Torture and the Supreme Court of Canada.

• Author: van Ert, Gib
• Position: The Impact of International Law on Canadian Law

INTRODUCTION

As far as international legal questions go, torture is an easy one. The prohibition of torture is one of the least controversial aspects of international human rights law and, indeed, of international law itself. For as long as human rights have been a feature of the international legal system, torture has been outlawed. Article 5 of the Universal Declaration of Human Rights 1948 declares, eloquently and categorically, "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." (1) Article 7 of the International Covenant on Civil and Political Rights 1966 ("ICCPR") repeats the prohibition and gives it further force by providing, in art 4(2), that no derogation from the prohibition is permissible even in time of public emergency. (2)

With the Convention against Torture 1984 ("CAT"), states reaffirmed and expanded upon the international legal prohibition on torture and created a treaty-monitoring body, the Committee against Torture, to enforce the new agreement. The treaty's first three articles are especially important. Article 1(1) defines torture as:

... any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity ... Article 2(1) requires states parties to "take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction." This provision is remarkable for expressly recruiting state judiciaries into the fight against torture. Article 2(2) makes undeniable what was already clear in the previous international instruments: "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture." Finally, art 3(1) follows the logic of the international prohibition of torture to its natural conclusion by affirming that "No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." The CAT has 154 states parties, including Canada, which ratified it in 1987. (3)

The international prohibition of torture is thus a central and indisputable aspect of international human rights law. As was famously observed by the United States Court of Appeals, Second Circuit in Filartiga v Pena-Irala, "the torturer has become--like the pirate and slave trader before him--hostis humani generis, an enemy of all mankind." (4) The prohibition is clearly conventional, but also customary. Indeed, it must surely be a norm of jus cogens. To test that assertion, one need only ask oneself, could two states lawfully conclude a treaty in which each agrees to permit the other to torture THEIR nationals? The answer is obvious: such a treaty would not be a treaty at all.

In deflating contrast to the startling clarity of international law on the illegality of torture, the recent jurisprudence of the Supreme Court of Canada on the topic is marked by misunderstanding, wilful blindness and even recalcitrance. In the last thirty years or so the Court (mostly in obiter) has gone from strongly opposing torture (including refoulement), to potentially permitting refoulement and upholding legislation that allowed it, to ignoring what must surely be the most notorious case of Canadian complicity in torture in our legal history. In this paper I do not attempt to explain the Supreme Court of Canada's regression from compliance to parochialism, from enlightenment to obscurity, for I do not understand it myself. My purpose is not to explain but to expose, in the hope that (as Justice Brandeis once said) sunlight will prove the best of disinfectants.

EARLY SUPREME COURT OF CANADA JURISPRUDENCE ON TORTURE

The first consideration of the international prohibition of torture by the Supreme Court of Canada came in an extradition case, Canada v Schmidt. (5) Ms Schmidt was a Canadian citizen resisting extradition to the United States on a charge of child stealing contrary to Ohio law. She argued that she had been acquitted of the charge of kidnapping for the same offence under federal US law, and, therefore, to face extradition on the Ohio charge violated her ss 7 and 11(h) Charter rights, as well as the provisions of the Canada-US Extradition Treaty. Schmidt's defence was rejected by the courts below and by the Supreme Court of Canada. La Forest J, for the majority of the Court, made the following observations about the application of the Charter to extradition:

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 falling far short of this may well arise where the nature of the criminal procedures or penalties in a foreign country sufficiently 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 surrender 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. (6) The Altun case (7), approved by La Forest J, was a European Commission decision holding that the surrender of a fugitive to a country in which he is in danger of being subjected to torture is prohibited by art 3 of the European Convention on Fluman Rights 1950. (8) Article 3 is almost word-for-word the same as art 5 of the Universal Declaration of Human Rights 1948. It reads: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

What is important about Schmidt for the purposes of this paper is La Forest J's view that there may be cases in which surrendering a fugitive to a requesting state would be prohibited by s 7 of the Charter based on the foreign state's expected treatment of the fugitive. One such case is where the requesting state may inflict torture on the surrendered person. It is not the foreign state's conduct that is being scrutinized under the Charter, of course, but Canada's decision to extradite the fugitive to such conduct. La Forest J's observations on refoulement to torture in Schmidt are, of course, obiter. They are nevertheless the considered view of a renowned jurist, and attracted the support of the majority of the Court.

The Supreme Court of Canada's next consideration of torture and international law came in Kindler v Canada (Minister of Justice)? Kindler had been found guilty of first degree murder, conspiracy to commit murder, and kidnapping in Pennsylvania, where the jury recommended the death penalty. Before his sentencing, Kindler escaped from prison and fled to Canada. Fie was arrested and the US sought his extradition. The extradition judge allowed the application and committed Kindler to custody. The Minister of Justice then ordered his extradition without seeking assurances from the US, under art 6 of the Canada-US Extradition Treaty, that the death penalty would not be imposed or carried out. Kindler challenged the Minister's refusal to seek such assurances under ss 7 and 12 of the Charter. The lower courts dismissed Kindler's application. The majority of the Supreme Court of Canada did likewise in reasons by McLachlin J (L'Heureux-Dube and Gonthier JJ concurring) and La Forest J (L'Heureux-Dube and Gonthier JJ again concurring).

McLachlin J (as she then was) held that there was no Charter violation in Parliament's conferral upon the Minister of a discretion as to whether or not to seek death penalty assurances from the US (as permitted under the Extradition Treaty) and that there was no error in the Minister's decision not to do so in Kindler's case. In the course of her reasons, she made the following Schmidt-like observation about extradition to torture:

When an accused person is to be tried in Canada there will be no conflict between our desire to see an accused face justice, and our desire that the justice he or she faces conforms to the most exacting standards which have emerged from our judicial system. However, when a fugitive must face trial in a foreign jurisdiction if he or...