By Aubrey Harris, Amnesty Canada’s volunteer coordinator for the Campaign to Abolish the Death Penalty
Last week, the Canadian government issued an important statement on “clemency” following a meeting with the United Nations High Commissioner for Human Rights. It appears as though Canada is returning to its position of leadership on human right and global abolition of the death penalty.
“If the government of Canada does not ask for clemency for every Canadian facing the death penalty, how can we be credible when we ask for clemency in selective cases or countries?”
– Foreign Affairs Minister, Stephane Dion, February 15, 2015
It is very important to know what clemency is and what it is not. Clemency is mercy. A request for clemency is a request to someone with authority, to reduce a sentence to a lesser punishment on grounds of mercy. It is not a pardon and it does not usually mean a release from prison. When it comes to the death penalty, clemency is an appeal to not carry out a death sentence and usually to impose a ‘life sentence’ or a fixed term sentence. A clemency appeal is usually filed after all legal appeals to the conviction and sentence have been exhausted.
CANADA’S LONG HISTORY OPPOSING THE DEATH PENALTY
Conservative Prime Minister John Diefenbaker served from 1957 to 1963. He was born in 1895. Before entering politics, he had been a defence lawyer and was so shaken by the belief that he had seen innocent people sent to the gallows that he became an opponent of capital punishment in Canada. There had been an abolitionist movement in Canadian politics for many years before that, but in 1957 Canada had an abolitionist Prime Minister. The for the next half century, Prime Ministers of Canada were all outspoken in their opposition to the death penalty (Lester Pearson, Pierre Trudeau, Joe Clark, John Turner, Brian Mulroney, Kim Campbell, Jean Chretien, Paul Martin. Prime Ministers of both Liberal and Conservative parties. In 1987 when the House of Commons last debated a motion on bringing back the death penalty every leader of the major parties spoke out against the death penalty.
Over the course of time Canada progressed in international leadership opposing the death penalty and promoting global abolition. The last Canadian military execution was in 1945, our last civilian execution 1962, we abolished the death penalty for murder in 1976 and removed all references to it from the National Defence Act in 1998. Canada’s Supreme Court ruled in 2001 that extraditing a prisoner to face a death penalty was unconstitutional and in 2005 Canada ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights – ensuring the death penalty could never return to Canadian law.
In 1976 the majority of the world retained and used the death penalty – in 1977 there were just 16 abolitionist countries in the world. We were leaders in a significant wave of abolition that continues today.
Canada prior to 2007 had a policy of always seeking clemency for Canadians facing execution abroad. In fact, the Department of Foreign Affairs said as much in 1999 in a clemency appeal for Ronald Allen Smith.
ABRUPT LOSS OF LEADERSHIP IN 2007
So it was a shock when in 2007, then Public Safety Minister Stockwell Day announced, without debate, that the government would no longer automatically seek clemency for Canadians (after several iterations this was “clarified” as no longer seeking clemency for Canadians on death rows in “democratic” countries “that respect the rule of law.”). The announcement had an immediate effect on Ron Smith, on death row in Montana for a double murder he committed in 1982. Since that time the Canadian government had been involved in his case. The announcement was so abrupt only days earlier the Department of Foreign Affairs believed the clemency appeal was still underway.
The Federal Court of Canada eventually found that Mr Smith’s fundamental rights had been violated in the way this change was announced (after all, this was a case that had started in 1982 and Canadian government support for Smith had been present for decades including several previous requests for clemency). The court ordered the Canadian government to support Mr Smith’s request for clemency.
Eventually a letter was sent to the governor of Montana, signed by Minister Baird, supporting clemency but making clear the letter was being sent as a result of the federal court order.
Meanwhile at the General Assembly of the United Nations, Canada’s international leadership on abolition also faltered. Earlier work at the UN calling for universal moratoriums on execution had been at the United Nations Commission on Human Rights (replaced in 2006 by the United Nations Human Rights Council). In 1997, prior to the Burns decision, Canada had supported these measures but did not co-sponsor. In 1998 following the Burns decision, Canada co-sponsored these motions (every year from 1997-2006) and was expected to co-sponsor the first such motion at the General Assembly in 2007, instead reverting to a position a decade prior: voting for but not co-sponsoring (co-sponsorship costs nothing and requires no additional work. Simply making a phone call or raising a hand in a meeting is all that would be required). For a country that had been abolitionist since 1976 this was an extremely unusual position and put us in strange company compared with the many modern abolitionist countries who did co-sponsor.
RETURNING TO PRINCIPLED HUMAN RIGHTS
Last weekend’s announcement under the new government of Canada is therefore a welcome return to former leadership on human rights. At present there are only two Canadians under a currently perceived threat of execution and both are in the United States. Ronald Allen Smith in Montana and Robert Bolden, on federal death row in Indiana. While neither death rows (Montana and the federal) are ‘active’ executioners, Smith is one of only two on Montana’s death row (the last execution there carried out in 2006 – only the third since 1976 and the last federal execution was carried out in 2003). While the murders Smith carried out in 1982 were violent and cruel, there are strong arguments (beyond the basic human rights arguments) to favour a commutation for Smith, who is certainly no longer the same person he was at the time of the crime. Robert Bolden also has strong arguments in favour of mercy, should his appeals fail. Sentenced in 2006 for killing a bank security guard in a 2002 attempted robbery. Despite international law that he should have been informed of his right to Canadian consular assistance at his trial, he was not informed and so likely deprived of a stronger legal defence at trial (probably the most significant factor in death sentences). While in recent years some Canadians have received death sentences in the middle east, none appear to be at current risk of execution with several commutations (or convictions on lesser charges) issued or anticipated pending final word from the respective courts.
SUPPORTING ABOLITION ABROAD – NEXT STEPS
At the United Nations Canadian support for calls for global abolition progressed to co-sponsorship at the Human Rights Committee starting in 1998. In 2007 when for the first time a motion was presented at the General Assembly calling for a universal moratorium on executions, Canada was widely expected to co-sponsor as it had in the past, and yet Canada did not. Nor did Canada co-sponsor in 2008, 2010, 2012 or 2014 (the years that so far such motions have been made).
We hope that last weekend’s announcement of change for clemency appeals will also indicate a change in international cooperation working to end the death penalty in other countries as a universal principal of human rights and justice. We hope that at the next opportunity Canada will co-sponsor a United Nations General Assembly motion to end executions with a view to global abolition.
Some related sources of information:
• Canadian Federal Court decision, Smith clemency
• Canada to resume clemency appeals for all Canadians on death rows