No, the sentencing provisions do not add up to vengeance.
Punishment yes, vengeance no. Response yes, retaliation no. Reparation yes, avengement no. Dispassion yes, vehemence no. Consistency yes (or at least we try), extremity no. Balance yes, excess no.
Although you are free to define your terms however you wish, I, and I expect the Canadian legal profession, will stay with a more conventional definition of vengeance, such as:
Websters:
Main Entry: ven.geance
Pronunciation: 'ven-j&n(t)s
Function: noun
Etymology: Middle English, from Old French, from vengier to avenge, from Latin
vindicare to lay claim to, avenge – more at VINDICATE
Date: 14th century
: punishment inflicted in retaliation for an injury or offense : RETRIBUTION
with a vengeance 1 : with great force or vehemence 2 : to an extreme or excessive degree
Well I agree that punishment doesn’t always equal vengence which is something I should have made clear but didn’t. Pldennison’s example of punishing a child for chewing gum was a good example. And there’s no need for hyperbole as it didn’t take a heck of a long bout with quotes for me to admit that I was in error. Pldennison wrote that he thought there was a non-trivial difference between punishment and vengence. I disagreed. He explained it again. I agreed. Hardly a long bout I’d say.
**
That’s fine. But I still think vengence is part of the justice system despite anything else they might say. Note that I don’t believe it is the only factor but I believe it is there. An eye for an eye and a tooth for a tooth is not at all incompatiable with human rights for all. EFETFT sets up the basic foundations of justice in that the penalty must equal the crime. If you knock out my tooth then it would be unacceptable for me to punish you by chopping off your head. Uh, not that I’m advocating that we start knocking each others teeth out mind you. Just the importance of the punishment fititng the crime.
So far as human rights go I believe that prisoners forfeit many of their basic human rights.
I have issues with the DP as well. While I don’t think that it is wrong to kill certain human beings I am concerned with how it is carried out and the possible execution of an innocent person. That’s why I’m willing to bypass the death penalty and go straight to life without parole. Provided life means until the prisoner is deceased of course. At least if any news evidence rears its head we’d be able to get the person out of prison.
So what’s so bad about vengeance? I really don’t see anything wrong with it.
Hmmm…we’re throwing you in jail. That doesn’t sound like punishment inflicted in retalitation for an injury or offense? Sounds a little like vengeance to me.
Hi, there, MGibson.
Well, the difference of opinion over “vengeance/punishment” seemed long to me. I guess after seeing the same quote for the third or fourth time on the thread, my eyes glaze over.
Your definition of “punishment” (you differentiate between situations, which I don’t agree with on the logic basis, but however) as incorporating “vengeance” leans toward the “eye-for-eye” extreme of viewing the DP, whereas those who regard it as a penalty are from – well, the sanitised camp? Maybe. Go ahead, as is your right, to have your opinion, though. I would be breaching your human rights if I said otherwise.
It is a human right to be able to live. Fundamentally, this is why I oppose the DP. I do agree with the prison without parole, though. That would be life, but one with penalty, rather than baser vengeance.
Which is why I applaud the Canadian decision. Way to go, guys!
I asked this question in the Pit thread. The only answer I recieved said that Canada backed down from it’s position in the Charles Ng case, but didn’t state what the actual policy was. Anybody got the skinny on what happens to fugitive when the State requesting extradition refuses to give ‘assurances’?
I’m a little confused here. The Canadian position seems to be that broadly, detainees will not be deported where they might be subject to the death penalty unless they appear guilty of some particularly heinous crime e.g. Eichmann
But does this mean that whoever ultimately decides whether an extradition (meaning an extradition to a country where the death penalty may be employed) should go ahead has also to decide on the innocense or guilt of that person? Or is it just suspicion of, for example, war crimes that allows extradition to a place where execution is allowed?
It’s entirely possible that I just need to read the samll print.
Here is the fine print from the Extradition Act:
“29. (1) A judge shall order the committal of the person into custody to await surrender if
(a) in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner; and
(b) in the case of a person sought for the imposition or
enforcement of a sentence, the judge is satisfied that
the conviction was in respect of conduct that corresponds to the offence set out in the authority to proceed and that the person is the person who was convicted.”
The SCC has upheld this in ARGENTINA v. MELLINO:
“The role of the extradition judge is a modest one: absent express statutory or treaty authorization, the sole purpose of an extradition hearing is to ensure that the evidence establishes a prima facie case that the extradition crime has been committed. The procedure bears a considerable affinity to a preliminary hearing, and the judge’s powers have some similarity to those of a magistrate presiding at such a hearing. He has no jurisdiction to deal with defences that could be raised at trial and he has no Charter jurisdiction. The fact that an extradition judge is often a superior court judge does not alter the matter.”
As per the Extradition Act, if the extradition judge makes a decision to permit extradition, it then goes to the Minister of Justice who makes the final call, but as you can see, even that decision can be appealed. The whole process presumes that the requesting country has an acceptable justice system. Per ARGENTINA v. MELLINO:
“Finally, there is nothing offensive to fundamental justice in surrendering in accordance with our extradition procedures an accused to a foreign country for trial in accordance with its traditional judicial processes for a crime alleged to have been committed there. Our courts must assume that he will be given a fair trial in the foreign country. There may be situations where it would be unjust to surrender a fugitive either because of the general condition of the governmental and judicial apparatus or, more likely, because some particular individual may be subjected to oppressive treatment. In such cases, the courts may, as guardians of the Constitution, on occasion have a useful role to play in reviewing the executive’s exercise of discretion to surrender a fugitive. But it is obviously an area in which courts must tread with caution. The decision to surrender and the responsibility for the conduct of external relations, including the performance of Canada’s obligations under extradition treaties, is vested in the executive.”
The accused is arrested and may or may not be let out on bail. An extradition judge makes a decision based on whether on its face it looks like the prosecution can convict. If the judge says extradite, then the Minister of Justice decides whether or not to hand over. Dependng on the circumstances, the Minister’s decision may be appealed to the province’s Court of Appeal, and may even be appealed further to the Supreme Court of Canada, which has now set the standard with its Burns decision. (Since the Burns decision is based on Charter arguments, it is theoretically possible that if Parliament did not like the SCC’s decision, then it could invoke the notwithstanding clause, but I doubt if this would ever happen.)
If, after all this, the accused is not extradited, then the accused is released as per either s.12 or s.29 of the Extadition Act.
So Karl, if I understand you correctly, your objection to the SCC decision is philosophical rather than practical. That is, you don’t question that an Adolf Eichmann couldn’t still be extradited from Canada and brought to justice; it’s just that the type of justice to which the man was brought would (probably) necessarily exclude the death penalty, which is unacceptable to you. Right? So it boils down to your belief that certain criminals deserve to be put to death–in essence, you’ve got issues with public policy which forbids the use of capital punishment, rather with sovereignty issues or any of that. Am I incorrect in my summation?
I submit that Canada went to great lengths to not only cooperate with the USA, but also to make the case which the Americans had been unable to make.
Without the confessions to the RCMP, there would have been no case, no grounds for either prosecution or an extradition request, and at its very root, no need to fear an American death sentence or even incarceration.
The two Canadians were not facing a death sentence in the USA when they crossed back into Canada because the Americans did not have enough evidence to press charges. Only after Burns and Rafay returned to Canada did the RCMP obtain the confessions the Americans required.
To suggest that the young men chose to flee to Canada in the face of a possible death sentence is unsupportable, and to complain about dictatorial Canadians in this instance is just plain laughable.
“The Bellevue police suspected both of the respondents but did not have enough evidence to charge them. When the respondents returned to Canada, the Bellevue police sought the cooperation of the RCMP in their investigation of the murders. The RCMP initiated an elaborate and in the end, they say, productive undercover operation. An RCMP officer posed as a crime boss and subsequently testified that, after gaining the confidence of the respondents, he repeatedly challenged them to put to rest his professed scepticism about their stomach for serious violence. The respondents are alleged to have tried to reassure him by bragging about their respective roles in the Bellevue murders.”
spooje asked what will happen if the requesting state refuses to give the assurance. I would start my answer by saying that’s pretty unlikely. If you were the DA, and were told that you could only prosecute if you agree not to seek the death penalty, what would you do: say you won’t give that assurance, letting a potential murderer go free, or give the assurance to ensure there will be a trial? I would think that most prosecutors would rather give the assurance.
However, if the requesting state refused to give that assurance, there is the question of what happens next. spooje and Montfort both asked if the accused could be prosecuted in Canada. That would depend very much on the facts of the individual case.
If there was no connexion whatsoever between the crime and Canadian territory, I would doubt very much that Canadian authorities could prosecute. If so, and the requesting state refused to give assurances, then I would presume that the accused person would be released from Canadian custody.
On the facts of this particular case, there was at least a possibility of a Canadian prosecution, as the Court noted at para. 16 of its judgment:
The question spooje asked didn’t arise in the NG case, because in that case, the Minister of Justice did not seek an assurance, and the Supreme Court said he did not have to do so.
One other point concerns Eichman. Karl Gauss asked:
Karl’s question presumes that the modern day Eichmann would flee here to avoid a death penalty. However, I think that’s a red herring, as it is by no means clear that a modern day Eichmann would face a death penalty, at least not under international law.
The Supreme Court noted, at para. 88 of its decision:
So even for the offences of genocide and crimes against humanity, it looks like the international community does not impose capital punishment. Therefore, the modern day Eichmann would not benefit from a reduced penalty in fleeing to Canada.
I do believe “that certain criminals deserve to be put to death”. I also believe, though, that when someone breaks the law of a country, in that country, he should be subject to the law of that country. (eg. if I am stupid enough to smuggle dope in Ruritania, then I shouldn’t cry for help after I’m caught, convicted, and sentenced to 1000 lashes according to Ruritanian law.)
I can already hear you saying something along the lines of, “but what if the laws of Ruritania state that all men must ‘ensure that their (sic) women never go outside without a male chaperone’. You wouldn’t want anybody to have to be subject to that type of law, would you?” No, I would not.
What if a Bad Guy does Something Really Bad And Nasty and runs away to Canada, and is caught.
The Bad Guy’s…alleged…crime(s) are So Really Bad And Nasty that he could concievably get The DEATH Penalty.
Canada will extradite Mr. Bad Guy, but only if the prosecuting DA agrees not to seek The DEATH Penalty. The DA agrees, and seeks Life-w/o-Parole for the bad guy, and Canada returns him.
What happens if:
1. The jury convicts, and recommends The DEATH Penalty, and the Judge concurs at sentencing?
2. The DA who made the agreement is “reassigned to another case”, and the new DA pursues The DEATH Penalty?
3. Evidence of “additional crimes” surfaces; as in Mr. Bad Guy killed an obviously preagnant woman, whose unborn child also dies [after his return to stand trial], incurring a second count of Murder, and thus The DEATH Penalty?
Does America and Canada stop speaking to each other for a while?
Does Canada demand the return of Mr. Bad Guy?
Can America empty all of our prisons by sentencing all convicted criminals to death and “accidentally” losing the prisoners in transit in northern Minnesota? (I personally like this one; whatta bargain!)
Karl, look back at extradition law and you will see that the dilema is easily avoided. Extradition applies only when the conduct would be criminal in the country being asked to return the offender.
I note that while the death penalty is explicitly mentioned in extradition it is not the only issue which might prevent cooperation. In one white collar case that I recall comments by the local american judge led a canadian court to the conclusion that the defendant would not recieve a fair trial if returned. I haven’t read the case but I can’t imagine that treaties could completely overrule constitutional rights.
I cannot agree with this. Nothing brings back thee person who was murdered; however, the person guilty of said murder should not continue to live out their life, even behind bars.
What infuriates me more is parole for murderers. Maybe I watch too much ‘murder porn’, but, the sentences some of these murderers are getting, and how often they are paroled. The public safety issue aside, some of these people, especially younger murderers, get out of jail much too quickly (they should never), and get to go on with their lives (and endanger the public). Some who have murdered at 17 to 20 years of age are out in their late 20’s or 30’s, as unbelievable as that is. Due to a flawed legal system, and sleazy defense attorney who will do anything to try and get their defendants off, even when they are 100% guilty, we see injustice much too often.
I am not a fan of ‘rehabilitation’ for murderers. They did it once - they have it in them - they can do it again. Why take the risk to the public? And why allow someone who took someone else’s life away to ever have one of their own again?
Stop putting people away for minor drug charges, free up the space, and keep murderers behind bars or execute them, but do not let them go. Again, to me, I think they should get the death penalty. Seeing those deathly afraid of the death penalty for they themselves sentencing someone else to die is the ultimate irony. You hear about it often … how a killer is so scared of being put to death. Ridiculous!
I am against extradition for someone to face trial in a foreign country. As an example if America has a case against a English citizen then the trial should be held in England under English law, if the person is found guilty they can then be extradited to America for sentencing excluding the death penalty. To often extradition cases can be politically motivated rather than seeking justice
Really? Take a good look at the countries that still use the death penalty. The vast majority of them are shit holes that most people deride for their lack of human rights and religious extremism. Are you really sure that is the company you want the USA to keep?
with a more conventional definition of vengeance, such as: