This commentary was first published in The Lawyers Weekly on November 16, 2007, page 17
Ronald Smith of Red Deer, Alberta is slated to die the same way that Stanley Faulder of Jasper, Alberta did in 1999: by lethal injection. It can be a cruel death, leaving people gasping for air and writhing in pain while jailhouse “doctors” try to hit a vein with the poisoned needle. Observers at the 1994 execution of killer John Wayne Gacey in Illinois told reporters that the person who inserted the tube in his arm appeared to have “never taken I.V. 101”.
The two Canadians also share another trait: brutality. Faulder murdered a 75 year old Texas woman by crushing her skull with a blackjack and then stabbing her with a kitchen knife, while Smith killed two young Native Americans in Montana by shooting them with a sawed-off shotgun at point blank range in the back of the head. Two cold Canadians whose confessions left little doubt as to the identity of the killers and horror of the crimes.
And yet with all the similarities, Canada has responded in starkly different ways. In Faulder’s case, the government turned interventionist, petitioning the U.S. courts and requesting clemency from the governor of Texas. By contrast, in Smith’s case, the government has turned isolationist, refusing to intervene in a judicial system that shares the same rule of law approach as Canada.
Since no Canadian political party wants to re-open the capital punishment debate, and since it seems unlikely that we sympathize with one kind of innocent victim (young aboriginal men) over another (elderly white woman), and since the crimes and the punishment are virtually indistinguishable, it is tempting to ask what the legal difference between the two cases is?
The Canadian position in Faulder focused on consular visitation. When Faulder was arrested and convicted in 1977, and re-tried and convicted in 1981, no one notified the Canadian consulate. Article 36 of the Vienna Convention on Consular Relations, which has been ratified by the U.S., Canada, and over 175 other countries, bestows a right of notification on foreign nationals. Faulder’s rights were certainly violated, since Canadian officials did not hear of his situation until 1991.
The crucial question in any such violation is the remedy. The right is one of notification, permitting the foreign government to ensure fair treatment of its national in the host state’s prison. Canada provides humanitarian visits when notified of a citizen’s arrest, but does not typically engage counsel or invest resources in the individual’s defence. The U.S. Supreme Court has said that whatever the remedy might be – from diplomatic protest to severance of relations – it does not undermine the conviction. After all, Faulder was represented by local counsel who looked after due process. The contention was simply that Canada was not notified.
Moreover, the underlying rationale for consular rights is to prevent discrimination. A foreign inmate may not understand his rights, or be able to communicate his medical needs, or, worst of all, may suffer abuse because he is foreign. None of these apply to Faulder, Smith, or most Anglo-Canadians in American jails. Canada finally appears to understand that the reason our nationals are not advised of their consular rights is precisely the opposite of the usual rationale for those rights: no one knows they are foreign. When rural Alberta meets rural Texas or Montana, discrimination against the Albertan is not likely to be the pressing issue.
With consular rights a nonstarter, Smith now raises the death penalty head-on. NDP leader Jack Layton has stated that Canada must intervene because it has “a long tradition of opposing capital punishment.” Dan McTeague, Liberal critic for consular affairs, puts it even higher, asserting, “Prime Minister Stephen Harper has an obligation to come clean with Canadians as opposed to trying to impose his own ideology...”
Both complaints are overstated. Canada’s “long tradition” dates from 1976, when Parliament voted 131 to 124 to abolish the death penalty except for military personnel, and again in 1987 when MPs voted 148 to 127 not to reinstate capital punishment. The death penalty for mutinous soldiers was abolished by Parliament in 1998. The tradition is neither lengthy nor traditional, in the sense of an uncontested value held by a vast majority. It is a legislative policy, duly enacted.
The best argument for applying a domestic policy to a foreign state is that the policy reflects international law. Otherwise, we truly impose our ideology on others. Abolition of the death penalty, however, is not obligatory under any of the major multilateral human rights treaties, and although various international bodies have called for abolition, it has not become customary law. Amnesty International reports that 133 of the U.N.’s 192 member states have abolished it – a majority to be sure, but not the “virtually unanimous” state practice required for a custom to be in force. Activists see abolition as an ethical imperative, but states have not made it a legal one.
Ironically, what may violate international standards is not so much death but the form that it takes. In 1993, the U.N. Human Rights Committee decided the cases of Charles Ng and Joseph Kindler, both of whom were extradited from Canada to the U.S. The committee opined that California’s gas chamber violates international law, and admonished Canada for sending serial killer and sexual predator Ng to face state asphyxiation. At the same time, it did not condemn Canada for sending convicted murderer and prison escapee Kindler to face state electrocution in Pennsylvania’s electric chair. It is the aesthetics of the punishment, not the morality, that has moved the world body.
The U.S. Supreme Court will rule this term on a Kentucky case that questions whether lethal injection, currently employed in 37 U.S. states, is cruel and unusual punishment contrary to the Eighth Amendment. It is therefore the United States Constitution, and not anything that Canada or the international community does, that contains Ronald Smith’s best chance at life. We seem to know that now in a way that we did not before.