Extradition from Canada to the United States—Death Penalty Controversy

Due to the United States’ reputation as having some of the harshest criminal punishments in the Western world, the United States must often give assurances to other countries that extradition suspects will not be sentenced to death, or—sometimes—given life sentences, if the individuals are extradited to the United States. We have discussed these assurances, and the principles of comity which somewhat compel adherence, at length in the past.

Such assurances are at the heart of a growing controversy in Canada. With Conservatives in power in Canada, “[o]pposition justice critics and the Montreal lawyer of a murder suspect facing extradition to the U.S. are pressing Prime Minister Stephen Harper and Justice Minister Vic Toews to clarify the Conservative government's stand on sending alleged killers held in Canada to face possible execution in the United States.”^[1]

The controversy has been sparked by the arrest in Montreal of Roger Shephard, who is accused of killing a South Carolina pawn shop owner.^[2] He is currently in Canada seeking refugee status “to avoid a potential death penalty in the U.S.”^[3] There is a separate case in Windsor, Ontario, “which has prompted an extradition order, but which could be headed to the Supreme Court of Canada.”^[4] This is because the Canadian Supreme Court ruled in 2001 “that Canada must, except in ‘exceptional’ cases, demand guarantees from the U.S. that any suspect extradited from this country will never face the death penalty.”^[5]

Adding to controversy is Minister Toews “outspoken criticism in the past both of the Liberal government’s handling of extradition cases,” and that Supreme Court ruling.^[6] Thus, the Liberal critics are demanding a clear statement from Minister Toews what constitutes an “exceptional” case, and “whether a ‘fairly typical murder’ like the South Carolina killing might be viewed by [Minister] Toews as a heinous crime.”^[7]

Canada abolished the Death Penalty on July 14, 1976.^[8]

Under the US-Canada Extradition Treaty, if the offense for which extradition is requested is punishable by death under the laws of the requesting States, and the laws of the Requested State do not permit such punishment for that offense, “extradition may be refused unless the requesting State provides such assurances as the requested States considers sufficient that the death penalty shall not be imposed, or, if imposed, shall not be executed.^[9] Obviously, the language suggests that Canada could nonetheless extradite an individual absent an extradition request. However, the afore-mentioned Supreme Court ruling, coupled with Canada’s Extradition Act of 1999, which allows the Justice Minister to refuse extradition based on death penalty concerns,^[10] suggests that Canada has a policy against extraditing individuals to face the death penalty.

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[1] Randy Boswell, Tories Pressed on Extradition to U.S. and Possible Executions, CanWest News Service (via Canada.com), Jun. 29, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] On This Day: Death Penalty Abolished in Canada, CBC, last visited Jun. 30, 2006.
[9] Extradition Treaty, Dec. 3, 1971, U.S.-Can., art. 6, T.I.A.S. 8237, 27 U.S.T. 983.
[10] Extradition Act 1999 (Can.), c. 18 s. 44(2).