At the outset of Tuesday's hearing, the government's lawyer Eric Groody said he was now "authorized" to provide a precise wording of the policy: "Canada will not intervene in clemency applications by a Canadian facing a capital sentence in a democratic country that honours the rule of law."But prior to today's formulation, the PM and his men have been massaging it and creating false expectations along the way:
The government's initial stance - communicated to Canwest News Service in a series of e-mail messages that have been a key focus of the Toronto hearing - was that Canada would no longer seek clemency for Smith or any other Canadian on death row in a democratic country, such as the U.S.Sorry about that, imprisoned Canadians, we were just playing politics!
But over the weeks and months that followed, as the issue flared in the House of Commons amid objections from opposition parties and human rights groups, Harper and the ministers named in the lawsuit - Public Safety Minister Stockwell Day, Justice Minister Rob Nicholson and then-foreign affairs minister Maxime Bernier - softened the policy considerably in their public statements.
They explained that the policy would be applied on a "case-by-case basis," that the issue was bound up in Smith's case with an unwelcomed proposal to transfer the killer to a Canadian prison, and that "mass" or "multiple" murderers should not "necessarily" count on Canada's help to avoid execution.
Those elaborations of the policy, however, were jettisoned on Tuesday when Groody stated that the new no-clemency policy applies, in fact, to any Canadian facing execution in any democratic country.
He characterized the various ministers' expression of the policy as "political messaging" and "political presentations" that were not intended to be interpreted as Canada's actual policy. (emphasis added)
The judge rightly cross-examined the government lawyer, asking why it was so difficult to "put an affidavit in front of me," explaining the policy's genesis and its purpose. You know, the kind of thing we have in a democracy. The government lawyer's response? Basically, you're lucky you're getting anything.
"[I]t was a "Government of Canada" executive decision which is immune from judicial review under the power of "royal prerogative" available to top government leaders.In other words, whatever Steve wants the clemency policy to be, for Canadians abroad, that's what it is. Don't ask any questions. And if you happen to be legal counsel to one of those citizens? Bugger off. We're not telling you what our policy is either.
Groody described the decision as "high policy" - such as a declaration of war or other matters with major implications for foreign relations - and is therefore not subject to a judge's reversal.
Too bad they can't shut down the courts during elections, hey? They've shut down and gagged just about everyone else...
It's quite the democracy Steve's creating for us, one little bit at a time.