The Case of Ronald Allen Smith

September 10, 2009 by lorne

The Contents of the Notice of Application
This is an application for judicial review in respect of the decision of the respondents, issued as a public statement by the respondents or officials responsible to them, on or about October 31, 2007, whereby the respondents reversed the Canadian government�s long standing decision and practice to make efforts to secure commutation of the death penalty sentences imposed on the applicant specifically and other similarly situated Canadian citizens in �democratic countries, like the United States� and thereby signaled their tacit approval of the applicant�s execution. Applicant is on death row in the state of Montana and up until on or around October 31, 2007, had been the beneficiary of Canadian interventions with U.S. officials on the issue of commutation. The applicant learned of the respondents� decision via media reports on or about November 1, 2007.

The applicant makes application for:

1. An order or orders:

a) Declaring that the above noted decision constitutes a violation of the applicant�s rights under the Canadian Charter of Rights and Freedoms, and is therefore invalid and unlawful;

b) Declaring that the above noted decision constitutes a violation of the applicant�s rights under the Canadian Bill of Rights, and is therefore invalid and unlawful;

c) Declaring that the above noted decision constitutes a violation of principles of natural justice and procedural fairness, and is therefore invalid and unlawful;

d) Declaring that the above noted decision constitutes an error of law and an abuse of jurisdiction, and is therefore invalid and unlawful;

e) Declaring that the above noted decision constitutes a violation of the applicant�s rights under public international law, directly binding on Canada and cognizable in this Court, and is therefore invalid and unlawful;

f) Quashing the above noted decision;

g) Requiring the respondents to recommence Canadian efforts to obtain commutation of the applicant�s sentence, as they have unlawfully failed or refused to do;

h) Awarding such other remedies as this Court considers appropriate and just in the circumstances under section 24(1) of the Charter of Rights and Freedoms and,

i) Awarding costs to the applicant.

The grounds for the application are:

1. Following a double homicide in Montana, United States of America, applicant Ronald Allen Smith pleaded guilty to two counts of deliberate homicide and two counts of aggravated kidnapping. He was sentenced to death by a Montana District Judge in 1983. Since that time, applicant has pursued numerous appeals in the state and U.S. federal courts. As a result of partial success in some of those appeals, applicant has been re-sentenced to death on a further two occasions, in 1992 and 1995. Applicant�s most recent appeal is now before the United States Court of Appeals for the Ninth Circuit.

2. The Government of Canada actively pursued commutation of the applicant�s death penalty sentence with the government of Montana for more than a decade up until the decision at issue in this application. Indeed, up until this decision, the Government of Canada has actively sought commutation on humanitarian grounds of all death sentences imposed on Canadians anywhere in the world, a practice consistent with that applied by other Western states that have abolished the death penalty.

3. Death penalties imposed by foreign governments on Canadians have been commuted in the wake of the Government of Canada�s efforts.

4. This commutation practice is part of a broader, constitutionally-obligatory Government of Canada practice of requiring assurances against the administration of the death penalty in extradition and immigration removal cases.

5. On or about October 31, 2007, the Government of Canada, as represented by the respondents, reversed its longstanding practice of seeking commutation for the applicant, in an unexpected announcement made to the press. This announcement was a direct political reaction to media reports describing the Government of Canada�s longstanding efforts to seek commutation for the applicant with the government of Montana. On information and belief, the applicant is the only Canadian presently on death row in the United States, and the respondents� decision was unquestionably directed specifically at him.

6. Although sparked by and directed at the applicant, by the time of this filing, the respondents� decision had not been formally communicated to the applicant, who learned of the decision entirely through the media. Applicant was never apprised that the respondents were considering abandoning their efforts on his behalf. Indeed, applicant�s lawyers were in communication with representatives of the respondents in the days before the respondents� decision and were led to believe that the Government of Canada would continue to pursue its commutation efforts.

7. According to statements since made by officials speaking for, or responsible to, the respondents in the House of Commons, the respondents� have decided that �people should be held responsible for their crimes in other democratic jurisdiction� and that they �will not interfere with their processes when there has been a fair trial.� Respondents and those responsible or speaking for them have intimated that to contest the status of those convicted in these systems would �send the wrong message�.

Grounds for Review

8. The respondents violated the Canadian Charter of Rights and Freedoms in reversing their efforts to seek commutation of the applicant�s death penalty sentence. Without limiting the generality of the foregoing, the respondents violated applicant�s:

(a) right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice, in violation of section 7 of the Charter, by abandoning efforts on applicant�s behalf, communicating to U.S. officials their indifference to his treatment, at least tacitly signaling their approval of the death penalty sentence and thereby placing the applicant in peril for his life and at risk of cruel and unusual treatment;

(b) right not to be subjected to any cruel and unusual treatment or punishment, in violation of section 12 of the Charter, by abandoning efforts on applicant�s behalf, communicating to U.S. officials their indifference to his treatment, at least tacitly signaling their approval of the death penalty sentence and thereby placing the applicant in peril for his life and at risk of cruel and unusual treatment;

(c) right to enter and remain in Canada, in violation of section 6 of the Charter, by abandoning efforts on applicant�s behalf, communicating to U.S. officials their indifference to his treatment, at least tacitly signaling their approval of the death penalty sentence and thereby placing the applicant in peril for his life and at risk of cruel and unusual treatment and without any possibility of being transferred following commutation to a prison facility in Canada.

9. The respondents violated the Canadian Bill of Rights in reversing their efforts to seek commutation of the applicant�s death penalty sentence. Without limiting the generality of the foregoing, the respondents violated applicant�s right to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law, and his right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations, in violation of sections 1 and 2 of the Bill of Rights, by abandoning efforts on applicant�s behalf, communicating to U.S. officials their indifference to his treatment, at least tacitly signaling their approval of the death penalty sentence and thereby placing the applicant in peril for his life and at risk of cruel and unusual treatment.

10. In addition to violating principles of fundamental justice and due process under the Charter and the Bill of Rights, the respondents violated principles of common law procedural fairness and natural justice in reversing their efforts to seek commutation of the applicant�s death penalty sentence. Without limiting the generality of the foregoing, the respondents:

(a) violated rules of procedural fairness by proceeding without notice to the applicant and without providing an opportunity to comment, and;

(b) violated principles of legitimate expectation and/or promissory estoppel or other related doctrines by consistently seeking the commutation on humanitarian grounds of all death sentences imposed on Canadians anywhere in the world, specifically promising to follow this practice in relation to the applicant (and in fact doing so up until the above noted decision) and then reneging on this promise,

all of which communicated to U.S. officials respondents� indifference to applicant�s treatment, at least tacitly signaled their approval of the death penalty sentence and thereby placed the applicant in peril for his life and at risk of cruel and unusual treatment.

11. The respondents committed an error of law and an abuse of jurisdiction in reversing their efforts to seek commutation of the applicant�s death penalty sentence. Without limiting the generality of the foregoing, the respondents:

(a) erred by acting in bad faith and/or on the basis of improper principles or considerations or otherwise in violation of their obligations to exercise their powers in an appropriate manner in abandoning efforts on applicant�s behalf, communicating to U.S. officials their indifference to his treatment, at least tacitly signaling their approval of the death penalty sentence and thereby placing the applicant in peril for his life and at risk of cruel and unusual treatment; and,

(b) violated section 10 of the Department of Foreign Affairs and International Trade Act.

12. The respondents violated the applicant�s rights under public international law, directly binding on Canada and cognizable in this court. Without limiting the generality of the foregoing, the respondents, by abandoning efforts on applicant�s behalf, communicating to U.S. officials their indifference to his treatment, at least tacitly signaling their approval of the death penalty sentence and thereby placing the applicant in peril for his life and at risk of cruel and unusual treatment:

(a) violated principles of customary international law, part of the common law of Canada, and under international treaties concerning consular and diplomatic protection in relation to Canadian nationals on death row (including the Vienna Convention on Consular Relations); and,

(b) violated principles of customary international law, part of the common law of Canada, and under international treaties protecting the right to life and security of the person and prohibiting torture and cruel, inhuman and degrading treatment and punishment (including the International Covenant on Civil and Political Rights, and Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment).

The case was heard in the Federal Court and the Application was allowed. The Court ordered the Government of Canada to continue to seek clemency for Mr Smith and the Government has agreed to abide by that decision. The case is to be found at Smith v AG 2009 FC 228

Permalink