Wednesday, October 1, 2008

Conservative policy: Clemency when it seems a political advantage..

This is from
Finally the government lawyer gets the green light to actually present what the Conservative policy is. In a democratic country that recognises the rule of law the Conservative government will not intervene in capital punishment cases to ask for clemency.Of course earlier government spokespersons had made statements to the contrary remarking for example that they would look at each case on an individual basis. These apparently were just "political messaging"! In other words pure rhetorical crapola meant to make it look as if the Conservatives had a more "liberal"policy! Note how the lawyer tries to shut down any further critique of the policy by saying it was issued under "royal prerogative" and thus protected and immune from judicial review. So folks if you elect Harper you will have elected a Royal Pain in the Ass who wants his decisions to be immune from judicial scrutiny and if he gets a majority he will not give a Royal Hoot as to what the public thinks until next election when he will try to make you forget all the promises he broke and trumpet his dictatorial ways as strong leadership.

Harper's clemency comments simply 'political messaging': Government lawyer
Randy Boswell , Canwest News ServicePublished: Tuesday, September 30, 2008
TORONTO - The lawyer defending the Conservative government's controversial stance on clemency dropped a bombshell at the Federal Court of Canada Tuesday, dismissing as "political messaging" comments by Prime Minister Stephen Harper and several top ministers about what exactly the country's policy is when it comes to helping Canadians who face the death penalty in other countries.
Justice Robert Barnes had expressed frustration on Monday that government submissions to the court contained no clear articulation of the new clemency policy and no details about which minister had made the decision, or when.
At the outset of Tuesday's hearing, the government's lawyer Eric Groody said he was now "authorized" to provide a precise wording of the policy: "Canada will not intervene in clemency applications by a Canadian facing a capital sentence in a democratic country that honours the rule of law."

Ronald Smith, originally from Red Deer, Alta., killed two men during a booze- and drug-fuelled road trip in 1982. Canada's policy for insisting on clemency for Canadian death-row inmates on foreign soil was under scrutiny at the Federal Court Tuesday.
Patrick Carroll/Global TV/Canwest News Service

The case, being heard this week in Toronto, concerns a lawsuit filed against the government by Ronald Smith, an Alberta-born killer facing execution in Montana.
Canadian diplomats had for years been pressing Montana's governor to commute Smith's sentence until the Conservative government abruptly halted clemency efforts last October following a Canwest News Service report on Canada's lobbying campaign.
The government's initial stance - communicated to Canwest News Service in a series of e-mail messages that have been a key focus of the Toronto hearing - was that Canada would no longer seek clemency for Smith or any other Canadian on death row in a democratic country, such as the U.S.
But over the weeks and months that followed, as the issue flared in the House of Commons amid objections from opposition parties and human rights groups, Harper and the ministers named in the lawsuit - Public Safety Minister Stockwell Day, Justice Minister Rob Nicholson and then-foreign affairs minister Maxime Bernier - softened the policy considerably in their public statements.
They explained that the policy would be applied on a "case-by-case basis," that the issue was bound up in Smith's case with an unwelcomed proposal to transfer the killer to a Canadian prison, and that "mass" or "multiple" murderers should not "necessarily" count on Canada's help to avoid execution.
Those elaborations of the policy, however, were jettisoned on Tuesday when Groody stated that the new no-clemency policy applies, in fact, to any Canadian facing execution in any democratic country.
He characterized the various ministers' expression of the policy as "political messaging" and "political presentations" that were not intended to be interpreted as Canada's actual policy.
But Justice Barnes questioned the "pretty simplistic" formulation of the policy and suggested that "if you take it literally, it is going to lead to some inappropriate situations," since, "no system works perfectly" - including the American justice system.
He later noted that the "sensibilities" of Canadians were bound to be offended if, for example, a younger or mentally-disabled Canadian ended up on death row in the U.S.
"It is going to be difficult to apply," the judge stated.
Groody later suggested the government could rewrite the policy if special circumstances arose, prompting the judge to wonder aloud if that approach qualified as a policy at all.
Justice Barnes also continued to press Groody for a clear explanation of how the policy was created and who created it.
"Why is it so difficult to put an affidavit in front of me?" Barnes asked Groody at one point. "You're asking me to presume (the decision) was done by people with authority to make it."
Groody responded that no further details about the decision-making process would be revealed, but insisted that it was a "Government of Canada" executive decision which is immune from judicial review under the power of "royal prerogative" available to top government leaders.
Groody described the decision as "high policy" - such as a declaration of war or other matters with major implications for foreign relations - and is therefore not subject to a judge's reversal.
Smith's lawyers attacked that idea, asking why a matter of such "high policy" was communicated to the public via "an e-mail sent to a Canwest News reporter."
Justice Barnes continued to express his "concern" that a clear enunciation of the clemency policy was emerging only now after nearly a year of debate about the issue.
"Surely, somewhere, it has to be written down in a way Canadians can understand," he said.
Justice Barnes also questioned the government's arguments that Canadian officials owed no obligation to inform Smith and his lawyers what precisely the new clemency policy was and why Canada was suddenly ending its bid to help Smith after 10 years of working on the commutation request.
Did no one in the Canadian government, Justice Barnes asked, "even pick up the phone" and call Smith or his Montana lawyer?
Smith's Canadian legal team, headed by Toronto defence lawyer Lorne Waldman, had argued earlier that the Conservative government's "precipitous" and "damaging" reversal of Canada's clemency policy violated Smith's rights to "procedural fairness" under Canadian law.
Justice Barnes said that unless he finds the "royal prerogative" argument compelling - which he has repeatedly suggested is questionable in a policy decision affecting only one person at the moment it was made - he believes the "crux" of the case is whether Canada's "duty of fairness" to Smith was upheld.
And "it's pretty clear" he noted at one point during Tuesday's hearing, "that nothing was done" by Canadian officials to meet those obligations.
Justice Barnes suggested it could be months before he decides whether to quash the government's policy and order it to relaunch clemency efforts, as requested by Smith's lawyers.
But he asked both legal teams to submit opinions on the legality of Public Safety Minister Stockwell Day making a decision - if in fact he did - on a matter that is properly within the purview of the Department of Foreign Affairs.

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