¹ This may be seen in the basic precept of extradition law that is contained in the extradition laws and treaties of many countries, that there be the threshold require-ment of double criminality. As to reciprocity, see Bassiouni, M. C., International Extradition: United States Law and Practice C.7, at 325 (1987)Google Scholar, and International Extradition and World Public Order 314 (1974).

² R.S.C. 1985, c. E-23. Hereinafter “Extradition Act.”

³ These agreements are far more limited than extradition treaties. For example, they apply only to crimes committed after the agreement has entered into force, whereas extradition treaties, unless they provide expressly to the contrary, are pursuant to the Extradition Act, retrospective as well as prospective, and contain a more detailed schedule of offences. For an example of such an express limit on retrospectivity, see the Extradition Treaty between Canada and Israel, 1967, Can. T.S. No. 25. This type of Part II special agreement was done for the first time with the Federal Republic of Germany in 1974. However, the treaty entered into by both states in 1977 and in force on September 30, 1979 superceded this: see 1979, Can. T.S. No. 18. Note that this treaty will likely be amended in the near future to reflect German unification. In 1979 a Part II agreement was signed with Brazil and in 1985 with India. As of 1987 Canada has an extradition treaty with India.

⁴ R.S.C. 1985, c. F-32. Hereinafter “Fugitive Offenders Act.”

⁵ UN Doc. A/Conf. 39/27, May 23, 1969; reprinted in (1969) 8 Int’l Leg. Mat. 679. Instrument of accession deposited by Canada, Oct. 14, 1970, pursuant to Order in Council, P.C. 1979-1339• Entered into force Jan. 27, 1980.

⁶ See Williams, S. A. and de Mestral, A. L. C., An Introduction to International Law 359(1987 Google Scholar.2nd ed.).

⁷ Ibid. See also McDougall, M., The Interpretation of Agreements and World Public Order 156 (1967)Google Scholar.

⁸ (2nd ed., 1977), at 57.

⁹ []987] 1 S.C.R. 500, 524.

¹⁰ Being Part I of the Constitution Act, 1982, entered by the Canada Act, 1982 (U.K.) en, proclaimed into force Apr. 17, 1982.

¹¹ See Schmidt, supra note 9, at 518, where La Forest, J. states that “There can be no doubt that the actions undertaken by the Government of Canada in extradition as in other matters are subject to scrutiny under the Charter....” See also at pp. 521-22 with reference to Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, per Dickson, C.J. at 455 and Wilson, J. at 464.

¹² M. C. Bassiouni, op. cit. supra note 1, c.2, at 88 (emphasis added), citing as to the rule of liberal interpretation of extradition treaty terms, Brauch v. Raich, 618 F. 2d. 843 (ist Cir. 1980); U.S. v. Wiebe, 733 F. 2d. 539, 554 (8th Cir. 1984), and Matter of Sidona, 584 F. Supp. 1437 (E.D.N.Y. 1984).

¹³ Ibid., 89, referring to Oppenheim, L., International Law, vol. 1, at 952–53 (8th ed., 1955)Google Scholar. This rule was applied in Melia v. United States, 667 F. 2d 300 (2nd Cir. 1984).

¹⁴ See Warbrick, C. “The Criminal Justice Act 1988 (1) the New Law on Extradition,” [1989]Google Scholar Crim. L.R. 4, 5, note 19; and see especially the dissenting opinion of Schemers in Boxano v. France, App. No., 9990/82, Commission Report, (1987), 9 E.H.R.R. 297, 326-27.

¹⁵ (4th ed., 1977), vol. 18, at 88, para. 216, citing R. v. Governor of Pentonville Prison, ex p. Ecke, [1974] Crim. L.R. 102 (D.C.).

¹⁶ [1987] 2 All E.R. 985 (H.L.). This case was referred to recently by the Judicial Committee of the Privy Council on appeal from the Bahamas in United States Government v. Bowe, [1989] 3 All E.R. 315, 326, as good authority for the liberal interpretation principle.

¹⁷ [1896] 10 B. 509 and 517.

¹⁸ Ibid., 517.

¹⁹ [’9731 3 AH E.R. 250, 254; [1973] 1 W.L.R. 96g, 973.

²⁰ Supra note 16, at 992.

²¹ Ibid.

²² Warbrick, supra note 14, at 5 (footnotes omitted).

²³ For a recent case where the European Court of Human Rights held that extradition to Switzerland involved a violation of the European Convention on Human Rights, Article 5(i)(f), see Bozano v. France, E.C.H.R. Sec. A/111 (1987), 9 E.H.R.R. 297. Also see Quigley, J., “The Rule of Non-Inquiry and the Impact of Human Rights on Extradition Law,” (1990) 15 N. Carol. J. Int’l L. and Comm. Google Scholar Reg. 401.

²⁴ R. v. Secretary of State for the Home Office, ex p. Rees, [1986] 2 All E.R. 321, and Re Muir, T.L.R., Dec. 11, 1987.

²⁵ Cheng v. Governor of Pentonville Prison, [1973] 2 All E.R. 204, and Keane v. Governor of Brixton Prison, [1972] 1 All E.R. 1163.

²⁶ See in particular, Government of Denmark v. Nielsen, [1984] 2 All E.R. 81, and U.S. Government v. McCaffery, [1984] 2 All E.R. 570.

²⁷ See Re Aronson, [1989] 3 W.L.R. 436,466. See also Halsbury’s Statutes of England (annotated), Extradition Act, 1989, c. 33, at 33/2.

²⁸ [1973] 2 All E.R. 204, 217; [1973] A.C. 931, 954.

²⁹ Ibid.

³⁰ 1976 Can. T.S. No. 3; 27 U.S.T.S. 983, Art. 6. Note also by way of comparative analysis, that the European Convention on Extradition, 1957, E.T.S. No. 24, 597 U.N.T.S. 338, Art. II, also so provides. See Bassiouni, op. cit. supra note 1, at 491-93. The Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders recently recommended that the Model Treaty on Extradition likewise contain such an article: see Report of the Congress, Cuba, Oct. 5,l990.

³¹ 1969 Can. T.S. No. 24.

³² 1969 Can. T.S. No. 25.

³³ Supra note 3.

³⁴ 1976 Can. T.S. No. 8.

³⁵ Supra note 10.

³⁶ Ibid., s. 52.

³⁷ Op. cit. supra note 1, at 366, citing In re Cortés, [1934] A.D. 356 (Argentina, Cámara Federal de la Capital).

³⁸ Ibid., citing In re Oberbichler, [1934] 7 A.D. 354 (Italy, Court of Criminal Cassation).

³⁹ Ibid.

⁴⁰ The rule requires that once the surrender of the fugitive has occurred, the requesting state may only prosecute him or her for the offence for which extradition was granted unless the fugitive has had a reasonable opportunity of leaving the requesting/prosecuting state. The rule may be found in domestic legislation such as section 33 of Canada’s Extradition Act or in bilateral or multilateral extradition treaties. It is, however, a matter of debate whether it can be classified as a rule of customary international law and may thus be raised by the fugitive even where statutory or treaty provision is absent. In support of the view, see Hart, P. Gully and Poncet, D., “Rapport sur le principe de la spécialité en matière d’extradition,” unpublished paper presented at a Conference on Extradition, Siracusa, Sicily, Dec. 2, 1989 Google Scholar. Note the view expressed by Forest, La J. in Parisien v. The Queen, [1988] S.C.R. 950 Google Scholar, 957, where he stated: “This is seen by some as a customary rule of international law, but it seems to me to arise out of a proper construction of the treaty.” See also Feller, S. Z., “Reflections on the Nature of the Specialty Principle in Extradition Relations,” (1977) 12 Israel L. Rev. 466 CrossRefGoogle Scholar, 487.

⁴¹ As to both the fugitive and the requested state being beneficiaries of this rule, see American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States, C.7, s. 477, para, (b) (1987).

⁴² 55 and 45 Vict., c. 69; replaced by the Extradition Act, 1989, c. 33. As G. V. La Forest, as he then was, noted in Extradition To and From Canada 153, note 1 (2nd ed., 1977): “The repeal of the British Act by Great Britain in 1967 had no effect in Canada because of the Statute of Westminster.”

⁴³ See Re Harrison (1918), 25 B.C.R. 433, 437; Ex parte Lillywhite (1901), 19 N.Z.L.R. 502, 505.

⁴⁴ See O’Higgins, P., “Extradition Within the Commonwealth,” (1960) 9 Int’l & Comp. L.Q. 486 CrossRefGoogle Scholar; “Recent Practice under the Fugitive Offenders Act,” [1965] Crim. L. Rev. 133; and Clute, R., “Law and Practice in Commonwealth Extradition,” (1959) 8 Am. J. Int’l L. Google Scholar 8, 15-22.

⁴⁵ Under the existing Canadian Fugitive Offenders Act, ss. 2 and 3, the Act applies to any part of Her Majesty’s realms and territories. If this is correctly interpreted as meaning those countries that recognize the Queen as the head of state, there are a large number of Commonwealth countries to which rendition is not possible. In the case of Madras v. C. G. Menon, [1954] A.I.R. 517 (S.C.), (1954) I.L.R. 46, the Supreme Court of India held that the fugitive could not be rendited to the United Kingdom as India was no longer one of Her Majesty’s Dominions. It is interesting to see that this case would appear to have had no effect on the reverse situation, the surrender of fugitives from the United Kingdom to India. See O’Higgins, “Recent Practice,” supra note 44, at 134, and Saxena, J. N., “India: The Extradition Act, 1962,” (1963) 12 Int’l & Comp. L.Q. 116 Google Scholar. Note the interesting recent case of R. v. Brixton Prison Governor ex parte Kahan, [1989] 2 All E.R. 368, concerning a request by Fiji for rendition from the United Kingdom, where it was held that Fiji was entitled to so request, albeit that its membership in the Commonwealth had lapsed when it became a Republic, as it was still a “designated Commonwealth country” in the pertinent United Kingdom list.

⁴⁶ June 2, 1977 (unreported), cited by La Forest, op. cit. supra note 42, at 155.

⁴⁷ Ibid.

⁴⁸ Ibid., 157 (emphasis added).

⁴⁹ Working Paper 37, Extraterritorial Legislation, 137.

⁵⁰ Ibid., 137, Rec. 63.

⁵¹ See, for example, the trilogy of United States v. Schmidt, supra note 9; Republic of Argentina v. Hector Mellino, [1987] 1 S.C.R. 536; and United States v. Allard and Charette, [1987] t S.C.R. 564. See also United States v. Cotroni, [1989] S.C.R. 1469.

⁵² Section 7.

⁵³ Section 15.

⁵⁴ Judgment delivered by Judge C. Scullion, June 29, ig88 (Ont. Prov. Ct.), (unreported). See also the application for habeas corpus that was dismissed by Boland, J., Ontario Court (General Division), Oct. 30, 1990.

⁵⁵ He also argued s. 11.

⁵⁶ From now on the term “extradition” will be used to cover rendition as well as extradition without treaty pursuant to Part II of the Extradition Act, as in this writer’s view all must be treated in the same way. See supra.

⁵⁷ (1989)’ !Öl E-ur- Ct. H.R. (Ser. A.); reprinted in (1989), 11 Eur. Η. Rts. Rep. 439, and in (1989) 28 Int’l Leg. Mat. 1063.

⁵⁸ (1950) 213 U.N.T.S. 221.

⁵⁹ Member states are as follows: Austria, Belgium, Cyprus, Denmark, Finland, Germany, France, Greece, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, the Netherlands, Norway, Portugal, San Marino, Spain, Sweden, Switzerland, Turkey, and the United Kingdom. Breitenmoser, S. and Wilms, G., “Human Rights v. Extradition: The Soering Case,” (1990) 11 Mich. J. Int’l L. 845 Google Scholar, note 2, suggest that several Eastern European states are in the process of applying to become parties to the Convention, as a precondition for membership generally in the Council of Europe. They state that this is because the Council of Europe restricts its membership to those states who are committed to the rule of law and the enjoyment of human rights and freedoms.

⁶⁰ 1976 Can. T.S. No. 47.

⁶¹ Ibid.

⁶² See Williams, S. A. and de Mestral, A. L. C., An Introduction to International Law 34–35 (2nd ed., 1987)Google Scholar; Cohen, M. and Bayefsky, A., “The Canadian Charter of Rights and Freedoms and Public International Law,” (1983) 61 Can. Bar Rev. 265 Google Scholar; Green, L. C., “The Canadian Charter of Rights and International Law,” (1982) 20 Canadian Yearbook of International Law 3 Google Scholar, and Claydon, J., “The International Law of Human Rights and Canadian Courts,” Proceedings of the 1981 Conference of the Canadian Council on International Law 2.Google Scholar

⁶³ Supra note 57. Also see the affirmation of Soering in The Netherlands v. Short, translated from the Dutch and reprinted in (1990) 29 Int’l Leg. Mat. 1375 (Nether-lands Supreme Court).

⁶⁴ Breitenmoser and Wilms, supra note 59, at 847. Lillich, R.B. in “The Soering Case,” (1991) 85 Am. J. Int’l L. 128 Google Scholar, 141, has commented that its true significance will unfold as other states react to it.

⁶⁵ 28 U.S.T., 227; 23° T.I.A.S. No. 8468.

⁶⁶ See supra 30.

⁶⁷ See supra note 57, para. 15.

⁶⁸ Ibid., para. 16. Most civil law states use the nationality basis of criminal jurisdiction extensively. See Castel, J. G. and Williams, Sharon A. , “The Extradition of Canadian Citizens and Sections 1 and 6(1) of the Canadian Charter of Rights and Freedoms ,” (1987) 25 Canadian Yearbook of International Law 263 Google Scholar.

⁶⁹ These agreements are incorporated into United Kingdom law by Orders in Council (the Federal Republic of Germany (Extradition) Order i960, S.I. 1960/1375 and the Federal Republic of Germany (Extradition) (Amendment) Order 1978, S.I. 1978/1403).

⁷⁰ The test for the prima facie case “is whether, if the evidence before the Magistrate stood alone at the trial, a reasonable jury properly directed could accept it and find a verdict of guilty": see Schtraks v. Government of Israel, [1964] A.C. 556.

⁷¹ Supra note 57, para. 16.

⁷² Ibid., para. 17.

⁷³ Ibid.

⁷⁴ Ibid., para. 19.

⁷⁵ Ibid., para. 20. This assurance was requested in a similar fashion in further affidavits by the same person, Mr. James Updike, the Attorney of Bedford County.

⁷⁶ Supra note 57.

⁷⁷ Ibid., para. 22, quoted by the European Court of Human Rights.

⁷⁸ Ibid.

⁷⁹ See infra, 139-41.

⁸⁰ See infra, 139-41.

⁸¹ See Warbrick, C., “Reasonableness and the Decision to Extradite: Re Kirkwood,” [1984] Public Law 539 Google Scholar, 543, where the author argues that the orthodox view that a treaty has no internal effect until implemented “should not carry the same weight in relation to assessing an exercise of a ministerial power.” As to the so-called constitutional orthodoxy that a ratified but unimplemented treaty is not part of domestic law, see Malone v. Commissioner of Police for the Metropolis (No. 2), [1979] 2 All E.R. 620, 638 (per Sir Robert Megarry, V.C.).

⁸² Council of Civil Service Unions and Others v. Minister for the Civil Service, [1984] 3 All E.R. 935 (CA.). Robertson, B., “Extradition, Inhuman Treatment, and the Death Penalty,” (1990) 154 Justice Peace 231 Google Scholar, 232, has argued that because this judicial review existed, Soering had not exhausted his local remedies, required by Art. 26 of the European Convention. The Strasbourg court did not address this issue.

⁸³ Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, [1948] 1 K.B. Rep. 223 (C.A.).

⁸⁴ Supra note 57, para. 35.

⁸⁵ Ibid.

⁸⁶ [1987] 1 All E.R. 840, 952, per Lord Bridge.

⁸⁷ Ibid., 956.

⁸⁸ [1984] 2 All E.R. 390; [1984] 1 W.L.R. 913 (Q.B.D.), and Re Kirkwood and re an application for a writ of habeas corpus ad subjiciendum, Feb. 14, 1984, unre-ported. In Kirkwood, as in Soering, the United States had not guaranteed that the death sentence would not be carried out, but had only promised to present the United Kingdom’s wish to the court in California. Kirkwood also applied to the European Commission: see Applic. no. 10479/83.

⁸⁹ The courts in Kirkwood relied upon R. v. Secretary of State for the Home Department, ex parte Fernandes, [1981] Imm. A.R. 1, a deportation case, where the Court of Appeal held that the Home Secretary was under no duty to take into account the European Convention. See also R. v. Chief Immigration Officer, ex parte Bibi, [1976] 1 W.L.R. 979. Kirkwood also relied upon Art. 7 of the International Covenant on Civil and Political Rights, supra note 60.

⁹⁰ Applic. no. 14038/88 of July 8, 1988, pursuant to Art. 25 of the Convention.

⁹¹ In accordance with Rule 36 of the Commission’s Rules of Procedure.

⁹² Pursuant to Rule 33, s. 3(d), of the Rules of Court, the applicant stated that he wished to take part in the proceedings.

⁹³ The Commission’s Report that is annexed to the judgment indicates that the Commission was of the view that there had been a breach of Art. 13 (7 votes to 4) but no breach of Art. 3 (6 votes to 5) or Art. 6.3(c) (unanimously). Note in particular the 6:5 vote on Art. 3, which was based on the rights of the accused to resort to several levels of appeal. The commission declined to find that a period of years on death row, thus caused, attained the degree of severity required.

⁹⁴ See section 18.

⁹⁵ (1987), 33 C.C.C. (3d) 334, 349 (S.C.C. ). This was an extradition case not dealing with the death penalty but s. 11 of the Charter.

⁹⁶ [1987] S.C.R. 500.

⁹⁷ Supra note 9.

⁹⁸ (1989), 97 A.R. 241 (Alta. CA.), upholding the decision of the extradition judge, Trussler J.

⁹⁹ Ibid., 243.

¹⁰⁰ 22 C.C.C. (3d) 90 (Qué. S.C.). In Bouthillier v. U.S., (Qué. Superior Ct.), Case No. 500-36-00813-900, Feb. 1, 1991 (unreported), it was held by Pinard, J., sitting on a habeas corpus application, that the decision as to whether a minimum punishment of imprisonment was cruel and unusual was within the province of the executive, subject then to judicial review.

¹⁰¹ In Kindler the Minister of Justice declined to hear viva voce evidence by Kindler himself. It was thought that it would be inappropriate for the Canadian Minister of Justice to be reconsidering credibility as to guilt or innocence.

¹⁰² The courts may review the exercise of a ministerial discretion on the basis of the Charter of Rights: see Operation Dismantle v. The Queen, supra note 11.

¹⁰³ It is clear that new legislation is needed in Canada to update the Extradition Act and Fugitive Offenders Act from many perspectives. It must include a streamlining of the extradition review process and judicial review of the Minister of Justice’s decision. There is too much duplication.

¹⁰⁴ By Order-in-Council RC. 1990-1082, dated June 7, 1990, promulgated pursuant to s. 53(1) of the Supreme Court Act, R.S.C. 1985, c. S-26. Oral hearing before the Supreme Court of Canada scheduled for Feb. 21, 1991.

¹⁰⁵ See factum of the Attorney-General of Canada at p. 3.

¹⁰⁶ Joseph J. Kindler v. John Crosbie, Min. of Justice, [1987] 2 F.C. 145.

¹⁰⁷ Supra note 9, at 518.

¹⁰⁸ Ibid., 520.

¹⁰⁹ Ibid.

¹¹⁰ Ibid., 522. For a review of the Altun v. Germany Application No. 10208/83, E.H.R.R. 611, dealing with the alleged violation of Article 3 of the European Convention, see Drzemczewski, , “Aliens and the European Rights Convention: A General Survey,” (1984) 2 Notre Dame Int’l & Comp. L.J. 99, 114-22.Google Scholar

¹¹¹ [1987] 1 S.C.R. 564, 572 (emphasis added). See also at 572 where he adds that the undoubted role of the courts to review the Minister’s decision must be one that is exercised with caution.

¹¹² Ibid., 523. See also at 528, where La Forest, J. stated that “The courts should only intervene in compelling circumstances.”

¹¹³ Ibid.

¹¹⁴ ibid. See also at 527.

¹¹⁵ (1901) 180 U.S. 109. For an analysis of U.S. case law dealing with the rule of non-inquiry, see Quigley, supra note 23, at 403-15. Bassiouni, M. C., “Extradition Reform Legislation in the United States, 1981-1983,” (1984) 17 Akron L. Rev. 495 Google Scholar, 571, has argued that this rule should be eroded in an appropriate case. See also Gallina v. Fraser, 177 F. Supp. 856 (D. Conn. 1959), aff’d 278 F. 2d 77 (2d Cir. i960), cert. den. 364 U.S. 851 (which adds some qualifications based upon procedures and punishment too antipathetic to the court’s sense of decency) and Holmes v. Laird, 459 F. 2d 1211 (D.C. Cir. 1972), cert. den. 409 U.S. 869. See also Demjanjuk v. Petrovsky, 776 F. 2d 571, 583 (6th Cir. 1985) and Ahmad v. Wigen, 726 F. Supp. 389 (E.D.N.Y. 1989) (extradition judge should determine whether treatment would violate universally accepted principles of human rights). Note M. C. Bassiouni, “The United States Model,” in Bassiouni, M. C. (ed.), International Criminal Law Procedure 405, 417 (1986).Google Scholar

¹¹⁶ Ibid., 122.

¹¹⁷ Supra note 9, at 522.

¹¹⁸ [1983] 2 F.C. 347, 349 (F.C.A.) per Pratte, J.

¹¹⁹ Ibid. 530.

¹²⁰ This position is strange as the fugitive has not been charged in Canada but in the foreign state. Wilson, J. had reservations on Lamer, J. ’s opinion on this point. See ibid., 535.

¹²¹ Supra note g, at 531. Wilson, J. actually used the term “Canadian citizen” rather than “fugitive” but it is suggested that this was because the fugitive, Susan Schmidt, was a Canadian citizen.

¹²² Harbhajan Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177.

¹²³ Supra note 118.

¹²⁴ [1985] 1 F.C. 676, 70t (F.C.T.D.) (dealing with deportation from Canada).

¹²⁵ Supra note 30.

¹²⁶ Supra note 11.

¹²⁷ Re outrefois acquit, autrefois convict.

¹²⁸ [1987] ι S.C.R. 536.

¹²⁹ Trial within a reasonable period of time.

¹³⁰ [1987] 1 S.C.R. 564.

¹³¹ (1983)5 E.H.R.R. 611.

¹³² See Smith v. R. (1987), 40 D.L.R. (4d) 435 (S.C.C.), per Wilson, J. See also Bouthillier v. U.S.A., supra note 100.

¹³³ Supra note 122.

¹³⁴ Supra note 9.

¹³⁵ Ibid., 532.

¹³⁶ Note, however, that in Mellino, supra note 128, at 55g, La Mer, J. held that in a preliminary enquiry in Canada s. 1 i(b) would apply and thus by extension to extradition.

¹³⁷ Wilson, J., ibid., 561.

¹³⁸ Ibid.

¹³⁹ Ibid.

¹⁴⁰ Supra note 57, para. 8s.

¹⁴¹ Ibid., para. 83.

¹⁴² Ibid., para. 86(1).

¹⁴³ ibid., para. 86(3) (emphasis added). Warbrick, C., “Coherence and the European Court of Human Rights: The Adjudicative Background to the Soering Case,” (1990), 11 Mich. J. Int’l L. 1073 Google Scholar, 1092 takes the view that this is a negative duty, contingent upon the assessment of the likelihood of damage.

¹⁴⁴ Ibid., para. 87, citing Ireland v. United Kingdom (1978), E.C.H.R. Series A, no. 25, at 90, s. 239. See also The Netherlands v. Short, supra note 63.

¹⁴⁵ ibid.

¹⁴⁶ Supra note 57, para. 88.

¹⁴⁷ Ibid.

¹⁴⁸ 1976 Can. T.S. no. 47. Note also Art. 6(2) re the death sentence. Note also Art. 5 of the Universal Declaration of Human Rights, 1948 UNGA Res. 217 (III), UN Doc. A/810, at 71.

¹⁴⁹ OAS Official Records OEA/Ser. K/XVI/i.I, Doc. 65, Rev. 1, CORR. 2, Jan. 7, 1970.

¹⁵⁰ Adopted by the UN General Assembly on Dec. 10, 1984, in force on June 26, 1987. Canada ratified it on June 24, 1987, and amended the Criminal Code to ensure compliance: s. 245.4. See Multiculturalism and Citizenship Canada, Outlawing an Ancient Evil: Torture (1989). Note the “Soering Understanding” placed by the United States in its ratification indicating that it will not alter U.S. law regarding the death penalty: see S. Exec. Rep. No. 30, 101st Cong. 2d Sess. 36 (1990), 10. See the statement by the U.S. Legal Advisor Sofaer to the Senate Committee on Foreign Relations, discussed in Lillich, supra note 64, at 148.

¹⁵¹ Supra note 57, para. 89.

¹⁵² Ibid., para. 100. See also Ireland v. The United Kingdom, Ser. A, no. 25. at 65, s. 162, and the Tryrer judgment of Apr. 25, 1978, Ser. A, no. 26, at 14-15, ss. 29 and 30.

¹⁵³ See Art. 2( 1 ) of the European Convention and Article 6 of the Covenant. See also Art. 4(2) & (3) of the American Convention. Note, however, that the Human Rights Committee under the Covenant expressed its opinion that the ultimate aim of the Covenant was the abolition of the death penalty. See M. J. Bossuyt, Special Rapporteur of the Sub-Committee on the Prevention of Discrimination and the Protection of Minorities, “The Administration of Justice and the Human Rights of Detainees: Elaboration of a Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty,” ECOSOC Doc. E/CN.4/Sub.2/ig87/20, June 29, 1987, at 6. For a detailed account of the death penalty in the world and the issues raised by the death penalty, see Bossuyt, ibid., and Amnesty International, The Death Penalty (1987) and When the State Kills (1989). Also see the Report of the Secretary General of the United Nations on Capital Punishment, ECOSOC Doc. E/1985/ 43, Apr. 23, 1985.

¹⁵⁴ This interpretation would nullify Art. 2(1), ibid., and would not therefore be in keeping with reading the Convention as a whole and the provisions as in har-mony. See Klass and Others Judgment, Sept. 6, 1978, Ser. A. no. 28, at 31, s. 68. But note the concurring separate opinion of Judge de Meyer in Soering holding that the death penalty does violate European human rights law. See the Fidan case, 1987 Receuil Dalloz Sirez Jurisprudence 305 (Conseil d’État).

¹⁵⁵ E.T.S. No. 114. In the Short case, supra note 63, The Netherlands had ratified Protocol 6.

¹⁵⁶ UNGA Res. 44/128 of Jan. 30, 1990, annexing the Resolution on the Protocol, approved Dec. 15, 1989, by a vote of 59 in favour to 26 against with 48 abstentions. It will come into force when 10 states ratify it. Reprinted in 29 Int’l Leg. Mat. 1464 (1990). See also the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, June 8, 1990, in (1990) 29 Int’l Leg. Mat. 1447.

¹⁵⁷ Bossuyt, supra note 153, at 27, where he lists the replies of abolitionist states to the proposed Optional Second Protocol. Canada is said to have believed in the merit of the Protocol and “[t]here was no doubt that the United Nations would be honouring human dignity by enshrining the principle of abolition of the death penalty in an international instrument": see ibid., paras. 88 and 137.

¹⁵⁸ Supra note 57, para. 105. See Lillich, supra note 64, at 141, but also note the views of Quigley and Shank, “Death Row as a Violation of Human Rights: Is it Illegal to Extradite to Virginia?” (1989) 30 Va. J. Int’l L. 241, 270.

¹⁵⁹ Para. no.

¹⁶⁰ Ibid.

¹⁶¹ Ibid. Note Short, supra note 63, at 1380, for a discussion of the secondary line of jurisdiction that The Netherlands had over the alleged murder, again an alterna-tive to extradition to the U.S., the state with primary jurisdiction under Art. 7 of the NATO Status of Forces Treaty.

¹⁶² See Regina v. Governor of Brixton Prison, ex parte Sohlen, [1963] 2 Q.B. 243 (CA.); Moore v. Minister of Manpower and Immigration, [1968] S.C.R. 839; Kindler v. Flora MacDonald, [1985] 1 F.C 676 (F.C.T.D.).

¹⁶³ R.S.C. 1985, C.F7.

¹⁶⁴ Kindler v. Crosbie, Attorney-General of Canada, [1987] 2 F.C. 145.

¹⁶⁵ Kindler v. Crosbie, Minister of Justice, Attorney-General of Canada, [1989] 2 F.C. 492 (F.C.A.).

¹⁶⁶ Ibid., 498-99.

¹⁶⁷ Ibid., 499.

¹⁶⁸ Ibid., 500.

¹⁶⁹ [1977] 2 S.C.R. 680.

¹⁷⁰ R.S.C. 1970,c. C-34.

¹⁷¹ R.S.C. 1970, Appendix III.

¹⁷² Supra note 164, 15 500-1. In Smith v. The Queen, (1987), 34 C.C.C. (3d) 97, 141, Lamer, J. held that section 12 is only concerned with the effect of a punishment and the process by which it is imposed is not of great relevance.

¹⁷³ S.C. 1974-75-76, c. 105, s. 5. The death penalty had not been used since 1962.

¹⁷⁴ Supra note 164, at 500-1.

¹⁷⁵ Ibid.

¹⁷⁶ The Privy Council has addressed the matter of delay in executing the death penalty (unsuccessfully for applicants) in Abbott v. Att. Gen. for Trinidad and Tobago, [1979] 1 W.L.R. 1342, and Riley v. Att. Gen. of Jamaica, [198s] 1 W.L.R. 557; 3 All E.R. 469. See also Pannick, D., Judicial Review of the Death Penalty C. 4 (1982)Google Scholar. The “delay in execution” argument must be read in the light of the fact that it results from the rights of review of the individual: see Richmond v. Lewis (gth Cir. U.S. C.A., Dec. 26, 1990, unreported) and the European Commission’s Report, supra note 93 in Soering.

¹⁷⁷ Supra note 164, at 502.

¹⁷⁸ Ibid., 506.

¹⁷⁹ Ibid., 508.

¹⁸⁰ (1987), 34 C.C.C. (3d) 97; [1987] 1 S.C.R. 1045.

¹⁸¹ R.S.C. 1970, c. N-1.

¹⁸² Supra note 180, at 1073-74. Referring as examples to corporal punishment, lobotomization, and castration.

¹⁸³ Ibid., 1074. See also Bouthillier v. U.S.A., supra note 100.

¹⁸⁴ (1975), 63 D.L.R. (3d) 193 (B.C.C.A.). See also his judgment in R. v. Smith, supra note 179, in dissent, 103-23.

¹⁸⁵ [1977] 2 S.C.R. 680, a pre-abolition case. Laskin, C.J. did conclude that the death penalty did not constitute cruel and unusual punishment within para. 2(b) of the Bill of Rights.

¹⁸⁶ See Smith, supra note 180, at 135 (C.C.C.). For a synthesis of the criteria used by a minority of the judges, see Tarnopolsky, W. (as he then was), “Just Desserts or Cruel and Unusual Treatment or Punishment?: Where Do We Look for Guidance?” (1978) 10 Ottawa L. Rev. 1, 32–33 Google Scholar. See also Re Mitchell and The Queen (1983), 6 C.C.C. (3d) 193 (Ont. H.C.) and other cases referred to in Smith, supra note 179, at 135-37.

¹⁸⁷ 428 U.S. 156 (1976). Note that 37 states in the United States permit capital punishment. See Furman v. Georgia, 408 U.S. 238 (1972) and Stanford v. Kentucky 109 S. Ct. 2969 (1989). Also Bassiouni, , Lahey, , and Sang, , “La Peine de mort aux États-Unis: L’État de la question en 1972,” (1973) 1 Revue de Science Criminelle et le Droit Comparé 23 Google Scholar.

¹⁸⁸ 109 S. Ct. 2207 (1989).

¹⁸⁹ Supra note 180, at 139 (per Lamer, J.).

¹⁹⁰ Ibid., 144.

¹⁹¹ For such an analysis by this writer, see Castel and Williams, supra note 68. Section 1 provides: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

¹⁹² [1986] 1 S.C.R. 103 at 138.

¹⁹³ [1989] 1 S.C.R. 1469.

¹⁹⁴ Supra note 192, at 139.

¹⁹⁵ Supra, note 180, at 149 (Le Dain) and 105-6 (Mclntyre).

¹⁹⁶ [1990] 2 S.C.R. 151, 176 (per MacLachlin, J.). See also Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, 502 (per Lamer, J.).

¹⁹⁷ See, e.g., Schmidt, supra note 9; Mellino, supra note 128; and Allard and Charette, supra note 111.

¹⁹⁸ [1987] F-C- 145. 155.

¹⁹⁹ Ibid., 156.

²⁰⁰ [1979] 1 S.C.R. 311.

²⁰¹ Supra note 198, at 154.

²⁰² Ibid.

²⁰³ (1989), 53 C.C.C. (3d) (Ont. H.C.), aff’d (1990), 72 O.R. (2d) 480 (Ont. CA.).

²⁰⁴ Supra note 198, at 155.

²⁰⁵ Ibid., 156.

²⁰⁶ See Re Federal Republic of Germany and Rauca (1983), 41 O.R. (2d) 225, 241 (Ont. CA.).

²⁰⁷ Supra note 198 at 156.

²⁰⁸ Ibid., 157.

²⁰⁹ Ibid., 157.

²¹⁰ [1985] 2 S.C.R. 178 (S.C.C).

²¹¹ Ibid.

²¹² [1985] 2 S.C.R. 486.

²¹³ Supra note 118, at 498.

²¹⁴ Supra note 111, at 572-73.

²¹⁵ Ibid.

²¹⁶ Ibid., 503. Citations omitted.

²¹⁷ Ibid., 504.

²¹⁸ [1984]3 A11 E.R. 935 (H.L.).

²¹⁹ Ibid., 950-51.

²²⁰ [1948] 1 K.B. 223 (CA.), per Lord Greene, MR.

²²¹ Price, N., “Human Rights, Death Row and Administrative Law Remedies,” (1985) 34 Int’l 8c Comp. L.Q. Google Scholar

²²² Supra note 82 at 950-51.

²²³ [1987] 1 All E.R. 840, 852.

²²⁴ Ibid., 952.

²²⁵ Ibid. See also Lord Templeman at 956 in the same vein. As to judicial review of the Australian Attorney General’s decision to extradite, see Hempel and Ethe-ridge v. A.G., [1987] 29 A. Crim. R. 133 (F.C).

²²⁶ Supra, note 180. See also Bouthillier v. U.S.A., supra note 100, where in obiterdicta Pinard, J. discusses ss. 7 and 12 of the Charter in relation to the extradition when there is a mandatory minimum punishment.

²²⁷ Supra note m, at 572.

²²⁸ Supra note 9, at 521

²²⁹ [1985] 2 S.C.R. 486, 502.

²³⁰ E.g., Smith, supra note 180; Slaight Commission Inc. v. Davidson, [1989] 1 S.C.R. 1038, 1056-57, per Dickson, C.J. See also Schabas, W. A., International Human Rights Law and the Canadian Charter (1991)Google Scholar.

²³¹ Communications Nos. 210/1986 and 225/1987 (Apr. 6, 1989) in Report of the Human Rights Committee, UN General Assembly, Off. Rec: 44th Session, Supp. No. (A/44/40), at 231, para. 215.

²³² This compromise was also the approach suggested by The Netherlands Supreme Court in the Short case, supra note 63. In November 1990, the United States agreed that the death penalty would not be requested and Short was extradited.

²³³ See Williams, S. A., “Comment on Unlawful Arrest and Return,” (1975) 53 Can. Bar Rev. 404 Google Scholar; Mann, F. A., “Reflections on the Prosecution of Persons Abducted in Breach of International Law,” in International Law at a Time of Perplexity (ed. Y. Dinstein, 1989)Google Scholar, reprinted in Mann, F. A., Further Studies in International Law 339 (1990)Google Scholar; and Lowenfeld, A. F., “U.S. Law Enforcement Abroad: The Constitution and International Law, Continued,” (1990) 84 Am. J. Int’l. L. 444 CrossRefGoogle Scholar and “Kidnapping by Government Order: A Follow Up,” (1990) 84 Am. J. Int’l. L. 712. Note the cases of Ker v. Illinois, 119 U.S. 436, 7 S. Ct. 225 (1886); Frisbie v. Collins, 342 U.S. 519, 72 S. Ct. 509 (1952); U.S. V. Toscanino, 500 F. 2d 267 (U.S.C.A. 2d Cir. 1974); U.S. v. Herrera, 504 F. 2d 859 (U.S.C.A. 2d Cir. 1974); U.S. ex rel Lujan v. Gengler, 510 F. 2d 62 (U.S.C.A. 2d Cir. 1979); U.S. v. Lira, 515 F. 2d 68 (U.S.C.A. 2d Cir. 1975). See also the recent cases of U.S. v. Yunis, 681 F. Supp. go9 (D.D.C. 1988); Matta-Ballesteros ex rel Stolar v. Henman, 697 F. Supp. 1036 (S.D. 111. 1988), aff’d 896 F. 2d 255 (7th Cir. 1990), and U.S. v. Verdugo-Urquidez, 856 F. 2d 1214 (gth Cir. 1988), cert. granted, 109 S. Ct. 1741 (1989).

²³⁴ See den Wyngaert, C. Van , “Applying Human Rights to Extradition: Opening Pandora’s Box?,” Revue Internationale de Droit Pénal Google Scholar (forthcoming).

²³⁵ Based upon U.S. v. Toscanino, supra note 233, this seemed a possibility. However, initial optimism concerning this case was ill-founded.