"appeared to limit the application"

It's nice to see that the full-throated freakout over the scheduled execution of an admitted multiple murderer is continuing.  It would be even nicer if, in the process, the media could manage to get basic facts correct.  Joan Bryden writing for the Canadian Press:

Cotler said the new policy flies in the face of Canadian law and the Supreme Court of Canada, which has ruled – in a multiple murder case, no less – that the death penalty constitutes cruel and unusual punishment.

(The "no less" is a nice touch in a straight news piece, by the way.)  Either Irwin Cotler or Joan Bryden should engage in some basic research.  You don't even need to wander into a law library - a quick Google search will do.  Had they bothered to take that step, they would learn that, to the extent the Supreme Court of Canada has talked about the issue at all, they have ruled the precise opposite of the proposition advanced by Cotler and/or Bryden.

This article provides a helpful overview of the matter.  But to summarize: in 1976, the Supreme Court of Canada ruled that the death penalty did not constitute "cruel and unusual punishment" for purposes of the Canadian Bill of Rights.  It should be noted, however, that that ruling took place before the legislative abolition of the death penalty, and prior to the introduction of the Charter of Rights and Freedoms, so there's at least a vague argument that it represents outdated law.  Fine.  What has the Supreme Court of Canada had to say about the death penalty in the Charter era?  Helpfully, in the Kindler case, they decided to tell us.  Here's the answer: extraditing a convicted multiple murderer to face the death penalty in the United States does not violate the Charter.  The only pronouncement that "the death penalty constitutes cruel and unusual punishment" under Canadian law came from the dissent in that case - in other words, the written decision which a majority of the court disagreed with and which does not represent the law in Canada.  Not that the Canadian Press will let that stand in their way...

UPDATE: Well, this is embarrassing.  Who's the dumbass?  Bob's the dumbass - because I completely missed a Supreme Court case, and thereby failed to present a full analysis.  As helpfully pointed out in the comments, the Supreme Court of Canada, in 2001, in U.S. v Burns, ruled that extraditing an accused to face a trial for murder, without seeking assurances that the death penalty would not be sought by the prosecution, did violate the Charter (specifically, section 7), in those particular circumstances.  As the Court stated:

We agree that the Canadian Charter of Rights and Freedoms does not lay down a constitutional prohibition in all cases against extradition unless assurances are given that the death penalty will not be imposed.  The Minister is required (as he did here) to balance on a case-by-case basis those factors that favour extradition with assurances against competing factors that favour extradition without assurances.  We hold, however, for the reasons which follow, that such assurances are constitutionally required in all but exceptional cases.

In other words, in all but the most exceptional circumstances (the criteria of which are not set out by the Court), Canada can only extradite someone if Canada seeks assurances that the death penalty will not be imposed.  (I should point out that Burns did not "overrule" Miller or Kindler - Miller is hardly addressed (and it couldn't be in any meaningful way, since Miller was decided under an entirely different statute, namely the Canadian Bill of Rights) and Kindler is expressly confirmed to constitute good law at para. 67 ("we affirm that the “balancing process” set out in Kindler and Ng is the correct approach).)

All that being said, the Canadian Press article is still incorrect: the Supreme Court of Canada has still not declared that the death penalty constitutes "cruel and unusual punishment".  From para. 78 of Burns:

We are not called upon in this appeal to determine whether capital punishment would, if authorized by the Canadian Parliament, violate s. 12 of the Charter (“cruel and unusual treatment or punishment”), and if so in what circumstances.  It is, however, incontestable that capital punishment, whether or not it violates s. 12 of the Charter, and whether or not it could be upheld under s. 1, engages the underlying values of the prohibition against cruel and unusual punishment.

So, the most we can say about Canadian law at this point is that we have one Supreme Court decision (Miller) which holds that the death penalty does not constitute "cruel and unusual punishment" for purposes of the Canadian Bill of Rights, and two Supreme Court of Canada decision (Kindler and Burns) which expressly declined to address the matter, one of which (Burns) states that the death penalty "engages" the underlying values of the prohibition against cruel and unusual punishment.  Given the tenor of the decision in Burns, it's difficult to imagine that the current Court (even though its composition has changed in the years following Burns) wouldn't hold the death penalty to constitute "cruel and unusual punishment", but when a news report describes the law, it should aim to describe it as it is, and not as it might one day be (or, to put it more finely, as the reporter may really, really want it to be).

Comments

[A law student]

Apparently, you conveniently overlooked United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, which overruled Kindler and Miller.

You don't even need to wander into a law library to find this information out. A quick Google search will do!

[Dr.Dawg]

"A law student." Bob, I feel for you. Crow tastes awful, and believe me, I know that from experience. : )

[Bob Tarantino]

Dawg: Sometimes you get schooled, sometimes you get pwned - I'm still in the process of trying to figure out which catgeory this falls into... ;o)

[DCardno]

It would have been interesting to listen in on the discussion (or internal monologue) that lead to the terminology "engages the underlying values of the prohibition..." - it is the sort of deliberately vague statement that comes out of a compromise, where each side hopes to read their own interpretation into it. There is so little real meaning (death penalty and C&U involve the same sorts of value judgements and trade-offs - this is news?), and so much implied meaning that it can be read either way, and claimed simultaneously as a victory no matter which side of the debate you are on:
> In order to "engage the values that prohibit C&U," CP must be C&U in and of itself (or be 'close enough' that the difference is meaningless) - hence it fails the Charter;
> Although CP "engages the values that prohibit C&U" it must obviously fall short, or the Court would not have introduced the "whether or not" caveats regarding demonstrable justification under § 1 and violation of § 12...

[A Law Student]

Sorry, I was a little cruel. To be fair, it seems like the case was decided hinged on a s.7 analysis. Oh the wisdom of substantive due process!