Death-row Canadian sues federal government

A Canadian double-murderer facing execution in Montana has taken the Conservative government to court over its sudden change of policy on the death penalty.

As repugnant as it may seem that a double-murderer is suing the government, he’s within his rights to do so because until this fall, officials at DFAIT had been lobbying for over ten years for Smith’s life to be spared. Furthermore, this had been in keeping - up until that time - with government policy. To suddenly decide to stop asking that Smith’s life be spared without giving clear arguments on which the decision was based, is treating Smith’s rights as a Canadian differently from those of other Canadians.

Many people are arguing this case in isolation as they have argued individual Taser related deaths, and while recognizing the individuals in each case is very important, we can lose sight of the law, policies, and rights. Smith killed two people. There is no doubt about that. There are still people today grieving over the victims.

However, in Canada, we do not allow the death penalty and until now, have spoken against it internationally. By not asking for clemency for Smith, the Conservative government is violating the Canadian stand against the death penalty. Whether someone disagrees with the Canadian stance on the death penalty or not, it is our law, and unless it is changed by an act of Parliament voted upon by all members and passed at all stages of approval, it is our law and cannot, must not be arbitrarily applied on a case by case basis, especially when no clear criteria has been given.

There is Smith’s story in this, there is the story of his victims and those left to grieve, there is the Montana law, and there are Canadians who have opinions for and some against the death penalty. There is, however, but one ruling on the death penalty in Canada - it is not allowed. This is the strength of Smith’s case, as proposed by his lawyers.

On Wednesday, a team of high-profile Canadian lawyers filed an application on Smith's behalf at the Federal Court of Canada for a judicial review of the government's new policy. They say the government's reversal of its long-standing position on the use of the death penalty abroad constitutes a "tacit approval'' of Smith's execution.

"The death penalty is illegal in Canada . . .and inconsistent with our Charter,'' said lawyer Lorne Waldman. "We believe our government has an obligation to seek clemency for Canadian citizens who are at risk of being subjected to the death penalty.''

Once again, it will take Federal Court action to obtain information from this Conservative government. Far too often, they try to hide their motives, hide the process and arguments behind their decisions. This reeks of hidden agendas and a government that does not wish the electorate to know what decisions they are making, and why.

The Federal Court application will force the Conservatives to submit documents outlining their policy decision and the arguments behind it.

Justice Minister Rob Nicholson and his staff had been unwilling to answer questions about the policy, such as what criteria goes into deciding that a country is "democratic,'' or whether criminals convicted of other heinous crimes such as child murder might also be passed over for clemency. "I would hope that, through that process, and through the process of filing affidavits and other documents, the court will be able to understand what was the basis for this decision,'' said Waldman.

The leaders of the three opposition parties have written to the governor of Montana, asking him to commute Smith's sentence to life imprisonment. A petition to that effect, spearheaded by Bloc Quebecois leader Gilles Duceppe, is expected to be signed by all opposition MPs on Wednesday.

Regardless of how any of us feel about the death penalty, or Smith, we should not allow this government to do away with any long standing policy without debate and a Parliamentary vote. Nor should we allow them to even suggest such changes without presenting clear arguments, and very clear criteria. If we do allow this, we are all at the mercy of a secretive, whimsical government whose rules we won’t even be allowed to know.

Meaning no disrespect to those personally affected by Smith, this issue is much larger, as it threatens the integrity of our system of justice, and that of Parliament as well.