Moral Reasoning, Extradition, and the Death Penalty

44.0

In this issue:

The Court holds that principles of fundamental justice require that (in all but the most exceptional circumstances), the Minister of Justice must, as a condition of extradition to a foreign state, obtain assurances that the death penalty will not be carried out. Because the Court’s judgment is very obviously motivated by the belief that the death penalty in these circumstances is wrong, the Court has been criticized for illegitimately “imposing its beliefs.” We argue that this criticism is misplaced, and although the Court’s reasoning on (or around) the substantive moral issue is poor, the Court has not usurped the role of the Executive by not deferring to the Minister’s decision. Neither has the Court acted illegitimately by the mere fact of making controversial moral judgments. There is no reason to believe that in such cases the prosecuting state will abandon prosecution just because the death penalty is unavailable. However, the Court will face a more difficult scenario in the future - cases where the assurances of the prosecuting state (not to kill, not to torture) cannot be safely relied on.

Key Terms:

Extradition, capital punishment, ministerial discretion, principles of fundamental justice, legitimacy of judicial review

Summary of facts:

The respondents Burns and Rafay, both Canadian citizens, are wanted in Washington State on three counts of aggravated first-degree murder. The father, mother and sister of Rafay were found bludgeoned to death in their home in Washington State in 1994. Both of the accused admit to having been in the home the night of the murders, but claim to have gone out during the evening and discovered the bodies of the Rafay family on their return.

Burns and Rafay subsequently returned to Canada and as a result of an undercover RCMP investigation they were eventually arrested. The United States commenced extradition proceedings for Burns and Rafay to stand trial in Washington State. The Minister of Justice for Canada ordered their extradition under the Extradition Act. The Minister did not seek assurances from the United States that it would not impose or carry out the death penalty, which is available in that state for aggravated first degree murder.

The respondents brought this application challenging the Minister’s unconditional extradition order. The Court of Appeal for British Columbia set aside the Minister’s order and directed him to seek assurances as a condition of extradition. The Crown appealed to the Supreme Court of Canada.

The Court dismissed the appeal, concluding that sec. 7 of the Charter requires that the Minister in this instance obtain an assurance that the death penalty will not be imposed as a condition of extradition.

The Court is not called on to review the correctness of the Minister’s decision. Rather, the Court said, the appeal is over the constitutionality of that decision. The respondents Burns and Rafay challenged the Minister’s decision under sec. 6(1) of the Charter (mobility rights), sec. 7 (principles of fundamental justice), and sec. 12 (cruel and unusual punishment or treatment).

The Court elected not to decide the case on the basis of the respondent’s right to enter or remain in Canada under sec. 6(1) because “the real issue here is the death penalty.” The death penalty is “overwhelmingly a justice issue and only marginally a mobility rights issue.”

The Court also concluded that the sec. 12 right “not to be subjected to any cruel or unusual treatment or punishment” was not directly applicable. The Court noted that the punishment would not be carried out by the Canadian government, but rather would take place in Washington State under American authority. Punishment, which occurs outside of Canada, is not subject to Charter scrutiny.

Unlike sec. 12, the doctrine which the Court has developed for the application of sec. 7 (the right to “life, liberty and security of the person and the right not to be deprived thereof except in accordance with principles of fundamental justice”), is concerned with potential extraterritorial events. Section 7 is concerned “not only with the act of extraditing, but also the potential consequences of the act of extradition.”

The Court sought to “balance” a number of competing factors to determine whether the extradition without assurances would be contrary to principles of fundamental justice. Relevant factors, the Court said, include specific matters – such as the accused’s age and mental capacity – and global considerations such as practical and philosophical objections to the death penalty. The outcome of this case turns on these more general concerns about the death penalty, rather than any particular circumstance of either of the respondents.

The Court lists four factors related to “principles of fundamental justice” which are said to favour extradition without assurances. These are: (1) that accused individuals should face trial; (2) that justice is best served by a trial in the jurisdiction where the crime is committed; (3) individuals who leave Canada must be answerable to the local law which the foreign state applies to its own citizens; and (4) that it is a matter of fairness to other states to co-operate with them in their justice system.

Countervailing factors are that: (1) Canada has rejected the death penalty domestically; (2) Canada has taken initiatives to see the death penalty abolished internationally; (3) most jurisdictions would consider the young age of the respondents to be a mitigating factor; (4) concern with the possibility of error; and (5) concern about the cruelty of the “death row” phenomenon.

The Court notes that many of the factors in favour of extradition without assurances can be achieved equally well with assurances. In particular, the Court responds to anticipated concerns about the fate of fugitives for whom foreign states refuse to give assurances by noting that it would be irrational for a foreign state to abandon prosecution simply because it would not be permitted to execute a convict. As a result, it concluded “on balance” that the Minister’s order violated sec.7 of the Charter and is not justified under sec. 1 of the Charter.

The Court rightly perceived that “the real issue here is the death penalty.” It refused to decide the case on the rather artificial basis of mobility rights, insisting that “[t]he death penalty is overwhelmingly a justice issue” and “[t]he death penalty issue should be confronted directly and it should be confronted under sec. 7 of the Charter.” Lucidly, the Court held that “[s]ection 7 is concerned not only with the act of extraditing but also the potential consequences of the act of extradition.” As the Court noted, its supervision of the decision of the Minister of Justice extends beyond extradition; the Court’s supervision of that decision must extend to all of its reasonably foreseeable consequences, including execution.

And so all the cards are put on the table. We are dealing neither with mobility rights, nor with extradition per se, but with the question of whether it is contrary to the Charter to extradite to a foreign state persons who will potentially be killed by that state.

After setting out the issues with great candour, the Court unfortunately began to lose its way. Its purported “balancing” of factors is not convincing, primarily because its list of factors in favour of extradition without assurances is extraordinarily weak. Of the four reasons given, only the third, if it had been properly formulated, could have had any real bite. The key argument in favour of the Minister’s decision would be that the death penalty constitutes just retribution for certain crimes. By not addressing this potential justification, the Court presumes its falseness and rules it out in advance. The remaining arguments made in favour of the Minister’s order are a series of straw men with no air of reality to them. It is only by omitting any credible arguments for the Minister’s side that the Court is able to appear to have come to its decision by a technical and value-free “weighing and balancing” of factors.

If the Court rules out the central issue in advance, as we have argued it does, what then is the focus of the Court’s reasoning? (It is not, as we have already noted, the concern that foreign states – if denied the option of execution – will abandon prosecution altogether and set the guilty free. That argument, the Court rightly points out, is a non-starter. However, the Court will have to face a more difficult question in the near future, when accused from states that practice torture challenge their extradition or deportation. The Court will not be able, in good conscience, to rely on the assurances given by some states).

The Court draws a distinction between issues in the case, which are matters of “general public policy” on the one hand, and issues which reside within “the inherent domain of the judiciary as guardian of the justice system” on the other. The broad philosophical debate about the morality of the death penalty, the Court says, is part of general public policy which is informed not only by the basic tenets of the legal system but by “philosophic positions informed by beliefs and social science evidence.” The Court lays no special claim to insight into matters of public policy. However, “the protection of the innocent,” it says, engages “the special responsibility of the judiciary.”

With this move, the Court shuffles to one side the question of the morality and legality of capital punishment and characterizes the case as predominately about the justice of the procedures of the criminal law – i.e. is there a substantial risk that the innocent will be punished? The “unique feature of capital punishment”, the Court said, “is that it puts beyond recall the possibility of correction.” The unique feature is thus the potential to mistakenly kill a Marshall, a Morin, or a Milgaard.

That the innocent must not be killed is perhaps the only moral judgment contained in the Court’s reasons which the Court has the confidence to state directly. (The Court half-distances itself from every statement about the morality of killing the guilty, either by attributing the judgment to some other entity (e.g., to the Constitution, to International Law, or to “Canada”) or by placing it in the passive voice (e.g., “[the death penalty’s] imposition has been described as arbitrary”)).

But the “death penalty issue” – as the Court styles it – is surely nothing other than the question of whether justice permits (or requires) the intentional killing of persons in retribution for their crimes (i.e., the killing of persons found guilty of certain crimes). The “death penalty issue” is only derivatively about the danger of punishing the innocent. The “special responsibility of the judiciary” is no less the protection of the guilty (e.g., from mob justice, lynchings, and the like) than it is the protection of the innocent. Thus when the Court rests its judgment on the unacceptability of the risk that the innocent might perish with the wicked, it has given only a partial answer. What is missing is the Court’s full-blown discussion of whether it is acceptable to kill the guilty. The judgment has obviously been made – and the answer is “no” – but the justification is absent.

Why did the Court proceed in this way? The answer, we suspect, is a desire (conscious or not) to insulate itself from the heavy public criticism it receives whenever it makes decisions involving controversial moral issues. Public criticism about the legitimacy of its moral judgments gives the Court an incentive to pass off its unavoidably moral judgments as matters of prudential judgment, or value-free, technical analysis.

Criticisms against the Court’s moral reasoning typically come in two forms, only one of which is sustainable. The first argument is that courts sometimes purport to exercise authority over some government decisions that a correct reading of the Constitution would not authorize. Asking, in this way, whether the courts are acting within their lawful jurisdiction is always a valid inquiry. Courts, like Parliament, only act legitimately insofar as they act within the role set for them by the Constitution and other laws.

The second form of criticism (which is not valid) is the claim that whenever courts make moral evaluations (particularly regarding controversial matters in which their moral judgments may run contrary to majority public opinion), they thereby usurp the role of Parliament and act in an illicit and anti-democratic fashion. This second form of criticism is unsustainable. Over the course of rendering a legal judgment, courts may be directed by the Constitution and other laws to make moral judgments in areas of great moral controversy. Provided that they have properly apprehended both the law and the moral sources to which the law directs them, courts can only be faulted for the quality of their moral reasoning, not the mere fact that they are engaged in moral reasoning. When so engaged in moral reasoning, they are required to eschew bias and bigoted beliefs and instead to attend to every relevant moral reason permitted by law and sound philosophy. The expectation is that they will come to a fully justified decision that is consistent with existing precedent (insofar as the precedent is not itself unreasonable or immoral) and which is morally sound.

However, when the Court fails to articulate its moral judgments (whether or not intentionally), it does not insulate itself from attacks of these kinds. Instead, it simply makes its rationale inarticulate. And where the real reasons for judgment are to an extent hidden, judicial accountability is lessened. Thus the Court hampers counsel in future cases from directly challenging the soundness of the philosophical foundations of past cases. Equally serious, is the potential that Parliament (should it wish to consider any amendment to the current law) will be misled into believing that judgments such as this one have been made according to procedural justice – an area over which the Court has claimed special jurisdiction. In truth, the Court’s judgment has been made at the intersection of legal philosophy and political morality. This is not an area that is the exclusive (or even primary) preserve of the judiciary.

While there is some poor reasoning in this judgment, its real weakness is this loss of transparency and the loss of judicial accountability it entails. The Court is not, however, guilty of the conventional complaint that its decision is somehow undemocratic simply because it refused to defer to the decision of the Minister, or that its underlying position on the morality of capital punishment stood opposite to the will of the majority. When the Court offers poor reasons (or leaves its reasons in the shadows), it ought to be criticized. Charges that the Court has “imposed its own beliefs” and the like are misplaced in this instance and show a poor understanding of the role of moral reasoning in adjudication.

While it is the Court that we have had opportunity to criticize for failing to articulate and justify its reasons, the requirements of clarity and soundness in moral reasoning extend beyond the judiciary to legislators and others in the political community. Moral legitimacy is what distinguishes real authority from the mere exercise of power. An integral part of moral legitimacy in the public realm consists of decision-making that is both accountable and fully morally justified.

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Copyright © 2000 Iain Benson and Brad Miller. Reprinted with permission. "Lex View" is a publication of the Centre for Cultural Renewal.