You Can Stay

On the topic of extradition, which I raised in yesterday’s post, there is an important very recent decision of the Ontario Court of Appeal, United States v. Leonard, 2012 ONCA 622. The decision concerns applications for judicial review by two Aboriginal Canadians of extradition orders authorizing their surrender to the authorities in the United States where they are both wanted on drug charges. The applicants contended that their aboriginal status warranted special consideration by the Minister of Justice, who is responsible for extradition decisions, as part of his review of their file. The Court of Appeal agreed, although it did not accept of the applicants’ arguments.

Both applicants are accused of having participated in the importation of drugs from Canada to the U.S. They could be prosecuted in Canada, but the Canadian prosecution authorities have so far declined to do so. If they were extradited and prosecuted in the U.S., their sentences are likely to be much, much heavier than they would have been in Canada. None of that would normally be a bar to extradition.  But, the applicants say, their Aboriginal status ought to be taken into account, in assessing both their right to remain in Canada pursuant to subs. 6(1) of the Charter and the principles of fundamental justice that bear on the possible deprivation of their liberty, protected by s. 7. (They make a number of other arguments too, some of them successful, but these are concerned with the technicalities of extradition law and I will skip them in the interests of concision.)

The Court rejects one s. 6(1) argument, to the effect that the applicants’ right to remain in Canada is stronger than that of other Canadians because of the special relationship between aboriginal peoples and their lands. It holds that “[t]he applicants’ have a s. 6(1) right to remain in Canada because they are Canadian citizens. … [T]he s. 6(1) right applies to all Canadian citizens equally. … [T]he special connection between Aboriginal peoples and traditional Aboriginal lands” does not enhance it (par. 82).

The court accepts, however, that in determining whether extradition is a reasonable and justifiable limit on the applicants’ right to remain in Canada, the Minister ought to have taken into account the fact that, as Aboriginals, they are entitled to special consideration for a more lenient sentence if prosecuted in Canada, pursuant to the Supreme Court’s decision in R. v. Gladue, [1999] 1 S.C.R. 688.

The decision is most concerned though with the s. 7 analysis, “where Gladue has a more direct bearing” (par. 81). Gladue requires Canadian courts, when sentencing aboriginal offenders, to take into account the history of bias, discrimination, and exclusion of which Aboriginals were and remain the victims, insofar as it may have contributed to bring the individual offender, and also to consider the peculiar cultural heritage and values of the Aboriginal peoples when choosing the most appropriate sentence.

Now this case is not about sentencing in Canada as such. However, Gladue principles apply in considering whether extradition of the applicants, and their likely sentencing in the U.S., would be contrary to the principles of fundamental justice to which s. 7 of the Charter refers. The Court finds

that the Minister’s reasons reveal that he refused to apply the Gladue principle that the interests of justice require that Aboriginal defendants be accorded special consideration in order to ensure that entrenched patterns of discrimination are not maintained and repeated (par. 57).

The Minister concluded that to give special consideration to the applicants because they are Aboriginals would be unfair to other Canadians. But that, says the Court, is precisely what Gladue goes against:

Gladue stands for the proposition that insisting that Aboriginal defendants be treated as if they were exactly the same as non-Aboriginal defendants will only perpetuate the historical patterns of discrimination and neglect that have produced the crisis of criminality and over-representation of Aboriginals in our prisons (par. 60).

The Court also stresses that the Applicants need not escape prosecution altogether if they are not extradited. They can be prosecuted in Canada. Canadian prosecution authorities originally declined to do so, probably thinking that extradition was the better option, but if that is not available, they may reconsider.

The remaining question is that of the remedy. The Court splits here. Two judges (Justices Sharpe and MacPherson) think that the result of a reconsideration of the Minister’s order, if it applies the Gladue principles correctly, is a foregone conclusion: the sentences the applicants risk in the U.S. are so disproportionately higher than what they would risk in Canada that extradition would be a breach of s. 7. Justice Doherty dissents, arguing that the Minister could still conclude that extradition is justified.

Death Penalty and Dignity

The topic of tomorrow’s class in Jeremy Waldron’s Human Dignity seminar is the death penalty and, having blogged about the sorts of arguments that are made for and against it here and here, I want to come back to the topic, because a couple of things caught my eye as I was doing the readings.

One is a passage in Justice Brennan’s opinion in Furman v. Georgia, 408 U.S. 238 (1972), a case in which a majority of the Supreme Court of the United States declared the death penalty unconstitutional in that country. Justice Brennan has no doubt about the sort of arguments that really count in the death penalty debate:

From the beginning of our Nation, the punishment of death has stirred acute public controversy. Although pragmatic arguments for and against the punishment have been frequently advanced, this longstanding and heated controversy cannot be explained solely as the result of differences over the practical wisdom of a particular government policy. At bottom, the battle has been waged on moral grounds. The country has debated whether a society for which the dignity of the individual is the supreme value can, without a fundamental inconsistency, follow the practice of deliberately putting some of its members to death. (296)

Now I don’t know whether this is true as an empirical matter. Perhaps, up to 1972, “the battle” always had “been waged on moral grounds.” But, as my previous two posts suggest, it does not really seem to be the case anymore, at least not in the political realm, as opposed to philosophical discussions. If Justice Brennan’s reading of the debate was correct at the time, this means there has been an important change in the way Americans argue about the death penalty. But perhaps he was wrong, deliberately or not, mistaking what he wanted to be the case for what actually was.

Yet it may well be that―as my previous posts suggest―moral grounds are not those on which opponents of the death penalty ought to be fighting if they care to win. Justice Brennan’s victory in Furman was short-lived, Merely four years later that decision was (partially) overturned in Gregg v. Georgia, 428 U.S. 153 (1976) which held that the death penalty was not unconstitutional provided that its imposition was surrounded with certain safeguards.

And the story of two Canadian cases discussing the death penalty, in the context of challenges to decisions of the Canadian government to extradite to the United States people who are at risk of being executed there is interesting too. In Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, a 4-3 majority held that extradition in these circumstances did not breach s. 7 of the Canadian Charter of Rights and Freedoms, the dissenters’ furious invocations of human dignity notwithstanding. 10 years later, in United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, the Court effectively reversed Kindler, in a unanimous judgment that did not discuss human dignity at all. And while it does invoke some arguments that appeal to considerations of dignity and justice―the risk that innocents will be put to death if the the death sentence is applied, and the irremediable cruelty of the “death row phenomenon”―its makes them look as though they are almost secondary. The first argument is that Canada’s law and public policy (especially in foreign affairs) consistently condemn the death penalty, so that its rejection ranks among the basic tenets of the Canadian legal system. (Possibly, probably even, that is because Parliament and the government of Canada came to regard the death penalty as morally wrong, but the Supreme Court doesn’t say that!)

All that is not to say that this is how things should be. If one is philosophically inclined, one is likely to regret the avoidance of the “moral ground” in favour of “merely” practical considerations. On the other hand, perhaps there is in fact good reason for that avoidance. Moral arguments can cut both ways―Kant, the great moralist and champion of human dignity, thought that the death penalty was not just permissible, but absolutely required in cases of murder―and there is no good way of proving their correctness to everyone’s satisfaction, and so to persuade people. (People still can change their minds of course. Justice Harry Blackmun did so famously. He dissented in Furman and, much later in life, dissenting again from a denial of certiorari (the U.S. equivalent of a leave to appeal to the Supreme Court) in Callins v. Collins, a death penalty case, where he wrote that “[f]rom this day forward, [he] no longer [would] tinker with the machinery of death” (par. 7) and that his court’s continued willingness to do so “lessens us all” (par. 40).) Maybe there is more agreement, or at least less intractable disagreement, to be found on the ground of practical considerations.