Mount Royal, QC
Mr. Speaker, I rise to speak in support of the motion that stands in my name. The motion states:
That, in the opinion of the House, the government should stand consistently against the death penalty as a matter of principle, both in Canada and around the world.
One would have hoped, and believed, that such a motion would not even have to be proposed, but it has been rendered necessary by the government's own action and inaction in these matters, in its refusal to seek clemency for Alberta born Ronald Allen Smith, the only Canadian on death row in the United States, and in particular, by the government's reversal of a long-standing law and policy, principle and precedent, on both the domestic and international levels.
What is more, not only have the government's actions and inaction reversed long-standing law and policy—with respect to principle and precedent, which is troubling—they also reflect a disturbing trend that puts the priority on ideology and politics at the expense of long-standing, respected principles and policies.
Indeed, an appreciation of the government's decision reveals a government acting in ignorance of, or indifference to, law and precedent, both domestic and international, and even unaware of what its own departments and diplomats are otherwise affirming.
For example, on October 27, 2007, just days before the government flip-flopped on this issue, the Minister of Foreign Affairs reaffirmed Canada's traditional policy, stating that “Canada's policy is to seek clemency, for humanitarian reasons, for Canadians sentenced to death in foreign countries” and that “there is no death penalty in Canada, and the government does not support the death penalty”.
As well, it would seem the government was not yet speaking with an informed and unified voice.
Canadian diplomat Kimberly Lewis of the Canadian Consulate in Denver visited Mr. Smith in prison on October 2007 on the occasion of the government in Ottawa saying it would not seek clemency for Mr. Smith, wherein she personally promised Mr. Smith, “the Canadian government was and would continue actively pursuing both his commutation and transfer to Canada”.
Accordingly, when the government's decision not to seek clemency then was announced, Mr. Smith called Kimberley Lewis, with whom he had just met. Ms. Lewis had to acknowledge that she was unaware of the policy reversal.
A Canadian diplomat entrusted with the carrying out of Canadian policy was not even aware of the abrupt change in that policy, thereby misinforming a person on death row that the government will seek clemency on his behalf when the government decided not to seek clemency on his behalf.
What kind of decision making is this, even leaving aside as a matter of principle the wrong-headed reversal of Canada's long-standing Canadian law and policy? Indeed, even the justice department's own website still reads, as I speak, that “the abolition of the death penalty is considered to be a principle of fundamental justice”. Surely something so fundamental should not be so abruptly, if not callously, changed without consent or consultation of the governed, in disregard of the Constitution, and in ignorance of the government's own diplomats entrusted with carrying out its policy.
This is a shocking display of ineptitude, ignorance and callous indifference to principle, policy and human life.
I would like now to outline eight major grounds of principle and precedent, law and policy, which the government has either been ignorant of or indifferent to and which has necessitated this motion. It is as much a matter of setting the record straight as reaffirming our long-standing law and policy on both the domestic and international levels.
First, the government's abrupt about-face contradicts Canadian law and policy respecting extradition. Canadian law prohibits the extradition of an individual to a jurisdiction which imposes the death penalty. Specifically, Canadian law would therefore prohibit the extradition of an American national to a state in the United States that practises the death penalty. Yet the Canadian government will not intervene in the case of a Canadian citizen sentenced to death in an American state.
So the question: Does the Canadian government plan to change our extradition law as well, and if it does not, as it recently suggested, will we then have double standards applied, for example, to Canadian and American citizens in the matter of the death penalty, with no protection for the Canadian citizen, or will the government continue to act as if there is no extradition law at all?
Second, the Supreme Court of Canada in the Burns and Rafay case held that capital punishment was a violation of the section 7 charter right to life, liberty and security of the person and a violation of the principles of fundamental justice thereby, as well as a violation of section 12 of the Canadian Charter of Rights and Freedoms and its protection against cruel and unusual punishment.
Consequently, the court ruled that Canada could not remove Canadian citizens to the United States without receiving assurance from the state concerned that the death penalty would not be imposed.
In the words of the court, “an extradition that violates the principles of fundamental justice will always shock the conscious.... The death penalty has been rejected [in Canada] 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”.
Is the government aware of this decision and opinion of the Supreme Court of Canada, or is it indifferent to decisions and opinions of the Supreme Court and prepared to proceed, notwithstanding the law of the land?
Third, Canada's abolitionist policy, and leadership, on the death penalty has extended beyond our borders, as evidenced by our international undertakings in this regard.
On November 25, 2005, Canada ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights wherein Canada expressed inter alia that as a state party to the protocol, it is “desirous to undertake hereby an international commitment to abolish the death penalty”.
As minister of justice at the time, I stated that, “becoming a party to the treaty is part of Canada's effort to send a clear message on this important human rights issue”. I added, “Canada opposes the death penalty and we support the international trend toward its abolition. We urge all states that retain the death penalty to abolish it or to impose a moratorium on its use, and to become parties to the Second Optional Protocol”.
Is the government aware that we ratified this protocol? In this case as well, is it prepared to act in disregard of, or indifference to, our international commitments let alone our international leadership on these matters?
Fourth, on November 1, Canada did not co-sponsor a resolution presented to the UN General Assembly calling for an international moratorium on the death penalty. This also contradicts Canada's traditional position. Our country co-sponsored similar resolutions before the UN Commission on Human Rights every year from 1988 to 2005. Are we to conclude that Canada is turning its back on its international partners?
Fifth, the United States Supreme Court suspended execution by lethal injection in the state of Mississippi until a study could determine whether the method constitutes cruel and unusual punishment, which is forbidden under the American bill of rights.
In the case of Canadian Ronald Allen Smith, now sentenced to death by lethal injection in the State of Montana, is the government aware of the judicial review of the constitutionality of this practice now before the American Supreme Court; or is it, yet again, indifferent to it and prepared to turn a blind eye to what is happening, in breach, once more, of Canadian and international law and practice?
Sixth, a comprehensive study of the effects of capital punishment just released by the American Bar Association demonstrates that homicide rates in non-death-penalty states are no higher than in states that impose the death penalty. More importantly, the study shows that in death-penalty states, there is a disproportionate and prejudicial impact on minorities, the indigent, and those unrepresented by counsel or represented by ineffective counsel. Is the government aware of this data, or is it also indifferent to it, as it does not comport with its own ideological and political bent?
Seventh, any decision not to seek clemency presupposes in every instance that both a person is guilty and that the death penalty is the appropriate penalty. What this fails to account for is the possibility of wrongful conviction or other miscarriage of justice, and that there is no appeal from a wrongful conviction.
It is pertinent and poignant to recall that in 1959 a young 14-year-old named Steven Truscott was charged and convicted of the rape and murder of a 12-year-old and sentenced to hang. Fortunately, the sentence was commuted and 48 years later it was determined that Mr. Truscott was the victim of a miscarriage of justice, and an acquittal was entered into his case.
It is as painful as it is shocking to appreciate today that had capital punishment then been imposed, Mr. Truscott would not even have lived, let alone to have lived to have his wrongful conviction overturned and his name cleared.
Moreover, since 1973, 124 death row prisoners in the United States have later been found innocent.
Eighth, is the government's inconsistent and rather unprincipled character reflected in its clemency policy.
I am pleased that the government announced that it will seek clemency for Canadian citizen, Mohamed Kohail, under threat of the death penalty by decapitation in Saudi Arabia. But it did so while it maintained its position of not seeking clemency for the only Canadian on death row in the United States.
This brings me to the second part of my remarks. The reasons offered by the government for its unreasonable and even callous reversal of decision, which are even less reassuring.
For example, the government's initial mantra was that it did not want Mr. Smith to be returned to Canada and that it wanted to protect the security of Canadians. However, this was a red-herring. No one was seeking his return to Canada. The opposition is to the imposition of the death penalty, not to his conviction or to him serving a life sentence in the United States. We understand the pain and suffering of the victims of Mr. Smith's criminal act.
Fortunately the government no longer repeats this untenable and discredited mantra. The government then stated that it will not interfere “in a jurisdiction that is both democratic and respects the rule of law”, however, no one is arguing that Mr. Smith did not get a fair trial, or that the United States is not a democracy.
Indeed, the government is conflating the issue of capital punishment policy in a state of the United States with that of U.S. policy as a whole, or more, with whether the U.S. is a democracy or not, a matter that is utterly irrelevant to the issue at hand.
The government then proceeded to ground its reversal on a “case by case basis” and thereby justified its decision to intervene in the case of Saudi Arabia and not in the case of Mr. Smith on the grounds that it will “consider to seek clemency on a case-by-case” basis.
However, this is a seemingly arbitrary determination without criteria or process, which inherently prefers some lives before others, a notion also at variance with principles of equality and due process.
Moreover, is the government thereby wishing to convey in the case of Mr. Kohail that Saudi Arabia is not a democracy or that it does not exercise the rule of law, or both? If so, will it so advise its diplomats, conveying that decision to Saudi Arabia, with the attending prejudicial fallout that this might have not only for our diplomacy but also for advancing the justifiable case and cause for seeking clemency for Mr. Kohail?
As well, this ambiguous policy has been further obfuscated with the more recent addition that such case-by-case determinations would also factor into what is “in the best interest of Canada”, a no less vague and arbitrary measure, the whole of which creates a decision-making process without criteria or oversight, and seemingly without basis in law, principle, or precedent.
I would hope as well that the government will not resurrect again its false and ugly canard that those who support the abolition of the death penalty do not care about victims of crime.
Indeed, our party and all parties that support the abolition of the death penalty are no less committed and care about victims of crime.
However, the issue of the death penalty, as the Supreme Court has put it, is not one about victims of crime whose suffering we appreciate, but about fundamental justice under the Charter of Rights and Freedoms and international law. It is about respect and reverence for the sanctity of human life.
As the United Nations human rights committee stated, “The right to life...is the supreme right from which no derogation is permitted” even in time of public emergency which threatens the life of the nation.
In a word, Parliament has abolished the death penalty. Canadian courts found it to be in violation of the Charter of Rights and Freedoms as a matter that shocks the conscience.
The Government of Canada has exercised international leadership on the matter of the death penalty “à plusieurs reprises”. International tribunals have affirmed and reaffirmed the sanctity of the right to life and characterized the death penalty as an assault on that fundamental right. The government is either ignorant of all this or choosing to be indifferent with all the negative and prejudicial fallout that this accounts for.
Certainly, the government, given its rhetoric about democratic countries with the rule of law as the basis for its seeking clemency on a case by case basis, should take this into account: our Canadian democracy, through which Parliament said no to the death penalty; our courts, including the Supreme Court, which said no to the death penalty; and our charter, which says no to the death penalty. Ours is a democracy speaking on this matter.
It should be noted here that Parliament recently voiced its opinion on the Conservative government's abrupt reversal of Canada's longstanding practice and policy by voting to reaffirm the traditional policy of Canada. Regrettably, the Conservative government voted unanimously against.
The government has repeated it has no intention of reopening the death penalty debate. I would like to take it at its word. However, the Prime Minister did state in 2004 that both the death penalty and the issue of abortion are not issues “for the first Conservative government”.
I am sure all members of the House and all Canadians would appreciate clarification from the government, given that indeed the death penalty has been opened up as an issue by this first Conservative government.
In summary, the government's decision is not only a violation of longstanding law and policy, principle and precedent both domestic and international but the reasons articulated by the government for its decision reflect a disturbing mindset where ideology and politics trump principle and policy.
It is time for the Government of Canada, as per the motion, to stand, consistently as a matter of principle, against the death penalty, both in Canada and around the world. This would be in accord with our law and policy, our principles, and precedents both domestic and international.