A-81-87
Joseph John Kindler (Applicant- Appellant)
v.
M. John Crosbie, Minister of Justice, Attorney
General of Canada (Respondent- Respondent)
INDEXED AS: KINDLER v. CANADA (MINISTER OF JUSTICE)
(C.A.)
Court of Appeal, Pratte, Marceau and Hugessen
JJ.—Montréal, November 10; Ottawa, December
20, 1988.
Constitutional law — Charter of Rights — Criminal process
— Minister ordering surrender of convicted murderer to
American authorities — Death penalty likely to be imposed
and executed — Not seeking assurances under Article 6 of
Extradition Treaty death penalty will not be carried out
Whether Charter, s. 12, guaranteeing right not to be subjected
to cruel or unusual punishment, applies where alleged Charter
violation would be committed outside Canada — Whether
death penalty cruel and unusual punishment.
Constitutional law — Charter of Rights — Life, liberty and
security — Minister ordering surrender of convicted murderer
to American authorities — Death penalty likely to be imposed
— Ministerial decision not violating Charter s. 7 guarantee of
right not to be deprived of life, liberty and security except in
accordance with principles of fundamental justice — Decision
not fundamentally unjust as s. 7 expressly recognizing loss of
right to life provided in accordance with principles of funda
mental justice.
Extradition — Minister ordering surrender of convicted
murderer to American authorities — Death penalty likely to
be imposed and executed — Whether Minister required to seek
assurances under Extradition Treaty, Article 6 re: non-impo
sition of death penalty in light of Charter, s. 12 — Whether
s. 12 applies where alleged Charter violation to be committed
outside Canada — Whether death penalty constituting cruel
and unusual punishment.
This was an appeal from the Trial Division's refusal of
certiorari to quash the Minister's decision to surrender Kindler
to the United States without seeking assurances that the death
penalty would not be imposed and executed. Kindler was
convicted of murder in Pennsylvania. The jury recommended
the death sentence, but he escaped before sentence was imposed
by the court and was later captured in Canada. Further to a
request for his extradition and the completion of the "judicial"
stages of procedure under the Extradition Act, the Minister
ordered his surrender to the United States. If surrendered,
Kindler would likely be sentenced to death and the sentence
carried out. The issue was whether the Minister had a discre
tion not to seek the assurances provided for in Article 6 of the
Extradition Treaty in light of the Charter, section 12 guarantee
of the right not to be subjected to cruel or unusual punishment.
That issue breaks down into (1) whether section 12 applies
where the alleged Charter violation would be committed out
side Canada (2) whether the death penalty per se constitutes
cruel and unusual punishment.
Held (Hugessen J. dissenting), the appeal should be
dismissed.
Per Pratte J.: The Minister's decision affected the appellânt's
right to life, liberty and security of the person. Under Charter,
section 7 the decision had to be made in accordance with the
principles of fundamental justice, which are not limited to rules
of procedure. A fundamentally unjust decision may also violate
section 7. The ministerial decision was not fundamentally
unjust because, although it could result in a loss of the right to
life, section 7 expressly recognizes that a person may be
deprived of the right to life in accordance with the principles of
fundamental justice.
The decision did not violate section 12, which protects every-
one's right not to be subjected to cruel and unusual punish
ment. The death penalty is not cruel and unusual punishment
when Charter, section 7 expressly permits the deprivation of the
right to life in accordance with the principles of fundamental
justice. Finally, section 12 governs the actions of Canadian
authorities, but not those of foreign countries.
Per Marceau J.: The death penalty is not inevitably cruel and
unusual within Charter, section 12. Although "cruel and
unusual" has been flexibly interpreted to reflect evolving stand
ards of decency, the basic notion to which it refers has
remained constant. A punishment may be cruel and unusual
either because of (1) the unnecessary infliction of pain or (2) its
disproportion to the gravity of the crime committed. Capital
punishment does not involve any more unavoidable infliction of
pain than it did twelve years ago, when it was abolished in
Canada. The fact that a vote was taken in Parliament in 1987
on whether to reinstate the death penalty supports the view that
society's standards of decency have not evolved to the point
where capital punishment would now appear disproportionate
to the gravity of the crime.
The discretion given to the Minister under Article 6 would be
transformed to a compulsory duty only if the death penalty per
se was a cruel or unusual punishment. Three recent Supreme
Court of Canada decisions dealing with the application of the
Charter in extradition matters lead to the conclusion that
Canadian authorities ought to be concerned with how a fugitive
will be treated in his own country once surrendered. The
punishment to which a fugitive is likely to be subjected if
returned to his country may force the Minister to refuse to
surrender him only if that punishment is inherently contrary to
Charter, section 12. The courts have the right to review the
executive decision to surrender but must exercise that right
"with caution". For the Court to intervene, it is not enough that
the situation facing the fugitive in his country would not be in
full accordance with the prescriptions of the Charter. It is
necessary that the situation "sufficiently shocks the conscience"
and is "simply unacceptable" regardless of the Canadian
context.
Per Hugessen J. (dissenting): Charter, section 12 can create
a justiciable issue where the alleged Charter violation would be
committed by a foreign government. Extradition is the classic
point of interface between domestic, individual rights and
foreign, public rights. It involves the application of Canadian
law by Canadian courts and governments, which cannot ignore
the fate of the fugitive once surrendered. A foreign punishment
or treatment which falls within the proscription of section 12 by
being cruel and unusual creates a situation which is "simply
unacceptable" to Canadians.
Applying the criteria set out in R. v. Smith for testing for
violation of Charter, section 12: (I) the only penal purpose
served by capital punishment is the incapacitation of the execu
ted offender; (2) it is not founded on a recognized sentencing
principle; and (3) since there is a valid, workable and accept
able alternative, it is grossly disproportionate. Capital punish
ment is therefore cruel and unusual within the meaning of
Charter, section 12. It would be unacceptable under our Consti
tution for the Minister to surrender the appellant to suffer the
death penalty. The Minister had no choice but to seek the
assurances under Article 6 of the Treaty.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Bill of Rights, 1688 (U.K.), Will & Mary, c. 2.
Canadian Bill of Rights, R.S.C. 1970, Appendix III, s.
2(b).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 7, 12, 32.
Criminal Code, R.S.C. 1970, c. C-34.
Criminal Law Amendment Act, /972, S.C. 1972, c. 13.
Extradition Act, R.S.C. 1970, c. E-21.
Extradition Treaty between Canada and the United
States of America, Dec. 3, 1971, [l976] Can. T.S. No.
3, Article 6.
Immigration Act, 1976, S.C. 1976-77, c. 52.
U.S. Constitution, Amend. VI11.
CASES JUDICIALLY CONSIDERED
APPLIED:
Canada v. Schmidt, [1987] 1 S.C.R. 500; Argentina v.
Mellino, [1987] I S.C.R. 536; United States v. Allard,
[1987] 1 S.C.R. 564.
CONSIDERED:
Miller et al. v. The Queen, [1977] 2 S.C.R. 680 affg.
(sub nom. R. v. Miller and Cockriell) (1975), 63 D.L.R.
(3d) 193 (B.C.C.A.); Gregg v. Georgia, 428 U.S. 153
(1976); R. v. Smith, [1987] 1 S.C.R. 1045; Kindler v.
MacDonald, [1987] 3 F.C. 34 (C.A.).
REFERRED TO:
Re B.C. Motor Vehicle Act, [ 1985] 2 S.C.R. 486; Vézeau
v. The Queen, [1977] 2 S.C.R. 277; Altun v. Germany
(1983), 5 E.H.R.R. 611.
COUNSEL:
Julius H. Grey and Stella Bush for
applicant-appellant.
Douglas Rutherford, Q.C. and Suzanne Mar-
coux-Paquette, Q.C. for respondent-respon
dent.
SOLICITORS:
Grey, Casgrain, Biron, Montréal, for appli-
cant-appellant.
Deputy Attorney General of Canada for
respondent-respondent.
The following are the reasons for judgment
rendered in English by
PRATTE J.: I have had the benefit of reading the
reasons for judgment prepared by my brother
Hugessen J. With respect for his views, I am
unable to agree with his conclusion.
It is common ground that the decision of the
Minister of Justice under the Extradition Act
[R.S.C. 1970, c. E-21] to surrender a fugitive must
conform to the requirements of the Canadian
Charter of Rights and Freedoms [being Part I of
the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)]. If there ever was
any uncertainty on this point, it was dispelled by
the three recent decisions of the Supreme Court of
Canada in Canada v. Schmidt', in Argentina v.
Mellino 2 and in United States v. Allard.' It may
be useful to have in mind certain passages of the
reasons for judgment of La Forest J. in these
cases.
In Schmidt, he had this to say on the subject (at
pages 520 and following):
As will be evident from what I have already said, I am far
from thinking that the Charter has no application to extradi
tion. The surrender of a person to a foreign country may
1 [1987] 1 S.C.R. 500.
2 [1987] 1 S.C.R. 536.
3 [1987] 1 S.C.R. 564.
obviously affect a number of Charter rights. In Rauca, supra,
for example, the Ontario Court of Appeal recognized that
extradition intruded on a citizen's right under s. 6 to remain in
Canada, although it also found that the beneficial aspects of
the procedure in preventing malefactors from evading justice, a
procedure widely adopted all over the world, were sufficient to
sustain it as a reasonable limit under s. 1 of the Charter.
Section 6 was not raised in this case, though Schmidt is a
Canadian citizen, no doubt because her counsel believed, as I
do, that it was properly disposed of in the Rauca case. How
ever, it does not follow from the fact that the procedure is
generally justifiable that the manner in which the procedures
are conducted in Canada and the conditions under which a
fugitive is surrendered can never invite Charter scrutiny. The
pre-eminence of the Constitution must be recognized; the
treaty, the extradition hearing in this country and the exercise
of the executive discretion to surrender a fugitive must all
conform to the requirements of the Charter, including the
principles of fundamental justice.
I should at the outset say that the surrender of a fugitive to a
foreign country is subject to Charter scrutiny notwithstanding
that such surrender primarily involves the exercise of executive
discretion. In Operation Dismantle Inc. v. The Queen, [1985] 1
S.C.R. 441, Dickson J. (now C.J.) made it clear that "the
executive branch of the Canadian government is duty bound to
act in accordance with the dictates of the Charter" (p. 455) and
that even "disputes of a political or foreign policy nature may
be properly cognizable by the courts" (p. 459); see also Wilson
J. at p. 464.
I have no doubt either that in some circumstances the
manner in which the foreign state will deal with the fugitive on
surrender, whether that course of conduct is justifiable or not
under the law of that country, may be such that it would violate
the principles of fundamental justice to surrender an accused
under those circumstances. To make the point, I need only refer
to a case that arose before the European Commission on
Human Rights, Altun v. Germany (1983), 5 E.H.R.R. 611,
where it was established that prosecution in the requesting
country might involve the infliction of torture. Situations fall
ing far short of this may well arise where the nature of the
criminal procedures or penalties in a foreign country sufficient
ly shocks the conscience as to make a decision to surrender a
fugitive for trial there one that breaches the principles of
fundamental justice enshrined in s. 7....
I hasten to add, however, that 1 see nothing unjust in
surrendering to a foreign country a person accused of having
committed a crime there for trial in the ordinary way in
accordance with the system for the administration of justice
prevailing in that country simply because that system is sub
stantially different from ours with different checks and bal
ances. The judicial process in a foreign country must not be
subjected to finicky evaluations against the rules governing the
legal process in this country. A judicial system is not, for
exemple, fundamentally unjust—indeed it may in its practical
workings be as just as ours—because it functions on the basis of
an investigatory system without a presumption of innocence or,
generally, because its procedural or evidentiary safeguards have
none of the rigours of our system.
What has to be determined is whether or not, in the particu
lar circumstances of the case, surrender of a fugitive for a trial
offends against the basic demands of justice.
In Mellino, Mr. Justice La Forest expressed him
self in the following terms (at pages 557-558):
Not only are the actions of Canadian officials in relation to
extradition proceedings subject to review under the Charter, so
too as I noted in Schmidt, supra, is the executive's exercise of
discretion in surrendering a fugitive. However, this jurisdiction,
as I there observed, must be exercised with the utmost circum
spection consistent with the executive's pre-eminent position in
matters of external relations. The courts may intervene if the
decision to surrender a fugitive for trial in a foreign country
would in the particular circumstances violate the principles of
fundamental justice. But, as already noted, it does not violate
such principles to surrender a person to be tried for a crime he
is alleged to have committed in a foreign country in the absence
of exceptional circumstances.
Finally, in Allard, La Forest J. wrote (at page
572):
As I explained in the cases of Schmidt and Mellino, supra, the
mere fact of surrendering, by virtue of a treaty, a person
accused of having committed a crime in another country for
trial in accordance with the ordinary procedures prevailing in
that country, does not in itself amount to an infringement of
fundamental justice, certainly when it has been established
before a Canadian court that the acts charged would constitute
a crime in Canada if it had taken place here. To arrive at the
conclusion that the surrender of the respondents would violate
the principles of fundamental justice, it would be necessary to
establish that the respondents would face a situation that is
simply unacceptable.
The decision made by the respondent Minister
to surrender the appellant certainly affected the
appellant's right to life, liberty and security of the
person. It follows that, under section 7 of the
Charter, that decision had to be made "in accord
ance with the principles of fundamental justice."
Counsel for the appellant's first argument was
that the judge of first instance [ [1987] 2 F.C.145
(T.D.)] erred in dismissing his contention that the
respondent Minister, in arriving at his decision to
surrender the appellant, followed a procedure that
did not comply with the requirements of fairness
and fundamental justice. As indicated by Hugess-
en J., counsel was told at the hearing that the
Court saw no merit in that submission.
However, as everyone knows since the decision
of the Supreme Court of Canada in Re B.C. Motor
Vehicle Act, 4 the principles of fundamental justice
to which section 7 of the Charter refers are not
limited to rules of procedure. A decision which
complies with all rules of procedure may, there
fore, violate section 7 if it is otherwise a decision
that is fundamentally unjust. In this sense, as was
said by Mr. Justice La Forest in the passages that
I have quoted, a ministerial decision to surrender a
fugitive to a country where he would be tortured
could be said to be fundamentally unjust and
violate section 7.
In this perspective, it is clear that the ministerial
decision here in question cannot be said to be
fundamentally unjust. The only fact that could be
invoked in support of the contrary view is that, as
a result of the respondent's decision, the appellant
may be executed pursuant to the death sentence
that will probably be pronounced against him. In
other words, as a consequence of the respondent's
decision, the appellant may be deprived of "the
right to life". However, that result is not contrary
to fundamental justice within the meaning of sec
tion 7 since that section expressly recognizes that a
person may be deprived of the right to life in
accordance with the principles of fundamental jus
tice. Deprivation of the right to life, therefore, is
not in itself contrary to fundamental justice.
Counsel for the appellant argued, however, that
the respondent's decision violated section 12 of the
Charter which protects everyone's right "not to be
subjected to any cruel and unusual treatment or
punishment." The death penalty, said counsel, is a
cruel and unusual punishment and, it follows,
according to him, that the respondent's decision to
surrender the appellant violates the appellant's
right under section 12.
I do not agree with that submission.
First, I find it impossible to say that the death
penalty is, in itself, a cruel and unusual punish
ment that is forbidden by section 12 of the Charter
when section 7 of that same Charter expressly
permits that a person be deprived of the right to
life in accordance with the principles of fundamen
tal justice.
4 [1985] 2 S.C.R. 486.
Second, section 12, like the other provisions of
the Charter, limits the freedom of action of
Canadian authorities but does not govern the
actions of foreign countries. In deciding to surren
der a fugitive to a foreign country for trial and
punishment in accordance with its laws for an
offence committed there, the Canadian Minister of
Justice cannot be said, in my view, to subject the
fugitive to any cruel and unusual punishment or
treatment. And this even in the cases where the
fugitive could, under the laws of the foreign coun
try, be subjected to a cruel and unusual punish
ment for the crime he is suspected of having
committed there. Indeed, in those cases, the objec
tionable punishment would be imposed by the
foreign country rather than by Canadian authori
ties.
I would dismiss the appeal with costs.
* * *
The following are the reasons for judgment
rendered in English by
MARCEAU J.: In reasons for judgment that I
have had the advantage of reading, my brother
Hugessen J. comes to the conclusion that this
appeal ought to be granted. His opinion is that the
Trial Judge was wrong in refusing relief, by way of
certiorari or otherwise, against the decision of the
Minister of Justice to surrender the appellant Kin-
dler to the United States authorities without seek
ing and obtaining assurances "that the death
penalty shall not be imposed or, if imposed, shall
not be executed", as provided for in Article 6 of
the Extradition Treaty between Canada and the
United States of America [Dec. 3, 1971, [1976]
Can. T.S. No. 3]. 5 The Minister, in my colleague's
view, has no discretion and no choice but to seek
and obtain those assurances because, capital pun
ishment being cruel and unusual within the mean
5 Which I reproduce again for convenience:
ARTICLE 6
When the offense for which extradition is requested is
punishable by death under the laws of the requesting State
and the laws of the requested State do not permit such
punishment for that offense, extradition may be refused
unless the requesting State provides such assurances as the
requested State considers sufficient that the death penalty
shall not be imposed, or, if imposed, shall not be executed.
ing of section 12 of the Charter to surrender the
appellant without them would be simply unaccept
able under our Constitution. My conclusion is
different, and I must, with respect, express my
disagreement with the views of my colleague. The
subject here involved is so difficult and controver
sial and has given rise to so much debate that
many pages could be written in support of any
position one may wish to justify with respect there
of. I think however that to explain my attitude
today, I need not do much more than refer quickly
to the main elements of the debate as I set forth
two propositions on which I totally rely.
1. The first proposition is that it cannot be said
that capital punishment, however imposed and for
whatever crime, is inevitably cruel and unusual
within the meaning of section 12 of the Charter.
In 1976, in upholding a majority decision of the
British Columbia Court of Appeal, the Supreme
Court in Miller et al. v. The Queen, [1977] 2
S.C.R. 680, found that the death penalty provi
sions, which had been in the Criminal Code
[R.S.C. 1970, c. C-34] until shortly before then,
did not constitute cruel and unusual punishment
contrary to paragraph 2(b) of the Canadian Bill of
Rights [R.S.C. 1970, Appendix III]. The same
year, the United States Supreme Court, in Gregg
v. Georgia, 428 U.S. 153 (1976), reiterated its
previous position that the death penalty per se did
not constitute cruel and unusual punishment con
trary to the Eighth Amendment to the American
Constitution. Some years have elapsed since, and,
in Canada, the Charter, with its section 12, has
become part of the Constitution of the land, but
still I fail to see on what basis a different conclu
sion could be arrived at today in either country.
I am not forgetting, of course, that in both
countries the words "cruel and unusual" have not
been attributed a literal and frozen meaning. They
have been interpreted in a flexible and dynamic
manner to accord with evolving standards of
decency. But at no time was it suggested that the
basic notion to which the phrase refers was not
constant: a punishment may be cruel and unusual,
either because the unnecessary infliction of pain or
degradation it involves makes it inherently and
absolutely so, or else because its disproportion to
the gravity of the crime committed makes it
become so. Capital punishment is not more inher
ently cruel and unusual today than it was twelve
years ago: there is no more unavoidable infliction
of pain involved. And I do not think that society's
standards of decency have evolved in the interim to
the point where capital punishment would now
appear disproportionate to the gravity of any
crime, however revolting and outrageous.
I am not forgetting either that, on June 29,
1987, at the end of a long and heated debate,
Parliament, by a majority of its members (148 to
127), refused to give in to pressure to reinstate the
death penalty, abolished since 1976. I did not take
the vote of this majority, however, as an indication
that capital punishment was now seen as an out
rage to the public conscience or as a degradation
to human dignity. The simple fact that the vote
was taken attests to the contrary (one would not
imagine a vote on a motion to reinstate torture). I
understood the reaction of the majority as coming
from a profound conviction that the death penalty
was beyond what was necessary to achieve the
goals that punishment for criminal behaviour was
meant to achieve in Canada, considering particu
larly that possible adequate alternatives existed; I
understood it as coming also from a profound
feeling that the beliefs and values shared by the
majority of us require that we control our natural
instinct for retribution and look for less irreversible
means to protect society from dangerous criminals.
There is quite a gap, it seems to me, between such
a rationalization, based on moral values and
beliefs as well as on a highly educated evaluation
of the particular needs and means of our collectivi-
ty, and an acknowledgement, to be given constitu
tional entrenchment, that any criminal, whatever
his crime, has a fundamental right not to suffer
the death penalty.
It must not be forgotten that I am strictly
concerned here with the death penalty per se.
Obviously, the manner in which it is imposed, the
means by which it is to be executed or its dispro
portion to the gravity of the crime involved may
render a sentence of death, in particular instances,
contrary to our notion of decency and therefore in
direct conflict with the prescriptions of the Chart
er. But this observation only brings forward my
second proposition.
2. This second proposition is that the discretion
the Minister is given by Article 6 of the Treaty
could be transformed into a compulsory duty, so as
to make the seeking and obtaining of the assur
ances provided for therein a condition of surren
dering, only if the death penalty was per se a cruel
and unusual punishment within the meaning of the
Charter.
I rely for that proportion on the teachings of the
Supreme Court in its three recent decisions dealing
with the application of the Charter in extradition
matters: Canada v. Schmidt, [1987] 1 S.C.R. 500;
Argentina v. Mellino, [1987] 1 S.C.R. 536; and
United States v. Allard, [1987] 1 S.C.R. 564. The
problem, of course, comes from the fact that extra
dition touches upon foreign law and the Charter is
not meant to have any extraterritorial direct effect:
the Charter does not govern the actions of a
foreign country and its principles are not meant to
guide a government other than the Government of
Canada.
The basic pronouncement made by the Court in
those decisions is that the Charter, as the funda
mental law of the land, governs extradition pro
ceedings in the same necessary way as any other
proceedings taking place in Canada. All the pro
tections of the Charter have to be extended to
whoever is subjected to those proceedings, whether
or not the fugitive apprehended would be similarly
protected in proceedings taking place in his own
country.
This basic pronouncement, however, leaves
unanswered the question of whether the manner in
which the foreigner is likely to be treated in his
own country, once surrendered, ought to be of
concern to the Canadian authorities. This is, of
course, the difficult and critical point and the only
one which concerns us today. What I understood
from the reasons of Mr. Justice La Forest for the
majority, is this. Yes, the situation the fugitive
may face in his country ought to be of Canadian
concern in extradition matters. Indeed, in some
circumstances, this may render the surrender itself
an infringement of fundamental justice. But we
are, at that point, outside the judicial extradition
proceedings per se. It is the executive act which is
involved, that is to say the decision of the Govern
ment, here the Minister, to surrender in accord
ance with the conclusion of the extradition judge.
"The courts undoubtedly have the right to review
the decision by virtue of their responsibility to
uphold the Constitution", writes La Forest J. in
United States v. Allard (supra, at pages 572-573),
"but this is a role that must be exercised with
caution. Our international obligations are involved
here and the executive obviously has the primary
responsibility in this area."
So, the courts have the right to review the
executive decision to surrender, but they must
exercise that right "with caution". In Argentina v.
Mellino (supra, at page 558), the learned justice
has written "with the utmost circumspection con
sistent with the executive's pre-eminent position in
matters of external relations". What do those
expressions mean? After a careful reading of the
three sets of reasons, I think they mean that, for
the Court to intervene, it does not suffice that the
situation facing the fugitive in his country would
not be in full accordance with the prescriptions of
the Charter as we have come to see them in this
country. It would be necessary that the situation
"sufficiently shocks the conscience" (in Schmidt,
supra, at page 522), and be "simply unacceptable"
(in Allard, supra, at page 572), regardless of the
Canadian context.
Mr. Justice La Forest was dealing with cases
where the fugitives were wanted for trial, so his
concern was with respect to section 7 of the Chart
er and the principles of fundamental justice. His
approach, however, was clearly aimed at reconcil
ing the values enshrined in the Charter with the
principle that sovereign nations have the right to
order their affairs according to their own needs
and values.
It will be seen that my second proposition is
indeed in conformity with this approach. The pun
ishment or treatment to which a fugitive is likely
to be subjected, if returned to his country, may
force the Minister to refuse to surrender him only
if that punishment or treatment is one which is
inherently and absolutely contrary to section 12 of
the Charter, torture being the easiest example.
Otherwise, since the influence of the Canadian
context is directly involved or an assessment of the
circumstances of the foreign country is required, it
should remain a question of executive discretion
with which the courts ought not to intervene.
It is on the basis of these two propositions that I
think this Court is not entitled to interfere with the
Minister's decision to surrender the appellant.
I would dismiss the appeal with costs.
* * *
The following are the reasons for judgment
rendered in English by
HUGESSEN J. (dissenting): Joseph John Kindler
is a convicted murderer. He was found guilty, by a
court of competent jurisdiction in the state of
Pennsylvania, of a particularly gruesome crime
involving the beating, kidnapping and ultimate
drowning of a person who was shortly due to
testify against him in a criminal case. The charac
ter of the crime may be gauged from the fact that,
in a sentence hearing held in accordance with
Pennsylvania law, the jury found that the
aggravating circumstances outweighed the miti
gating circumstances and unanimously returned a
sentence of death. That sentence was not, however,
imposed by the Pennsylvania court because Kin-
dler escaped from custody before that could be
done. He has now surfaced in Canada. The United
States have requested his extradition and the
so-called "judicial" stages of the procedure laid
down by the Extradition Act 6 have been com
pleted. The Minister has ordered his surrender to
the United States.
This case has to do with the limitations imposed
by the Charter upon the Minister's discretion to
surrender a fugitive.
More particularly, this is an apeal from a deci
sion of the Trial Division refusing relief by way of
certiorari or otherwise against the decision of the
Minister to surrender Kindler to the United States
6 R.S.C. 1970, c. E-21.
authorities without seeking the assurances pro
vided for in Article 6 of the Extradition Treaty
between Canada and the United States of
America:
ARTICLE 6
When the offense for which extradition is requested is pun
ishable by death under the laws of the requesting State and the
laws of the requested State do not permit such punishment for
that offense, extradition may be refused unless the requesting
State provides such assurances as the requested State considers
sufficient that the death penalty shall not be imposed, or, if
imposed, shall not be executed.
While counsel for the apppellant raised a
number of procedural grounds in attacking the
Minister's decision, these were all frivolous.' They
were thoroughly and adequately dealt with by the
Trial Judge and we did not call upon respondent
with regard to them.
One issue of substance does arise. The evidence
is that Kindler, if surrendered, will be sentenced to
death and that, absent the overturning of the
verdict or the sentence by procedures on appeal or
otherwise or the commutation of the sentence by
executive clemency, the sentence will be carried
out. The issue is whether the Minister is entitled to
exercise a discretion not to seek the assurances
provided for by Article 6 of the Treaty in the light
of the guarantee, in section 12 of the Charter, of
the right "not to be subjected to any cruel or
unusual treatment or punishment".
That issue, in its turn, breaks down into two
questions:
1. Whether section 12 of the Charter can have
the effect of creating a justiciable issue where the
7 Appellant's counsel was less than helpful and some of his
conduct calls for comment on our part. To describe, as he did,
the Minister's decision as having been made "after hearing one
side of the story only" is more than harmless hyperbole: counsel
had not only filed extensive written representations but had
personally participated in an oral hearing before the Minister
prior to the decision. By the same token, while counsel was free
to submit, as he did, that the Minister erred in law in taking
into account the appellant's failure to testify at his trial, he
failed in his duty to advise the Court that such submission ran
contrary to a substantial body of authority (e.g. Vézeau v. The
Queen, [1977] 2 S.C.R. 277).
alleged Charter violation would not be committed
by one of the governments mentioned in section 32
but by a foreign government (the extraterritorial-
ity issue); and
2. Whether the death penalty per se and with
out consideration of the process by which it is
imposed constitutes cruel and unusual treatment
or punishment (the cruel and unusual issue).
1. The Extraterritoriality Issue
It is a commonplace that the Charter has no
extraterritorial application. Section 32, which
makes it applicable to the legislatures and govern
ments of Canada, the provinces and the territories,
is in this respect limiting. Extradition is the classic
point of interface between domestic, individual
rights and foreign, public rights. In Canada v.
Schmidt, 8 La Forest J., speaking for the majority,
stated the general rule as to the line of demarca
tion between the two as follows [at page 518]:
There can be no doubt that the actions undertaken by the
Government of Canada in extradition as in other matters are
subject to scrutiny under the Charter (s. 32). Equally, though,
there cannot be any doubt that the Charter does not govern the
actions of a foreign country; see, for example, Spencer v. The
Queen, [1985] 2 S.C.R. 278. In particular the Charter cannot
be given extraterritorial effect to govern how criminal proceed
ings in a foreign country are to be conducted.
That is not the end of the matter, however.
Extradition, by its very nature, requires the surren
der of a person in Canada to foreign authority and
it involves the application of Canadian law (of
which extradition treaties form an integral part)
by Canadian courts and governments. The latter
cannot simply turn a blind eye to what is going to
happen once a fugitive is surrendered. La Forest J.
put it thus [at page 522]:
I have no doubt either that in some circumstances the
manner in which the foreign state will deal with the fugitive on
surrender, whether that course of conduct is justifiable or not
under the law of that country, may be such that it would violate
the principles of fundamental justice to surrender an accused
under those circumstances. To make the point, I need only refer
to a case that arose before the European Commission on
Human Rights, Altun v. Germany (1983), 5 E.H.R.R. 611,
where it was established that prosecution in the requesting
country might involve the infliction of torture. Situations fall
ing far short of this may well arise where the nature of the
8 [1987] 1 S.C.R. 500.
criminal procedures or penalties in a foreign country sufficient
ly shocks the conscience as to make a decision to surrender a
fugitive for trial there one that breaches the principles of
fundamental justice enshrined in s. 7. I might say, however,
that in most cases, at least, judicial intervention should await
the exercise of executive discretion. For the decision to surren
der is that of the executive authorities, not the courts, and it
should not be lightly assumed that they will overlook their duty
to obey constitutional norms by surrendering an individual to a
foreign country under circumstances where doing so would be
fundamentally unjust.
This same theme was taken up again by La
Forest J. in two companion cases decided at the
same time as Schmidt: Argentina v. Mellino [at
pages 555-556] 9
There may, it is true, conceivably 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. These are judgments, however, that are
pre-eminently within the authority and competence of the
executive to make. The courts may, as guardians of the Consti
tution, on occasion have a useful role to play in reviewing such
decisions, but it is obviously an area in which courts must tread
with caution.
and United States v. Allard [at pages 572-573] 10
The only question that really arises, in this case, is whether
the respondents will face a situation in the United States such
that the mere fact of the Canadian government surrendering
the respondents to the United States authorities for the pur
poses of trial in itself constitutes an infringement on fundamen
tal justice. As I explained in the cases of Schmidt and Me(lino,
supra, the mere fact of surrendering, by virtue of a treaty, a
person accused of having committed a crime in another country
for trial in accordance with the ordinary procedures prevailing
in that country, does not in itself amount to an infringement of
fundamental justice, certainly when it has been established
before a Canadian court that the acts charged would constitute
a crime in Canada if it had taken place here. To arrive at the
conclusion that the surrender of the respondents would violate
the principles of fundamental justice, it would be necessary to
establish that the respondents would face a situation that is
simply unacceptable. Furthermore, it must be remembered that
the discretion to make such a decision is primarily that of the
executive. The courts undoubtedly have the right to review the
decision by virtue of their responsibility to uphold the Constitu
tion but this is a role that must be exercised with caution. Our
international obligations are involved here and the executive
obviously has the primary responsibility in this area.
It will be noted that in the passages quoted, La
Forest J. was concentrating particularly upon the
provisions of section 7 of the Charter requiring
9 [1987] I S.C.R. 536.
° [1987] 1 S.C.R. 564.
compliance with the principles of fundamental jus
tice. It appears to me beyond question, however,
that his comments are a fortiori applicable where
the issue is cruel and unusual treatment or punish
ment, contrary to section 12. La Forest J.'s refer
ence to the Altun [Altun v. Germany (1983), 5
E.H.R.R. 611] case makes this abundantly clear:
it is quite simply unthinkable that any Canadian
court or government could countenance the extra
dition of any criminal, no matter how heinous his
crime, to suffer torture at the hands of a foreign
state.
A foreign punishment or treatment which falls
within the proscription of section 12 by being cruel
and unusual creates a situation which is, in the
words of the quoted passage from Allard, "simply
unacceptable" to Canadians.
I have no difficulty in resolving this issue in
favour of the appellant.
2. The Cruel and Unusual Issue
Capital punishment has been legally abolished
in Canada since 1976." Only recently Parliament
has again had occasion to declare itself on the
subject and the majority against reinstatement of
the death penalty was substantial. De facto it has
not existed in Canada since 1962. It is over a
quarter of a century since we have hanged anyone.
While these facts do not of themselves tell us
that the death penalty is cruel and unusual, they
go a long way to show that the contemporary
Canadian community considers it to be unaccept
able.
The standards set by section 12, like those in
other parts of the Charter, are not fixed in stone.
The proscription dates from the English Bill of
Rights of 1688 [(U.K.), Will & Mary, c. 2], 12 but
it could not be seriously urged that the spectacles
of eighteenth century Tyburn could today pass
muster under the Charter.
11 S.C. 1974-75-76, c. 105, s. 5.
12 Actually, 1689, by today's calendar.
And the pace of change in what we consider
acceptable is rapid. In the same quarter century
since our last hanging we have seen the introduc
tion of universally accessible public legal aid in
criminal cases. I have little doubt that we would
today find that the conviction of an accused person
who was unrepresented solely because he could not
afford a lawyer was not in accord with the princi
ples of fundamental justice.
In R. v. Smith," the Supreme Court struck
down the provision of section 5(2) of the Narcotic
Control Act 14 imposing a seven-year minimum
term for importation of narcotics as being contrary
to section 12. While that case dealt with a type of
punishment (imprisonment) which was qualitative
ly acceptable but quantitatively grossly dispropor
tionate, Lamer J., with whom the majority of the
judges sitting agreed on this point, made it plain
that there were some categories of punishment
which were under no circumstances acceptable [at
pages 1073-1074]:
.., some punishments or treatments will always be grossly
disproportionate and will always outrage our standards of
decency: for example, the infliction of corporal punishment,
such as the lash, irrespective of the number of lashes imposed,
or, to give examples of treatment, the lobotomisation of certain
dangerous offenders or the castration of sexual offenders.
The examples chosen by Lamer J. are interest
ing and instructive. Corporal punishment was on
our statute books almost as recently as the death
penalty and was only abolished by the Criminal
Law Amendment Act, 1972. 15 Like the death
penalty, it had not been carried out for many years
prior to its formal abolition.
The example of castration is also very enlighten
ing. As a medical treatment for testicular cancer,
it is carried out routinely in our hospitals. It is a
lifesaving procedure, chosen voluntarily by
patients in the hope, often realized, of avoiding a
premature death. Yet as a compulsory State-
imposed treatment or punishment it is rejected
almost without discussion. That, as it seems to me,
' 3 [1987] 1 S.C.R. 1045.
14 R.S.C. 1970, c. N-1.
15 S.C. 1972, c. 13.
tells us much about the view we have, and should
have, of the death penalty.
Lamer J. went on in Smith to enunciate some of
the criteria for testing for violation of section 12
[at page 1074]:
The numerous criteria proposed pursuant to s. 2(b) of the
Canadian Bill of Rights and the Eighth Amendment of the
American Constitution are, in my opinion, useful as factors to
determine whether a violation of s. 12 has occurred. Thus, to
refer to tests listed by Professor Tarnopolsky, the determination
of whether the punishment is necessary to achieve a valid penal
purpose, whether it is founded on recognized sentencing princi
ples, and whether there exist valid alternatives to the punish
ment imposed, are all guidelines which, without being deter-
minative in themselves, help to assess whether the punishment
is grossly disproportionate.
These criteria are remarkably similar to those
proposed by McIntyre J.A., as he then was, dis
senting in the British Columbia Court of Appeal in
the case of R. v. Miller and Cockriell. 16 With
respect, I find it impossible to improve on his
treatment of the matter other than to say that the
passage of the intervening thirteen and a half years
has done nothing to weaken the force of his obser
vations. The following passages are particularly
opposite and I am proud to adopt them as my own
[at pages 260-272]:
It would not be permissible to impose a punishment which has
no value in the sense that it does not protect society by
deterring criminal behaviour or serve some other social pur
pose. A punishment failing to have these attributes would
surely be cruel and unusual. Capital punishment makes no
pretence at reformation or rehabilitation and its only purposes
must then be deterrent and retributive. While there can be no
doubt of its effect on the person who suffers the punishment, to
have a social purpose in the broader sense it would have to have
a deterrent effect on people generally and thus tend to reduce
the incidence of violent crime.
I am then of the opinion that capital punishment fails to
acquire the justification of deterrent value. Death is the
extreme penalty. It has always been considered the ultimate
punishment. This consideration has led to the progressive re
striction of the penalty over the years to only the most serious
offences and has led to its abolition either de facto or de jure in
several of the States in the United States of America and most
of the countries of Western Europe and to virtual abandonment
in Canada during the last 12 years. The burden of showing a
deterring effect must lie upon those who seek to apply the
extreme penalty. If that onus is not met, and in my view it is
16 (l 97 5), 63 D.L.R. (3d) 193.
not, then notwithstanding the fact that the opposite is not
demonstrated the death penalty has failed to pass this primary
test. It would be cruel and unusual to impose the ultimate
penalty on the mere chance that it may have a deterrent effect.
Is capital punishment acceptable according to public stand
ards of decency and propriety? Such public standards are no
doubt difficult to define but they are none the less real despite
that. Society is entitled to protect itself and its members by the
imposition of penal sanctions against law breakers. Some sanc
tions of long standing are generally acceptable to the public in
Canada, others have become abhorrent and have been discard
ed. In the 18th and early 19th centuries the laws of most
civilized communities in the western world prescribed punish
ments involving torture which, while accepted then, are rejected
totally today. Over the centuries the popular mind has turned
away from the worst forms of punishment and the number of
offences for which drastic physical punishment could be
imposed has been greatly reduced. In judging then what is cruel
and unusual we must not limit ourselves to the standards of
1688 when the English Bill of Rights was passed or those of a
century later when the American Constitution was adopted.
We must consider all legal impositions of punishment in rela
tion to today's conditions and attitudes and to use the expres
sion of Chief Justice Warren to the United States Supreme
Court in Trop v. Dulles the phrase "cruel and unusual punish
ment" must "draw its meaning from the evolving standards of
decency that mark the progress of a maturing society".
Can it be said that the death penalty may be justified on the
ground of necessity? The object of punishment must ultimately
be the due regulation of affairs in the community and the
protection of society from injury caused by those who break the
criminal laws. Society is entitled to take such steps by way of
punishment as are necessary to attain this object. It would not
be acceptable in a civilized society to resort to more severity
and inflict more suffering in the imposition of punishment than
is reasonably necessary for its purpose. It follows then that,
since capital punishment is the extreme sanction, if it is to be
applied it must be shown that its application is necessary in the
sense that the object of social protection could not otherwise be
achieved. Blackstone was of this view. He said in Commentar
ies, 21st ed., Welsby, pp. 9-10:
But indeed, were capital punishments proved by experience
to be a sure and effectual remedy, that would not prove the
necessity (upon which the justice and propriety depend) of
inflicting them upon all occasions when other expedients fail.
I fear this reasoning would extend a great deal too far. For
instance, the damage done to our public roads by loaded
waggons is universally allowed, and many laws have been
made to prevent it; none of which have hitherto proved
effectual. But it does not therefore follow that it would be
just for the legislature to inflict death upon every obstinate
carrier, who defeats or eludes the provisions of former
statutes.
We must now consider whether the death penalty is an
excessive punishment. It has been accepted for centuries that
the punishment imposed for a crime should be in proportion to
the offence. The undoubted right of the State to punish infrac
tions of the law must be limited to what is reasonably necessary
to restrain the offence and punish the offender. Excessive
punishment ceases to merit the legal ethical and moral approval
of society. I refer again to the words of Blackstone, supra, and I
adopt the words of Goldberg, p. 1796:
Even when the death penalty is imposed for the taking or
endangering of life, its constitutionality must depend upon
the state's ability to demonstrate a compelling justification
for using it instead of a less severe penalty.
In considering the question one must bear in mind the contem
porary standards of the community and the efficacy of less
severe alternatives.
I have already attempted to deal with the question of com
munity standards and have expressed the view that no case has
been made for the proposition that capital punishment is more
effective than available alternatives in deterring crime and
protecting society. In my opinion the sentence of death is in all
the circumstances excessive punishment.- It far exceeds the need
which can justify it and renders any errors in its application,
and errors can and will occur, impossible of correction.
Returning, in the light of these comments, to the
criteria proposed by Lamer J., one obtains the
following result: the only arguably valid penal
purpose served by capital punishment is the
incapacitation of the executed offender. In this
respect, it bears some analogy to the practice in
some Eastern countries of cutting off the hand of a
thief. It is equally unacceptable. Capital punish
ment is founded on no recognized sentencing prin
ciple and, since there is a valid, workable and
acceptable alternative, is grossly disproportionate.
McIntyre J.A.'s dissenting view in Miller did
not, of course, find favour in the Supreme Court of
Canada. On the contrary, that Court unanimously
dismissed the appeal from the majority judgment
of the British Columbia Court of Appeal." The
majority of the judges in the Supreme Court,
speaking through Ritchie J., did not, however, deal
with the substantive issue of whether the death
penalty constituted cruel and unusual punishment.
Rather, they were of the view that the Bill of
Rights did not create new rights and, since the
17 [1977] 2 S.C.R. 680.
existence of the death penalty had received parlia
mentary confirmation both before and after its
adoption, the Bill could not have the effect of
abolishing capital punishment [at pages 704-7061:
Accepting as I do the proposition that s. 2 did not create new
rights, it cannot be that Parliament intended to create anew the
absolute right not to be deprived of life under any circum
stances by providing that no law of Canada was to be applied so
as "to impose or authorize the imposition of cruel and unusual
treatment or punishment". If so construed the section would
prevent the infringement of a right which had never existed and
would thus run contrary to the purpose for which it was
enacted. As I have said, the abolition of the death penalty is a
matter for Parliament and is not to be achieved by such an
oblique method as that suggested by the appellants.
For these reasons I have concluded that the "cruel and
unusual treatment or punishment" referred to in s. 2(b) of the
Bill of Rights does not include punishment by death for murder
and that it was neither the intention nor the effect of that
section to render inoperative the death penalty provisions of the
Criminal Code.
Having reached this conclusion I do not find it necessary, in
considering the meaning of "cruel and unusual treatment or
punishment" as employed in s. 2(b) of the Bill of Rights, to
make any assessment of current community standards of mor
ality or of the deterrent effect of the death penalty. These
matters in my view raise what are essentially questions of policy
and as such they are of necessity considerations effecting the
decision of Parliament as to whether or not the death penalty
should be retained; but in the view which I take they do not
arise in considering the question of law here at issue which is
whether the provisions of s. 2(b) of the Bill of Rights preclude
the imposition of punishment by death for murder of a police
officer as provided in ss. 214 and 218 of the Criminal Code in
force at the time of this murder.
A minority of the Court, speaking through
Laskin C.J., did examine the substantive question
and concluded that the death penalty did not
constitute a cruel and unusual punishment within
the meaning of paragraph 2(b) of the Bill of
Rights. That view, while entitled to the greatest
respect, is not, of course, binding on us, not only
because it is a minority expression but, more
importantly, because decisions under the Charter,
a constitutional document, can never be controlled
by jurisprudence developed under non-constitu
tional provisions such as those in the Bill of Rights.
I say, again with respect, that I find the reasoning
of McIntyre J.A., as he then was, in dissent,
confirmed and strengthened as it has been with the
effluxion of time, to be more consonant with our
current views of Charter-protected rights.
A word needs to be said about this Court's
judgment in Kindler v. MacDonald,' in which I
participated. That case dealt with an attack on a
ministerial decision to hold inquiries under the
Immigration Act, 1976, 19 with regard to the appel
lant. MacGuigan J., for the Court, stated the issue
as follows [at page 38]:
On this appeal, then, the only issue is as to the legality and
constitutionality of the decisions under sections 27 and 28 of
the Act respectively to hold immigration inquiries concerning
the respondent.
At the conclusion of his reasons, MacGuigan J.
expressed some views with regard to the appel
lant's situation should he eventually be deported to
the United States. Those views were properly
founded in the record of that case as it then stood
and on the appellant's contention that his rights
under section 7 of the Charter might be in jeop
ardy. The record here is entirely different. These
are extradition proceedings, not administrative
decisions which might eventually lead to deporta
tion. The order here under attack calls for the
surrender of the appellant into the hands of
American authorities, where, as I have indicated,
he will be subject to the death penalty unless some
other event supervenes. The rights invoked are
under section 12, not section 7. Our earlier deci
sion does not control the outcome here.
Indeed, I have not found it necessary in the
present matter to deal with section 7 at all. The
definition of the extent to which the requirements
of fundamental justice may restrain State action
over and above what is specifically provided in
sections 8 to 14 is a particularly difficult task and
one which it seems to me should not be undertaken
where one of those sections deals unequivocally
with the subject-matter. This is especially so in the
present case: the finding that appellant's section 7
rights had been breached would require an exami
nation of the possibility of a section 1 justification,
'" [1987] 3 F.C. 34 (C.A.).
19 S.C. 1976-77, c. 52.
a task of extraordinary difficulty and delicacy,
where the substantive legislation involved is ulti
mately that of a foreign state. In the case of
section 12, however, I share the view expressed by
Le Dain J. in Smith, supra, [at page 1111] that
... a punishment which is found to be cruel and unusual could
not be justified under s. 1 of the Charter.
Accordingly, a finding that capital punishment
is prohibited by section 12 does not raise any issue
under section 1 and disposes absolutely of the
matter which is before us.
Finally, in regard to section 7 I would give no
effect to the argument a contrario suggested by
the Attorney General. The text enshrines the right
to life; the prohibition against the deprivation
thereof except in accordance with the principles of
fundamental justice cannot be turned on its ear so
as to imply a right for the State to put people to
death. To constrain life-threatening State action is
not to condone State killing.
For all the foregoing reasons, I would resolve
the second of the issues I have identified in the
appellant's favour as well.
Conclusion
I conclude that capital punishment is cruel and
unusual within the meaning of section 12 of the
Charter. For the Minister to surrender the appel
lant to suffer the death penalty at the hands of the
American authorities would be simply unaccept
able under our Constitution. That being so, the
Minister has no discretion and no choice but to
seek and obtain assurances under Article 6 of the
Treaty as a condition of surrendering the
appellant.
I would allow the appeal and substitute for the
judgment appealed from an order setting aside the
Minister's decision and remitting the matter to the
Minister for redetermination on the basis that the
appellant cannot be surrendered until assurances
under Article 6 of the Extradition Treaty between
Canada and the United States of America have
been sought and obtained. I would award no costs
here or below for the reasons indicated in
footnote 7.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.