Reference Re Ng Extradition (Can.), [1991] 2 S.C.R. 858

 

IN THE MATTER OF section 53 of the

Supreme Court Act, R.S.C., 1985, c. S‑26;

 

AND IN THE MATTER OF a reference by the

Governor in Council concerning the surrender

by Canada of the extradition fugitive of

Charles Chitat Ng to the United States of America,

as set out in order in council P.C. 1990‑1082,

dated the 7th day of June, 1990

 

Indexed as:  Reference Re Ng Extradition (Can.)

 

File No. 21990.

 

1991:  February 21; 1991:  September 26.

 

Present:  Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.

 

reference by the governor in council

 

                  Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Extradition ‑‑ Surrender of fugitive to foreign state ‑‑ Fugitive charged in U.S. with several offences including murder and kidnapping ‑‑ Minister of Justice deciding to extradite fugitive without obtaining assurances from U.S. authorities that death penalty will not be imposed ‑‑ Whether Minister's decision infringed s. 7 of Canadian Charter of Rights and Freedoms ‑‑ Whether s. 25 of Extradition Act infringes s. 7 of Charter ‑‑ Extradition Act, R.S.C., 1985, c. E‑23, s. 25 ‑‑ Extradition Treaty between Canada and the United States of America, Can. T.S. 1976 No. 3, Art. 6.

 

                  Constitutional law ‑‑ Charter of Rights ‑‑ Cruel and unusual punishment ‑‑ Extradition ‑‑ Surrender of fugitive to foreign state ‑‑ Fugitive charged in U.S. with several offences including murder and kidnapping ‑‑ Minister of Justice deciding to extradite fugitive without obtaining assurances from U.S. authorities that death penalty will not be imposed ‑‑ Whether s. 12 of Canadian Charter of Rights and Freedoms applies to extradition proceedings ‑‑ Extradition Act, R.S.C., 1985, c. E‑23, s. 25 ‑‑ Extradition Treaty between Canada and the United States of America, Can. T.S. 1976 No. 3, Art. 6.

 

                  Extradition ‑‑ Surrender of fugitive to foreign state ‑‑ Fugitive charged in U.S. with several offences including murder and kidnapping -- Minister of Justice deciding to extradate fugitive without obtaining assurances from U.S. authorities that death penalty will not be imposed ‑‑ Whether Minister's decision infringed s. 7 or s. 12 of Canadian Charter of Rights and Freedoms ‑‑ Extradition Act, R.S.C., 1985, c. E‑23, s. 25 ‑‑ Extradition Treaty between Canada and the United States of America, Can. T.S. 1976 No. 3, Art. 6.

 

                  Ng was charged in the State of California with several offences, including twelve counts of murder. If found guilty, he could receive the death penalty.  Before trial, Ng escaped from prison and fled to Canada where he was arrested.  The extradition judge allowed the U.S.'s application for his extradition and committed him to custody. The Minister of Justice of Canada then ordered his extradition pursuant to s. 25 of the Extradition Act without seeking assurances from the U.S., under Art. 6 of the Extradition Treaty between the two countries, that the death penalty would not be imposed, or if imposed, not carried out. The Governor General in Council, in accordance with s. 53 of the Supreme Court Act, later referred two questions to this Court. These questions raised the same issues considered in Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 000.

 

                  The questions and this Court's answers are:

 

Question 1:Would the surrender by Canada of an extradition fugitive to the       United States of America, to stand trial for wilful and deliberate murder for which the penalty upon conviction may be death, constitute a breach of the fugitive's rights guaranteed under the Canadian Charter of Rights and Freedoms?

 

Answer:No.  Lamer C.J. and Sopinka and Cory JJ. dissenting would answer yes.

 

Question 2:Did the Minister of Justice, in deciding pursuant to Article 6 of the Extradition Treaty between Canada and the United States of America, to surrender the fugitive Charles Chitat Ng without seeking assurances from the United States of America that the death penalty would not be imposed on the said Charles Chitat Ng or, if imposed, that it would not be executed, commit any of the errors of law and jurisdiction alleged in the Statement of Claim filed in the Federal Court of Canada (Trial Division) by the said Charles Chitat Ng on October 30, 1989, having regard to the said Statement of Claim, the reasons given by the Minister of Justice for the said decision and to any other material which the Court, in its discretion, may receive and consider?

 

Answer:No.  Lamer C.J. and Sopinka and Cory JJ. dissenting would answer yes.

 

Cases Cited

 

By La Forest J.

 

                  Followed:  Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 000.

 

By McLachlin J.

 

                  Followed:  Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 000.

 

By Sopinka J. (dissenting)

 

                  Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 000.

 

By Cory J. (dissenting)

 

                  Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 000; Eur. Court H. R., Soering case, judgment of 7 July 1989, Series A No. 161; Eain v. Wilkes, 641 F.2d 504 (1981), certiorari denied, 454 U.S. 894 (1981).

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms, ss. 1, 7, 12.

 

Constitution Act, 1982.

 

Extradition Act, R.S.C., 1985, c. E‑23, s. 25.

 

Extradition Treaty between Canada and the United States of America, Can. T.S. 1976 No. 3, Art. 6.

 

Authors Cited

 

Lowe, A. V. and Colin Warbrick. "Extraterritorial Jurisdiction and Extradition" (1987), 36 Int'l & Comp. L.Q. 398.

 

                  REFERENCE by the Governor in Council concerning the surrender by Canada of a fugitive to the United States. Both reference questions should be answered in the negative, Lamer C.J. and Sopinka and Cory JJ. dissenting.

 

                  Don W. MacLeod, for Ng.

 

                  Douglas J. A. Rutherford, Q.C., and Graham Garton, Q.C., for the Attorney General of Canada.

 

                  David Matas and Emilio S. Binavince, for Amnesty International.

 

                  Brian A. Crane, Q.C., for the State of California.

 

//Sopinka J.//

 

                  The reasons of Lamer C.J. and Sopinka J. were delivered by

 

                  Sopinka J. (dissenting) -- This reference was heard at the same time as the appeal in Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 000, and raises the same issues.

 

                  For the reasons which I gave in Kindler, I would answer the constitutional questions as follows:

 

 

Answer:  Yes, it is inconsistent with s. 7 of the Charter.

 

 

Answer:  Section 25 of the Extradition Act is not a reasonable limit within the meaning of s. 1 of the Charter.

 

                  I would answer the reference questions in the affirmative.

 

//Cory J.//

 

                  The reasons of Lamer C.J. and Cory J. were delivered by

 

                  Cory J. (dissenting) -- The following questions were referred to the Court on June 7, 1990:

 

1.  Would the surrender by Canada of an extradition fugitive to the United States of America, to stand trial for wilful or deliberate murder for which the penalty upon conviction may be death, constitute a breach of the fugitive's rights guaranteed under the Canadian Charter of Rights and Freedoms?

 

2.  Did the Minister of Justice, in deciding pursuant to Article 6 of the Extradition Treaty between Canada and the United States of America, to surrender the fugitive Charles Chitat Ng without seeking assurances from the United States of America that the death penalty would not be imposed on the said Charles Chitat Ng or, if imposed, that it would not be executed, commit any of the errors of law and jurisdiction alleged in the Statement of Claim filed in the Federal Court of Canada (Trial Division) by the said Charles Chitat Ng on October 30, 1989, having regard to the said Statement of Claim, the reasons given by the Minister of Justice for the said decision and to any other material which the Court, in its discretion, may receive and consider?

 

                  As a result of this referral, two constitutional questions were stated on August 24, 1990:

 

1.  Is s. 25 of the Extradition Act, R.S.C., 1985, c. E-23, to the extent that it permits the Minister of Justice to order the surrender of a fugitive for a crime for which the fugitive may be or has been sentenced to death in the foreign state without first obtaining assurances from the foreign state that the death penalty will not be imposed, or, if imposed, will not be executed, inconsistent with ss. 7 or 12 of the Canadian Charter of Rights and Freedoms?

 

2. If the answer to question 1 is in the affirmative, is s. 25 of the Extradition Act, R.S.C., 1985, c. E-23, a reasonable limit of the rights of a fugitive within the meaning of s. 1 of the Canadian Charter of Rights and Freedoms, and therefore not inconsistent with the Constitution Act, 1982?

 

I -- Factual Background

 

                  Ng had fled from California and come to Calgary where his sister lived.  On July 6, 1985, he was caught shoplifting in that city. Two security guards at the store apprehended him.  Ng resisted and shot one of the guards in the finger.  He was then subdued and handcuffed.  At the time he was carrying a rucksack containing a mask, a knife, a rope, cyanide capsules, a gun and extra ammunition.

 

                  The United States sought to extradite Ng on counts of murder, kidnapping, conspiracy to murder, accessory after a murder, conspiracy to kidnap and burglary.  He was committed for hearing pursuant to a warrant of apprehension granted on November 17, 1987.  The hearing itself was held in October 1988.  Most of it was conducted in camera in order to preserve Ng's rights under the law of California.

 

                  At the conclusion of the hearing on November 29, 1988, Trussler J. committed Ng on twelve counts of murder, two counts of conspiracy to commit murder, one count of attempted murder, three counts of kidnapping and one count of burglary:  (1988), 1988 CanLII 3929 (AB KB), 93 A.R. 204.  The twelve counts of murder and the two counts of conspiracy to commit murder could, upon conviction, under the law of California, result in the death sentence being imposed.

 

                  On February 2, 1989 a habeas corpus application was heard and dismissed.  The dismissal was upheld by the Alberta Court of Appeal (1989), 97 A.R. 241 and leave to appeal to the Supreme Court of Canada was refused, [1989] 2 S.C.R. ix.

 

                  Representations were then made to the then Minister of Justice, the Honourable Douglas Lewis, requesting him to obtain assurances pursuant to Article 6 of the 1976 Extradition Treaty between Canada and the United States of America, Can. T.S. 1976 No. 3, that Ng would not be sentenced to death or if he were that the sentence would not be carried out.

 

                  On October 26, 1989, the Minister of Justice, after considering these representations, informed Ng's counsel that Canada would not seek the requested assurances from the United States.  In his letter, the Minister expressed the opinion that Article 6 assurances should only be sought in special circumstances and that those special circumstances did not exist in this case.  Further he said that neither capital punishment nor "death row phenomenon" constitutes cruel and unusual treatment or punishment.  Finally, he stated that as a matter of public policy, Canada should not become a safe haven for those accused of murder in the United States.

 

                  One additional factual aspect must be mentioned.  During argument much was made of a line drawing. It was said that the drawing indicates that persons in the position of Ng might make a conscious decision to come to Canada to avoid the death penalty in California.  I cannot accept that submission.  It is highly questionable whether the drawing indicates a conscious effort to avoid the death penalty any more than it reflects contemplation of incarceration. In any event, the only American known to have been convicted and fled to Canada is Kindler, the appellant in the companion case to this one. The only American facing charges of murder in the United States who is known to have fled to Canada is Ng.

 

II -- Disposition

 

                  Both the reference questions and the constitutional questions raise the same issues considered in Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 000.  I would, therefore, answer these questions in accordance with my reasons in Kindler.  It may be helpful to set out the summary given toward the end of those reasons.  It reads (at p. 000):

 

                  Capital punishment for murder is prohibited in Canada. Section 12 of the Charter provides that no one is to be subjected to cruel and unusual punishment.  The death penalty is per se a cruel and unusual punishment.  It is the ultimate denial of human dignity. No individual can be subjected to it in Canada.  The decision of the Minister to surrender a fugitive who may be subject to execution without obtaining an assurance pursuant to Article 6 is one which can be reviewed under s. 12 of the Charter. It follows that the Minister must not surrender Kindler without obtaining the undertaking described in Article 6 of the Treaty. To do so would render s. 25 of the Extradition Act inconsistent with the Charter in its application to fugitives who would be subject to the death penalty.

 

                  This conclusion is based upon the historical reluctance displayed by jurors over the centuries to impose the death penalty; the provisions of s. 12 of the Charter; the decisions of this Court pertaining to that section; the pronouncements of this Court emphasizing the fundamental importance of human dignity; and the international statements and commitments made by Canada stressing the importance of the dignity of the individual and urging the abolition of the death penalty.

 

                  The Charter, the judicial pronouncements upon it and the international statements and commitments made by Canada reflect Canadian principles.  The preservation of Canada's integrity and reputation in the international community require that extradition be refused unless an undertaking is obtained pursuant to Article 6.  To take this position does not constitute an absolute refusal to extradite.  It simply requires the requesting state to undertake that it will substitute a penalty of life imprisonment for the execution of the prisoner if that prisoner is found to be guilty of the crime.

 

                                                                  . . .

 

In the absence of obtaining an Article 6 assurance, the surrender order would contravene s. 12 of the Charter and could not be justified under s. 1.

 

                  I would emphasize that these conclusions do not mean that Ng ought not to be extradited to the United States on the murder and conspiracy to commit murder charges. Far from it, Ng should be surrendered pursuant to the Minister's order as soon as the Article 6 assurances have been received. The United States has shown itself to be both willing to give such assurances (for example, as a result of the Soering case, Eur. Court H. R., judgment of 7 July 1989, Series A No. 161) and to request such assurances in other cases.  (See A. V. Lowe and C. Warbrick, "Extraterritorial Jurisdiction and Extradition" (1987), 36 Int'l & Comp. L.Q. 398, at p. 409, n. 34, discussing Eain v. Wilkes, 641 F.2d 504 (7th Cir. 1981), certiorari denied 454 U.S. 894 (1981). It is, therefore, not unreasonable to assume that the United States will give Article 6 assurances if they are requested. In any event, as conceded by counsel for the fugitive, these reasons do not prevent the surrender of Ng on the attempted murder, kidnapping and burglary offences, none of which is punishable by death.

 

                  From the reasons given in Kindler, I conclude that the answer to the first constitutional question:

 

1. Is s. 25 of the Extradition Act, R.S.C. 1985, c. E-23, to the extent that it permits the Minister of Justice to order the surrender of a fugitive for a crime for which the fugitive may be or has been sentenced to death in the foreign state without first obtaining assurances from the foreign state that the death penalty will not be imposed, or, if imposed, will not be executed, inconsistent with ss. 7 or 12 of the Canadian Charter of Rights and Freedoms?

 

is yes it infringes s. 12 of the Charter.

 

                  The answer to the second constitutional question:

 

2. If the answer to question 1 is in the affirmative, is s. 25 of the Extradition Act, R.S.C., 1985, c. E-23, a reasonable limit of the rights of a fugitive within the meaning of s. 1 of the Canadian Charter of Rights and Freedoms, and therefore not inconsistent with the Constitution Act, 1982?

is no.

 

                  Both of the reference questions must be answered in the affirmative.

 

//La Forest J.//

 

                  The judgment of La Forest, L'Heureux-Dubé and Gonthier JJ. was delivered by

 

                  La Forest J. -- For the reasons stated in Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 000, I would answer both reference questions in the negative.  I would answer the first constitutional question in the negative.  It is unnecessary to answer the second constitutional question.

 

//McLachlin J.//

 

                  The judgment of L'Heureux-Dubé, Gonthier and McLachlin JJ. was delivered by

 

                  McLachlin J. -- This case was heard as a companion to the appeal in Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 000, and raises the issue of whether the power of the Minister of Justice to extradite a fugitive to a country where he or she may face the death penalty, without first obtaining the assurance that such a penalty will not be imposed, is a violation of s. 7 or s. 12 of the Canadian Charter of Rights and Freedoms. It also raises the question of whether the decision not to seek such assurance in this case is unconstitutional.

 

                  This matter comes to the Court by way of a reference from the Governor in Council.  This Court has been asked to hear and consider the following two questions:

 

1.  Would the surrender by Canada of an extradition fugitive to the United States of America, to stand trial for wilful or deliberate murder for which the penalty upon conviction may be death, constitute a breach of the fugitive's rights guaranteed under the Canadian Charter of Rights and Freedoms?

 

2.  Did the Minister of Justice, in deciding pursuant to Article 6 of the Extradition Treaty between Canada and the United States of America, to surrender the fugitive Charles Chitat Ng without seeking assurances from the United States of America that the death penalty would not be imposed on the said Charles Chitat Ng or, if imposed, that it would not be executed, commit any of the errors of law and jurisdiction alleged in the Statement of Claim filed in the Federal Court of Canada (Trial Division) by the said Charles Chitat Ng on October 30, 1989, having regard to the said Statement of Claim, the reasons given by the Minister of Justice for the said decision and to any other material which the Court, in its discretion, may receive and consider?

 

                  In my view these questions raise issues identical to those under consideration in the Kindler appeal.  I have therefore dealt with both cases in the course of deciding that appeal.  For the reasons which I have stated in that case, I would answer both reference questions in the negative.  I would answer the first constitutional question in the negative.  It is unnecessary to answer the second constitutional question.

 

                  The questions referred to were answered as follows:

 

                  Question 1:  No. Lamer C.J. and Sopinka and Cory JJ. dissenting would answer yes.

 

 

                  Question 2:  No. Lamer C.J. and Sopinka and Cory JJ. dissenting would answer yes.

 

                  Solicitors for Ng:  O'Brien Devlin Markey MacLeod, Calgary.

 

                  Solicitor for the Attorney General of Canada:  John C. Tait, Ottawa.

 

                  Solicitors for Amnisty International:  Cogan & Cogan, Ottawa.

 

                  Solicitors for the State of California:  Gowling, Strathy & Henderson, Ottawa.