Does Canada support the Death Penalty?
August 8, 1998
A Philadelphia man convicted of a 1984 double murder who escaped from
prison and fled to Canada 11 years ago was handed over to the FBI and
New York State Police yesterday by Canadian authorities, after he failed to gain a curious form of "refugee" status in Canada.
Roger Judge, 36, is to be extradited to Pennsylvania, where he faces the death penalty for the shot gun slayings of his former girlfriend and a young man as they sat on the porch of a home.
Judge had petitioned the Canadian courts to allow him to remain in Canada on the ground that he would be subjected to cruel and unusual punishment -- the death penalty -- if returned to the United States.
Canada has no death penalty and has a policy of not extraditing fugitives sentenced to death in other countries. But the Canadian courts have waived that policy in prior cases involving American citizens convicted in American courts.
On Thursday, a Quebec court denied Judge's request to remain in Canada.
Yesterday, Judge was turned over to American authorities in Champlain,
N.Y., near the Canadian border. The FBI took him into custody on a
federal warrant charging him with unlawful flight to avoid prosecution.
The FBI then relinquished custody of Judge to the New York State Police, who took him before a magistrate for arraignment on a fugitive charge.
Judge was ordered held without bail pending extradition to Pennsylvania.
Officials in the Philadelphia District Attorney's Office said that Judge refused to waive extradition and that the necessary legal proceedings to return him were expected to take about 3 weeks.
On Sept. 14, 1984, Judge fatally shot Christopher Outterbridge, 18, and Tabatha Mitchell, 15, Judge's former girlfriend, as they sat on the front porch of Outterbridge's home. Judge was convicted in April 1987 and sentenced to death, but 2 months later he escaped from Holmesburg Prison.
A year later, Judge was arrested in Vancouver, British Columbia, in the beating and robbery of 2 people. He was tried and convicted for that crime and sentenced to 10 years in prison.
He had just completed that sentence, and the District Attorney's Office was seeking his return to death row in Pennsylvania.
Judge attempted to block his deportation by invoking the Canadian
Charter of Rights and Freedoms, which assures all people in Canada the
right to life and bans cruel and unusual punishment.
His lawyers asked that he remain in custody in Canada and be returned to the United States only on the condition that he would not be put to death.
Quebec Superior Court Judge G. B. Maughan denied that request, ruling
that there was no legal basis for holding Judge in prison further.
And the prospect of setting him free was out of the question.
"Mr. Judge escaped from custody and, to this extent, he is the author of his present misfortune," Maughan ruled. "It is his status as a fugitive which prevents him from appealing his murder conviction and the death sentence, and this was brought on by his own act."
August 10, 1998
With Canada's decision to deport Roger Judge to Pennsylvania where he
faces the death penalty, we once again offer our co-operation in the
United States's barbaric system of capital punishment.
On Thursday, Justice G. B. Maughan of the Quebec Superior Court gave
Canada the green light, dismissing Judge's arguments rooted in important international human-rights precedents.
Judge was condemned to death for murder in 1987, but managed to escape
to Canada. Here, he committed robbery and was sentenced to 10 years in prison. The sentence was completed on Aug. 7, 1998.
Judge claimed he had been exposed to the "death-row phenomenon," the
mental anguish suffered by someone who is condemned to death but who
must wait in jail for a prolonged period prior to execution.
Over the last decade, prestigious international human-rights tribunals
have declared that the "death-row phenomenon" violates the fundamental
right to protection against cruel, inhuman and degrading treatment or
punishment. In a 1993 decision, the London-based Judicial Committee of the Privy Council found it unconscionable to wait more than 5 years
after pronouncement of sentence of death. Anything longer, said the
Privy Council, and the treatment violated universally recognized human
rights and must be commuted to life imprisonment.
"There is an instinctive revulsion against the prospect of hanging a
man after he has been held under sentence of death for many years,"
wrote the Privy Council. "What gives rise to this instinctive
revulsion? The answer can only be our humanity; we regard it as an
inhuman act to keep a man facing the agony of execution over a long
extended period of time."
A 19-member bench of the European Court of Human Rights, which included a Canadian judge, reached a similar conclusion in 1989. For this reason, no European country will now extradite offenders to the United States without an assurance that capital punishment not be imposed.
Maughan essentially ignored these compelling judgments, despite
declarations from the Supreme Court of Canada that international
human-rights precedents be treated as "relevant and persuasive" in the
interpretation of the Canadian Charter of Rights and Freedoms.
Maughan said it would be a double standard to return death-row fugitives immediately while allowing those sentenced to jail terms in the United States to serve their Canadian sentences in Canada first.
But the death penalty is different. If Judge had been convicted of
robbery in the United States, surely he would not have served out his
term prior to execution. The absurd approach adopted by Canada and
endorsed by Maughan amounts to an incentive to fugitives from the death penalty to commit violent crime in Canada, ideally murder, as they would then serve the mandatory life sentence in Canada.
In April 1998, a United Nations Special Rapporteur denounced the many
abuses in death-penalty practices in the United States. Those accused
of capital crimes are often defended by poorly paid, unmotivated and
incompetent lawyers appointed by the court. Elected judges and
prosecutors insist on capital punishment, with a wary eye to their next rendezvous with the electorate. Racism is an integral element in the American death penalty. Juries are "death qualified" by eliminating all candidates who might flinch at the idea of execution.
A resolution by the United Nations Commission on Human Rights adopted
following the presentation of the rapporteur's report called for a
world-wide moratorium on capital punishment. Canada was one of the
resolution's co-sponsors. More than 100 states, including Canada, have now abolished the death penalty. The recently adopted Rome Statute of the International Criminal Court excludes the death penalty, even for the most heinous of crimes.
So why should the Canadian government be complicit in sending Roger
Judge to be the victim of state-sponsored premeditated killing? The
extradition treaty with the United States entitles us to insist that
capital punishment not be imposed. If Judge had been returned to the
U.S. with that condition, Canada could be confident he would spend the
rest of his life in secure confinement.
When Canada arrested Judge in 1988, it should have chosen either to send him back to the United States immediately on the condition that the death penalty would not be applied, or to make him serve his 10-year sentence in Canada first and then send him back, still on the condition he not be executed.
Kudos bestowed on Canada for its international human-rights profile have been well-earned. Foreign Minister Lloyd Axworthy's dynamic role in the prohibition of anti-personnel land mines and in the creation of the international criminal court is admired around the world. Why our
government risks tarnishing an otherwise enviable image by assisting the United States in its outdated, brutal and racist practice of capital punishment is indeed baffling.