Reference Re Ng Extradition

Reference Re Ng Extradition^[1][2] was a 1991 case in which the Supreme Court of Canada held that it was permissible to extradite Charles Ng, a fugitive, to the United States, where he was wanted on charges of several murders. This was a country in which he might face the death penalty. The issue came before the court in the form of a reference from the government; the federal government asked the court for an advisory opinion as to whether the extradition of a fugitive threatened with execution would violate the Canadian Charter of Rights and Freedoms.

Along with the Kindler case, the ruling in Re Ng Extradition was essentially overturned in 2001 with United States v. Burns. In Burns, the Supreme Court found extraditing people to places where they might face the death penalty breached fundamental justice under the Charter.

In 1998, Charles Ng was convicted by a jury in California of eleven counts of murder, and sentenced to death. According to the official California Department of Corrections death row condemned inmate list, as of November 2014 he remains on death row awaiting execution.

Background

Charles Chi-Tat Ng was in the custody of the State of California charged with eleven counts of murder, kidnapping, and burglary, for which he potentially faced the death penalty. Before his trial, he escaped and fled to Canada.

On July 6, 1985, in Calgary, Alberta, he was caught shoplifting. While resisting arrest, he shot a security guard in the hand. The United States successfully petitioned the government to have Ng extradited. Ng submitted a habeas corpus request, which was denied, followed by an application to the Alberta Court of Appeal and the Supreme Court of Canada, all of which were denied.

In response to requests to gain an assurance from the United States government not to seek the death penalty, the Minister of Justice submitted the following questions to the Supreme Court:

1. Is s. 25 of the Extradition Act, to the extent that it permits the Minister of Justice to order the surrender of a fugitive for a crime for which the fugitive may be or has been sentenced to death in the foreign state without first obtaining assurances from the foreign state that the death penalty will not be imposed, or, if imposed, will not be executed, inconsistent with ss. 7 or 12 of the Canadian Charter of Rights and Freedoms?
2. If the answer to question 1 is in the affirmative, is s. 25 of the Extradition Act, a reasonable limit of the rights of a fugitive within the meaning of s. 1 of the Canadian Charter of Rights and Freedoms, and therefore not inconsistent with the Constitution Act, 1982?

Ruling

The Court answered both questions in the negative. There were two majority opinions in the case, written by Gérard La Forest and Beverley McLachlin, with Claire L'Heureux-Dubé and Charles Gonthier concurring with both. Both majority opinions referred to Kindler v. Canada (1991), where the Court considered the same question and found that there was no Charter violation.

Antonio Lamer, John Sopinka, and Peter Cory dissented on both questions. Cory concluded that without any assurance from the United States against imposing the death sentence, there would be a clear violation of s.12 of the Charter, which could not be saved under s.1. Sopinka's opinion referred to s.7 of the Charter but reached the same conclusion as Cory.

See also

• List of Supreme Court of Canada cases

References

External links

• Full text of Supreme Court of Canada decision at LexUM and CanLII