Kindler v Canada (Minister of Justice),

JudgeSopinka,McLachlin J.,Cory J.,Sopinka J,La Forest J.,Cory JJ.,Lamer C.J.
Neutral Citation[1991] SCJ No 63
CourtSupreme Court (Canada)
Date26 September 1991
Docket NumberFile No.: 21321.
Canada, Supreme Court.1

(Lamer CJC; La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin JJ)

Kindler
and
Canada (Minister of Justice)

Extradition — Capital offences — Offence carrying death penalty in requesting State but not in requested State — Right of requested State to seek assurance that death penalty will not be imposed — Canada-United States Extradition Treaty, 1976, Article 6 — Decision by Canada to extradite fugitive without seeking assurances that death penalty would not be imposed — Whether contrary to Canadian Charter of Rights and Freedoms — Whether extradition to face death penalty constituting cruel and unusual treatment — Whether violating right to liberty and security of person

Human rights — Inhuman and degrading treatment or punishment — Death penalty — Whether constituting inhuman or degrading treatment or punishment — Concepts of fundamental justice — International human rights agreements — Whether prohibiting the death penalty — Whether international trend towards prohibition — The law of Canada

Summary: The facts:—The appellant, a United States citizen, was convicted of murder by a court in the State of Pennsylvania. The jury recommended that he be sentenced to death. Before the sentence could be imposed, the appellant escaped to Canada, where he was arrested and his extradition was sought by the United States. The appellant maintained that he should not be extradited unless the United States first gave assurances that he would not be executed. He argued that the Canadian Government should require such assurances under Article 6 of the Canada-United States Extradition Treaty, 1976, which provided that:

When the offence 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 offence, 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.

The Canadian Minister of Justice, however, decided not to seek such assurances and ordered that the appellant be extradited under Section 25 of the Extraditiohn Act.2

The appellant sought judicial review of the Minister's decision. He maintained that to extradite him without assurances that he would not be executed amounted to a violation of Section 7 of the Canadian Charter of Rights and Freedoms, which provided that:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

and Section 12, which provided that:

Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

The Minister argued that the extradition of the appellant to the United States without assurances that he would not be executed involved no violation of the Charter of Rights and Freedoms and that Section 25 of the Extradition Act was compatible with the Charter. The Minister also contended that a policy of seeking such assurances in all capital cases would be incompatible with Canada's obligations under the Extradition Treaty, since Article 6 envisaged that such assurances would be sought only in exceptional cases.

The Federal Court dismissed the appellant's application3 and the Federal Court of Appeal rejected his appeal.4 The appellant appealed to the Supreme Court of Canada. The Supreme Court permitted Amnesty International to intervene in the proceedings.

Held (Lamer CJC, Sopinka and Cory JJ dissenting):—The appeal was dismissed.

(1) There was no violation of Section 12 of the Charter of Rights and Freedoms. Section 12 did not apply to Section 25 of the Extradition Act or to ministerial decisions taken pursuant to that provision. The Charter applied only to the legislative and executive acts of the Canadian Government. Section 12 did not apply to the imposition of the death penalty by a foreign State within its own territory, since that would not be an act of the Canadian Government, nor did it apply to the act of surrendering a fugitive to that State to face such a penalty (pp. 374 and 417–18).

(2) The Extradition Act and ministerial decisions taken under it were, however, subject to Section 7 of the Charter. The question was whether the power, conferred by Section 25 of the Extradition Act, to extradite without imposing a condition which would preclude capital punishment was consonant with the fundamental conceptions of what was fair and right in Canadian society. A cautious approach was called for in the review of executive decisions in matters of extradition, as in other areas of foreign relations. The extradition of a fugitive charged with a murder of the kind in question here to a State where he faced the death penalty was not fundamentally unacceptable to Canadian society. It followed that neither the power, granted by Section 25 of the Extradition Act, to extradite without seeking assurances that the appellant would not be executed, nor the actual decision to proceed with extradition contravened Section 7 of the Charter (pp. 375–80 and 418–25).

(3) The Minister of Justice was entitled to take into account the consideration that a policy of always insisting upon a guarantee that a fugitive would not be executed as a condition of extradition might lead to an increasing number of dangerous fugitives seeking refuge in Canada (pp. 376–9 and 422–3).

Per La Forest J (concurring): There was no international norm which imposed a general prohibition on the imposition of the death penalty. The so-called ‘death row phenomenon’ was not a sufficient ground to hold that

extradition would contravene Section 7 of the Charter of Rights and Freedoms. It would be ironic if delay caused by the accused taking advantage of the appeals available to him should be viewed as a violation of justice (pp. 375–6 and 379–80).

Per Sopinka J (dissenting): Extradition to face the potential imposition of capital punishment deprived a fugitive of liberty and security of the person, contrary to Section 7 of the Charter of Rights and Freedoms. To reject the death penalty in a case such as the present did not necessarily preclude extradition, since there was no reason to think that the United States would have refused to give assurances that the appellant would not be executed, if such assurances had been sought under Article 6 of the Extradition Treaty (pp. 380–3).

Per Cory J (dissenting): The death penalty was per se a cruel and unusual punishment. Capital punishment had long ago been abolished in Canada and most democratic countries. It was the ultimate violation of human dignity, a value protected in numerous international human rights agreements to which Canada was party. In its international statements, Canada had committed itself to the protection of human dignity and had supported the adoption of an Optional Protocol to the International Covenant on Civil and Political Rights, which would outlaw the use of the death penalty in peacetime. The extradition of a fugitive by Canada to a State where he faced the death penalty would therefore violate Section 12 of the Charter of Rights and Freedoms. There was no substance in the argument that a policy of always seeking assurances that the fugitive would not be executed would be contrary to Canada's obligations under the Extradition Treaty (pp. 383–412).

The following is the text of the judgments delivered in the Supreme Court:

Lamer C.J.C. concurs with Sopinka and Cory JJ.

La Forest J.:—I have had the advantage of reading the reasons of my colleagues, Cory and McLachlin JJ., and I am substantially in accord with McLachlin J. I wish, however, to add reasons of my own.

As the facts have already been set forth at some length, I need only outline them briefly here. The appellant, Joseph John Kindler, was found guilty of murder, kidnapping and criminal conspiracy by a court of competent jurisdiction in the State of Pennsylvania. A sentencing hearing was held in accordance with Pennsylvania law and the jury, which found that the aggravating circumstances surrounding these offences outweighed the mitigating circumstances, unanimously returned a sentence of death. The appellant escaped from custody before the sentence could be imposed and was arrested in the Province of Quebec several months later. The United States requested the appellant's extradition pursuant to the Extradition Treaty Between Canada and the United States of America, Can. T.S. 1976, No. 3.

The broad question raised by this appeal is whether the decision of the Minister of Justice to surrender the appellant to the United States, without first seeking assurances that the death penalty will not be imposed or executed, violates the appellant's rights under the Canadian Charter of Rights and Freedoms.

The appellant framed his arguments both in terms of ss. 7 and 12 of the Charter, but he more directly focused on s. 12, the provision that prohibits cruel and unusual punishment or treatment. But McLachlin J. quite rightly points out that s. 7 of the Charter is the appropriate provision under which the actions of the Minister are to be assessed. The Minister's actions do not constitute cruel and unusual punishment. The execution, if it ultimately takes place, will be in the United States under American law against an American citizen in respect of an offence that took place in the United States. It does not result from any initiative taken by the Canadian Government. Canada's connection with the matter results from the fact that the fugitive came here of his own free will, and the question to be determined is whether the action of the Canadian Government in returning him to his own country infringes his liberty and security in an impermissible way.

There can be no doubt that the appellant's right to liberty and security of the person is very seriously affected...

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1 practice notes
  • Suresh c. Canada (Ministre de la Citoyenneté et de l'Immigration) (C.A.),
    • Canada
    • Court of Appeal (Canada)
    • 18 January 2000
    ...(3d) 65; 77 C.R. (3d) 1; 109 N.R. 8l; Kindler c. Canada (Ministre de la Justice), [1991] 2 R.C.S. 779; (1991), 84 D.L.R. (4th) 438; 67 C.C.C. (3d) 1; 8 C.R. (4th) 1; 129 N.R. 81; R. c. Nova Scotia Pharmaceutical Society, [1992] 2 R.C.S. 606; 114 N.S.R. (2d) 91; 93 D.L.R. (4th) 36; 313 A.P.R......
1 cases
  • Suresh c. Canada (Ministre de la Citoyenneté et de l'Immigration) (C.A.),
    • Canada
    • Court of Appeal (Canada)
    • 18 January 2000
    ...(3d) 65; 77 C.R. (3d) 1; 109 N.R. 8l; Kindler c. Canada (Ministre de la Justice), [1991] 2 R.C.S. 779; (1991), 84 D.L.R. (4th) 438; 67 C.C.C. (3d) 1; 8 C.R. (4th) 1; 129 N.R. 81; R. c. Nova Scotia Pharmaceutical Society, [1992] 2 R.C.S. 606; 114 N.S.R. (2d) 91; 93 D.L.R. (4th) 36; 313 A.P.R......

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