CASE COMMENTS
CHRONIQUES DE JURISPRUDENCE
Case Comment: Ng and Kindler
James W. O’Reilly*
In the companion extradition cases of Ng’ and Kindler2 the Supreme Court
of Canada applies the approach it developed in the trilogy of Mellino,3 Allard’
and Schmidt’ to the review of decisions of the Minister of Justice to surrender
persons to requesting states. Those cases showed that the Court would take a
hands-off approach in determining the content of section 7 of the Charter6 for
purposes of reviewing these decisions, intervening only where the return of a
person was “simply unacceptable ‘ 7 or would “shock the conscience” of Cana-
dians.’ In Ng and Kindler, the Court held, by a 4-3 majority, that the return of
these men to the United States, in the absence of assurances by the States of Cal-
ifornia and Pennsylvania respectively that the death penalty would not be
imposed or carried out is not contrary, to the Charter. Article 6 of the Extradition
Treaty between Canada and the United States provides:
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. 9
*Of the Ontario Bar.
McGill Law Journal 1992
Revue de droit de McGill
To be cited as: (1992) 37 McGill L.J. 873
Mode de citation: (1992) 37 R.D. McGill 873
‘Reference Re Ng Extradition, [1991] 2 S.C.R. 858, 84 D.L.R. (4th) 498 [hereinafter Ng].
2Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, 84 D.L.R. (4th) 438 [hereinafter
Kindler cited to S.C.R.].
3Argentina (Republic) v. Mellino, [1987] 1 S.C.R. 536, 40 D.L.R. (4th) 74.
4United States v. Allard, [1987] 1 S.C.R. 564, 40 D.L.R. (4th) 102 [hereinafter Allard cited to
S.C.R.].
5Canada v. Schmidt, [1987] 1 S.C.R. 500, 39 D.L.R. (4th) 18 [hereinafter Schmidt cited to
S.C.R.].
6Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule
B of the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Charter].
7Supra, note 4 at 572.
8Supra, note 5 at 522.
9Extradition Treaty betveen Canada and the United States ofAmerica, 3 December 1971, Can.
T.S. 1976 No. 3, 1041 U.N.T.S. 57.
McGILL LAW JOURNAL
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In both cases, the persons sought by the United States argued that the Min-
ister should have sought those assurances and that failure to do so amounted to
the imposition of cruel and unusual treatment or punishment (i.e. contrary to
section 12 of the Charter) and infringed their interests in liberty and security of
the person (i.e. contrary to section 7 of the Charter).
There is no doubt that extradition cases present courts with a nettlesome
constitutional question. The difficulty arises from the Supreme Court of Cana-
da’s clear rule that executive decision-making is subject to constitutional scru-
tiny.'” As such, decisions by the Minister of Justice to return a person to face
trial or punishment are susceptible of judicial review on constitutional grounds.
At the same time, courts will be understandably loath to find a Minister’s deci-
sion to be constitutionally defective since the result may be that the person
sought will not be returned to the requesting state, even though there will have
been a finding by the extradition judge that there is sufficient evidence to justify
the person’s return. We see clearly in Ng and Kindler that in applying the Char-
ter to ministerial decisions in extradition cases, the Supreme Court of Canada
has kept open the door to judicial review but has tried to keep the opening to
a crack. Even so, as will be discussed below, that opening is probably wide
enough to accommodate many challenges to surrender orders founded on the
treatment or punishment the person sought is likely to receive on return.
I. The Judgments
La Forest J. and McLachlin J., both joined by L’Heureux-Dub6 and Gon-
thier JJ., wrote the majority judgments in Kindler and Ng. Sopinka J. and Cory
J., both joined by Lamer C.J.C., dissented. As the Court’s reasoning is set out
principally in Kindler, the discussion here will focus on that case.
There is little difference between the positions of La Forest J. and McLach-
lin J. Both judgments concluded that:
1. Section 7, not section 12, applies to the review of a Minister’s decision
to surrender a person sought by a foreign state;
2. Review of surrender decisions under section 7 should be extremely
circumspect;
3. The surrender to the United States of Kindler and Ng without assur-
ances that the death penalty would not be imposed on them does not
violate section 7 of the Charter.”
A. Sections 7 and 12 of the Charter
The majority’s holding that section 12 of the Charter has no application to
the surrender of wanted persons is perplexing. La Forest J. stated simply that
“[t]he Minister’s actions do not constitute cruel and unusual punishment””2 and
went on to say:
“Operation Dismantle Inc. v. R., [1985] 1 S.C.R. 441 at 455, 463-64, 118 D.L.R. (4th) 481.
“It should also be mentioned that the Court was unanimous that the process by which the Min-
ister decides whether to surrender a person does not violate s. 7.
12Supra, note 2 at 831.
1992]
CASE COMMENTS
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.
1 3
Similarly, McLachlin J. finds the surrender power given to the Minister in sec-
tion 25 of the Extradition Act14 is beyond the reach of section 12 of the Charter
since “[n]either s. 25 nor orders made under it impose or authorize punish-
ment”‘ 5 and “the effect of any Canadian law or government act is too remote
from the possible imposition of the penalty complained of to attract the attention
of s. 12.” 6
There are four troublesome aspects to this reasoning. First, it is not clear
why the majority looks only to the word “punishment” in section 12 of the
Charter. Section 12 also protects against cruel and unusual treatment. While
the Minister’s surrender order does not impose punishment directly, the removal
of a person from Canada may well amount to “treatment.”
Second, the majority does not explain why the remoteness of the punish-
ment from Canadian conduct results in the inapplicability of section 12 and,
simultaneously, the application of section 7. If the surrender order is so distant
from the punishment that may be imposed in the requesting state that the order
cannot be governed by section 12, how can it be governed by section 7? To put
it another way, if the surrender order is remote from the potential punishment,
how can it at the same time be proximate to the fugitive’s security of the person?
La Forest J. stated, after rejecting the argument that section 12 applies to the sur-
render decision, “[t]here can be no doubt that the appellant’s right to liberty and
security of the person is very seriously affected because he may face the death
penalty following his return.”‘ 7 The person’s liberty and security interests are
affected because the surrender order will place the person in a situation in which
the death penalty may be imposed, even though the order does not in itself pre-
scribe the punishment. The order renders the person before the foreign author-
ities for the possible imposition of the death penalty. As such, the person’s lib-
erty and security interests and the punishment itself are equidistant from the
surrender order. Yet the Court holds that those interests are connected closely
enough to the action of Canadian officials to be governed by the Charter but the
punishment is too remote.
Third, the suggestion that the surrender order is too remote from the death
penalty to come within section 12 is particularly difficult to comprehend in the
case of Kindler, where the penalty had already been imposed. It remains simply
B31bid.
14R.S.C. 1985, c. E-23, which states:
Subject to this Part, the Minister of Justice, on the requisition of the foreign state, may,
under his hand and seal, order a fugitive who has been committed for surrender to be
surrendered to the person or persons who are, in the Minister’s opinion, duly authorized
to receive the fugitive in the name and on behalf of the foreign state, and the fugitive
shall be so surrendered accordingly.
15Supra, note 2 at 846.
’61bid.
171bid. at 831.
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to carry it out. The surrender order puts Kindler on death row, hardly a site far
removed from the application of the death penalty. In this respect, Kindler is
perhaps distinguishable from Ng, since in the latter case the person surrendered
had not even been tried.
Fourth, in arriving at the conclusion that the death penalty is too remote
from the Minister’s decision to attract the attention of section 12, La Forest J.
considered the degree of the connection to Canadian interests. Here, the accused
were United States citizens, charged with crimes in the United States. One won-
ders, then, what the approach would be, for example, in a situation where the
person sought was a Canadian citizen. Would this mean that section 12 would
then apply? It would be a peculiar result if the citizenship of the person sought
could determine which sections of the Charter applied to the review of a sur-
render decision. This would be a departure from the principle that everyone on
Canadian soil is entitled to the protection of the Charter.”8 Clearly, the Minister
could take citizenship into account when deciding whether to surrender a per-
son. In fact, this is a recognized ground for refusing surrender in international
law, although the practice in Canada has been to extradite nationals of this coun-
try. 9 In addition, the Minister may take account of the fact that a Canadian cit-
izen is expressly given the right to remain in Canada under section 6 of the
Charter.2 It would be quite another thing to say, however, that Canadians may
be protected from surrender to face cruel and unusual punishments but others
will not. The extent to which citizenship influences the application of the Char-
ter to surrender is unclear in La Forest J.’s judgment.
The majority’s reluctance to deal with surrender on the basis of section 12
may be explained, perhaps, by an understandable desire not to rule on whether
the death penalty amounts to cruel and unusual treatment or punishment until
the issue comes squarely before the Court. Further, the distinction between the
ambit of section 7 and the application of section 12 permits the Court to develop
its jurisprudence on the meaning of cruel and unusual treatment or punishment
without concern for its impact on extradition matters. Thus, the Court would be
free in future to find that the death penalty or some other punishment or treat-
ment was cruel and unusual, but uphold the authority of the Minister to surren-
der a person to face such a punishment or treatment. In fact, judging from both
majority and dissenting opinions, it is quite likely that a majority of the Court
would find that capital punishment indeed amounts to a violation of section 12.
It is clear that the three dissenting members of the Court believe the death pen-
alty to be cruel and unusual punishment per se. In the majority judgments there
are dicta suggesting that the writers may be inclined to find that the death pen-
alty, if provided for in Canada, would offend section 12 of the Charter. La For-
est J., with whom L’Heureux-Dub6 and Gonthier JJ. concurred, stated:
18See Singh v. Canada (Minister of Employment and hnmigration), [1985] 1 S.C.R. 177 at 202,
19See A.W. La Forest, La Forest’s Extradition to and from Canada, 3rd ed. (Aurora, Ont.: Can-
17 D.L.R. (4th) 422.
ada Law Book, 1991) at 98-109.
2See Germany (Federal Republic) v. Rauca (1982), 38 O.R. (2d) 705, 70 C.C.C. (2d) 416
(H.C.J.), aff’d (1983), 41 O.R. (2d) 225, 4 C.C.C. (3d) 385 (C.A.), holding that extradition is a
reasonable limit on s. 6 rights.
1992]
CHRONIQUES DE JURISPRUDENCE
There is strong ground for believing that having regard to the limited extent to
which the death penalty advances any valid penological objectives and the serious
invasion of human dignity it engenders that the death R enalty cannot, except in
exceptional circumstances, be justified in this country.
Thus, it appears that at least six members of the Court would find the death pen-
alty to be a violation of section 12 of the Charter, while three of them would
permit Canada to surrender persons to face the death penalty on the reasoning
that section 12 does not apply.
In effect, by dealing with surrender to face the death penalty under section
7 rather than section 12, the majority avoids both the question whether the death
penalty amounts to cruel and unusual punishment and, given the likely affirm-
ative answer to that question, the difficult exercise of justifying its imposition
in the extradition context according to the standards of section 1.22 If the Court
had held that surrender orders were governed by section 12, an order to face a
punishment that had been found to violate section 12 in the Canadian context
(e.g. a mandatory minimum sentence 3) would be constitutional only if it met
the requirements of section 1 of the Charter. In effect, the majority confines its
justification for the potential application of the death penalty entirely within sec-
tion 7.
The approach of Cory J., in dissent,’ is more straightforward on this issue.
He reasons that since the manner in which the foreign state treats the person on
return from Canada can give rise to review on Charter grounds (citing Schmidt’),
then “… Canada, as the extraditing state, must accept responsibility for the ulti-
mate consequence of the extradition. 26 In other words, the punishment of the
person on return and the actions of Canadian authorities sending the person
back for that punishment must receive equivalent Charter scrutiny. Cory J. goes
on to find that the death penalty constitutes per se a violation of section 12 not
saved by section 1. Therefore, so must the surrender order to face possible
imposition of the death penalty.
B. Scope of Section 7 Review of Surrender Decisions
The majority concludes that the scrutiny to be given to the punishment
imposed by the requesting state under section 7 is limited because of the special
nature and exigencies of extradition. Quite rightly, the majority acknowledges
that extradition results from commitments made between states, entered into by
the executive by way of treaties. A surrender order by the Minister of Justice
represents the fulfilment of that commitment in relation to a particular request.
If a court were to overturn such an order, it would frustrate the wishes of the
21Supra, note 2 at 833.
22And, therefore, the corresponding analysis set out in R. v. Oakes, [1986] 1 S.C.R. 103, 26
D.L.R. (4th) 200.
2See, for example, R. v. Smith, [1987] 1 S.C.R. 1045, 40 D.L.R. (4th) 435 [hereinafter Smith].
24In the other dissenting judgment, Sopinka J. declines to decide whether s. 12 applies. He bases
his analysis on s. 7 alone.
25Supra, note 5.
26Supra, note 2 at 820.
McGILL LAW JOURNAL
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states. This could have ramifications in the domain of international relations,
affect Canada’s reputation among nations, and result in difficulties in having
wanted persons returned to Canada. As such, the judiciary’s scrutiny of the
Minister’s decision should not be “over-exacting” ’27 given “[t]he superior place-
ment of the executive to assess and consider the competing interests involved
in particular extradition cases.”‘
These considerations enter the majority’s determination of the principles of
fundamental justice that apply in the extradition setting. It appears that these,,
principles have little content when applied to extradition. The “basic tenets of
our legal system,”’29 according to La Forest J., require simply that those subject
to extradition not be treated in a manner that “would place [them] in a position
that is so unacceptable as to ‘shock the conscience’.”3 The majority then goes
on to consider whether the possible imposition of the death penalty on Kindler
and Ng would be so unacceptable.
McLachlin J. suggested at one point a rather expansive scope of review.
She stated:
At the end of the day, the question is whether the provision or action in question
offends the Canadian sense of what is fair, right and just, bearing in mind the
nature of the offence and the penalty, the foreign judicial system and considera-
tions of comity and security, and according due latitude to the Minister to balance
the conflicting considerations.31
However, at the same time, she expressly agreed that the test is as stated by La
Forest J.
In dissent, Sopinka J. was of the view that the scope of scrutiny proposed
by the majority was overly restrictive. He disputed the manner in which the
majority determined whether a violation of section 7 had occurred. In his view,
the “shock the conscience” test is too narrow in that it focuses on majority opin-
ion. As he stated:
Principles of fundamental justice are not limited by public opinion of the day. The
protection offered by s. 7 extends to individuals who face unjust situations which
are not recognized as such by the majority.3 2
The majority’s attempt to fit within section 7, to the exclusion of sections 12 and
1, both the principles of fundamental justice and all of the limitations on them
appropriate in the extradition context does indeed appear to result in a diminu-
tion of the basic tenets of our legal system to a rather low standard.
C. Whether Section 7 of the Charter is Violated
It is clear from the test developed by the majority that it will be the rare
case where the judiciary will intervene to overturn a decision of the Minister of
27Ibid. at 849, McLachlin J.
28Ibid.
29Reference re Section 94(2) of the Motor Vehicle Act, [1985] 2 S.C.R. 486 at 503, 24 D.L.R.
30Supra, note 2 at 832, citing Schmidt, supra, note 5.
31Ibid. at 850.
321bid. at 791.
(4th) 536.
1992]
CASE COMMENTS
Justice to surrender a person to a requesting state. In applying the test, La Forest
and McLachlin JJ. consider the use of the death penalty in the particular circum-
stances before them: i.e. by assessing Canadian attitudes to capital punishment
and taking account of the individuals seeking protection from it – Kindler and
Ng. McLachlin J. articulated the approach as follows:
In determining whether … the extradition in question is “simply unacceptable,” the
judge must avoid imposing his or her own subjective views on the matter, and seek
rather to objectively assess the attitudes of Canadians on the issue of whether the
fugitive is facing a situation which is shocking and fundamentally unacceptable to
our society.33
La Forest J. considered whether the death penalty “would be so outrageous
to the values of the Canadian community that the surrender would be unaccept-
able.”‘ He concluded that the surrender of persons sought by foreign states to
face the death penalty would not always shock the conscience of Canadians.
First, judging by public opinion as evidenced by votes in the House of Com-
mons on the issue, there is no fundamental abhorrence of the death penalty in
Canada, even though those votes have defeated attempts to re-instate the death
penalty. The most recent vote in 1987 defeated re-instatement by 148 to 127, a
relatively narrow margin.3
1 It may fairly be concluded that Canadians are not
united in horror at the possibility of a person being condemned to death.
Second, given that Kindler was convicted of, and Ng has been charged
with, “the worst sort of crimes,”36 it is unlikely that Canadians would be
shocked by the return of these individuals to the United States to face capital
punishment. La Forest J. described the charges against the two men as follows:
The crime of which Kindler has been convicted can only be described as a brutal,
premeditated murder. The extradition report shows that after beating the victim
about the head with a baseball bat, Kindler allegedly dragged him to a nearby
river, tied a cinder block to his neck and threw him into the river while he was still
alive. Ng, for his part, has been accused of a series of offences of an almost
unspeakable nature. These would seem to me to be precisely the kinds of individ-
uals the Minister would wish to keep out of Canada for the protection of the pub-
lic.
3 7
Third, the reality that the person may avoid conviction or punishment in
the requesting state if not surrendered must be considered. In other words, the
extradition setting presents a stark choice, one that would not exist in a purely
domestic case. If Canadian law provided for the death penalty and that law was
successfully challenged on Charter grounds, those who would have been sub-
ject to it would receive the next most serious punishment under our law, life
imprisonment. However, in an extradition setting, if a Minister does not seek or
does not receive assurances that the requesting state will not impose the death
penalty on the person sought and a court concludes that the person should not
be surrendered to face the death penalty, he or she will have successfully evaded
33Ibid. at 850.
3’Ibid. at 832.
35Ibid. at 852.
36Ibid. at 835-36, La Forest J.
371bid. at 835.
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justice by fleeing to Canada. As such, courts reviewing the Minister’s decision
to surrender in a capital case must be satisfied, before overturning that decision,
that it would be better to release the person unconditionally on Canadian soil
than send the person back to face the death penalty.
On the latter point, the dissenting justices stated that the choice is not as
stark as the majority contended. If the Minister were to seek assurances that the
death penalty would not be imposed on Kindler and Ng, those assurances may
well be given by United States authorities. 8 If so, the persons sought could be
returned to face some lesser punishment. If no assurances were forthcoming,
then the stark choice would have to made, at least in the case of Kindler. For
Ng, a surrender order could be made in relation to other pending charges that
would not attract the death penalty (i.e. attempted murder, kidnapping and bur-
glary). Thus, the end result would be the extradition of Ng one way or another.
This issue devolves into a question whether Canada is or could become a
safe haven for those seeking to avoid the death penalty. The majority recognized
the high rate of homicides in the United States, the vast open border between
the two countries and the fact that Kindler and Ng had both fled and committed
crimes here. If death penalty assurances were a prerequisite for extradition from
Canada, more offenders may seek refuge here and, if they do so, Canadians may
become victims of their crimes. While there may be disagreement on offenders’
motivations for fleeing to Canada and the rate at which they do so, the majority
accepts this as a valid consideration for the Minister in deciding not to seek
assurances.
The dissenters’ views on this issue are simply not realistic. If Canada were
required to seek death penalty assurances in every capital extradition case,
surely some offenders would be encouraged to seek refuge here, even if the
Minister would be prepared to order surrender if assurances were in fact not
given. It would offer hope of avoiding the death penalty and a convenient des-
tination, at least for American fugitives. While Cory J. takes the better approach
in regarding this as a section 1 issue rather than as part of the application of sec-
tion 7, his analysis is unconvincing. He postulated that fugitives flee for many
reasons and they are likely to flee here whether or not Canada has a firm anti-
death penalty posture.39 Further, he stated that the only empirical evidence we
have of an influx of murderers or alleged murderers are the two cases before the
Court. It is true that fugitives will likely flee to Canada for a variety of reasons.
But it is also true that the hope of avoiding the death penalty would be an incen-
tive to come to Canada. The fact that we do not know how many such persons
are in Canada or will come to Canada does not negate the concern that we may
inadvertently encourage them. Further, there is little doubt that if Canada were
to seek death penalty assurances for Ng and Kindler and failed to surrender
them in the absence of assurances, or surrendered them to face lesser punish-
ments, some fugitives would see a benefit to be gained in coming to Canada.
381bid at 792, Sopinka J. For example, the U.S. gave a limited assurance in Soering v. United
Kingdom (1989), Eur. Court H.R. Ser. A, No. 161, 11 E.H.R.R. 439 at 445-47, 461.
39Supra, note 2 at 825.
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CHRONIQUES DE JURISPRUDENCE
In the result, the majority finds no violation of section 7 and, hence, no
ground for disturbing the Minister’s decision to surrender. Both men have been
returned to the United States.
II. Observations on the Scrutiny of Foreign Laws
The following additional observations may be made with respect to the
Kindler and Ng cases:
1. None of the justices made any reference to the laws of Pennsylvania and Cal-
ifornia providing for the death penalty.
2. While no reference was made to these laws, scrutiny of foreign laws is likely
to occur in future cases where the Minister’s decision to surrender is
challenged.
A. State Death Penalty Laws
It is a curiosity of the cases that no reference was made by any member of
the Court to the laws of Pennsylvania and California that provide for the death
penalty. McLachlin J. simply pointed out that these laws were enacted demo-
cratically and those subject to the death penalty have opportunities to challenge
those laws on grounds of arbitrariness.”n But no judgment referred to the actual
laws that apply to Kindler and Ng. In fairness, there was no need for the minor-
ity to consider foreign law since it was their position that the death penalty is
per se cruel and unusual. Thus, however these states go about imposing the
death penalty, the very existence of that penalty amounts to cruel and unusual
punishment (per Cory J.) and a violation of the principles of fundamental justice
(per Sopinka J.).
The majority’s failure to consider the state death penalty laws can perhaps
be explained by their understandable desire not to be seen to be passing judg-
ment on foreign legal systems. After all, this is one of the reasons why the Min-
ister, rather than the extradition judge, has the general discretion to refuse extra-
to avoid making the merits of a foreign legal system the subject of
dition –
proof at the extradition hearing. Instead, the Minister can make the necessary
inquiries and make a decision whether to surrender without risk of embarrass-
ment to the requesting state. Still, given that the Minister’s decision is open to
review, some scrutiny will no doubt be given in future cases to the laws to which
the persons sought will be subject on return.
The majority considered whether Canadians would be shocked to see the
likes of Kindler and Ng face capital punishment, not whether the laws of Penn-
sylvania and California are reasonable or accord with principles of fundamental
justice in the manner in which they prescribe the death penalty. To do so,
according to McLachlin J., would be to give the Charter extraterritorial effect.”
401bid. at 852.
41Ibid at 846 she stated: “Effective relations between states require that we respect the differ-
ences of our neighbours and that we refrain from imposing our constitutional guarantees on other
states….”
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This reasoning is difficult to follow. So long as there exists the possibility of
reviewing the Minister’s decision to surrender there will also exist the possibil-
ity of the Charter having extraterritorial effect. Even the majority stated that if
the surrender of a fugitive would be “simply unacceptable” there would be a
violation of the Charter. Thus, the Charter could operate to prevent prosecution
or punishment by the requesting state and, in that sense, have extraterritorial
effect. It is not extraterritoriality that prevents the Court from considering the
merits of foreign law, nor, as discussed above, does avoidance of extraterritori-
ality justify a preference of section 7 over section 12.
In the place of considering the content of the laws of California and Penn-
sylvania, the Court considered whether Canadians would be shocked by the
imposition of the death penalty on the “worst sort” of criminals. This approach
amounts to a duplication of the very thrust of the various state death penalty
statutes. These laws set out a test of who the worst sorts of criminals are, in the
estimation of the state legislature, and then leaves it to a jury to decide whether
the person falls within the test and whether the death penalty should be imposed.
Under the California Penal Code,42 death penalty cases are tried in two
stages. First the trier of fact determines the matter of the accused’s guilt on the
crime charged (i.e. first degree murder) and then, if there is a finding of guilt,
there is a further determination whether any “special circumstances” have been
proved. Special circumstances are indications that the offence was unusually
serious or brutal. The Penal Code contains nineteen such special circumstances,
including commission of multiple murders, murder by bombing, murdering a
peace officer, witness, prosecutor or judge, murder that is especially heinous,
atrocious or cruel, murder committed while in flight from another crime, and
murder accompanied by torture.43 Once murder and a special circumstance have
been proved beyond a reasonable doubt, the jury determines whether the
accused should be sentenced to death or to life imprisonment without parole.”
At this stage, the jury may consider mitigating and aggravating factors, such as
the circumstances of the crime, moral justification for the offence, impairment
by mental disease or intoxication, degree of participation in the crime, the age
of the accused and “any other extenuating circumstance.”’45 The jury is obliged
to impose the death sentence at this stage if the aggravating factors outweigh the
mitigating factors. If a verdict of death penalty is returned, the trial judge must
review the evidence and determine whether the verdict is legally and factually
sound.46
A similar process is provided in Pennsylvania law,47 although it is simpler
than the California statute. It sets out a series of aggravating circumstances that
resemble the special circumstances provided in the California Penal Code. The
jury must return a death sentence verdict if it unanimously finds at least one
42Cal. Penal Code 190.1 (West 1992).
43Ibida 190.2(a).
441bid. 190.3.
451bid 190.3(k).
461bid. 190.4(e).
4742 Pa. Cons. Stat. Ann. 9711 (1992).
1992]
CASE COMMENTS
aggravating circumstance has been proved beyond a reasonable doubt and that
there are no mitigating circumstances, or that the aggravating circumstances
outweigh the mitigating circumstances. 8 A death penalty verdict is subject to
automatic review by the Supreme Court of Pennsylvania, which must affirm it
unless it finds that the verdict was the result of passion, prejudice or other arbi-
trary factor, is inconsistent with the evidence or is excessive or disproportion-
ate.49
Given the contents of these statutes, the majority’s consideration of the
seriousness of the crimes charged against Ng and proved against Kindler
appears superfluous as it is only for the worst sort of murders, as defined by
these state laws, that the death penalty will in fact be imposed. On the other
hand, it is possible that in a future case the Court could find that Canadians
would be shocked to see the death penalty imposed on a person who had not
committed, by Canadian standards, the “worst sort of crime.” For example, a
state law may provide the death penalty for a negligent killing.” The Supreme
Court of Canada could well determine that this would not be the “worst sort of
crime” and that Canadians would be shocked to see a person put to death who
did not have actual intent to cause death. If so, the surrender of a person in those
circumstances would amount to a violation of section 7. Of course, this would
be to give the Charter extraterritorial effect as it would amount to a finding that
the foreign law does not meet the standards of the Charter.
Thus, it appears that the test formulated by the majority is either superflu-
ous or has extraterritorial effect. It is superfluous if it permits the surrender of
persons to face the death penalty in just those situations where the state law con-
templates its imposition. It is extraterritorial in its reach if it can result in the
refusal to surrender someone who falls within the parameters of the state’s death
penalty statute; in other words, where the Supreme Court’s definition of the
“worst sort” of offender differs from that of a state legislature. There cannot be
a meaningful standard of reviewing the Minister’s decision on surrender without
passing judgment on foreign law. As such, it would have been preferable if the
Court had recognized this by considering the actual operation of the statutes
imposing the death penalty rather than creating the “worst sort of crime” test.
Both that test and the holding that section 12 does not apply to surrender deci-
sions tend to obscure the fact that courts will ultimately be called on to assess
foreign law in reviewing surrender decisions.
B. Future Impact on Surrender Review
An application of the “worst sort of crime” standard from Ng and Kindler
can perhaps be seen in the recent decision of the Minister of Justice to seek
48Ibid. 9711(c)(1)(iv).
49Ibid. 9711(h).
5See, for example, California Penal Code, supra, note 42, 190.2(a)(4) (creating the special cir-
cumstance of murder committed by a destructive device (i.e. a bomb) if the defendant knew or rea-
sonably should have known that the act would create a risk of death); ibid. 190.2(b) (which pro-
vides that unless specifically required, the death penalty may be imposed even if the accused did
not have actual intent to kill at the time of the commission of the offence).
REVUE DE DROIT DE McGILL
[Vol. 37
assurances from the United States State Department that the State of Florida”
would not impose the death penalty in the O’Bomsawin case. Assurances have
now been received. 52 O’Bomsawin is charged with two counts of first degree
murder. It appears that the Minister, in applying the standard articulated in Kin-
dler, concluded that this case did not involve the “worst sort of crime” and that
the Canadian public would be shocked by the imposition of the death penalty
on O’Bomsawin. It is difficult to know what impact, if any, the fact that O’Bom-
sawin is a Canadian citizen had on the Minister’s decision. 3 If the Minister had
not sought assurances or if the assurances had not been given, a review of her
decision to surrender would have amounted to a consideration whether the accu-
sed’s alleged conduct amounted to the “worst sort of crime,” presumably mea-
sured against the conduct of Kindler and alleged against Ng. We have no obvi-
ous yardstick for making this measurement, particularly where the person
sought has yet to be tried. On the other hand, we have a significant body of case
law under sections 7 and 12 by which we could assess the foreign law. At the
same time, consideration of the differences between states, the interests of inter-
national comity and reciprocity and the need for internal security could easily
be accommodated in section 1.
The Supreme Court’s test will almost certainly require assessment of for-
eign laws in reviewing a decision to surrender in non-death penalty cases where
there is an allegation that surrender would be “unacceptable” or “shocking.” An
example of this is provided in the recent case of Jamieson.54 There the appellant
was wanted on charges of trafficking in cocaine in the State of Michigan. Under
Michigan law, if convicted, the appellant would be liable to a minimum sen-
tence of 20 years of imprisonment without eligibility for parole and a maximum
of 30 years. The case arose from a habeas corpus application to review the deci-
sion of the extradition judge to commit the appellant to await surrender. The
Court of Appeal, per Rothman J.A.,55 held that the judiciary should generally
not make a determination whether the appellant’s section 7 and section 12 rights
have been infringed before the Minister has made a decision whether to surren-
der the person. Rothman J.A. stated:
Applying Canadian standards, a minimum sentence of 20 years for trafficking
in 273 grams of cocaine is indeed harsh. But, with respect, I do not find that it so
shocks the conscience as to require judicial intervention even before the executive
has had an opportunity to decide whether the circumstances justify a refusal to sur-
render the fugitive.56
Thus, the Court applied a more stringent test of review than in Kindler, given
that the appellant raised Charter issues related to surrender even before the sur-
render decision had been made. Rothman J.A. then considered the operation of
the Michigan statute to determine whether there was an opportunity for the exer-
5 Florida’s death penalty statute may be found at Fla. Stat. Ann. 921.141 (West 1992).
52As announced by the Minister of Justice (Press Release (5 February 1992)).
53See text accompanying notes 18-20.
54Jamieson v. Directeur du Centre de Prdvention Parthenais, [1992] R.J.Q. 561 (C.A.) [herein-
after Janieson].
55Chouinard J.A. concurring.
56Supra, note 54 at 566.
1992]
CHRONIQUES DE JURISPRUDENCE
cise of judicial discretion by a Michigan sentencing judge to reduce the mini-
mum sentence. He concluded that Michigan law allows for a departure from the
minima prescribed where there exist “substantial and compelling reasons” for
so doing. Thus, the Michigan statute is not so arbitrary as the Canadian provi-
sion creating a minimum sentence that was found by the Supreme Court of Can-
ada to violate section 12 of the Charter.57 Whether there are in fact such reasons
as to justify departure form the minimum sentence should, according to Roth-
man J.A., be determined by a Michigan court, if the person is returned and
found guilty of the offence.
Proulx J.A., in dissent, took a different view of Michigan law. He found
that there is not a possibility of departure from the 20-year minimum sentence
and, therefore, that it would be fundamentally unfair to surrender the appellant
to face the outstanding charges there. He cited an affidavit sworn by a Michigan
prosecutor stating that he would seek to have the appellant sentenced under the
Michigan law in place at the time Jamieson absconded. That law did not con-
template departures from the minimum sentences. In fact, Jamieson’s accom-
plice was sentenced to the 20-year minimum sentence. In addition, even if the
amended law were applied to the appellant, Proulx J.A.’s view was that the
meaning of “substantial and compelling reasons” was quite limited. For exam-
ple, the accused’s age, criminal history, remorsefulness, absence of drug use, or
family support would not justify departure from the minimum sentence. By
Canadian standards, a 20-year sentence without possibility of parole would be
even more serious than the penalty for first degree murder, since our law pro-
vides for the possibility of a reduction of the 25-year parole ineligibility period
after 15 years have been served.5″ Proulx J.A. cites the Green Paper on sentenc-
ing released by the Government of Canada in 1990 in which it was stated that
there was a consensus among Canadians that the purposes and principles of sen-
tencing must include a requirement of proportionality and take account of the
particular circumstances of the offence.5 9 Michigan law does not accord with
this Canadian view. As such, Proulx J.A. concluded:
Quand il apparalit que la loi fait fi compltement de tous les principes de base et
qu’elle aboutit finalement A une situation qui devient un non-sens et que rejetterait
toute personne raisonnablement inform6e, les tribunaux ont le devoir d’empacher
qu’un citoyen soit expos6 A ce sort. 60
Thus, we can see from Jamieson that courts, inevitably, must inquire into
the operation and merits of foreign law in order to determine whether surrender
of a person to face trial and punishment in the requesting state would be shock-
ing to Canadians. The majority in Kindler and Ng refrained from scrutinizing
United States law and, instead, established the “worst sort of crime” standard.
But that test, even if appropriate for death penalty cases, obviously cannot have
57Smith, suprd, note 23, striking down the seven-year minimum sentence in the Narcotic Control
Act, R.S.C. 1985, c. N-1, s. 5(2) for importing narcotics.
5
8Crininal Code, R.S.C. 1985, c. C-46, s. 745.
59Canada, A Framework for Sentencing, Corrections and Conditional Release -Directions for
Reform (Ottawa: Supply and Services, 1990) at 12, 16, 29.
60Supra, note 54 at 571.
McGILL LAW JOURNAL
[Vol. 37
application to other kinds of punishments. It is clear from Jamieson that a deter-
mination whether a surrender order comports with the Charter requires that
some scrutiny be given to the foreign law applicable to the trial and punishment
of the person to be surrendered. The Quebec Court of Appeal appeared untrou-
bled by the potential extraterritorial effect of its approach. At the same time, the
majority was willing to give ample deference to the Michigan legislature:
We know nothing of the seriousness of the drug problem in the state of Mich-
igan which may have prompted the Legislature of that state to adopt severe min-
imum penalties for those convicted of trafficking in certain drugs.6′
Conclusion
The Supreme Court in Ng and Kindler has grappled with the difficult issue
of determining the appropriate scope of Charter review of a Minister’s decision
to surrender wanted persons to requesting states. The majority preserves the
principle that the executive is accountable under the Charter for its decisions,
but makes clear that judicial intervention in surrender decisions is likely to be
rare. Still, even though the scope of review recognized by the Court is narrow,
there is certainly much room for future challenges to surrender decisions,
whether in death penalty cases or cases dealing with other forms of treatment
or punishment. This opportunity is provided by two sources of uncertainty in the
majority judgments. The first is the overall test for setting aside the Minister’s
decision to surrender. Whatever surrender will be “simply unacceptable” or
“shocking” can only be determined by the circumstances of each case. The sec-
ond source of uncertainty lies in the “worst sort of crime” test for death penalty
cases. Those wanted for conduct less repugnant than Kindler’s and Ng’s will be
better placed to challenge surrender orders made without death penalty assur-
ances. In these cases, and in cases where the person sought will not face the
death penalty, review of the foreign law governing the person’s treatment or
return seems to be inevitable. Thus, while the majority clearly sought to con-
strain judicial review of the Minister’s decision on Charter grounds, its stand-
ards foreclose it only in the rarest cases. The likes of Kindler and Ng need not
apply, but other candidates will no doubt receive consideration.
61Ibid. at 567.
