Kindler v. Canada (Minister of Justice)

Kindler v. Canada (Minister of Justice)
Collection
Supreme Court Judgments
Date
1991-09-26
Report
[1991] 2 SCR 779
Case number
21321
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley
On appeal from
Federal Court of Appeal
Subjects
Administrative law
Constitutional law
Criminal law
Notes
SCC Case Information: 21321
Decision Content
Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779
Joseph John Kindler Appellant
v.
Mr. John Crosbie, Minister of Justice
and Attorney General of Canada Respondent
and
Amnesty International Intervener
Indexed as: Kindler v. Canada (Minister of Justice)
File No.: 21321.
1991: February 21; 1991: September 26.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.
on appeal from the federal court of appeal
Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Extradition ‑‑ Surrender of fugitive to foreign state ‑‑ Fugitive convicted of murder in U.S. ‑‑ Minister of Justice deciding to extradite fugitive without obtaining assurances from U.S. authorities that death penalty will not be imposed ‑‑ Whether Minister's decision infringed s. 7 of Canadian Charter of Rights and Freedoms ‑‑ Whether s. 25 of Extradition Act infringes s. 7 of Charter ‑‑ 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.
Constitutional law ‑‑ Charter of Rights ‑‑ Cruel and unusual punishment ‑‑ Extradition ‑‑ Surrender of fugitive to foreign state ‑‑ Fugitive convicted of murder in U.S. ‑‑ Minister of Justice deciding to extradite fugitive without obtaining assurances from U.S. authorities that death penalty will not be imposed ‑‑ Whether s. 12 of Canadian Charter of Rights and Freedoms applies to extradition proceedings ‑‑ 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.
Extradition ‑‑ Surrender of fugitive to foreign state ‑‑ Fugitive convicted of murder in U.S. ‑‑ Minister of Justice deciding to extradite fugitive without obtaining assurances from U.S. authorities that death penalty will not be imposed ‑‑ Whether Minister's decision infringed s. 7 or s. 12 of Canadian Charter of Rights and Freedoms ‑‑ 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.
Administrative law ‑‑ Natural justice ‑‑ Extradition ‑‑ Minister's decision to surrender fugitive made without oral hearing ‑‑ Whether requirements of natural justice complied with ‑‑ Extradition Act, R.S.C., 1985, c. E‑23, s. 25.
The appellant was found guilty of first degree murder, conspiracy to commit murder and kidnapping in the State of Pennsylvania and the jury recommended the imposition of the death penalty. Before he was sentenced, the appellant escaped from prison and fled to Canada where he was arrested. After a hearing, the extradition judge allowed the U.S.'s application for his extradition and committed the appellant to custody. The Minister of Justice of Canada, after reviewing the material supplied by the appellant, ordered his extradition pursuant to s. 25 of the Extradition Act without seeking assurances from the U.S., under Art. 6 of the Extradition Treaty between the two countries, that the death penalty would not be imposed or, if imposed, not carried out. Both the Trial Division and the Court of Appeal of the Federal Court dismissed appellant's application to review the Minister's decision. This appeal is to determine whether the Minister's decision to surrender the appellant to the U.S., without first seeking assurances that the death penalty will not be imposed or executed, violates the appellant's rights under s. 7 or s. 12 of the Canadian Charter of Rights and Freedoms . In addition, this Court stated the following two constitutional questions: whether s. 25 of the Extradition Act infringes s. 7 or s. 12 of the Charter ; and, if so, whether such infringement is justified under s. 1 .
Held (Lamer C.J. and Sopinka and Cory JJ. dissenting): The appeal should be dismissed. The extradition order is confirmed. Section 25 of the Extradition Act does not infringe s. 7 or s. 12 of the Charter .
Per La Forest, L'Heureux‑Dubé and Gonthier JJ.: Section 7 of the Charter , and not s. 12 , is the appropriate provision under which the actions of the Minister are to be assessed. The Minister's actions do not constitute cruel and unusual punishment. The execution, if it ultimately takes place, will be in the U.S. under American law against an American citizen in respect of an offence that took place in the U.S. It does not result from any initiative taken by the Canadian Government. The real question is whether the action of the Canadian Government in returning the appellant to his own country infringes his liberty and security in an impermissible way.
The unconditional surrender of the appellant seriously affects his right to liberty and security of the person. The issue is whether the surrender violates the principles of fundamental justice in the circumstances of this case. The values emanating from s. 12 play an important role in defining fundamental justice in this context. The Court has held that extradition must be refused if the circumstances facing the accused on surrender are such as to "shock the conscience". There are situations where the punishment imposed following surrender ‑‑ torture, for example ‑‑ would be so outrageous as to shock the conscience of Canadians, but that is not so of the death penalty in all cases. While there is strong ground that, barring exceptional cases, the death penalty could not be justified in Canada having regard to the limited extent to which it advances any penological objectives and its serious invasion of human dignity, that is not the issue in this case. The issue is whether the extradition to the U.S. of a person who may face the death penalty there shocks the conscience.
In considering whether such surrender may constitutionally take place, the global setting where the vast majority of the nations of the world retain the death penalty must be kept in mind. While there has been a welcome trend in Western nations to abolish the death penalty, some nations have resisted the trend, notably the U.S. whose relatively open borders and cultural affinity with Canada make the escape of criminals to this country a pressing problem. While there are a number of major international instruments supporting the trend, all except one fall short of actually prohibiting the death penalty. More directly reflective of international attitudes is the recent Model Treaty on Extradition prepared under the United Nations' auspices, which like the Canada‑U.S. Extradition Treaty, gives a state discretion to decide whether it should demand assurances against the imposition of the death penalty.
The Government has a right and duty to keep criminals out of Canada and to expel them by deportation. Otherwise Canada could become a haven for criminals. The issue has arisen in several recent cases in relation to persons facing the death penalty for murder. Similar policy concerns apply to extradition. It would be strange if Canada could keep out lesser offenders but be obliged to grant sanctuary to those accused or convicted of the worst types of crimes.
In summary, the extradition of an individual who has been accused of the worst form of murder in the U.S., which has a system of justice similar to our own, could not be said to shock the conscience of Canadians or to violate any international norm. The extradition did not go beyond what was necessary to serve the legitimate and compelling social purpose of preventing Canada from becoming an attractive haven for fugitives. The Minister determined, in the interests of protecting the security of Canadians, that he should not, in this case, seek assurances regarding the penalty to be imposed. On the evidence before the Court, the Minister's determination was not unreasonable and this Court should not interfere with his decision to extradite without restrictions.
The procedure followed by the Minister in reaching his decision to surrender the appellant did not offend the principles of fundamental justice. Nor did the subsidiary grounds ‑‑ the alleged arbitrariness, the "death row" phenomenon and the mode of execution ‑‑ lead to a different result.
Per L'Heureux‑Dubé and Gonthier and McLachlin JJ.: While the Charter applies to extradition matters, including the executive decision of the Minister that effects the fugitive's surrender, the guarantee against cruel and unusual punishment found in s. 12 of the Charter has no application to s. 25 of the Extradition Act or to ministerial acts done pursuant to that section. The decision to surrender a fugitive under s. 25 does not constitute the imposition of cruel and unusual punishment by a Canadian government. The purpose and effect of s. 25 is to permit the fugitive to be extradited to face the consequences of the judicial process elsewhere. 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. The fact that the Minister may seek assurances that the death penalty will not be demanded or enforced in the foreign jurisdiction does not change this situation. Since the Charter 's reach is confined to the legislative and executive acts of Canadian governments, to apply s. 12 directly to the act of surrender to a foreign country where a particular penalty may be imposed would be to give the section extraterritorial effect. Effective relations between different states require that Canada respects the differences of its neighbours and that it refrains from imposing its constitutional guarantees on other states.
Section 25 of the Extradition Act, which permits the extradition of fugitives without assurances that the death penalty will not be applied in the requesting states, does not offend the fundamental principles of justice enshrined in s. 7 of the Charter . Section 25 is consistent with extradition practices, viewed historically and in light of current conditions, and is consonant with the fundamental conceptions of what is fair and right in Canadian society. Bearing in mind the nature of the offence and the penalty, the justice system of the requesting state including the safeguards and guarantees it affords the fugitive, the considerations of comity and of security, and according due latitude to the Minister to balance the competing interests involved in particular extradition cases, the extradition of a fugitive to a state where he may face capital punishment, if convicted, is not a situation which is shocking and fundamentally unacceptable in our society. There is no clear consensus in this country that capital punishment is morally abhorrent and absolutely unacceptable. Further, while in some cases it may be mandatory for the Minister to seek death penalty assurances, the variance between cases supports legislation which accords to the Minister a measure of discretion on the question of whether such assurances should be demanded. If such assurances were mandatory, Canada might become a safe haven for criminals in the U.S. seeking to avoid the death penalty. Finally, the importance of maintaining effective extradition arrangements with other countries, in a world where law enforcement is increasingly international in scope, also supports the ministerial discretion found in s. 25 . An effective extradition process is founded on respect for sovereignty and differences in the judicial systems among various nations.
The Minister's decision to extradite without seeking death penalty assurances from the U.S. did not infringe s. 7 of the Charter . The reasons for extradition were compelling and the procedural guarantees in the reciprocating state high. The sole fact that at the end of the process, the appellant could face the death penalty was insufficient in the context of the extradition system of this country to render the decision unconstitutional. The courts should not lightly interfere with executive decisions on extradition matters.
The Minister's decision to extradite is not invalid because the appellant was denied an oral hearing before the Minister. The appellant was afforded that right at the stage of the judicial hearing. No further oral hearing is required at the second stage of the Minister's final decision.
Per Lamer C.J. and Sopinka J. (dissenting): While capital punishment per se constitutes cruel and unusual punishment, it is preferable not to decide whether s. 12 of the Charter applies because s. 7 is the appropriate provision for the determination of this appeal.
The surrender order infringes s. 7 of the Charter . Extradition to face the potential imposition of capital punishment deprives the appellant of liberty and security of the person. The circumstances in which extradition constitutes a breach of the principles of fundamental justice are not limited to situations which "shock the conscience". The protection afforded by s. 7 extends to individuals who face situations that are "simply unacceptable". This requirement entails more than a simple consideration of majority opinion. It must be interpreted in light of the values underlying s. 7 . Here, the Minister's decision to surrender the appellant without seeking the assurances against the imposition of what would be a violation of s. 12 of the Charter , were it carried out in Canada, offends the principles of fundamental justice. Indeed, the extradition of the fugitive to face the death penalty without seeking assurances that it would not be imposed or carried out shocks the conscience. The Minister did not even ask the U.S. to give such assurances. It is quite possible that they would have been given. With the cooperation of the requesting state, it is possible to achieve the goals of an effective extradition system in a manner that does not deprive the fugitive of the protection of the Charter . To refuse to seek such assurances is to give an official blessing to the death penalty, despite the fact that Canadian public policy stands firmly opposed to its use. The surrender order is not justifiable under s. 1 of the Charter .
Per Lamer C.J. and Cory J. (dissenting): Capital punishment for murder is prohibited in Canada. As the ultimate desecration of human dignity, the death penalty is per se a cruel and unusual punishment and violates s. 12 of the Charter . The decision of the Minister to surrender a fugitive who may be subject to execution without obtaining an assurance pursuant to Art. 6 of the Extradition Treaty is one which can be reviewed under s. 12 . Although the Charter has no extraterritorial application, persons in Canada who are subject to extradition proceedings must be accorded all the rights which flow from the Charter . Notwithstanding the fact that it is the U.S. and not Canada which would impose the death penalty, Canada has the obligation not to extradite a person to face a cruel and unusual treatment or punishment. Indeed, to surrender a fugitive who may be subject to the death penalty violates s. 12 of the Charter just as surely as would the execution of the fugitive in Canada. Canada, as the extraditing state, must accept responsibility for the ultimate consequence of the extradition. It follows that the Minister must not surrender the appellant without obtaining the undertaking described in Art. 6 of the Treaty. To do so would render s. 25 of the Extradition Act inconsistent with the Charter in its application to fugitives who would be subject to the death penalty.
This conclusion is based upon the historical reluctance displayed by jurors over the centuries to impose the death penalty, the provisions of s. 12 of the Charter and the decisions of this Court pertaining to that section. It is also based upon the pronouncements of this Court emphasizing the fundamental importance of human dignity, and upon the international statements and commitments made by Canada stressing the importance of the dignity of the individual and urging the abolition of the death penalty.
In the absence of obtaining an Art. 6 assurance, the surrender order would contravene s. 12 of the Charter and could not be justified under s. 1 . There is simply no evidence that the existence of Art. 6 has led to a flood of American murderers into Canada. Nor is there any reason to believe that this would occur if Ministers of Justice uniformly sought Art. 6 assurances. Further, Canada has committed itself in the international community to the recognition and support of human dignity and to the abolition of the death penalty. These commitments, like the Charter and this Court's judicial pronouncements, reflect Canadian values and principles. The preservation of Canada's integrity and reputation in the international community require that extradition be refused unless an undertaking is obtained pursuant to Art. 6 . To take this position does not constitute an absolute refusal to extradite. It simply requires the requesting state to undertake that it will substitute a penalty of life imprisonment for the execution of the prisoner if that prisoner is found to be guilty of the crime.
The Minister's denial of appellant's request to present oral evidence did not breach his right to an oral hearing. The Minister, both in determining what evidence he should consider on the application and in reaching his decision, complied with all the requirements of natural justice. Any issues of credibility or claims of innocence must be addressed by the extradition judge. It was therefore not open to the appellant to seek to adduce fresh evidence before the Minister of Justice as to the credibility of witnesses or his innocence of the offence. The Minister was obliged neither to consider such issues, nor to hear viva voce evidence.
Cases Cited
By La Forest J.
Referred to: Canada v. Schmidt, [1987] 1 S.C.R. 500; Miller v. The Queen, [1977] 2 S.C.R. 680; R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Lyons, [1987] 2 S.C.R. 309; Kindler v. MacDonald, [1987] 3 F.C. 34; Shepherd v. Canada (Minister of Employment and Immigration) (1989), 52 C.C.C. (3d) 386 (Ont. C.A.), leave to appeal to this Court denied, [1989] 2 S.C.R. xi; Blanusa v. Canada (Minister of Employment and Immigration) (1989), 27 F.T.R. 107; Attorney‑General for Canada v. Cain, [1906] A.C. 542; Eur. Court H. R., Soering case, judgment of 7 July 1989, Series A No. 161; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; Argentina v. Mellino, [1987] 1 S.C.R. 536; Furman v. Georgia, 408 U.S. 238 (1972); Richmond v. Lewis, 921 F.2d 933 (1990); Glass v. Louisiana, 471 U.S. 1080 (1984); Thomson Newpapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission, [1990] 1 S.C.R. 425.
By McLachlin J.
Referred to: United States of America v. Cotroni, [1989] 1 S.C.R. 1469; Canada v. Schmidt, [1987] 1 S.C.R. 500; Argentina v. Mellino, [1987] 1 S.C.R. 536; United States v. Allard, [1987] 1 S.C.R. 564; Spencer v. The Queen, [1985] 2 S.C.R. 278; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Beare, [1988] 2 S.C.R. 387; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Milne, [1987] 2 S.C.R. 512; R. v. Jones, [1986] 2 S.C.R. 284; Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; Application No. 10479/83, Kirkwood v. United Kingdom, March 12, 1984, D.R. 37, p. 158; Eur. Court H. R., Soering case, judgment of 7 July 1989, Series A No. 161.
By Sopinka J. (dissenting)
Canada v. Schmidt, [1987] 1 S.C.R. 500; United States v. Allard, [1987] 1 S.C.R. 564; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486.
By Cory J. (dissenting)
Canada v. Schmidt, [1987] 1 S.C.R. 500; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; Gregg v. Georgia, 428 U.S. 153 (1976); Miller v. The Queen, [1977] 2 S.C.R. 680; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Morgentaler, [1988] 1 S.C.R. 30; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Argentina v. Mellino, [1987] 1 S.C.R. 536; United States v. Allard, [1987] 1 S.C.R. 564; Application No. 6315/73, X. v. Federal Republic of Germany, September 30, 1974, D.R. 1, p. 73; Application No. 10308/83, Altun v. Federal Republic of Germany, May 3, 1983, D.R. 36, p. 209; Application No. 10479/83, Kirkwood v. United Kingdom, March 12, 1984, D.R. 37, p. 158; Eur. Court H. R., Soering case, judgment of 7 July 1989, Series A No. 161.
Statutes and Regulations Cited
American Convention on Human Rights, O.A.S.T.S. No. 36, at 1, Art. 4.
Bill of Rights of 1689 (Eng.), 1 Will. & Mar. sess. 2, c. 2, clause 10.
Canadian Bill of Rights, S.C. 1960, c. 44 (reprinted in R.S.C., 1985, App. III).
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 12 .
Charter of the United Nations, Can. T.S. 1945 No. 7.
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46 39 U.N. GAOR Supp. (No. 51), at 197, U.N. Doc. A/RES/39/46 (1984).
Constitution of the United States, Eight Amendment.
European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, Art. 3.
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.
International Covenant on Civil and Political Rights, 999 U.N.T.S. 172, Arts. 6, 7.
Model Treaty on Extradition, Art. 4.
Optional Protocol to the International Covenant on Civil and Political Rights, 999 U.N.T.S. 302.
Protocol No. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty, Europ. T.S. No. 114.
Protocol to the American Convention on Human Rights to Abolish the Death Penalty.
Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, preamble, Art. 1 , 2 .
Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), preamble, Art. 1 , 3 , 5 .
Authors Cited
Amnesty International. When the State Kills . . . The Death Penalty: A Human Rights Issue. New York: Amnesty International U.S.A., 1989.
Beccaria, Cesare. On Crimes and Punishments. Translated by Henry Paoluccy. Indianapolis: Bobbs‑Merrill Co., 1963.
Cockburn, J. S. "Twelve Silly Men? The Trial Jury at Assizes, 1560‑1670". In J.S. Cockburn and Thomas A. Green, eds., Twelve Good Men and True: The Criminal Trial Jury in England, 1200‑1800. Princeton, New Jersey: Princeton University Press, 1988.
Foucault, Michel. Discipline and Punish: The Birth of the Prison. Translated by Alan Sheridan. New York: Vintage Books, 1979.
Granucci, Anthony F. "`Nor Cruel and Unusual Punishments Inflicted:' The Original Meaning" (1969), 57 Cal. L. Rev. 839.
Gray, Ian and Moira Stanley. A Punishment in Search of a Crime: Americans Speak Out Against the Death Penalty. New York: Avon Books, 1989.
Hay, Douglas. "Property, Authority and the Criminal Law". In Douglas Hay et al. Albion's Fatal Tree: Crime and Society in Eighteenth‑Century England. London: Allen Lane, 1975.
Hay, Douglas. "The Class Composition of the Palladium of Liberty: Trial Jurors in the Eighteenth Century". In J. S. Cockburn and Thomas A. Green, eds., Twelve Good Men and True: The Criminal Trial Jury in England, 1200‑1800. Princeton, New Jersey: Princeton University Press, 1988.
Johnson, Robert. Condemned to Die: Life Under Sentence of Death. New York: Elsevier, 1981.
La Forest, G. V. Extradition to and from Canada, 2nd ed. Toronto: Canada Law Book Ltd., 1977.
McLane, Bernard William. "Juror Attitudes toward Local Disorder: The Evidence of the 1328 Lincolnshire Trailbaston Proceedings". In J. S. Cockburn and Thomas A. Green, eds., Twelve Good Men and True: The Criminal Trial Jury in England, 1200‑1800. Princeton, New Jersey: Princeton University Press, 1988.
United Nations. Economic and Social Council. Commission on Human Rights. Sub‑Commission on Prevention of Discrimination and Protection of Minorities. Elaboration of a second optional protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty. By Special Rapporteur Marc J. Bossuyt, June 29, 1987.
Zaller, Robert. "The Debate on Capital Punishment During the English Revolution" (1987), 31 Am. J. Legal Hist. 126.
APPEAL from a judgment of the Federal Court of Appeal, [1989] 2 F.C. 492, 91 N.R. 359, 46 C.C.C. (3d) 257, 69 C.R. (3d) 38, 42 C.R.R. 262, affirming a judgment of the Trial Division, [1987] 2 F.C. 145, 8 F.T.R. 222, 34 C.C.C. (3d) 78. Appeal dismissed, Lamer C.J. and Sopinka and Cory JJ. dissenting.
Julius H. Grey and Cheryl A. Buckley, for the appellant.
Douglas J. A. Rutherford, Q.C., and Graham Garton, Q.C., for the respondent.
David Matas and Emilio S. Binavince, for the intervener Amnesty International.
The reasons of Lamer C.J. and Sopinka J. were delivered by
//Sopinka J.//
Sopinka J. (dissenting) -- I have had the advantage of reading the reasons of my colleagues, Cory, McLachlin and La Forest JJ. While I reach the same result as Cory J., I do so for different reasons.
The facts are as set out by Cory J. The issue raised by this appeal is whether the decision of the Minister of Justice to surrender the appellant to the United States, without first seeking assurances that the death penalty will not be imposed or carried out, violates the appellant's rights under either s. 7 or s. 12 of the Canadian Charter of Rights and Freedoms .
While I agree with Cory J. that capital punishment per se constitutes cruel and unusual punishment, I prefer not to decide whether s. 12 of the Charter applies because, in my view, s. 7 clearly applies and is the appropriate provision for the determination of this appeal. My colleagues, La Forest and McLachlin JJ., hold that s. 12 of the Charter does not apply because the death penalty would be imposed outside of Canada. As I understand their reasons, they concede that s. 7 applies to the decision of the Minister but conclude that there is no breach of the principles of fundamental justice. I disagree with the latter conclusion and will restrict my reasons to that issue.
Extradition to face the potential imposition of capital punishment deprives the fugitive of liberty and security of the person, thus triggering s. 7 of the Charter . Is that deprivation in accordance with the principles of fundamental justice?
This Court has recognized that the manner in which the foreign state will deal with a fugitive on surrender may be contrary to the principles of fundamental justice. In Canada v. Schmidt, [1987] 1 S.C.R. 500, La Forest J., writing for the majority, stated (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 .
On my reading of this passage, La Forest J. did not intend to deal exhaustively with the circumstances in which extradition constitutes a breach of the principles of fundamental justice. Such circumstances are not limited to situations which "shock the conscience". To hold otherwise would be to overly restrict the application of s. 7 in the extradition context. Principles of fundamental justice are not limited by public opinion of the day. The protection afforded by s. 7 extends to individuals who face unjust situations which are not recognized as such by the majority.
In United States v. Allard, [1987] 1 S.C.R. 564, La Forest J., again writing for the majority of the Court, stated (at p. 572):
To arrive at the conclusion that the surrender of the respondents would violate the principles of fundamental justice, it would be necessary to establish that the respondents would face a situation that is simply unacceptable.
Once again the requirement that the fugitive face a situation that is "simply unacceptable" must entail more than a simple consideration of majority opinion. It must be interpreted in light of the values underlying s. 7 . As Lamer J., as he then was, stated for the majority of the Court in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, 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.
Guided by these considerations, I am of the view that it offends the principles of fundamental justice not to seek assurances against the imposition of what would be a violation of s. 12 , were it carried out in Canada.
Even if the comments of the majority in Schmidt, supra, were intended to be exhaustive of the circumstances that constitute a breach of the principles of fundamental justice, in my opinion the extradition of the fugitive to face the death penalty without seeking assurances shocks the conscience and as such is contrary to principles of fundamental justice.
In 1976 in a free vote, a majority of the members of the House of Commons voted to abolish capital punishment for all offences under the Criminal Code . Its reinstitution was rejected in another free vote in 1987. These votes reflect the view of the majority of the elected members of Parliament that the death penalty is incompatible with respect for human dignity and the value of human life. Thus public policy in Canada, reaffirmed as recently as four years ago, stands clearly opposed to the death penalty. It is against this background that the actions of the Minister must be evaluated.
The Minister did not even ask the United States to give assurances that the death penalty would not be imposed or, if imposed, would not be carried out. It is quite possible that such assurances would have been given, had they been requested. The appellant would then have been returned to face the Pennsylvania judicial system and the likely imposition of a life sentence. Thus it is not at all clear that this case involves a choice between extraditing the appellant to face the death penalty and having him escape the judicial process entirely. With the cooperation of the requesting state, it is possible to achieve the goals of an effective extradition system in a manner that does not deprive the fugitive of the protection of the Charter . In such circumstances, it is fundamentally unjust for the Canadian Government to extradite a fugitive without at least seeking assurances against the imposition of the death penalty. To refuse to seek such assurances is to give an official blessing to the death penalty, despite the fact that Canadian public policy stands firmly opposed to its use.
The situations in which a breach of s. 7 can be justified under s. 1 will be exceedingly rare. This is not one of them. In this regard, I adopt the analysis of Cory J. with respect to the application of s. 1 in this appeal. I would therefore set aside the decision of the Minister to surrender the appellant pending a request for assurances under Article 6 of the Extradition Treaty between Canada and the United States of America, Can. T.S. 1976 No. 3. I would answer the constitutional questions as follows:
1. Is s. 25 of the Extradition Act, R.S.C., 1985, c. E-23, to the extent that it permits the Minister of Justice to order the surrender of a fugitive for a crime for which the fugitive may be or has been sentenced to death in the foreign state without first obtaining assurances from the foreign state that the death penalty will not be imposed, or, if imposed, will not be executed, inconsistent with ss. 7 or 12 of the Canadian Charter of Rights and Freedoms ?
Answer: Yes, it is inconsistent with s. 7 of the Charter .
2. If the answer to question 1 is in the affirmative, is s. 25 of the Extradition Act, R.S.C., 1985, c. E-23, a reasonable limit of the rights of a fugitive within the meaning of s. 1 of the Canadian Charter of Rights and Freedoms , and therefore not inconsistent with the Constitution Act, 1982 ?
Answer: Section 25 of the Extradition Act is not a reasonable limit within the meaning of s. 1 of the Charter .
The reasons of Lamer C.J. and Cory J. were delivered by
//Cory J.//
Cory J. (dissenting) -- This appeal involves a challenge to the decision of the Minister of Justice, rendered pursuant to s. 25 of the Extradition Act, R.S.C., 1985, c. E-23, to surrender a fugitive charged with an offence punishable by death without first seeking assurances under Article 6 of the Extradition Treaty between Canada and the United States of America, Can. T.S. 1976 No. 3 (the "Treaty"), that the death penalty will not be imposed or, if imposed, not executed. The principal issue to be resolved is whether the Minister's decision to surrender the appellant to the United States without obtaining Article 6 assurances violates the appellant's rights under the Canadian Charter of Rights and Freedoms . In addressing this issue, two main questions arise. First, does the death penalty itself violate rights guaranteed under the Charter ? Second, if so, what is the significance of this finding to the constitutional status of the Minister's decision?
Before dealing with the substantive issues raised on this appeal a few words must be said about extradition. Extradition treaties have long been recognized as both sound and necessary for the effective prosecution and enforcement of criminal law. It must be remembered that it is not the salutary scheme of extradition which is challenged on this appeal; rather, the question to be resolved is whether a fugitive subject to capital punishment in the requesting state should be surrendered without death penalty assurances.
IFactual Background
On November 15, 1983 in Philadelphia, Pennsylvania, Kindler was found guilty of first degree murder, conspiracy to commit murder and kidnapping. Following his conviction, the jury heard further evidence and recommended the imposition of the death penalty. Before the formal imposition of the sentence, Kindler escaped from prison and fled to Canada in September 1984.
He was arrested near St. Adèle, Quebec, on April 26, 1985 and charged with offences under the Immigration Act, 1976, S.C. 1976-77, c. 52, and the Criminal Code, R.S.C. 1970, c. C-34. On May 27, 1985, Kindler made an application to the Federal Court to prohibit the holding of an enquiry which had been commenced under s. 28 of the Immigration Act, 1976. Rouleau J. granted the application on July 23, 1985: [1985] 1 F.C. 676.
In the meantime, on July 3, 1985, the United States made a request for the extradition of Kindler pursuant to the Treaty. Kindler was arrested and an extradition hearing was set for August 26 in Montréal.
The hearing was held before Pinard J. of the Quebec Superior Court. It was agreed by counsel for Kindler that the evidence supplied by the United States complied with the conditions and requirements of the Treaty for the extradition of Kindler as a convicted fugitive. The sole issue raised was whether Article 6 of the Treaty required the extradition judge or the Minister of Justice to seek death penalty assurances from the United States before surrendering Kindler. Article 6 provides:
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.
On August 30, 1985, Pinard J. determined that he had no jurisdiction to request the Article 6 assurances and committed Kindler to custody to await the Minister's decision to surrender: [1985] C.S. 1117. That same day he sent a report of the case with a copy of his judgment to the Minister of Justice.
Kindler sought review of the decision of Pinard J. pertaining to Article 6 of the Treaty and brought an application for habeas corpus. This application was dismissed by Greenberg J. on September 20, 1985. He too was of the opinion that only the Minister of Justice could seek the assurances referred to in Article 6 of the Treaty. However, he added that in his view Kindler was entitled to be dealt with in accordance with the principles of fundamental justice pursuant to the provisions of s. 7 of the Charter . This clearly implied that the Minister's decision could be subject to judicial review. He determined that it was premature to decide whether extradition which could lead to the imposition of the death penalty constituted cruel and unusual punishment and was thus in conflict with s. 12 of the Charter .
The then Minister of Justice, the Honourable John Crosbie, in the exercise of his authority under s. 25 of the Extradition Act, agreed to entertain representations. Section 25 provides:
25. Subject to this Part, the Minister of Justice, on the requisition of the foreign state, may, under his hand and seal, order a fugitive who has been committed for surrender 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.
Written material was supplied to the Minister, including letters from Kindler's parents, his wife and from Dr. Fugère and Dr. Cormier of the McGill University Clinic in Forensic Psychiatry relating to their examination of Kindler. An affidavit was filed by Kindler's counsel, who had been scheduled to handle his post-trial motions in Pennsylvania. It was her opinion that Kindler would not succeed in the appeals of his convictions and sentence and that as a result he would be executed as soon as the appeal procedure had been completed.
Counsel for Kindler also sought to have Kindler give evidence at the hearing before the Minister and to submit studies on the death penalty. The Minister refused the application to present oral testimony or to hear Kindler in person, but considered the written material.
By letter to counsel for Kindler dated January 17, 1986, the Minister of Justice expressed the opinion that Canada should surrender Kindler without seeking any assurance from the United States authorities that the death penalty would not be imposed or, if imposed, would not be carried out. The Minister stated that in the interest of the Canadian public, those who commit murder in a foreign state should be discouraged from seeking haven in Canada as a means of reducing or limiting the severity of the penalty that might be exacted under the laws of the state in which t