No need to intervene

by Ed Morgan

This commentary was first published in the National Post on December 4, 2007.

Minister of Justice Rob Nicholson has come under fire recently for his refusal to intervene in the case of Ronald Smith of Red Deer, Alta., a double murderer who faces the death penalty in Montana. While Canada will still look at each case that comes along, the government's new view is that it is not necessary to intervene where a Canadian has been convicted abroad after a fair trial.

Despite the outcry, the Minister is legally correct.

If executed in Montana, Smith will die by lethal injection, just as Stanley Faulder of Jasper, Alta., did in Texas eight years ago. No one denies that it can be a horrific ordeal, in particular because the executioners are often insufficiently trained and in past cases have inflicted prolonged torture rather than instantaneous death. Canada intervened in Faulder's case by filing briefs with the U.S. courts and seeking clemency from the governor of Texas. In Smith's case, the Canadian government has backed off that approach, preferring to see U.S. justice take its course.

No discussion of these cases is complete without some review of the background crimes. Smith murdered two young Native Americans by flagging down their car and shooting them in the back of the head with a sawed off shotgun when they stopped on the road. Faulder killed an elderly Texas woman by battering her skull with a blackjack during the course of a botched robbery. Since the two crimes and the corresponding punishments are remarkably similar, one cannot help asking why Canada has changed its approach.

When Faulder was arrested and convicted in 1977, no one notified the Canadian consulate despite the requirement to do so under the Vienna Convention on Consular Relations. Canada's concern regarding Faulder's case, which was shared by many human rights organizations, was this breach, since it was not until the early 1990s, after spending years on death row, that Faulder's case came to the Canadian government's attention.

The crucial question regarding a failure of consular notification is: What legal remedy is available? The U.S. courts have said that it can take the form of a diplomatic protest or other bilateral action, but it does not impact on the conviction. After all, criminal defendants are represented by local counsel, and they are the ones who ensure due process is served. Canada was not notified about Faulder and so could not make the usual humanitarian visits to him in prison, but consular assistance typically ends there. The involvement of consulates does not generally affect the verdict of the case, and their absence does not either.

The rationale for consular rights is that a foreign inmate may have a language barrier that prevents him expressing his medical and other needs, or he may experience discrimination simply because he is foreign. None of these apply to most anglo-Canadians in American jails. The government of Canada now appears to understand that our nationals are often not advised of their consular rights precisely because no one knows they are foreign. When an Albertan commits murder in Texas or Montana, discrimination against the Albertan is likely to be the least of the issues.

In Smith's case, the controversy has shifted from consular notification to the death penalty itself. Canada abolished the death penalty in 1976 for most convicts and for military personnel in 1998. Opposition critics stress that the Supreme Court of Canada has invoked the Charter of Rights in refusing to extradite Canadians to face execution in the United States. But what has been lost in the debate is that the Supreme Court has also ruled that the Charter does not travel with Canadians abroad. In foreign countries, it is the foreign law that applies. Canada cannot deliver you to a foreign state's executioner, but it does not legally need to remove you from one.

In addition, abolition of the death penalty is not obligatory under any of the major human rights treaties. Amnesty International reports that a clear majority of the U.N.'s member states have abolished it, but the numbers are nowhere near the "virtually unanimous" level required for it to have become an international custom. Activists see abolition as a moral cause, but the international community has not made it legally imperative.

This term, the U.S. Supreme Court is set to rule on whether lethal injection, currently employed in 37 U.S. states, is cruel and unusual punishment. It is therefore the United States Constitution, and not anything that Canada or the international community does, that presents Ronald Smith with his best chance at avoiding the executioner.