My Tuesday column revisits the controversy over whether the Canadian government has a positive obligation to seek clemency for Canadian citizens who are caught committing capital murder in foreign countries. Delightful surprise: the reader comments for this one are mostly coherent and to the point! Nice job, everybody!
The opposition parties have celebrated Judge Barnes’ judgment as a great blow against what they claim to be a sadistic, arbitrary Conservative government. “The Minister of Justice has this bizarre policy where in some cases he’ll intervene to uphold the rights of some Canadians, but in other countries he won’t,” said Liberal Dominic LeBlanc, the Official Opposition critic for justice. “That makes the minister in many ways the executioner. And the Federal Court today has told him to take off his black hood.”
But read the actual decision, and you’ll find that Mr. LeBlanc’s words are flat-out drivel. Judge Barnes made no criticism of the Conservatives’ diplomatic standard, and claimed no right to contradict it. (“The exercise of the prerogative to develop and implement diplomatic and foreign policy initiatives is generally beyond the scope of judicial scrutiny.”) The judge’s complaint was merely that there had seemingly not actually been any formal change in Canada’s foreign policy — just a few offhand statements made in the public sphere by government representatives. As a result, [plaintiff Ronald] Smith was denied his procedural rights as a Canadian citizen to be informed of the new rule, and to have some decision-maker within the Canadian government examine whether it applies to him.
"The Conservative government can easily comply with Judge Barnes’ procedural requirements by formally reiterating its new policy on clemency lobbying," we pointed out, "and then applying it to Smith, through some t-crossing, i-dotting procedure or another." Having done so, the government now appears to be in perfect conformity with the desires of the Federal Court and the justiciable procedural rights of Mr. Smith.