Canada v. Schmidt
Encyclopedia
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
. While fundamental justice in Canada included a variety of legal protections, the Court found that in considering the punishments one might face when extradited to another country, only those that "shock the conscience
" would breach fundamental justice.
. Schmidt claimed to believe the girl was her granddaughter and that the girl's biological mother kept her in a home ill suited for a child. Helen Schmidt then lived with the girl for two years in New York
before her arrest in 1982. She was charged with kidnapping
(a federal offence in the United States
) and with child-stealing (an offence in Ohio
). That same year she was acquitted of kidnapping, but she fled to Canada before her state trial commenced. She was captured in Ontario
and was prepared to be extradited.
While being charged for child-stealing after having been acquitted of kidnapping would not violate the double jeopardy
clause in the Fifth Amendment to the United States Constitution
, as the states are not bound by this amendment, Schmidt fought the extradition as a violation of double jeopardy rights under section 11(h)
of the Canadian Charter.
. After the Supreme Court found it had jurisdiction to review the case, it considered whether extradition law aside from Charter law was violated. Under extradition law, a hearing in Canada would ascertain if there was sufficient evidence of a crime that could be criminal in Canada as well as in the other nation. It was argued that the extradition hearing should guard against double jeopardy, since this was an essential right in Canadian law. However, the hearing is not a trial, and the Supreme Court decided that arguments about double jeopardy are a defence that would be more suited for a trial. The case Re Burley
(1865) was cited to demonstrate that Canada should trust the receiving country to carry out the trial.
Moving on to consider section 11(h) of the Charter, the Court considered the argument that the crimes of kidnapping and child-stealing were too similar. The Court noted that while the Canadian government's decisions in extradition are bound by the Charter under section 32
, the actions of a foreign government are not. This was relevant to section 11(h), since its rights are held against trials and the Canadian government would not be conducting the trial. The Court went on to argue many other rights under section 11 would also be irrelevant to extradition. For example, section 11 guarantees the presumption of innocence
, but in practice Canada already extradites persons to countries that do not presume innocence.
Section 6 of the Charter
, which provides mobility rights for Canadian citizens, was not considered because the Court had already dealt with the issue in Re Federal Republic of Germany and Rauca and found extradition could be a justified limit on rights against exile.
Finally, the Court considered section 7 of the Charter
, which guarantees the right to life
, liberty
and security of the person, except when a deprivation of these rights is in accordance with fundamental justice. The Court noted that the executive government's decisions to extradite, the extradition hearing and even the treaty could be subject to section 7. The extradition itself could violate section 7 by putting a person at risk of having his or her rights breached.
The Court found that punishments in another country might be so excessive that the Canadian government should not put persons at risk by extraditing them there. For example, torture
would be unacceptable, and to make this point the Court cited Altun v. Germany (1983), a case considered by the European Commission on Human Rights. In general, a potential punishment that "shocks the conscience" will violate fundamental justice in extradition cases. However, the Court urged some deference to the executive government in these cases. Additionally, the fact that a foreign justice system would be very different from Canada's would not necessarily make it unjust. Compared to regular operations in another country, the variety of guarantees under fundamental justice in Canada could be seen as "finicky," and thus they need not be considered in extradition cases. The presumption of innocence was one right the Court identified that if breached would not shock the conscience, even though it is part of fundamental justice in Canada. This shocked conscience theory would also be less disruptive to efforts to ensure fugitives meet justice.
Ultimately, however, Schmidt lost her case. While double jeopardy is a part of fundamental justice in Canada, La Forest wrote, "I do not think our constitutional standards can be imposed on other countries." The majority found that the charge would be in accordance with "traditional procedures" in Ohio. Finally, it found that "It is interesting that, as we saw, the United States Supreme Court has repeatedly held that successive prosecutions at the federal and state level do not automatically offend against the due process
clause, the spirit and content of which bears some resemblance to s. 7 of the Charter, although the courts would act to prevent oppressive behaviour."
, who agreed some potential punishments in extradition might breach fundamental justice. However, he felt that when one faces extradition hearings, one is a "person charged with an offence" and thus section 11 should apply. In an extradition hearing, a person should therefore have legal rights under the Charter, as the foreign government might now allow consideration of similar rights. Nevertheless, Lamer too would have decided against Schmidt because he felt kidnapping and child-stealing were sufficiently different crimes.
, who also would have ruled against Schmidt. She argued that a citizen "clearly can" claim rights under the Charter in an extradition hearing. Wilson felt the claim to rights under sections 11(h) and 7 were not made against Ohio but against the extradition court's decision that Schmidt should be held in prison in Canada before the government made a decision to extradite her. Still, Wilson decided that Schmidt "failed to establish that the offence in Ohio is the same offence as the offence under the United States Code."
(1991), in which it was found potential execution would not shock the conscience, and later United States v. Burns
(2001), which overturned Kindler. In Suresh v. Canada (Minister of Citizenship and Immigration)
(2002), the Court ruled a possibility of torture would shock the conscience. However, the use of the shocked conscience doctrine has not gone without criticism. Professor Peter Hogg
, in noting how the definition of fundamental justice has been ambiguous and that the courts have taken on "enormous discretion," argues a shocked conscience is particularly difficult to measure. He writes that cruel and unusual punishment
(prohibited by section 12 of the Charter
) should obviously be shocking potential punishments. However, he observes that some potential punishments considered cruel and unusual in Canada have been considered acceptable in extradition. Thus, Hogg notes that some punishments considered "cruel and unusual, ...are not shocking or unacceptable!"
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...
on the applicability of fundamental justice
Fundamental justice
Fundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...
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...
on 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...
. While fundamental justice in Canada included a variety of legal protections, the Court found that in considering the punishments one might face when extradited to another country, only those that "shock 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:...
" would breach fundamental justice.
Background
The defendant was a Canadian citizen named Helen Susan Schmidt, who along with her son Charles Gress and his friend Paul Hildebrand had kidnapped a young girl in Cleveland, OhioCleveland, Ohio
Cleveland is a city in the U.S. state of Ohio and is the county seat of Cuyahoga County, the most populous county in the state. The city is located in northeastern Ohio on the southern shore of Lake Erie, approximately west of the Pennsylvania border...
. Schmidt claimed to believe the girl was her granddaughter and that the girl's biological mother kept her in a home ill suited for a child. Helen Schmidt then lived with the girl for two years in New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
before her arrest in 1982. She was charged with kidnapping
Kidnapping
In criminal law, kidnapping is the taking away or transportation of a person against that person's will, usually to hold the person in false imprisonment, a confinement without legal authority...
(a federal offence in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
) and with child-stealing (an offence in Ohio
Ohio
Ohio is a Midwestern state in the United States. The 34th largest state by area in the U.S.,it is the 7th‑most populous with over 11.5 million residents, containing several major American cities and seven metropolitan areas with populations of 500,000 or more.The state's capital is Columbus...
). That same year she was acquitted of kidnapping, but she fled to Canada before her state trial commenced. She was captured in Ontario
Ontario
Ontario is a province of Canada, located in east-central Canada. It is Canada's most populous province and second largest in total area. It is home to the nation's most populous city, Toronto, and the nation's capital, Ottawa....
and was prepared to be extradited.
While being charged for child-stealing after having been acquitted of kidnapping would not violate the double jeopardy
Double jeopardy
Double jeopardy is a procedural defense that forbids a defendant from being tried again on the same, or similar charges following a legitimate acquittal or conviction...
clause in the Fifth Amendment to the United States Constitution
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
, as the states are not bound by this amendment, Schmidt fought the extradition as a violation of double jeopardy rights under section 11(h)
Section Eleven of the Canadian Charter of Rights and Freedoms
Section Eleven of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution's Charter of Rights that protects a person's legal rights in criminal and penal matters. This includes both criminal as well as regulatory offences, as it provides rights for those accused by...
of the Canadian Charter.
Decision
The majority decision was written by Justice Gerard La ForestGérard La Forest
Gérard Vincent La Forest, CC, QC, FRSC, LL.D was a Puisne Justice of the Supreme Court of Canada from January 16, 1985 to September 30, 1997....
. After the Supreme Court found it had jurisdiction to review the case, it considered whether extradition law aside from Charter law was violated. Under extradition law, a hearing in Canada would ascertain if there was sufficient evidence of a crime that could be criminal in Canada as well as in the other nation. It was argued that the extradition hearing should guard against double jeopardy, since this was an essential right in Canadian law. However, the hearing is not a trial, and the Supreme Court decided that arguments about double jeopardy are a defence that would be more suited for a trial. The case Re Burley
Re Burley
Re Burley , 1 U.C.L.J. 34, was a decision on extradition by the Court of Common Pleas of Upper Canada. Though made two years before Confederation, the case has been cited by the Supreme Court of Canada in mobility rights and extradition cases over a century later.-Decision:The decision was made by...
(1865) was cited to demonstrate that Canada should trust the receiving country to carry out the trial.
Moving on to consider section 11(h) of the Charter, the Court considered the argument that the crimes of kidnapping and child-stealing were too similar. The Court noted that while the Canadian government's decisions in extradition are bound by the Charter under section 32
Section Thirty-two of the Canadian Charter of Rights and Freedoms
Section Thirty-two of the Canadian Charter of Rights and Freedoms concerns the application and scope of the Charter. Only claims based on the type of law contemplated by this section can be brought before the Court....
, the actions of a foreign government are not. This was relevant to section 11(h), since its rights are held against trials and the Canadian government would not be conducting the trial. The Court went on to argue many other rights under section 11 would also be irrelevant to extradition. For example, section 11 guarantees the presumption of innocence
Presumption of innocence
The presumption of innocence, sometimes referred to by the Latin expression Ei incumbit probatio qui dicit, non qui negat, is the principle that one is considered innocent until proven guilty. Application of this principle is a legal right of the accused in a criminal trial, recognised in many...
, but in practice Canada already extradites persons to countries that do not presume innocence.
Section 6 of the Charter
Section Six of the Canadian Charter of Rights and Freedoms
Section Six of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution's Charter of Rights that protects the mobility rights of Canadian citizens, and to a lesser extent that of permanent residents. By mobility rights, the section refers to the individual practice...
, which provides mobility rights for Canadian citizens, was not considered because the Court had already dealt with the issue in Re Federal Republic of Germany and Rauca and found extradition could be a justified limit on rights against exile.
Finally, the Court considered section 7 of the Charter
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...
, which guarantees 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 the person, except when a deprivation of these rights is in accordance with fundamental justice. The Court noted that the executive government's decisions to extradite, the extradition hearing and even the treaty could be subject to section 7. The extradition itself could violate section 7 by putting a person at risk of having his or her rights breached.
The Court found that punishments in another country might be so excessive that the Canadian government should not put persons at risk by extraditing them there. For example, torture
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
would be unacceptable, and to make this point the Court cited Altun v. Germany (1983), a case considered by the European Commission on Human Rights. In general, a potential punishment that "shocks the conscience" will violate fundamental justice in extradition cases. However, the Court urged some deference to the executive government in these cases. Additionally, the fact that a foreign justice system would be very different from Canada's would not necessarily make it unjust. Compared to regular operations in another country, the variety of guarantees under fundamental justice in Canada could be seen as "finicky," and thus they need not be considered in extradition cases. The presumption of innocence was one right the Court identified that if breached would not shock the conscience, even though it is part of fundamental justice in Canada. This shocked conscience theory would also be less disruptive to efforts to ensure fugitives meet justice.
Ultimately, however, Schmidt lost her case. While double jeopardy is a part of fundamental justice in Canada, La Forest wrote, "I do not think our constitutional standards can be imposed on other countries." The majority found that the charge would be in accordance with "traditional procedures" in Ohio. Finally, it found that "It is interesting that, as we saw, the United States Supreme Court has repeatedly held that successive prosecutions at the federal and state level do not automatically offend against the due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
clause, the spirit and content of which bears some resemblance to s. 7 of the Charter, although the courts would act to prevent oppressive behaviour."
Lamer
A concurrence was written by Justice Antonio LamerAntonio Lamer
Joseph Antonio Charles Lamer, PC, CC, CD was a Canadian lawyer, jurist and Chief Justice of the Supreme Court of Canada.-Personal life:...
, who agreed some potential punishments in extradition might breach fundamental justice. However, he felt that when one faces extradition hearings, one is a "person charged with an offence" and thus section 11 should apply. In an extradition hearing, a person should therefore have legal rights under the Charter, as the foreign government might now allow consideration of similar rights. Nevertheless, Lamer too would have decided against Schmidt because he felt kidnapping and child-stealing were sufficiently different crimes.
Wilson
An opinion was also given by Justice Bertha WilsonBertha Wilson
Bertha Wernham Wilson, CC was a Canadian jurist and the first woman Puisne Justice of the Supreme Court of Canada.-Early life:...
, who also would have ruled against Schmidt. She argued that a citizen "clearly can" claim rights under the Charter in an extradition hearing. Wilson felt the claim to rights under sections 11(h) and 7 were not made against Ohio but against the extradition court's decision that Schmidt should be held in prison in Canada before the government made a decision to extradite her. Still, Wilson decided that Schmidt "failed to establish that the offence in Ohio is the same offence as the offence under the United States Code."
Aftermath
The case has been cited in a number of subsequent extradition cases, including Kindler v. CanadaKindler v. Canada (Minister of Justice)
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...
(1991), in which it was found potential execution would not shock the conscience, and later 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...
(2001), which overturned Kindler. In Suresh v. Canada (Minister of Citizenship and Immigration)
Suresh v. Canada (Minister of Citizenship and Immigration)
Suresh v. Canada , [2002] 1 S.C.R. 3 is a leading decision of the Supreme Court of Canada in the areas of constitutional law and administrative law...
(2002), the Court ruled a possibility of torture would shock the conscience. However, the use of the shocked conscience doctrine has not gone without criticism. Professor Peter Hogg
Peter Hogg
Peter Wardell Hogg, CC, QC, FRSC is a Canadian lawyer, author and legal scholar. He is best known as a leading authority on Canadian constitutional law....
, in noting how the definition of fundamental justice has been ambiguous and that the courts have taken on "enormous discretion," argues a shocked conscience is particularly difficult to measure. He writes that 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...
(prohibited by section 12 of the Charter
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...
) should obviously be shocking potential punishments. However, he observes that some potential punishments considered cruel and unusual in Canada have been considered acceptable in extradition. Thus, Hogg notes that some punishments considered "cruel and unusual, ...are not shocking or unacceptable!"