Standing idle on foreign executions: yes we can

Canadian murderer Ronald Allen Smith is entitled to the benefit of a written, objective government policy concerning his situation

Reasonable people can disagree over whether Canadian murderer Ronald Allen Smith ought to die by poison in the state of Montana’s execution chamber. But can we please get the facts about his situation straight? The Federal Court did not unconditionally order the Canadian government to resume lobbying Montana for clemency on behalf of Smith. It is a very clear matter of law that a court can’t set foreign policy: as Justice Barnes wrote, “Decisions involving pure policy or political choices in the nature of Crown prerogatives are generally not amenable to judicial review because their subject-matter is not suitable to judicial assessment.”

What a court can review is whether there has been procedural fairness in the application of a policy, including an international-relations policy, to an individual. Barnes found that the government seemed to have changed its standing policy concerning clemency advocacy with suspicious, unjustifiable casualness. Ministers had sketched or even improvised an apparent new stance in press interviews, and on the floor of the Commons, but there was no evidence of any actual legislative activity behind the scenes accompanying this—there were, for example, no written directives to the diplomatic corps outlining the “new policy”, and certainly no warnings made to Smith and his lawyers.

Smith, as a Canadian citizen, does not enjoy any inherent permanent right to Canadian government assistance with a clemency application, but he is entitled to the benefit of a written, objective government policy concerning his situation. The government didn’t give him that; the choice it was presented with by the Federal Court was to either resume clemency lobbying or to explicitly frame a new policy and apply it fairly. Canadian governments are still free to behave as they like concerning Canadians facing execution abroad, as long as their behaviour is consistent with some guideline. That guideline now exists, and it implies that the answer to a request for future help may well be “Sorry, no.”

The policy is not being applied retroactively to Smith, who is again receiving consular assistance. But we are no longer a formally “abolitionist” state when it comes to capital punishment abroad. If you care about this issue, or you just have an itch to head south and randomly slaughter a couple of Americans, it’s important for you to understand that judges can’t make the identity of the government irrelevant in this respect. A vote for the Conservatives really is a vote for Conservative foreign policy.

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