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.

A Charter Right to Bear Arms?

My friend Michael Cust makes an interesting suggestion in a blog post asking whether there is a right to bear arms in Canada: while there is no self-standing right to bear arms, “a case could be made that it’s part of our right to liberty” protected by section 7 of the Charter, because history suggests that, in the last resort, weapons are necessary for citizens to protect their freedom from the government’s oppression.  Michael believes, however, that section 1 of the Charter would allow limits to be imposed on the scope of the right to bear arms read into s. 7, although the controls it would sanction would be less strict than those which could otherwise be imposed. Although I am profoundly sceptical of the underlying claim that weapons are an essential, or even an effective protection for our rights and freedoms, I put this problem to one side, in order to address the less philosophical and more technically legal difficulties with Michael’s claim.

The s. 7 liberty protection, as the Supreme Court has interpreted it, extends to freedom from physical restraints and also to “important and fundamental life choices.” (Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, par. 49). I strongly doubt that the courts would accept that a decision to own a weapon is such a choice. And I doubt that they would extend the scope of s. 7 to a sort of collective freedom guarantee protecting the Lockean right of rebellion. So I think that an attempt to read a right to bear arms directly into the s.7 right to liberty, as Michael suggests, could not succeed. But there are at least two more ways to go about try to have the right to bear arms read into s. 7.

The first one is to argue that the right to bear arms, or at least some form of it, is a principle of fundamental justice  and Parliament or the provincial legislatures cannot subject people to the threat of imprisonment (thus uncontroversially engaging the right to liberty) in contravention to this principle. The difficulty of course would be to show that the right to bear arms is a principle of fundamental justice in Canada. As restated in R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3, at par. 46,  a principle of fundamental justice

(1)   … must be a legal principle.

(2)   There must be a consensus that the rule or principle is fundamental to the way in which the legal system ought fairly to operate.

(3)   It must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.

Can the right to bear arms fit those conditions? I don’t think so, if only because there is surely little consensus about its status or importance in the Canadian legal system. One could try to argue, persuasively enough, that the right to defend one’s rights is in fact a principle of fundamental justice, operating for example to render unconstitutional  a law preventing citizens from suing the government or asserting the unconstitutionality of a statute. (These examples are not entirely imaginary either, as cases such as Amax Potash and Air Canada v. BC demonstrate.) But could such a principle be extended to a right to vindicate ones rights, not in a court of law, but by force of arms? I very much doubt it.

The final possibility would be to link the right to bear arms not to liberty, but to security of the person, which s. 7 also protects. Arguably, a restriction on one’s ability to own a weapon for self-defence impairs one’s “security of the person.” But this post is getting out of hand, and since it is not directly related to Michael’s argument, I will discuss this possibility later on.