On Capital Punishment and Canada

Have you ever noticed that it's virtually impossible to get a good picture of yourself on your driver's license? Do you have a good time arguing with traffic cops or the tax department? Ever try to build a storage shed or a garage on your own property and found the bureaucracy to be pleasant and helpful with the project? If you have, you're a decided minority.

Now consider the fact that the people described above are the very folks who would be administering the death penalty were it ever returned to Canada.

One of the most perplexing things about people who describe themselves as "conservative" is that they constantly rail about the incompetence of the government and the "tyranny" it creates, yet they want to make it as easy as possible for cops and prosecutors to relieve the citizenry of their liberty and even their lives. It's almost as if these folks think that the criminal justice system (to say nothing of the military) is from some omnipotent and incorruptible NGO that is, to use Bill O'Reilly's boneheaded phrase, "looking out for the folks." Sort of like the United Way with a needle full of potassium chloride and a fully loaded sidearm.

Of course, these people are deluded. At a bare minimum, they're intellectually inconsistent to the point that it's difficult to believe anything they say. As these people endlessly rail about, say, eminent domain, they couldn't be more full-throated in their support of legal decisions such as the U.S Supreme Court's Herrera v. Collins, which held that evidence of actual innocence is not enough to support a habeas petition in a death penalty appeal.

Not only is that shocking and barbaric, it's hardly conservative in that it displays an almost irrational trust in the government's competence that can't really be rationalized by people who fear and despise other branches of the government, like the post office. In no other instance is trusting in the benevolence of the government considered a conservative value.

I've been supportive of capital punishment throughout my life. However, that support has been predicated on the idea that defendants have the maximum possible protections. If, as a conservative, you distrust the competence of the government, it follows that you would extend any and all benefits to someone facing it in the most serious and consequential way imaginable. It is my position that the government must be held to the highest possible standard in death qualified cases. If that means fewer executions rather than more, so be it. Yet, too many supposed conservatives want to make it difficult for the government to collect taxes, but easy for it to take a life.

I've also always made distinctions between the United States and Canada. The American Constitution limits the powers of the government in ways that the Canadian Charter of Rights and Freedoms simply does not. There was also, for a number of years, no evidence that an innocent person had been executed in the United States.

That's changed somewhat in the last twenty years. Decisions like Herrera make executions too easy. And I believe that the state of Texas wrongly executed Cameron Todd Willingham*, which makes his death manslaughter by government. All it takes is one innocent to die for popular support for the death penalty to evaporate, which is why Rick Perry has worked so hard to bury the Willingham case.

I have never in my adult life supported capital punishment in Canada for constitutional reasons. There are three sections of the Charter that make it impossible for me.

The first is Section 1, which states "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

Nobody has ever been able to explain to me what those "reasonable limits" are. More importantly, that said limits are "prescribed by law" suggests that the Charter is subservient to the law, rather than the law being answerable to the Charter. The courts have not yet interpreted that clause that way, but they very well could.

We then come to Section 11 (h), which says that "if finally acquitted of the offence, (the defendant shall) not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again".

The word "finally" is key in that section. This is because it allows for the Crown to appeal an acquittal, even a jury acquittal. That is precisely what happened to Guy Paul Morin.

Mr. Morin was acquitted of the murder of Christine Jessop by a jury of his peers in 1986, only to see the government appeal and convict him at his second trial in 1992. His case was riddled with prosecutorial misconduct that went unpunished, and there was the not inconsequential matter of Morin's actual innocence. Guy Paul Morin was cleared by DNA evidence in 1995.

Then there's the granddaddy of constitutional monstrosities, Section 33 (1), more commonly known as "the notwithstanding clause." "Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter."

Section 2 consists of democratic rights, such as speech, assembly, religion and association. Sections 7 through 15 include all of the people's rights and protections before the criminal justice system. It is therefore possible that a provincial or federal government could proceed with an execution regardless of what the courts do, including a directive verdict of acquittal and a dismissal of all charges with prejudice.

Not that the courts have been all that helpful to criminal defendants in this country. In R v. Grant, the Supreme Court of Canada ruled that illegally obtained evidence can be admitted into evidence because to do otherwise "would bring the administration of justice into disrepute." That of course presupposes that ignoring the constitutional protections of the citizenry against unlawful government intrusion doesn't itself bring the administration into disrepute.

Then there's the strange, sad and wholly enraging saga of Dr. Charles Smith. Dr. Smith's professional incompetence and desire to please the police - which led to his "'actively misled' his superiors, 'made false and misleading statements' in court and exaggerated his expertise in trials" - sent several provably innocent people to prison in child abuse and murder cases.

The Smith experience and the Morin case should call into question any faith in the entire infrastructure of the Canadian criminal justice system. Combined with the haphazard construction of the Charter, it should preclude support for the death penalty in this country. There is simply too much in the way of government incompetence and malfeasance for it to be properly administered here.

Predictably, none of that seems to bother Prime Minister Stephen Harper, who affirmed his personal support for capital punishment in a recent interview with the CBC.

PM: Capital punishment?

PMSH: I don't see the country wanting to do that. You know...

PM: You don't sound as firm as...

PMSH: Well, I personally think there are times where capital punishment is appropriate. But I've also committed that I'm not, you know, in the next Parliament I'm not... no plans to bring that issue forward.

That response is full of weasel words. Harper also had "no plans" to leave the National Citizens' Coalition to run for the Canadian Alliance leadership in 2002. But he did. And of course he's not going "to bring that issue forward" "in the next Parliament" because he has a minority government facing three left-of-center opposition parties that would humiliate him if he tried. Moreover, if he introduced legislation that was defeated, it would take the issue off of the table for another twenty years. He'd prefer to wait until he has his much dreamed about majority government. Or, more precisely, he'd like to use it as election wedge issue.

But Harper managed to reintroduce the issue to the public and whip everyone into a frenzy of palpable stupidity again. A poll released this week shows two-thirds of Canadians supporting a return of the death penalty, just as popular support for it is declining in the United States.

Popular opinion, however, is meaningless, for the most part. If a pollster asked, I'm sure that two-thirds of Canadians would support every day being Christmas. It's only when you point out the impracticality of everyone buying you that many presents that you begin to reconsider. Asking the question without pointing out Canada's malformed constitution or our history of sending a shockingly high number of innocent people to prison really tells you nothing.

On the other hand, numbers that high suggest that the issue is back and not returning anytime soon. Peter Mansbridge naively gave Harper a winning issue and Harper ran with it. The practical considerations and the possible negative consequences are irrelevant because nobody can explain them succinctly. For example, look how long it's taken me to explain my position in a way that doesn't make me look like a Marxist. Jack Layton won't be able to do it in a 30 second ad without making Harper's case for him, and Michael Ignatieff can't do it because Michael Ignatieff doesn't believe anything at all.

I'd actually admire Harper's cynicism if this wasn't so deadly serious.


* To learn more about the Willingham case, go here.