Should Canada fight for its citizens on death rows in other nations?

On July 14, 1976, the House of Commons voted to strike capital punishment from the Canadian Criminal Code. The road to abolition had been a long one. The first time a member of Parliament had introduced an anti-capital punishment bill was 1914, and several more such bills would be shot down over the following decades. After 120 years, and 710 executions, Canada’s capital punishment laws were pretty well-ingrained into judicial society

I had a hand in bringing about the abolition of capital punishment in Canada. I sent to parliament a report in which an innocent man was executed for the murder of a five-year-old child. In the course of my investigation into that case, I found evidence that his lawyer was legally insane when he attempted to defended the man at his trial, before the Ontario Court of Appeal and before the Supreme Court of Canada. Further, I spoke to the dead girl’s aunt and she told me that the police acknowledged that they arrested and charged the wrong man. The real murderer was later sent to a hospital for the insane and would not be brought to trial. I was later told that my report was given to every member of the House of Commons and the Canadian Senate. Forty members wrote me to personally thank me for my report and after receiving the report, the former prime minister of Canada, Diefenbaker spoke to me personally and said that when he read my report, he called his caucus together to discuss my report. My basic premise was about the risk of executing innocent persons. One of the members of the House of Commons quoted a statement I had written in my report in which he explained my concern about Canada executing innocent persons.  

Wrongful convictions are feared in cases involving executions. The United States has had a great many persons on death row released from prison because it turned out that they were entirely innocent of the crimes they were charged with. Other nations also had released innocent persons from their death rows.

Newly available DNA evidence has allowed the exoneration and release of more than 17 death row inmates since 1992 in the United States. DNA evidence is available in only a fraction of capital cases. Others have been released on the basis of weak cases against them, sometimes involving prosecutorial misconduct; resulting in acquittal at retrial, with charges dropped. The Death Penalty Information Center (U.S.) has published a list of 10 inmates "executed but possibly innocent".^[6] At least 39 executions are claimed to have been carried out in the face of evidence of innocence or serious doubt about guilt. This is one of the reasons why I advocate the abolition of capital punishment everywhere if there is a possibility that the accused is innocent.

Canada however continues to fight for the lives of its citizens sentenced to death in all countries, including the U.S. But should Canada fight on behalf of some of those citizens who have been condemned to death for murder in the first degree where the evidence clearly proves that the person condemned actually caused the murder of another person or persons? 

Canada’s Foreign Affairs Minister, Stéphane Dion announced a change in Canada’s policy on the death penalty in other countries on February 15^th as he met with the United Nations’ top human rights official. The move effectively reverses one of the previous Conservative government’s earliest and most contentious foreign policies.

Dion also revealed plans to travel to Geneva at the end of February to address the UN Human Rights Council, as Canada looks to re-engage with  its troubled human rights system.

                   

Successive Canadian governments had automatically sought clemency for all Canadians sentenced to death by a foreign court. But that came to an end in 2007, when the Conservative government said it would begin asking for clemency on a case-by-case basis.    

The Conservatives said Canadians who commit crimes such as murder in a democratic country that adheres to the rule of law should not count on the government to help. Human rights groups and opposition parties said the Conservatives were effectively condoning the death penalty, which Canada abolished in 1976.

In an interview Monday, Dion accused the Conservatives of “sending the message that Canada was not very sure we were against the death penalty, because we were ready to accept the death penalty under some circumstances. We were picking and choosing.”

Aside from running contrary to domestic policy in Canada, Dion said the Conservatives’ position made it more difficult to successfully advocate for clemency in those situations when the government decided to act.

Dion also said, “Our credibility to be able to get clemency was negatively affected. In order to be able to maximize the possibility that you will get clemency for some, you need to ask for clemency for all.”

Dion was extremely critical of capital punishment during the interview. Aside from the risk of innocent people being mistakenly sentenced to die, he said the death penalty “is not something that should be done in a civilized society, because a civilized society is looking for justice and not vengeance.”

Some will interpret that as criticism of the U.S. But Dion defended his comment, noting that “many Americans will agree with me.” He added that the majority of states don’t execute inmates. While the death penalty is legal in 31 states, moratoriums are in place in 20 of them.

Dion was extremely critical of capital punishment during the interview. Aside from the risk of innocent people being mistakenly sentenced to die, he said the death penalty “is not something that should be done in a civilized society, because a civilized society is looking for justice and not vengeance.”

Some people will interpret that as criticism of the U.S. But Dion defended his comment, noting that “many Americans will agree with me.” He added that the majority of states don’t execute inmates. While the death penalty is legal in 31 states, moratoriums are in place in 20.

Alex Neve, the head of Amnesty International Canada, applauded the government’s move, calling it a “renewal” of Canada’s commitment to human rights abroad. He said the first beneficiary should be Ronald Smith, an Alberta man on death row in Montana whose case was directly affected by the Tories’ policy.

Dion also announced that Canada will be redoubling its support for the UN’s controversial human rights system, as he hosted UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein. It was the first such visit by the UN’s top human rights official since 2006.

Canada will contribute $15 million over three years to help UN Office of the UN High Commissioner for Human Rights, which Al Hussein heads, investigate and report on human rights violations abroad. That is about double what Canada has given each year since 2013.

Dion also said he plans to travel to Geneva at the end of the month to address the UN Human Rights Council which has been steeped in controversy since it was established in 2006.

Ostensibly the UN’s leading organization for advancing human rights abroad, the council came under fire in September after members elected Saudi Arabia as its chair. The council has also spent a disproportionate amount of time and energy condemning Israel, while ignoring human rights violations elsewhere.

 The Supreme Court of Canada in which it was found that extradition of individuals to places where they may face the death penalty is a breach of fundamental justice undersection 7 of the Canadian Charter of Rights and Freedoms. The decision reached this conclusion through a discussion of evidence regarding the arbitrary nature of execution, although the Court did not go so far as to say execution was also unconstitutional under section 12 of the Charter, which forbids cruel and unusual punishments.

Should some condemned persons be spared the death penalty?

Consider the fate of Andrew Grant DeYoung, 37, who was pronounced dead on July 21, 2011 at 8:04 p.m. local time, according to the Georgia Department of Corrections. He was convicted of fatally stabbing his parents and 14-year-old sister in their suburban Atlanta home in 1993. According to court documents, he had hoped to inherit his parents' estimated $480,000 estate for the purpose of starting a business. The evidence against him was overwhelming.

Consider the case of two Canadian citizens, Glen Sebastian Burns and Atif Ahmad Rafay, who were accused of murdering Rafay's family by the police department in Bellevue, Washington. After returning to Canada, Burns and Rafay confessed to undercover Royal Canadian Mounted Police that they committed the murders. After the investigation was complete, Burns and Rafay claimed their confessions were fabricated, but government plans were nevertheless made to extradite them. Their extradition would be possible through an extradition treaty under which the Minister of Justice for Canada may seek assurances that the fugitive accused would not be subject to the death penalty. However, the Canadian Minister of Justice did not seek assurances in this particular  case.                                                                        

Extradition of Canadian murderers might breach fundamental justice because according to precedent in Canada v Schmidt, if the harm faced by the extradited persons is serious enough, that it shocks the moral conscience of the Canadian population. For example, hanging a condemned person where he or she drops only a foot and subsequently strangles to death is unacceptable to Canadians.  The Canadian authorities would never extradite someone to a country that executes people in that manner.  Further, the Canadian authorities would never extradite someone who is facing the death penalty in another country whose alleged crime is simply political.

I am in favour of executing terrorists and I made that clear when I addressed two UN crime conferences. I am much in favour of the United States intention to execute the lone surviving terrorist who planted the bomb in the Boston marathon.

I am also in favour of the execution of adults who murder children, be it their own or those of others. Anyone who tortures someone to death should also be executed.