Wednesday, March 04, 2009

Big rebuke to the Harper government from the Federal Court

A significant decision from a Federal Court judge that has the effect of rebuking the Harper government for its admittedly arbitrary clemency policy for Canadians facing the death penalty abroad: "Ottawa ordered to seek clemency for Canadian on death row." This is a good result:
A Federal Court of Canada judge has ordered the federal government to resume diplomatic efforts to spare the life of a Canadian –Ronald Smith – who has spent the past 24 years living on death row in a Montana prison.

Mr. Justice Robert Barnes said that the Canadian government could have a profound influence on whether Mr. Smith is executed – and it has a duty to exert that influence.

Evidence in the case “overwhelmingly establishes the value of government intervention on behalf of their nationals facing execution in the United States,” Judge Barnes said.

“The decision by the government of Canada to withdraw support for Mr. Smith was made in breach of the duty of fairness, is unlawful and is set aside,” Judge Barnes said. “In the absence of any new clemency policy, I am ordering the government to continue to apply the former policy of supporting clemency on behalf of Canadians facing the death penalty in any foreign state to Mr. Smith.”

The Harper government's position on helping Canadians facing the death penalty abroad, as articulated by the Canadian government lawyer in court, was this:
“Canada will not intervene in clemency applications by a Canadian facing a capital sentence in a democratic country that honours the rule of law.”
The Harper government had failed, however, to substantiate for the judge during the hearings that the position was grounded in any firm policy or that it could be applied consistently. We've seen the results of the Harper government picking and choosing in which countries to go to bat for Canadians facing execution. It sends a poor message abroad, foreign governments get mixed signals. This is clearly an issue which should not be politicized for the sake of politically motivated tough on crime optics at home.

More on the problem with the Harper government's stance as articulated by lawyer Marlys Edwardh today (Globe link):
“We have sought clemency on behalf of our nationals abroad,” she said. “This recent attempt to say that we will cherry pick who will die – which is really the effect of what the Prime Minister and Mr. Day have done – is unconscionable.

“The Department of Foreign Affairs has no ability to evaluate whether legal proceedings were fair or unfair,” Ms. Edwardh said. “It has no ability – nor should it – to go around saying that we're going to involve ourselves in one country and not in another.”
The Harper government acted arbitrarily here and the judge called them on it. A good day for the rule of law.

(see also Blast Furnace)