Kindler Case

In the Kindler case (1991), the majority of judges on the Supreme Court ruled that the Canadian procedure in extradition matters did not violate section 7 of the Canadian Charter of Rights and Freedoms which specifies that everyone has the right to life, liberty and security of the person. For the majority, Judge McLachlin held that section 12 (which prohibits cruel and unusual punishment) did not apply in this case. In any event, she and Judge La Forest examined the application of section 12. Judge McLachlin considered that the decision of the Canadian government to extradite the fugitive to the US was not a violation of section 12 of the Charter. Judge La Forest, for his part, was of the opinion that extradition, in itself, did not constitute a cruel and unusual punishment. Judges McLachlin and La Forest did not speak directly on the infliction of the death penalty as a cruel and unusual punishment. They preferred to dispose of the question on the basis of section 7 of the Charter (fundamental justice). Judge Cory, in his dissent, made a strong entreaty against the death penalty. He rejected the Miller precedent, decided under the Canadian Bill of Rights of 1960, which held that the death penalty was not a cruel and unusual punishment. The death penalty in Canada was abolished in 1976. There remained after that date the death penalty for certain military offences but these last penalties were abolished in 1998. Accordingly, the death penalty has ceased to exist in Canada. One can conclude today in the light of the Kindler case that the restoration of the death penalty would probably be contrary to section 12 of the Canadian Charter of Rights and Freedoms.