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Why I'm Pleading Clemency for the Last Canadian on Death Row

05/02/2012 07:33 EDT | Updated 07/02/2012 05:12 EDT

Alberta-born Ronald Allan Smith is the only Canadian on death row in the United States. With his death sentence under review, I recently sent letters to Montana Governor Brian Schweitzer and the parole board -- requesting that clemency be granted in the case, having regard not only to the principled opposition to the death penalty -- anchored in Canadian and international law -- but also the specific circumstances underpinning Smith's request for clemency.

My request for clemency should not be misconstrued as excusing the heinous crimes committed by Smith, for which he has now spent 27 years in prison. Rather, I petitioned the Governor because at issue in this case are fundamental -- and sacrosanct -- rights set out in the Canadian Charter of Rights and Freedoms.

Indeed, it has been long-standing Canadian policy -- affirmed by our courts -- that ''there is no death penalty in Canada [and] the government of Canada does not support the death penalty." Further, it has long been the policy that Canada will seek clemency for Canadians sentenced to death in foreign countries.

The Supreme Court of Canada in the Sebastian Burns and Atif Rafay case -- the governing precedent in this matter -- held that capital punishment was a violation of Section 7 of the Canadian Charter of Rights and Freedoms, namely, the "right to life, liberty, and security of the person" -- and a violation of the principles of fundamental justice thereby -- as well as a violation of Section 12 of the Canadian Charter of Rights and Freedoms and its protection against "cruel and unusual punishment."

In particular, the Supreme Court ruled that Canada could not remove Canadian citizens to the United States without receiving assurance from the state concerned that the death penalty would not be imposed. In the words of the Court, "an extradition that violates the principles of fundamental justice will always shock the conscience...The death penalty has been rejected [in Canada] as an acceptable element of criminal justice. Capital punishment engages the underlying values of the prohibition against cruel and unusual punishment. It is final and irreversible."

Moreover, Canada's abolitionist policy -- and leadership -- on the death penalty has extended beyond our borders, as evidenced by our international undertakings in this regard. For example, on November 25, 2005, Canada ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights wherein Canada expressed, inter alia, that as a state party to the Protocol, it is "desirous to undertake hereby an international commitment to abolish the death penalty."

As Minister of Justice and Attorney General of Canada at the time, I stated that, "becoming a party to the treaty is part of Canada's effort to send a clear message on this important human rights issue." I added, "Canada opposes the death penalty and we support the international trend toward its abolition. We urge all states that retain the death penalty to abolish it or to impose a moratorium on its use, and to become parties to the Second Optional Protocol." In a word, underlying the abolition of the death penalty is the sanctity of human life, which underlies the growing international movement -- including in the U.S. -- towards abolition.

Regrettably, the Conservative government has sought to depart from these principles and practices -- asserting that clemency will be sought only on case-by-case basis. Our Federal Court found this unacceptable, and required the government to seek clemency on Smith's behalf, which found expression in Foreign Minister John Baird's letter to the Governor. Indeed, such a letter should not have come as a result of a court order, but out of a sense of justice and fairness, and, indeed, what is required by the rule of law.

As well, given what we know about the ''alarmingly poor performance'' -- as the Court put it -- of Smith's court-appointed attorney during his criminal trial, this clemency bid is made all the more urgent. In particular, according to the U.S. Court of Appeals for the 9th circuit, Smith's trial lawyer "failed to investigate the facts of the crime, failed to investigate his mental state at the time of the crime, and failed to discuss possible defenses before Smith pled guilty." In fact, Smith's lawyer conceded that he and his client did not discuss "anything that would have operated as a viable defense in the case."

In a well-argued dissent from the majority ruling that Smith had not been prejudiced by his appointed lawyer's failures, Judge Betty Fletcher remarked that Smith's attorney, who had never worked on a death penalty case before, had provided "pitifully little assistance" and an "alarmingly poor performance."

Judge Fletcher pointed to the fact that Smith had apparently spent zero hours on investigation and just over six hours on research, and had interviewed only four or five people from a list of 35 potential witnesses provided to him by the prosecution. Moreover, the attorney did not explore possible defences to the capital murder charges, did not visit the crime scene or hire an investigator and never sought Smith's mental health or other records, or a psychiatric evaluation of his client.

It should also be noted that Smith was 24 years old at the time of the crime and is now 54 years old. Accordingly it is of particular relevance that, in its ruling in 2010, the U.S. Court of Appeals noted that "by all accounts, Ronald Smith has reformed his life," building strong relationships with his daughter and grandchildren and utilizing educational opportunities offered within the prison context. In addition, noted the Court, Smith has "expressed deep regret for his deplorable actions." But as the Court put it, such issues were not matters for the Court but for "the wisdom of the executive branch" to consider in clemency proceedings.

Certainly, I recognize and respect Montana's sovereign right to administer justice in its territory, and appreciate the position of Governor Schweitzer, who must decide whether Smith's prejudicial legal counsel -- and subsequent rehabilitation after 27 years in prison on death row -- suffice to weigh against imposing the death penalty. But, I do hope that the parole board -- and the Governor in his wisdom -- will also take into account Canada's position against capital punishment -- a practice that has been repudiated by Canada's judiciary, legislature and executive alike, let alone the evolving U.S. position against capital punishment -- all of which would require granting clemency to Smith.

Similarly, I hope the Government of Canada recognizes that its policy should be that of opposing the death penalty in any circumstance, anywhere. Indeed, this flows from the Charter -- whose 30th anniversary we celebrate this month -- and from Canadian jurisprudence. It would behoove the Government to affirm this unequivocally -- including, in particular, in the present case of Smith.