Kindler v. Canada (Minister of Justice)
Encyclopedia
Kindler v. Canada was a landmark decision of the Supreme Court of Canada
where it was held that the government policy that allowed for extradition
of convicted criminals to a country where they may face the death penalty was valid under the Canadian Charter of Rights and Freedoms
. The decision has since been overruled.
In a four-to-three decision the Court found that there was no violation of section 7
of the Charter (the right to life
, liberty
and security of person
) or section 12
of the Charter (protection against cruel and unusual punishment
). The case cited an earlier extradition decision, Canada v. Schmidt
(1987), which states extradition may be unconstitutional under section 7 if it "shocks the conscience
." In Kindler, the Court noted that while Canada itself had abolished the death penalty, Canada should respect that most other countries had not. These included the United States
, with which Canada shared cultural connections and an easily-crossed border. Thus, extradition with the possibility of execution should not shock the conscience.
The Court repeated this finding in Reference re Ng Extradition
(1991). However, Kindler was essentially overruled in 2001 with United States v. Burns
. Mr. Kindler was ultimately returned to the United States. On December 8, 2009, the United States Supreme Court ruled that Mr. Kindler's flight from the United States constituted an abandonment of his right to appeal.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
where it was held that the government policy that allowed for extradition
Extradition
Extradition is the official process whereby one nation or state surrenders a suspected or convicted criminal to another nation or state. Between nation states, extradition is regulated by treaties...
of convicted criminals to a country where they may face the death penalty was valid under the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. The decision has since been overruled.
In a four-to-three decision the Court found that there was no violation of section 7
Section Seven of the Canadian Charter of Rights and Freedoms
Section Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and...
of the Charter (the right to life
Right to life
Right to life is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being...
, liberty
Liberty
Liberty is a moral and political principle, or Right, that identifies the condition in which human beings are able to govern themselves, to behave according to their own free will, and take responsibility for their actions...
and security of person
Security of person
Security of the person is a basic entitlement guaranteed by the Universal Declaration of Human Rights, adopted by the United Nations in 1948. It is also a human right explicitly mentioned and protected by the Constitution of Canada, the Constitution of South Africa and other laws around the...
) or section 12
Section Twelve of the Canadian Charter of Rights and Freedoms
Section Twelve of the Canadian Charter of Rights and Freedoms, as part of the Charter and of the Constitution of Canada, is a legal rights section that protects an individual's freedom from cruel and unusual punishments in Canada. The section has generated some case law, including the essential...
of the Charter (protection against cruel and unusual punishment
Cruel and unusual punishment
Cruel and unusual punishment is a phrase describing criminal punishment which is considered unacceptable due to the suffering or humiliation it inflicts on the condemned person...
). The case cited an earlier extradition decision, Canada v. Schmidt
Canada v. Schmidt
Canada v. Schmidt, [1987] 1 S.C.R. 500, is a decision by the Supreme Court of Canada on the applicability of fundamental justice under the Canadian Charter of Rights and Freedoms on extradition...
(1987), which states extradition may be unconstitutional under section 7 if it "shocks the conscience
Shocks the conscience
Shocks the conscience is a phrase used as a legal standard in the United States and Canada. An action is understood to "shock the conscience" if it is perceived as manifestly and grossly unjust, typically by a judge.-United States:...
." In Kindler, the Court noted that while Canada itself had abolished the death penalty, Canada should respect that most other countries had not. These included the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, with which Canada shared cultural connections and an easily-crossed border. Thus, extradition with the possibility of execution should not shock the conscience.
The Court repeated this finding in Reference re Ng Extradition
Reference re Ng Extradition
Reference Re Ng Extradition was a 1991 case in which the Supreme Court of Canada held that it was permissible to extradite a fugitive to a country in which he might face the death penalty...
(1991). However, Kindler was essentially overruled in 2001 with United States v. Burns
United States v. Burns
United States v. Burns [2001] 1 S.C.R. 283, 2001 SCC 7, was a decision by the Supreme Court of Canada in which it was found that extradition of individuals to places where they may face the death penalty is a breach of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms...
. Mr. Kindler was ultimately returned to the United States. On December 8, 2009, the United States Supreme Court ruled that Mr. Kindler's flight from the United States constituted an abandonment of his right to appeal.