of the human person and the rule of law.
80 Dickson C.J. made a similar observation in Slaight Communications, supra, at pp. 1056-57:
... Canada's international human rights obligations
should inform not only the interpretation of the
content of the rights guaranteed by the Charter but also the interpretation
of what can constitute
pressing and substantial s. 1 objectives which may justify restrictions
upon those rights. [Emphasis
added.]
Further in Reference re Public Service Employee
Relations Act (Alta.), [1987] 1 S.C.R. 313,
at p. 348, Dickson C.J. stated:
The various sources of international human rights
law -- declarations, covenants, conventions,
judicial and quasi-judicial decisions of international tribunals, customary
norms -- must, in my
opinion, be relevant and persuasive sources for the interpretation of the
Charter's provisions.
See also R. v. Keegstra, [1990] 3 S.C.R. 697, at pp. 750 and 791.
81 Although this particular appeal arises in the
context of Canada's bilateral extradition
arrangements with the United States, it is properly considered in the broader
context of international
relations generally, including Canada's multilateral efforts to bring about
change in extradition
arrangements where fugitives may face the death penalty, and Canada's advocacy
at the international
level of the abolition of the death penalty itself.
(i) International Initiatives Opposing Extradition Without Assurances
82 A provision for assurances is found in the
extradition arrangements of countries other than
Canada and the United States. Article 11 of the Council of Europe's European
Convention on
Extradition, signed December 13, 1957 (E.T.S. No. 24) is virtually identical
to Article 6 of the
Canada-U.S. treaty. To the same effect is Article 4(d) of the Model Treaty
on Extradition passed
by the General Assembly of the United Nations in December 1990 which states
that extradition may
be refused:
(d) If the offence for which extradition is requested
carries the death penalty under the law of the
requesting State, unless that State gives such assurance as the requested
State considers sufficient
that the death penalty will not be imposed or, if imposed, will not be carried
out;
83 We are told that from 1991 onwards Article
4(d) has gained increasing acceptance in state
practice. Amnesty International submitted that Canada currently is the only
country in the world, to
its knowledge, that has abolished the death penalty at home but continues
to extradite without
assurances to face the death penalty abroad. Counsel for the Minister, while
not conceding the point,
did not refer us to any evidence of state practice to contradict this assertion.
84 The United Nations Commission on Human Rights
Resolutions 1999/61 (adopted April 28,
1999) and 2000/65 (adopted April 27, 2000) call for the abolition of the
death penalty, and in terms
of extradition state that the Commission
[r]equests States that have received a request
for extradition on a capital charge to reserve
explicitly the right to refuse extradition in the absence of effective assurances
from relevant authorities
of the requesting State that capital punishment will not be carried out;
Canada supported these initiatives. When they
are combined with other examples of Canada's
international advocacy of the abolition of the death penalty itself, as
described below, it is difficult to
avoid the conclusion that in the Canadian view of fundamental justice, capital
punishment is unjust
and it should be stopped.
(ii)International Initiatives to Abolish the Death Penalty
85 As stated, there have been important initiatives
within the international community denouncing
the death penalty, with the government of Canada often in the forefront.
These include:
Extrajudicial, summary or arbitrary executions: Report by the Special Rapporteur,
U.N. Doc.
E/CN.4/1997/60, at para. 79; Extrajudicial, summary or arbitrary executions:
Note by the
Secretary-General, U.N. Doc. A/51/457, at para. 145; United Nations Commission
on Human
Rights Resolutions 1997/12 (Canada voted in favour), 1998/8 (Canada sponsored
the resolution
and voted in favour), and 1999/61 and 2000/65 (discussed, supra). In this
connection, Canada's
representative is reported as stating to the Commission as follows:
Suggestions that national legal systems needed
merely to take into account international law was
inconsistent with international legal principles. National legal systems
should make sure they were in
compliance with international laws and rights, in particular when it came
to the right to life.
(Press Release HR/CN/788 (April 7, 1997))
86 See also resolutions adopted by the Parliamentary
Assembly of the Council of Europe
(Resolution 1044 (1994)) and the European Parliament (resolutions B4-0468,
0487, 0497, 0513
and 0542/97 (1997)) calling on all countries to abolish the death penalty,
and the declaration of June
29, 1998 of the European Union's General Affairs Council stating that: "The
[European Union] will
work towards the universal abolition of the death penalty as a strongly
held policy now agreed by all
[European Union] Member States".
87 Abolition is also the policy of the Second
Optional Protocol to the International Covenant
on Civil and Political Rights, GA Res. 44/128 (December 15, 1989) (in force
in 1991); Canada's
position is still being given "careful consideration": U.N. Doc. A/46/40,
at paras. 64-65, and see
generally W. A. Schabas, The Abolition of the Death Penalty in International
Law (2nd ed.
1997), at p. 176), the Protocol to the American Convention on Human Rights
to Abolish the
Death Penalty, [1990] 29 I.L.M. 1447 (the Organization of American States),
and Protocol No. 6
to the Convention for the Protection of Human Rights and Fundamental Freedoms
Concerning the Abolition of the Death Penalty (the Council of Europe) which
contain similar
prohibitions on state parties to those Protocols. A significant number of
countries have signed or
ratified the latter Protocol since Kindler and Ng were decided: see Council
of Europe, The Death
Penalty: Abolition in Europe (May 1999), at pp. 169-84.
88 It is noteworthy that the United Nations Security
Council excluded the death penalty from the
punishments available to the International Criminal Tribunals for the former
Yugoslavia (Resolution
827, May 25, 1993) and for Rwanda (Resolution 955, November 8, 1994), despite
the heinous
nature of the crimes alleged against the accused individuals. This exclusion
was affirmed in the Rome
Statute of the International Criminal Court, signed on December 18, 1998
and ratified on July 7,
2000 by Canada.
89 This evidence does not establish an international
law norm against the death penalty, or against
extradition to face the death penalty. It does show, however, significant
movement towards
acceptance internationally of a principle of fundamental justice that Canada
has already adopted
internally, namely the abolition of capital punishment.
(iii) State Practice Increasingly Favours Abolition of the Death Penalty.
90 State practice is frequently taken as reflecting
underlying legal principles. To the extent this is
true in the criminal justice field, it must be noted that since Kindler
and Ng were decided in 1991, a
greater number of countries have become abolitionist.
91 Amnesty International reports that in 1948,
the year in which the Universal Declaration of
Human Rights was adopted, only eight countries were abolitionist. In January
1998, the
Secretary-General of the United Nations, in a report submitted to the Commission
on Human Rights
(U.N. Doc. E/CN.4/1998/82), noted that 90 countries retained the death penalty,
while 61 were
totally abolitionist, 14 (including Canada at the time) were classified
as abolitionist for ordinary
crimes and 27 were considered to be abolitionist de facto (no executions
for the past 10 years) for a
total of 102 abolitionist countries. At the present time, it appears that
the death penalty is now
abolished (apart from exceptional offences such as treason) in 108 countries.
These general statistics
mask the important point that abolitionist states include all of the major
democracies except some of
the United States, India and Japan ("Dead Man Walking Out", The Economist,
June 10-16, 2000,
at p. 21). According to statistics filed by Amnesty International on this
appeal, 85 percent of the
world's executions in 1999 were accounted for by only five countries: the
United States, China, the
Congo, Saudi Arabia and Iran.
92 The existence of an international trend against
the death penalty is useful in testing our values
against those of comparable jurisdictions. This trend against the death
penalty supports some
relevant conclusions. First, criminal justice, according to international
standards, is moving in the
direction of abolition of the death penalty. Second, the trend is more pronounced
among democratic
states with systems of criminal justice comparable to our own. The United
States (or those parts of it
that have retained the death penalty) is the exception, although of course
it is an important exception.
Third, the trend to abolition in the democracies, particularly the Western
democracies, mirrors and
perhaps corroborates the principles of fundamental justice that led to the
rejection of the death
penalty in Canada.
(c)Almost All Jurisdictions Treat Some Personal
Characteristics of the Fugitive as Mitigating
Factors in Death Penalty Cases.
93 Examples of potential mitigating factors include
youth, insanity, mental retardation and
pregnancy. In this case, the respondents rely on the fact that at the time
of the crime they were 18.
Article 6(5) of the International Covenant on Civil and Political Rights,
Can. T.S. 1976 No. 47,
to which Canada is a party, prohibits the execution of individuals who were
under the age of 18 at
the time of the commission of the offence. Article 37(a) of the Convention
on the Rights of the
Child, Can. T.S. 1992 No. 3, states a similar proposition. Section 47 of
the new Extradition Act,
S.C. 1999, c. 18, permits the Minister in certain circumstances to refuse
to surrender persons who
were under 18 at the time of the offence. Canada's ratification of these
international instruments, and
the language of the new Extradition Act, support the conclusion that some
degree of leniency for
youth is an accepted value in the administration of justice. Section 10.95.070
of the Revised Code of
Washington recognizes youth as a potential mitigating factor against imposition
of the death penalty.
The respondents, at 18 years of age, had just passed the borderline from
ineligibility to eligibility for
the death penalty in Washington State. It is worth noting that only 16 of
the 38 retentionist states of
the United States have an age limitation of 18 years, another 5 have chosen
17, while the others use
16 by law or judicial interpretation. It is correct that Canada would hold
the respondents fully
responsible for their actions under the Criminal Code, but Canada is an
abolitionist country. The
relative youth of the respondents at the time of the offence does constitute
a mitigating circumstance
in this case, although it must be said, a factor of limited weight.
(d)Other Factors
94 Other factors that weigh against extradition
without assurances include the growing awareness
of the rate of wrongful convictions in murder cases, and concerns about
the "death row
phenomenon", aptly described by Lord Griffiths in Pratt v. Attorney General
for Jamaica, [1993]
4 All E.R. 769 (J.P.C.), at p. 783:
There is an instinctive revulsion against the
prospect of hanging a man after he has been held
under sentence of death for many years. What gives rise to this instinctive
revulsion? The answer can
only be our humanity: we regard it as an inhuman act to keep a man facing
the agony of execution
over a long extended period of time.
As these factors call for extended treatment,
they will be dealt with separately under the headings
which follow.
10 An Accelerating Concern about Potential Wrongful
Convictions is a Factor of Increased
Weight Since Kindler and Ng Were Decided.
95 The avoidance of conviction and punishment
of the innocent has long been in the forefront of
"the basic tenets of our legal system". It is reflected in the presumption
of innocence under s. 11(d) of
the Charter and in the elaborate rules governing the collection and presentation
of evidence, fair trial
procedures, and the availability of appeals. The possibility of miscarriages
of justice in murder cases
has long been recognized as a legitimate objection to the death penalty,
but our state of knowledge
of the scope of this potential problem has grown to unanticipated and unprecedented
proportions in
the years since Kindler and Ng were decided. This expanding awareness compels
increased
recognition of the fact that the extradition decision of a Canadian Minister
could pave the way,
however unintentionally, to sending an innocent individual to his or her
death in a foreign jurisdiction.
(a) The Canadian Experience
96 Our concern begins at home. There have been
well-publicized recent instances of miscarriages
of justice in murder cases in Canada. Fortunately, because of the abolition
of the death penalty,
meaningful remedies for wrongful conviction are still possible in this country.
97 The first of a disturbing Canadian series of
wrongful murder convictions, whose ramifications
were still being worked out when Kindler and Ng were decided, involved Donald
Marshall, Jr. He
was convicted in 1971 of murder by a Nova Scotia jury. He served 11 years
of his sentence. He
was eventually acquitted by the courts on the basis of new evidence. In
1989 he was exonerated by
a Royal Commission which stated that:
The criminal justice system failed Donald Marshall,
Jr. at virtually every turn from his arrest and
wrongful conviction for murder in 1971 up to, and even beyond, his acquittal
by the Court of Appeal
in 1983. The tragedy of the failure is compounded by evidence that this
miscarriage of justice could
-- and should -- have been prevented, or at least corrected quickly, if
those involved in the system
had carried out their duties in a professional and/or competent manner.
That they did not is due, in
part at least, to the fact that Donald Marshall, Jr. is a Native.
(Royal Commission on the Donald Marshall, Jr.
Prosecution, Digest of Findings and
Recommendations (1989), at p. 1)
In June 1990, a further commission of inquiry
recommended that Marshall receive a
compensation package consisting, among other things, of a payment for pain
and suffering and
monthly annuity payments guaranteed over a minimum period of 30 years, at
the end of which he will
have received in excess of $1 million. The miscarriage of justice in his
case was known at the time
Kindler and Ng were decided. What was not known was the number of other
instances of
miscarriages of justice in murder cases that would surface in subsequent
years in both Canada and
the United States.
98 In 1970, David Milgaard was convicted of murder
by a Saskatchewan jury and sentenced to
life imprisonment. He served almost 23 years in jail. On two occasions separated
by almost 22
years, it was held by Canadian courts that Milgaard was given the benefit
of a fair trial, initially by the
Saskatchewan Court of Appeal in January 1971 in R. v. Milgaard (1971), 2
C.C.C. (2d) 206,
leave to appeal refused (1971), 4 C.C.C. (2d) 566n, and subsequently by
this Court in Reference
re Milgaard (Can.), [1992] 1 S.C.R. 866. There was no probative evidence
that the police had
acted improperly in the investigation or in their interviews with any of
the witnesses, and no evidence
that there had been inadequate disclosure in accordance with the practice
prevailing at the time.
Milgaard was represented by able and experienced counsel. No serious error
in law or procedure
occurred at the trial. Notwithstanding the fact that the conviction for
murder followed a fair trial, new
evidence surfaced years later. This Court, on a special reference, considered
that "[t]he continued
conviction of Milgaard would amount to a miscarriage of justice if an opportunity
was not provided
for a jury to consider the fresh evidence" (p. 873). In 1994, Milgaard commenced
proceedings
against the Government of Saskatchewan for wrongful conviction and in 1995
he sued the provincial
Attorney General personally after the latter had told the media he believed
Milgaard was guilty of the
murder. DNA testing in 1997 ultimately satisfied the Saskatchewan government
that Milgaard had
been wrongfully convicted. In May 2000 another individual was prosecuted
and convicted for the
same murder. His appeal is pending before the Saskatchewan Court of Appeal.
Compensation in the
sum of $10 million was paid to Milgaard. The history of the wrongful conviction
of David Milgaard
shows that in Canada, as in the United States, a fair trial does not always
guarantee a safe verdict.
99 Of equal concern is the wrongful conviction
for murder of Guy Paul Morin who was only 25
years old when he was arrested on April 22, 1985, and charged with the first
degree murder of a
child named Christine Jessop who was his next door neighbour. While initially
acquitted by an
Ontario jury, he was found guilty at a second jury trial in 1992. DNA testing
carried out while the
second appeal was pending before the Ontario Court of Appeal, more than
10 years after his initial
arrest, exonerated him. His appeal was then uncontested, and he received
an apology from the
Attorney General of Ontario, compensation of $1.25 million, and the establishment
of a commission
(the Kaufman Inquiry) to look into the causes of the wrongful conviction.
In his 1998 Report, the
Commissioner, a former judge of the Quebec Court of Appeal, concluded:
The case of Guy Paul Morin is not an aberration.
By that, I do not mean that I can quantify the
number of similar cases in Ontario or elsewhere, or that I can pass upon
the frequency with which
innocent persons are convicted in this province. We do not know. What I
mean is that the causes of
Mr. Morin's conviction are rooted in systemic problems, as well as the failings
of individuals. It is no
coincidence that the same systemic problems are those identified in wrongful
convictions in other
jurisdictions worldwide.
(Commission on Proceedings Involving Guy Paul Morin, Report, (1998), vol. 2, at p. 1243)
100 Thomas Sophonow was tried three times for
the murder of Barbara Stoppel. He served 45
months in jail before his conviction was overturned in 1985 by the Manitoba
Court of Appeal. It was
not until June 2000 that the Winnipeg police exonerated Sophonow of the
killing, almost 20 years
after his original conviction. The Attorney General of Manitoba recently
issued an apology to Mr.
Sophonow and mandated the Honourable Peter Cory, recently retired from this
Court, to head a
commission of inquiry which is currently looking into the conduct of the
investigation and the
circumstances surrounding the criminal proceedings, both to understand the
past and to prevent
future miscarriages of justice. The commission will also examine the issue
of compensation.
101 In 1994, Gregory Parsons was convicted by
a Newfoundland jury for the murder of his
mother. He was sentenced to life imprisonment with no eligibility for parole
for 15 years.
Subsequently, the Newfoundland Court of Appeal overturned his conviction
and ordered a new trial.
Before that trial could be held, Parsons was cleared by DNA testing. The
provincial Minister of
Justice apologized to Parsons and his family and asked Nathaniel Noel, a
retired judge, to conduct a
review of the investigation and prosecution of the case and to make recommendations
concerning the
payment of compensation.
102 These miscarriages of justice of course represent
a tiny and wholly exceptional fraction of the
workload of Canadian courts in murder cases. Still, where capital punishment
is sought, the state's
execution of even one innocent person is one too many.
103 In all of these cases, had capital punishment
been imposed, there would have been no one to
whom an apology and compensation could be paid in respect of the miscarriage
of justice (apart,
possibly, from surviving family members), and no way in which Canadian society
with the benefit of
hindsight could have justified to itself the deprivation of human life in
violation of the principles of
fundamental justice.
104 Accordingly, when Canada looks south to the
present controversies in the United States
associated with the investigation, defence, conviction, appeal and punishment
in murder cases, it is
with a sense of appreciation that many of the underlying criminal justice
problems are similar. The
difference is that imposition of the death penalty in the retentionist states
inevitably deprives the legal
system of the possibility of redress to wrongfully convicted individuals.
(b) The U.S. Experience
105 Concerns in the United States have been raised
by such authoritative bodies as the American
Bar Association which in 1997 recommended a moratorium on the death penalty
throughout the
United States because, as stated in an ABA press release in October 2000:
The adequacy of legal representation of those
charged with capital crimes is a major concern.
Many death penalty states have no working public defender systems, and many
simply assign
lawyers at random from a general list. The defendant's life ends up entrusted
to an often
underqualified and overburdened lawyer who may have no experience with criminal
law at all, let
alone with death penalty cases.
The U.S. Supreme Court and the Congress have
dramatically restricted the ability of our federal
courts to review petitions of inmates who claim their state death sentences
were imposed in violation
of the Constitution or federal law.
Studies show racial bias and poverty continue
to play too great a role in determining who is
sentenced to death.
106 The ABA takes no position on the death penalty
as such (except to oppose it in the case of
juveniles and the mentally retarded). Its call for a moratorium has been
echoed by local or state bars
in California, Connecticut, Ohio, Virginia, Illinois, Louisiana, Massachusetts,
New Jersey and
Pennsylvania. The ABA reports that state or local bars in Florida, Kentucky,
Missouri, Nebraska,
North Carolina and Tennessee are also examining aspects of the death penalty
controversy.
107 On August 4, 2000, the Board of Governors
of the Washington State Bar Association, being
the state seeking the extradition of the respondents, unanimously adopted
a resolution to review the
death penalty process. The Governor was urged to obtain a comprehensive
report addressing the
concerns of the American Bar Association as they apply to the imposition
of the death penalty in the
State of Washington. In particular, the Governor was asked to determine
"[w]hether the reversal of
capital cases from our state by the federal courts indicates any systemic
problems regarding how the
death penalty is being implemented in Washington State".
108 Other retentionist jurisdictions in the United
States have also expressed recent disquiet about
the conduct of capital cases, and the imposition and the carrying out of
the death penalty. These
include:
(i)Early last year Governor George Ryan of Illinois,
a known retentionist, declared a moratorium
on executions in that state. The Governor noted that more than half the
people sentenced to die there
in the last 23 years were eventually exonerated of murder. Specifically,
Illinois exonerated 13 death
row inmates since 1977, one more than it actually executed. Governor Ryan
said "I have grave
concerns about our state's shameful record of convicting innocent people
and putting them on death
row". He remarked that he could not support a system that has come "so close
to the ultimate
nightmare, the state's taking of innocent life" (Governor Ryan Press Release,
January 31, 2000).
(ii)The Illinois moratorium followed closely
in the wake of a major study on wrongful convictions
in death penalty cases by the Chicago Tribune newspaper, and a conference
held at Northwestern
University School of Law: see L.B. Bienen, "The Quality of Justice in Capital
Cases: Illinois as a
Case Study" (1998) 61 Law & Contemp. Probs. 193, at p. 213, fn. 103.
The study examined the
285 death penalty cases that had occurred in Illinois since capital punishment
was restored there.
"The findings reveal a system so plagued by unprofessionalism, imprecision
and bias that they have
rendered the state's ultimate form of punishment its least credible" (Chicago
Tribune, November
14, 1999, at p. C1).
(iii) One of the more significant exonerations
in Illinois was the case of Anthony Porter who came
within 48 hours of being executed for a crime he did not commit (Chicago
Tribune, December 29,
2000, at p. 22N).
(iv)Both the New Hampshire House of Representatives
and Senate voted to abolish the death
penalty last year, although the measure was vetoed by the Governor. It is
noteworthy that New
Hampshire has not executed anyone since 1939 (New York Times, May 19, 2000,
at p. 16, and
May 20, 2000, at p. 16).
(v)In May 1999, the Nebraska legislature approved
a bill that imposed a two-year moratorium
on executions in that state and appropriated funds for a study of the issue.
That initiative was vetoed
by the Governor. However, the legislature unanimously overrode part of the
veto so that the study
could proceed.
(vi)Senator Russ Feingold of Wisconsin introduced
a bill in Congress in April 2000 calling on the
federal government and all states that impose the death penalty to suspend
executions while a
national commission reviews the administration of the death penalty.
(vii) On September 12, 2000, the United States
Justice Department released a study of the death
penalty under federal law. It was the first comprehensive review of the
federal death penalty since it
was reinstated in 1988. The data shows that federal prosecutors were almost
twice as likely to
recommend the death penalty for black defendants when the victim was non-black
than when he or
she was black. Moreover, a white defendant was almost twice as likely to
be given a plea agreement
whereby the prosecution agreed not to seek the death penalty. The study
also revealed that 43
percent of the 183 cases in which the death penalty was sought came from
9 of the 94 federal
judicial districts. This has led to concerns about racial and geographical
disparity. The then Attorney
General Janet Reno said that she was "sorely troubled" by the data and requested
further studies
(New York Times, September 12, 2000, at p. 17).
109 Foremost among the concerns of the American
Bar Association, the Washington State Bar
Association and other bodies who possess "hands-on" knowledge of the criminal
justice system, is
the possibility of wrongful convictions and the potential state killing
of the innocent. It has been
reported that 43 wrongfully convicted people have been freed in the United
States as a result of
work undertaken by The Innocence Project, a clinical law program started
in 1992 at the Cardozo
School of Law in New York. See, generally, B. Scheck, P. Neufeld, and J.
Dwyer, Actual
Innocence: Five Days to Execution and Other Dispatches from the Wrongly
Convicted
(2000). One of the authors, Peter Neufeld testified to the House of Representatives
Committee on
the Judiciary that "DNA testing only helps correct conviction of the innocent
in a narrow class of
cases; most homicides do not involve biological evidence that can be determinative
of guilt or
innocence".
110 Finally, we should note the recent Columbia
University study by Professor James Liebman
and others which concludes that 2 out of 3 death penalty sentences in the
United States were
reversed on appeal: A Broken System: Error Rates in Capital Cases, 1973-1995
(June 12,
2000). The authors gathered and analyzed all of the available cases from
the period of 1973 to
1995, the former being the year that states began to enact new death penalty
statutes following the
United States Supreme Court's decision in Furman, supra, invalidating the
existing regimes.
Collection of the data for the study began in 1991, the year Kindler and
Ng were decided. In their
executive summary, the authors report that "the overall rate of prejudicial
error in the American
capital punishment system was 68%." These errors were detected at one of
three stages of appeal in
the American legal system. The authors say that with "so many mistakes that
it takes three judicial
inspections to catch them" there must be "grave doubt about whether we do
catch them all"
(emphasis in original). The authors point out in footnote 81 that "[b]etween
1972 and the beginning
of 1998, 68 people were released from death row on the grounds that their
convictions were faulty,
and there was too little evidence to retry the prisoner" and as of May 2000
"the number of inmates
released from death row as factually or legally innocent apparently has
risen to 87, including nine
released in 1999 alone." For an abridged version of the Liebman study, see
"Capital Attrition: Error
Rates in Capital Cases, 1973-1995" (2000), 78 Tex. L. Rev. 1839.
111 It will of course be for the United States
to sort out the present controversy surrounding
death penalty cases in that country. We have referred to some of the reports
and some of the data,
but there is much more that has been said on all sides of the issue. Much
of the evidence of wrongful
convictions relates to individuals who were saved prior to execution, and
can thus be presented as
evidence of the system's capacity to correct errors. The widespread expressions
of concern suggest
there are significant problems, but they also demonstrate a determination
to address the problems
that do exist. Our purpose is not to draw conclusions on the merits of the
various criticisms, but
simply to note the scale and recent escalation of the controversy, particularly
in some of the
retentionist states, including the State of Washington.
(c)The Experience in the United Kingdom
112 Countries other than Canada and the United
States have also experienced their share of
disclosure of wrongful convictions in recent years. In the United Kingdom,
in 1991, the then Home
Secretary announced the establishment of a Royal Commission on Criminal
Justice (the Runciman
Commission) to examine the effectiveness of the criminal justice system
in securing the conviction of
the guilty and the acquittal of the innocent. In making the announcement,
the Home Secretary
referred to such cases as the "Birmingham Six" which had seriously undermined
public confidence in
the administration of criminal justice. The report of the Commission, pointing
to potential sources of
miscarriage of justice, was presented to the British Parliament in 1993.
The new Criminal Appeal
Act, adopted in 1995, created the Criminal Cases Review Commission, an independent
body
responsible for investigating suspected miscarriages of criminal justice
in England, Wales and
Northern Ireland and referring appropriate cases to the Court of Appeal.
113 The Criminal Cases Review Commission started
its casework in April 1997. As of
November 30, 2000, it had referred 106 cases to the Court of Appeal. Of
these, 51 had been
heard, 39 convictions quashed, 11 upheld and one remained under reserve.
The convictions
overturned by the court as unsafe included 10 convictions for murder. In
two of the overturned
murder convictions, the prisoners had long since been hanged.
114 In R. v. Bentley (Deceased), [1998] E.W.J.
No. 1165 (QL) (C.A.), the court posthumously
quashed the murder conviction of Derek Bentley who was executed on January
28, 1953. The
Crown had alleged that Bentley and an accomplice had embarked upon "a warehouse-breaking
expedition" during which a police officer was killed. It was argued that
the trial judge had erred in
summing up to the jury. It was also argued that fresh evidence made the
conviction unsafe. The Lord
Chief Justice, Lord Bingham, said about the summing up in this case (at
para. 78):
It is with genuine diffidence that the members
of this court direct criticism towards a trial judge
widely recognised as one of the outstanding criminal judges of this century
[Lord Goddard C.J.]. But
we cannot escape the duty of decision. In our judgment the summing up on
this case was such as to
deny the appellant that fair trial which is the birthright of every British
citizen.
After quashing the conviction on this basis, Lord Bingham C.J. said (at para. 95):
It must be a matter of profound and continuing
regret that this mistrial occurred and that the
defects we have found were not recognised at the time.
It does not appear that the Court of Appeal gave
much weight to the fresh evidence, though one
component of this evidence (dealing with the taking of the appellant's statement)
was said to provide
"additional support" (para. 130) for the conclusion that the conviction
was unsafe.
115 Another recent case is R. v. Mattan, [1998]
E.W.J. No. 4668 (QL) (C.A.). Mahmoud
Hussein Mattan was convicted of murdering a Cardiff shopkeeper in 1952.
The shopkeeper's throat
had been cut. On August 19, 1952, the Court of Criminal Appeal refused his
application for leave to
appeal. He was hanged in Cardiff Prison on September 8, 1952. Fresh evidence
came to light in
1969 but the Home Secretary declined in February 1970 to have the case re-opened.
The
Commission, however, referred the matter to the Court of Appeal, which found
that the Crown had
failed to disclose highly relevant evidence to the defence. In the result,
the conviction was quashed.
Near the end of its judgment, the Court of Appeal stated that "[i]t is,
of course, a matter of very
profound regret that in 1952 Mahmoud Mattan was convicted and hanged and
it has taken 46 years
for that conviction to be shown to be unsafe." It also observed that the
case demonstrates that
"capital punishment was not perhaps a prudent culmination for a criminal
justice system which is
human and therefore fallible" (para. 39).
116 The U.K. experience is relevant for the obvious
reason that these men might be free today if
the state had not taken their lives. But there is more. These convictions
were quashed not on the
basis of sophisticated DNA evidence but on the basis of frailties that perhaps
may never be
eliminated from our system of criminal justice. It is true, as the English
Court of Appeal noted in
Mattan, that the present rules require far more disclosure on the part of
the Crown. And it is true
that there was some blood on the shoes of Mattan that could now be shown
by DNA testing not to
have belonged to the victim. But there is always the potential that eyewitnesses
will get it wrong,
either innocently or, as it appears in the case of Mattan, purposefully
in order to shift the blame onto
another. And there is always the chance that the judicial system will fail
an accused, as it apparently
did in Bentley. These cases demonstrate that the concern about wrongful
convictions is unlikely to
be resolved by advances in the forensic sciences, welcome as those advances
are from the
perspective of protecting the innocent and punishing the guilty.
(d) Conclusion
117 The recent and continuing disclosures of wrongful
convictions for murder in Canada, the
United States and the United Kingdom provide tragic testimony to the fallibility
of the legal system,
despite its elaborate safeguards for the protection of the innocent. When
fugitives are sought to be
tried for murder by a retentionist state, however similar in other respects
to our own legal system,
this history weighs powerfully in the balance against extradition without
assurances.
11. The "Death Row Phenomenon" is of Increasing Concern Even to Retentionists.
118 The evidence filed on this appeal includes
a report by Chief Justice Richard P. Guy, Chief
Justice of the State of Washington, dated March 2000 entitled "Status Report
on the Death Penalty
in Washington State". In the report the Chief Justice notes the following
statistics relevant to the
present discussion:
-Since 1981, 25 men have been convicted and sentenced
to death. Four have had their
judgments reversed by the federal courts, 2 have had their sentences reversed
by the Washington
State Supreme Court, and 3 have been executed.
-The case of one defendant who was sentenced to be executed 18 years ago is still pending.
-Two of the three executed defendants chose not to pursue appeals to the federal courts.
-For cases completed in the federal courts, state
and federal review has taken an average of 11.2
years.
-State review after conviction has averaged 5.5 years.
In his introduction to the Status Report, the
Chief Justice made the following observations (at
p. 2):
Because a death sentence is irreversible, opportunities
for proving innocence in addition to those
furnished in other felony cases are offered to the defendant in order to
avoid erroneous executions.
The importance of the review system is illustrated by the current situation
in Illinois, a state in which
12 men have been executed since the 1980s but another 13 men sentenced to
death have been
exonerated. Appellate review of their cases resulted in reversal of their
judgments after they were
able to prove their innocence through the use of newly discovered DNA techniques
or for other
reasons.
119 These statistics are comparable to the degree
of delay on "death row" that concerned the
European Court of Human Rights in Soering, supra. The evidence was that
if Soering were to be
sentenced to death under Virginia law he would face an average of six to
eight years on death row.
The European Court commented on the serious human rights consequences of
holding a convict
under the threat of death for a prolonged length of time at para. 106:
However well-intentioned and even potentially
beneficial is the provision of the complex of
post-sentence procedures in Virginia, the consequence is that the condemned
prisoner has to endure
for many years the conditions on death row and the anguish and mounting
tension in the ever-present
shadow of death.
120 In Pratt v. Attorney General for Jamaica,
supra, at p. 783, the Judicial Committee of the
Privy Council ruled against the decision of the Jamaican government which
sought to carry out death
sentences against two appellants who had been on death row for over 14 years.
Lord Griffiths for
the Committee stated at p. 786:
In their Lordships' view a State that wishes
to retain capital punishment must accept the
responsibility of ensuring that execution follows as swiftly as practicable
after sentence, allowing a
reasonable time for appeal and consideration of reprieve. It is part of
the human condition that a
condemned man will take every opportunity to save his life through use of
the appellate procedure. If
the appellate procedure enables the prisoner to prolong the appellate hearings
over a period of
years, the fault is to be attributed to the appellate system that permits
such delay and not to the
prisoner who takes advantage of it. Appellate procedures that echo down
the years are not
compatible with capital punishment. The death row phenomenon must not become
established as a
part of our jurisprudence. [Emphasis added.]
121 The role of the death row phenomenon in extradition
proceedings was not conclusively
determined by this Court in Kindler. Cory J., with whom Lamer C.J. concurred,
was of the view
that it would be wrong to extradite someone who would face the death row
phenomenon: see pp.
822-24. Sopinka J. did not deal with the question while McLachlin J. (at
p. 856) alluded to "the
complexity of the issue". La Forest J. was critical of the concept. He said
(at p. 838):
While the psychological stress inherent in the
death row phenomenon cannot be dismissed lightly,
it ultimately pales in comparison to the death penalty. Besides, the fact
remains that a defendant is
never forced to undergo the full appeal procedure, but the vast majority
choose to do so. It would
be ironic if delay caused by the appellant's taking advantage of the full
and generous avenue of the
appeals available to him should be viewed as a violation of fundamental
justice.
122 There is now, however, as is shown in the
report of Chief Justice Guy of Washington State,
supra, a widening acceptance amongst those closely associated with the administration
of justice in
retentionist states that the finality of the death penalty, combined with
the determination of the
criminal justice system to satisfy itself fully that the conviction is not
wrongful, seems inevitably to
provide lengthy delays, and the associated psychological trauma. It is apposite
to recall in this
connection the observation of Frankfurter J. of the United States Supreme
Court, dissenting, in
Solesbee v. Balkcom, 339 U.S. 9 (1950), at p. 14, that the "onset of insanity
while awaiting
execution of a death sentence is not a rare phenomenon". Related concerns
have been expressed by
Breyer J., dissenting from decisions not to issue writs of certiorari in
Elledge v. Florida, 119 S. Ct.
366 (1998), and Knight v. Florida, 120 S. Ct. 459 (1999). In the latter
case, Breyer J. cited a
Florida study of inmates which showed that 35 percent of those committed
to death row attempted
suicide.
123 The death row phenomenon is not a controlling
factor in the s. 7 balance, but even many of
those who regard its horrors as self-inflicted concede that it is a relevant
consideration. To that
extent, it is a factor that weighs in the balance against extradition without
assurances.
12 The Balance of Factors in This Case Renders
Extradition of the Respondents Without
Assurances a Prima facie Infringement of their Section 7 Rights.
124 Reviewing the factors for and against unconditional
extradition, we conclude that to order
extradition of the respondents without obtaining assurances that the death
penalty will not be
imposed would violate the principles of fundamental justice.
125 The Minister has not pointed to any public
purpose that would be served by extradition
without assurances that is not substantially served by extradition with
assurances, carrying as it does
in this case the prospect on conviction of life imprisonment without release
or parole. With
assurances, the respondents will be extradited and be made answerable to
the legal system where
the murders took place. The evidence shows that on previous occasions when
assurances have been
requested of foreign states they have been forthcoming without exception.
(See, for example,
Ministerial Decision in the Matter of the Extradition of Lee Robert O'Bomsawin,
December 9, 1991;
Ministerial Decision in the Matter of the Extradition of Rodolfo Pacificador,
October 19, 1996.)
There is no basis in the record to support the hypothesis, and counsel for
the Minister did not
advance it, that the United States would prefer no extradition at all to
extradition with assurances.
Under Washington State law it by no means follows that the prosecutor will
seek the death penalty if
the respondents are extradited to face charges of aggravated first degree
murder.
126 It is true that if assurances are requested,
the respondents will not face the same punishment
regime that is generally applicable to crimes committed in Washington State,
but the reality is that
Washington requires the assistance of Canada to bring the respondents to
justice. Assurances are
not sought out of regard for the respondents, but out of regard for the
principles that have historically
guided this country's criminal justice system and are presently reflected
in its international stance on
capital punishment.
127 International experience, particularly in
the past decade, has shown the death penalty to raise
many complex problems of both a philosophic and pragmatic nature. While
there remains the
fundamental issue of whether the state can ever be justified in taking the
life of a human being within
its power, the present debate goes beyond arguments over the effectiveness
of deterrence and the
appropriateness of vengeance and retribution. It strikes at the very ability
of the criminal justice
system to obtain a uniformly correct result even where death hangs in the
balance.
128 International experience thus confirms the
validity of concerns expressed in the Canadian
Parliament about capital punishment. It also shows that a rule requiring
that assurances be obtained
prior to extradition in death penalty cases not only accords with Canada's
principled advocacy on
the international level, but is also consistent with the practice of other
countries with whom Canada
generally invites comparison, apart from the retentionist jurisdictions
in the United States.
129 The "balancing process" mandated by Kindler
and Ng remains a flexible instrument. The
difficulty in this case is that the Minister proposes to send the respondents
without assurances into
the death penalty controversy at a time when the legal system of the requesting
country is under such
sustained and authoritative internal attack. Although rumblings of this
controversy in Canada, the
United States and the United Kingdom pre-dated Kindler and Ng, the concern
has grown greatly in
depth and detailed proof in the intervening years. The imposition of a moratorium
(de facto or
otherwise) in some of the retentionist states of the United States attests
to this concern, but a
moratorium itself is not conclusive, any more than the lifting of a moratorium
would be. What is
important is the recognition that despite the best efforts of all concerned,
the judicial system is and
will remain fallible and reversible whereas the death penalty will forever
remain final and irreversible.
130 The arguments in favour of extradition without
assurances would be as well served by
extradition with assurances. There was no convincing argument that exposure
of the respondents to
death in prison by execution advances Canada's public interest in a way
that the alternative, eventual
death in prison by natural causes, would not. This is perhaps corroborated
by the fact that other
abolitionist countries do not, in general, extradite without assurances.
131 The arguments against extradition without
assurances have grown stronger since this Court
decided Kindler and Ng in 1991. Canada is now abolitionist for all crimes,
even those in the military
field. The international trend against the death penalty has become clearer.
The death penalty
controversies in the requesting State -- the United States -- are based
on pragmatic, hard-headed
concerns about wrongful convictions. None of these factors is conclusive,
but taken together they tilt
the s. 7 balance against extradition without assurances.
132 Accordingly, we find that the Minister's decision
to decline to request the assurances of the
State of Washington that the death penalty will not be imposed on the respondents
as a condition of
their extradition, violates their rights under s. 7 of the Charter.
13 Extradition of the Respondents Without Assurances
Cannot Be Justified Under Section 1
of the Charter.
133 The final issue is whether the Minister has
shown that the violation of the respondents' s. 7
rights that would occur if they were extradited to face the death penalty
can be upheld under s. 1 of
the Charter as reasonable and demonstrably justifiable in a free and democratic
society. The Court
has previously noted that it would be rare for a violation of the fundamental
principles of justice to be
justifiable under s. 1: Re B.C. Motor Vehicle Act, supra, at p. 518. Nevertheless,
we do not
foreclose the possibility that there may be situations where the Minister's
objectives are so pressing,
and where there is no other way to achieve those objectives other than through
extradition without
assurances, that a violation might be justified. In this case, we find no
such justification.
134 The Minister must show that the refusal to
ask for assurances serves a pressing and
substantial purpose; that the refusal is likely to achieve that purpose
and does not go further than
necessary; and that the effect of unconditional extradition does not outweigh
the importance of the
objective: R. v. Oakes, [1986] 1 S.C.R. 103. In our opinion, while the government
objective of
advancing mutual assistance in the fight against crime is entirely legitimate,
the Minister has not shown
that extraditing the respondents to face the death penalty without assurances
is necessary to achieve
that objective.
135 The Minister cites two important policies
that are integral to Canada's mutual assistance
objectives, namely, (1) maintenance of comity with cooperating states; and
(2) avoiding an influx to
Canada of persons charged with murder in retentionist states for the purpose
of avoiding the death
penalty.
136 With respect to the argument on comity, there
is no doubt that it is important for Canada to
maintain good relations with other states. However, the Minister has not
shown that the means
chosen to further that objective in this case -- the refusal to ask for
assurances that the death penalty
will not be exacted -- is necessary to further that objective. There is
no suggestion in the evidence
that asking for assurances would undermine Canada's international obligations
or good relations with
neighbouring states. The extradition treaty between Canada and the United
States explicitly provides
for a request for assurances and Canada would be in full compliance with
its international obligations
by making it. More and more states are becoming abolitionist and reserving
to themselves the right to
refuse to extradite unconditionally, as already mentioned.
137 In Soering, supra, the European Court of Human
Rights held that, in the circumstances of
that case, extradition of a West German national from the United Kingdom
to face possible
execution in the United States would violate the European Convention on
Human Rights. West
Germany was willing to try Soering in Germany on the basis of his nationality.
The European Court
ruled that the option of a trial of Soering in West Germany was a "circumstance
of relevance for the
overall assessment under Article 3 in that it goes to the search for the
requisite fair balance of
interests and to the proportionality of the contested extradition decision
in the particular case" (para.
110) and that "[a] further consideration of relevance is that in the particular
instance the legitimate
purpose of extradition could be achieved by another means which would not
involve suffering of
such exceptional intensity or duration" (para. 111). By "another means",
the court had in mind the
trial of Soering in West Germany. In the present appeal as well, "the legitimate
purpose of extradition
could be achieved by another means", namely extradition with assurances,
in perfect conformity with
Canada's commitment to international comity.
138 We have already addressed the speculative
argument that an American government might
prefer to let accused persons go without trial by refusing to give assurances.
As European states now
routinely request assurances that the death penalty will not be imposed
on an extradited person,
there is little indication that U.S. governments would ever refuse such
guarantees. A state seeking to
prosecute a serious crime is unlikely to decide that if it cannot impose
the ultimate sanction -- the
death penalty -- it will not prosecute at all. Seeking assurances that the
death penalty will not be
imposed does not amount to asking for lawlessness.
139 An issue could also arise where a treaty did
not contain an assurance clause equivalent to
Article 6 of the Canada-U.S. treaty. The argument would then be raised that
the Canadian
government violated the s. 7 rights of fugitives by failing to insist on
such a provision. That issue is not
raised by the facts of this case and we leave consideration of the point
to an appeal where it is fully
argued.
140 As noted, the Minister's second argument is
that it is necessary to refuse to ask for
assurances in order to prevent an influx to Canada of persons who commit
crimes sanctioned by the
death penalty in other states. This in turn would make Canada an attractive
haven for persons
committing murders in retentionist states. The "safe haven" argument might
qualify as a pressing and
substantial objective. Indeed, it was accepted as such in Kindler, supra,
by both La Forest J. (at p.
836) and McLachlin J. (at p. 853).
141 International criminal law enforcement including
the need to ensure that Canada does not
become a "safe haven" for dangerous fugitives is a very legitimate objective,
but there is no evidence
whatsoever that extradition to face life in prison without release or parole
provides a lesser deterrent
to those seeking a "safe haven" than the death penalty, or even that fugitives
approach their choice of
refuge with such an informed appreciation of tactics. If Canada suffers
the prospect of being a haven
from time to time for fugitives from the United States, it likely has more
to do with geographic
proximity than the Minister's policy on treaty assurances. The evidence
as stated is that Ministers of
Justice have on at least two occasions (since Kindler and Ng) refused to
extradite without
assurances, and no adverse consequences to Canada from those decisions were
brought to our
attention. The respondents pointed out that "[s]ince the execution by the
United States of two
Mexican nationals in 1997, Mexican authorities have consistently refused
to extradite anyone,
nationals or non-nationals, in capital cases without first seeking assurances"
(respondents' factum, at
para. 63).
142 The fact is, however, that whether fugitives
are returned to a foreign country to face the death
penalty or to face eventual death in prison from natural causes, they are
equally prevented from using
Canada as a safe haven. Elimination of a "safe haven" depends on vigorous
law enforcement rather
than on infliction of the death penalty once the fugitive has been removed
from the country.
143 We conclude that the infringement of the respondents'
rights under s. 7 of the Charter cannot
be justified under s. 1 in this case. The Minister is constitutionally bound
to ask for and obtain an
assurance that the death penalty will not be imposed as a condition of extradition.
VIII. Conclusion
144 The outcome of this appeal turns on an appreciation
of the principles of fundamental justice,
which in turn are derived from the basic tenets of our legal system. These
basic tenets have not
changed since 1991 when Kindler and Ng were decided, but their application
in particular cases
(the "balancing process") must take note of factual developments in Canada
and in relevant foreign
jurisdictions. When principles of fundamental justice as established and
understood in Canada are
applied to these factual developments, many of which are of far-reaching
importance in death penalty
cases, a balance which tilted in favour of extradition without assurances
in Kindler and Ng now tilts
against the constitutionality of such an outcome. For these reasons, the
appeal is dismissed.
Appeal dismissed.
Solicitors for the appellant: The Attorney General of Canada, Ottawa.
Solicitors for the respondent Burns: Greenspan, Henein & White, Toronto.
Solicitors for the respondent Rafay: Ruby & Edwardh, Toronto.
Solicitor for the intervener Amnesty International: David Matas, Winnipeg.
Solicitors for the intervener International Centre
for Criminal Law & Human Rights:
Gowling Strathy & Henderson, Ottawa.
Solicitors for the intervener Criminal Lawyers Association: Pinkofsky & Lockyer, Toronto.
Solicitors for the intervener Washington Association
of Criminal Defence Lawyers: Peck
Tammen, Vancouver.
Solicitors for the intervener Senate of the Republic
of Italy: Jackman, Waldman &
Associates, Toronto.
| The official versions of decisions and reasons for
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