Both nothamlet and mgadam admonish me to “read the entire post before replying”. Indeed, I did and have done so again. My comments remain, jti’s pre-emptive “wiggle room” notwithstanding.
From media reports (so correct me if I’m wrong), my understanding is that the Supreme Court has essentially issued a prohibition against ever extraditing someone if they may face capital charges. Their argument was based on the charter. IMHO, Supreme Court + charter-based argument = major precedent. Not something likely to be overturned. So, the “wiggle room” counter is just that, wiggling.
There is also a more practical issue. Who defines what is unforgivably heinous or egregious. “Adolf Eichmann” was easy. How about the torturer who only killed a few dozen. What’s the magic number to be considered a war criminal. Six million? Six hundred? Six?
Even if there could be agreement about what constitutes an “Eichmann” or a war criminal, it seems arbitrary to say that mass murder committed during a war is somehow less pardonable than, say, murder committed during a beastly rampage through ones own country in peacetime. How can you possibly consider it logical to spare Charles Ng but not “Eichmann”? And that’s the problem. The only way to be consistent is to proscribe extradition in all cases where the death penalty is possible. “Wiggle room” doesn’t exist. (And that’s why I didn’t respond to it explicity in my posts.)
(And, btw magdam, I don’t think citizenship has much to do with this. Once someone (a non-citizen) has arrived in Canada, they might claim refugee status on the grounds that sending them back home could make them subject there to capital punishment).
Nothing like the death penalty to post my first comment to this forum. It is only right that such a profound moment should involve matters of life & death.
Well from what I read it seems that most people have very entrenched views and I’m not even going to presume that I might change them.
Must confess that I’m also guilty of holding an entrenched view which believes in ‘Thou shall not kill’ rather than ‘Thou shall not kill except when…’
I know that people will feel that self defense, war etc are OK but I honestly don’t see a comparison with a cold blooded killing which opponents of the death penalty see executions as.
As I said I’m not naive enough to believe that I can change a persons mind but just decided to say that from my perspective…Right on, Canada!!
Really? So, when a teacher sends a child to the office for chewing gum in class, and the principal gives that child detention, the school is extracting vengeance on the child?
We could hand him over to the International Criminal Court, which follows internationally accepted general principals of criminal law, and accordingly does not permit the death penalty. The ICC has been created for just such Eichmann type scenarios.
We could hand him over to the retentionist state. Note that the SCC in Burns applies the same tenets based on the Oakes balance as it did a decade back in Kindler and in Ng. In those cases, extraditions took place. It is quite conceivable that in Eichmann like circumstances, the SCC could permit extradition to a retentionist state without contradicting it’s previous decisions. A big part of the SCC’s decision in Burns is based on the probability of error made by courts sitting on capital cases. In other posts I have recommended the U.S. Senate Committee on the Judiciary’ Liebman Study, and I again strongly recommend that folks read it, for it finds that capital courts of first instance mess up most of the time. The SCC in Burns accepted and relied on the Liebman Study. The SCC also took care to point out that just one year after deciding Kindler and Ng, it found that Milgaard had been mistakenly convicted of what would have been a capital crime had Canada been retentionist. The SCC noted in Burns that Marshall, Milgaard, Morin, Sophonow and Parsons all should remind us of wrongful convictions. An Eichmann scenario would probably not offer anywhere near as great a risk of wrongful conviction, so extradition to a retentionist state could possibly pass Oakes.
Even if we were not willing to permit extradition to face death, we could hand him over to the retentionist state if it agreed not to kill him. The SCC in Burns opposes people being locked up to be killed, but does not oppose people being locked up until they die naturally. It would be the retentionist state’s decision, not Canada’s decision, to let a heinous mass murder to go free rather than face a life in prison. The USA would not permit one of its young citizens to be taken to a fundamentalist nation to have his hands or head chopped off, and now neither will Canada. It’s time for retentionist nations to get with the human rights program, and if they do not, it’s their own decision, not Canada’s. Refusal of conditional extradition by a retentionist state would not lead to making Canada a safe haven, and there is no evidence to support the allegation that a safe haven would be formed. The SCC in Burns specifically addresses the concern Karl Gauss has now raised in his post:
“141 International criminal law enforcement including the need to ensure that Canada does not become a “safe haven” for dangerous fugitives is a very legitimate objective, but there is no evidence whatsoever that extradition to face life in prison without release or parole provides a lesser deterrent to those seeking a “safe haven” than the death penalty, or even that fugitives
approach their choice of refuge with such an informed appreciation of tactics. If Canada suffers the prospect of being a haven from time to time for fugitives from the United States, it likely has more to do with geographic proximity than the Minister’s policy on treaty assurances. The evidence as stated is that Ministers of Justice have on at least two occasions (since Kindler
and Ng) refused to extradite without assurances, and no adverse consequences to Canada from those decisions were brought to our attention. The respondents pointed out that “[s]ince the execution by the United States of two Mexican nationals in 1997, Mexican authorities have consistently refused to extradite anyone, nationals or non-nationals, in capital cases without first
seeking assurances” (respondents’ factum, at para. 63).”
“142 The fact is, however, that whether fugitives are returned to a foreign country to face the death penalty or to face eventual death in prison from natural causes, they are equally prevented from using Canada as a safe haven. Elimination of a “safe haven” depends on vigorous law enforcement rather than on infliction of the death penalty once the fugitive has been removed from the country.”
If all else fails, we could hand him over to the Saskatoon police for winter extradition to the country (not a country, the country). Not a death sentence, but death none the less.
Agreed. But the death penalty would not be an option. So, my use of the term “haven” would be limited to “haven from death”, which might still be a significant enticement for some.
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This is a very interesting comment and shows that I may be incorrect. I suppose this is the “wiggle room” referred to above and seems more substantive in this context. However, the issue of what constitutes an “Eichmann” remains.
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This is the “haven from death” again.
Thank you Muffin for such an informative and thoughtful answer.
I think the courts can determine who is an Eichmann. I don’t really see any reason it should be a specific number, like six or sixty.
This decision is especially encouraging since in Canada in the last few years four criminals convicted of charges serious enough to merit the death penalty in the U.S. have been proven innocent on the basis of DNA evidence. My understanding, which is limited, is that maybe 20 or so death row inmates in the States have had DNA evidence suggest their innocence (this number was taken fromt eh Globe and Mail, Feb.16 but I certainly cannot vouch for its accuracy). Death penalty advocates often say it is worth executing an innocent man to get twelve guilty ones, but I disagree and I think the numbers are higher than presupposed.
Marc has every right to his views, which I strongly disagree with. I also think the United States should play a strong political leadership role, and that playing such a role strongly serves its own interests. Even Jesse helms agrees with this or at least finally freed up some of the UN fund backlog. Playing such a leadership role involves making decisions other countries can respect, and this includes the death penalty. The United States was the focus for Amnesty International regarding human rights abuses last year, and rightly so. The United States has been ascendent in terms of global power for the last century but continued dominance is hardly inevitable and does depend on trade with other countries. I don’t see how they benefot from an isolationist stance, morally or economically when you say “Who cares what others think?”
So when the US asks another country for help, it is somehow wrong of the other country ask for something in return? Are other counries somehow obligated to do whatever the US wants?
Who said anything about isolationism? Just because I’m not interested in what Canada thinks of our policy regarding the death penalty doesn’t mean I don’t care about Canada at all. I like the idea of free trade and even a free exchange of ideas. But the fact that western europe thinks we’re behind the times doesn’t keep me awake at night.
Gee, good thing I’m not. It’s called “an analogy.” If you’re not capable of understanding and discussing the question asked, please at least just be honest and say so.
I’ll give it another go, though, in the interest of fairness: If, as you submit, there is no difference between punishment and vengeance, then when we punish children in school, are we extracting vengeance? Yes or no? If there is no difference between the two concepts, then your answer is “yes,” whether you like the analogy or not; if there is a difference, your answer is “no.” I’m afraid I cannot make the question simpler. It has nothing to do with whether we are comparing children with criminals; it has to do with whether “vengeance” means the same thing as “punishment.”
No, it is not. Not even close. Here is what sentencing is based on in Canada:
"718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
There are secondary considerations as well, but I’ll leave you to look them up for yourself. As you will see, they too have nothing to do with vengeance.
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Which all adds up to vengence. Vengence is just the infliction of punishment in return for a wrong committed. Canada doesn’t inflict punishment on their criminals?
Paying money is “vengence”? That’s primarily what the “reparations” in the Code’s sentencing provisions is about - an order that a convicted person is to make restitution to the victim of the crime.
Pretty wussy “vengence” - no whips, no chains, no blood …
Punitive damage. When people to prison one of the reasons we do so is to punish them. I’d call that vengence no matter how many fancy words or phrases they choose to refer to it as.
First MGibson states vengeance=punishment as in justice. Then, after a heck of a long bout with quotes and re-quotes, comes the admission that the above equation may be false. Then – right back into it again!
State/federal punishment = penalty. That’s it. Finito. All anyone else really argues about is whether America should still be in the “eye for an eye” phase of development penalty-wise, or whether they’ll make their “humans rights for all” dream a reality finally.
