An individual who is judged in a democracy that subscribes to the rule of law should not necessarily expect the Canadian government to intercede on his behalf, especially when he has been found guilty of serious or violent crimes.That is the position the Harper government has decided is appropriate in the wake of the Federal Court decision in the Ronald Smith case which ordered them to seek Smith's clemency in Colorado where he is facing the death penalty. Recall that in that case, the court zeroed in on the fact that Harper's policy of not seeking clemency for such Canadians abroad was not supported by any evidence. The policy was a product of various political statements made to the media by Conservatives. But it did not satisfy the court's standard of a "tangible and intelligible articulation" of a policy that could be applied to Mr. Smith's circumstances. The arbitrariness of the policy therefore led the judge to rule that on grounds of fairness, Mr. Smith had the right to know what the government's policy was. So in the absence of a formally articulated new policy, the Harper government was ordered to continue applying the longstanding one. You know, the one where Canada stands up for its citizens abroad and seeks clemency for them. The policy that is entirely consistent with our domestic policy, i.e., we don't apply the death penalty. The judge noted what had been Canada's longstanding policy in the Smith case:
 The evidence is clear that until various representatives of the Government of Canada began to publicly discuss Mr. Smith’s case in 2007 Canada’s official clemency policy was to support clemency for Canadians facing execution in a foreign state. According to Mr. Graham, a former Minister of Foreign Affairs, this policy allowed for no exceptions and was founded on Canada’s principled objection to the death penalty – a view which evolved since the practice of execution was ended here in 1962. This is also a position that is consistent with Canada’s long-standing international policy to support the universal abolition of the death penalty.Faced with the Federal Court's criticism, the Harper Conservatives decided to formalize to a greater extent their new iteration of Canada's death penalty policy. In the following key exchanges in the House of Commons that occurred in the final week of the session, you can see the new policy and contemplate some of the difficulties it will pose. More on that below, as it is being currently manifested in the case of Mohamed Kohail, a Canadian facing beheading in Saudi Arabia. The "tangible and intelligible articulation" they are now offering of their death penalty policy for Canadian citizens abroad is one that will be made on a case-by-case basis, depending on the nation involved, the case, etc.. So much for correcting the arbitrariness.
From June 19th, a principal articulation of the new policy:
Ms. Francine Lalonde (La Pointe-de-l'Île, BQ):The short answer to her first question...the Canadian in the U.S. will die. The two in China & Saudi Arabia may live, depending on diplomatic intervention, as we will choose to go to bat for those Canadians. You can imagine how other nations will throw back at us our inconsistent application of the policy to some nations but not others, undermining our efforts. You can also imagine that some nations might not take so kindly to being deemed undemocratic, non-rule of law abiding nations, even if they are. How would that help a Canadian facing execution in one of those countries?
Mr. Speaker, the Minister of Foreign Affairs confirmed this week that his party feels that the death penalty is acceptable. However, the minister said he wanted to decide on a case-by-case basis.
What is the difference between being put to death by lethal injection in the United States, shot in China and decapitated in Saudi Arabia? Does the Minister of Foreign Affairs realize that he will now be determining who lives and who dies?
Hon. Lawrence Cannon (Minister of Foreign Affairs, CPC):
Mr. Speaker, once again, this statement is completely out of proportion.
An individual who is judged in a democracy that subscribes to the rule of law should not necessarily expect the Canadian government to intercede on his behalf, especially when he has been found guilty of serious or violent crimes.
The strong measures the government has taken to combat violent crime in Canada are based on these Canadian values: respect for freedom, democracy, human rights—
Another incredible exchange in the Commons earlier in that week:
Mrs. Ève-Mary Thaï Thi Lac (Saint-Hyacinthe—Bagot, BQ):Clemency must be earned. Suggesting some kind of reverse onus obligation on the Canadian citizen who may be facing a totally arbitrary process abroad to earn their government's support. Throw in that the government will also assess the status of the nation as a democracy and whether it subscribes to the rule of law. The upshot is that the government will pick and choose which Canadians facing the death penalty abroad will receive the luxury of the government's efforts to seek clemency. We'll let Canadians die in some nations, but not others.
Mr. Speaker, at the urging of Denmark and the Netherlands, the UN is calling on Canada to drop its policy of no longer seeking clemency on behalf of Canadians sentenced to death abroad.
Does the Minister of Foreign Affairs intend to act on the UN recommendations and thus choose not to abandon Ronald Smith, a Canadian who has on death row in Montana for over 25 years?
Hon. Lawrence Cannon (Minister of Foreign Affairs, CPC):
Mr. Speaker, in the case of Mr. Smith raised by the hon. member, the government will be subject to the decision of the courts, but in all other cases, and I will be very clear on this, clemency is not an obligation. It must be earned. We will study each appeal for clemency individually.
If you are giving the notion the benefit of the doubt, thinking this may not be too difficult to apply overseas, think again. The government's new policy is playing itself out presently in Saudi Arabia. Trade Minister Stockwell Day appears to be muddying the effort on behalf of the Canadian government on the pending execution of Canadian Mohamed Kohail, facing beheading after a very suspect judicial process. On the one hand, the government claims to be lobbying the Saudis in meetings. Demonstrating that Saudi Arabia doesn't meet the Harper government's test of a "democracy subscribing to the rule of law." Yet on the other hand, there are questions about how determined the Canadian government's efforts are. Mohamed Kohail has written to Mr. Harper twice now, complaining of a lack of support in Canada's efforts. Then we read Stockwell Day quoted in a Sunday Canadian Press report speaking optimistically and deferentially about how the Saudi judicial system is working:
The judicial wrangling in Saudi Arabia over a Montreal man facing beheading is a good sign, says Trade Minister Stockwell Day, because it shows the country's top court isn't sold on a lower court's ruling.
Saudi Arabia's Supreme Judicial Council has reportedly asked a lower court to again rethink its decision on Mohamed Kohail. It's the latest volley in a game of judicial ping-pong between the two Saudi courts.
"The fact that it's been referred back to the lower court, that is the higher court saying 'There are some issues here that need to be reconsidered,"' he said. "We're taking that as positive ... but I don't want to be reading things into this decision."Incredibly, Day seems to be suggesting that Saudi Arabia's court system is comparable to Canada's. Is Day signalling that Canada will therefore defer to the judgment of that lower court based on his seeming approval of the higher court's referral? Because Kohail's case has been referred back to it 6 times! This is a problem, they're sending mixed signals, seemingly intervening yet perhaps deferring when this jurisdiction cannot be said to have provided a fair trial and it's not a democracy at all. The Saudis torture those in their jails, such as Canadian William Sampson a few years back. Their new policy would require full effort here yet Day seems to be undermining it. Doesn't seem to be the way to run a foreign policy that has life and death implications, does it?
Forcing the Jidda General Court to once more rethink its ruling may allow Kohail's lawyers to air concerns not previously heard, Day added.
"Any time an item is being appealed, there's always the potential for increased consideration on the points of concern," he said.
"That's why though their appeal process, like Canada's, can be extensive, it shows they are giving thought to the issues that have been raised."(emphasis added)
Like much of what they do, this death penalty position is political, rooted in "law and order" posturing. Posturing is a fair characterization since a lot of their so-called law and order bills are announced with great fanfare yet are not concertedly pushed through the House of Commons when it's crunch time. They let sessions end with these bills left to expire. It's posturing done for the politics, for public consumption and the Conservative base. Meanwhile, on the death penalty issue in particular, Canada's longstanding position is reversed, the UN is asking questions of us and Canadians seeking assistance overseas are left twisting in the wind.
We are now a death penalty supporting nation, brought in through a back door.