“This appeal raises the question whether the period of imprisonment to be served by a mandatory life sentence prisoner as punishment should be determined by the executive or the judiciary. It does not concern the question how individual cases should be approached. On the hypothesis, however, that the appeal in Anderson succeeds, it is important to guard against misunderstanding in one respect. If the role of the executive in setting the tariff should cease it does not follow that life imprisonment for murder may never, even in the worst cases imaginable, literally mean detention for life. In the Divisional Court in R v Secretary of State for theHome Department, Exp Hindley[1998] QB 751 , 769, Lord Bingham of Cornhill CJ observed that he could ‘see no reason, in principle, why a crime or crimes, if sufficiently heinous, should not be regarded as deserving lifelong incarceration for purposes of pure punishment.’ On appeal to the House of Lords, and with the agreement of Lord Browne-Wilkinson, Lord Nicholls of Birkenhead, and Lord Hutton, I expressed myself in similar terms: R v Secretary of State for the Home Department, Ex p Hindley[2001] 1 AC 410 , 416H. The following passage is part of the ratio of that case (at p 417H): ‘The last submission is that the policy of imposing whole life tariffs is inconsistent with the notion of a tariff which requires expression in a term of years. This is an appeal to legal logic. But there is nothing logically inconsistent with the concept of a tariff by saying that there are cases where the crimes are so wicked that even if the prisoner is detained until he or she dies it will not exhaust the requirements of retribution and deterrence.’” ‘The last submission is that the policy of imposing whole life tariffs is inconsistent with the notion of a tariff which requires expression in a term of years. This is an appeal to legal logic. But there is nothing logically inconsistent with the concept of a tariff by saying that there are cases where the crimes are so wicked that even if the prisoner is detained until he or she dies it will not exhaust the requirements of retribution and deterrence.’”
“In a crime of this kind there may well be matters relating both to the offence and the offender which ought properly to be considered before sentence is passed. To deny the offender the opportunity, before sentence is passed, to seek to persuade the court that in all the circumstances to condemn him to death would be disproportionate and inappropriate is to treat him as no human being should be treated and thus to deny his basic humanity, the core of the right which section 7 exists to protect.”
“The thrust of the appellants’ case can be shortly summarised: section 1(1) is arbitrary and disproportionate because it requires the same life sentence to be passed on all convicted murderers, whatever the facts of the case or the circumstances of the offender, and irrespective of whether they are thought to present a danger to the public or not.”
“If the House had concluded that on imposition of a mandatory life sentence for murder the convicted murderer forfeited his liberty to the state for the rest of his days, to remain in custody until (if ever) the Home Secretary concluded that the public interest would be better served by his release than by his continued detention, I would have little doubt that such a sentence would be found to violate articles 3 and 5 of the European Convention on Human Rights... as being arbitrary and disproportionate. But Anderson, following earlier authority, makes plain that such is not the effect of the sentence. It is a sentence partly punitive, partly preventative. The punitive element is represented by the tariff term, imposed as punishment for the serious crime which the convicted murderer has committed. The preventative element is represented by the power to continue to detain the convicted murderer in prison unless and until the Parole Board, an independent body, considers it safe to release him, and also by the power to recall to prison a convicted murderer who has been released if it is judged necessary to recall him for the protection of the public. It is a sentence so characterised that the appellants must attack if their appeals are to succeed.”
“... The sentence of life imprisonment is now the most severe penalty for which the law provides. There is ground for concern if the sentence is imposed on those who, despite the seriousness of their crimes, could be adequately punished by a determinate sentence. Indeed, any mandatory or minimum mandatory sentence arouses concern that it may operate in a disproportionate manner in some cases. It was considerations of this kind which led the Supreme Court of Canada to conclude that a mandatory 7 year minimum sentence for importing drugs was incompatible with section 12 of the Canadian Charter of Rights and Freedoms, which guaranteed that no one should be subjected to cruel and unusual treatment or punishment: R v Smith (Edward Dewey)[1987] 1 SCR 1045 .”
“It would hardly be compatible with the underlying values of the Convention, that ‘common heritage of political traditions, ideals, freedom and the rule of law’ to which the Preamble refers, were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, however heinous the crime allegedly committed. Extradition in such circumstances, while not explicitly referred to in the brief and general wording of Article 3, would plainly be contrary to the spirit and intendment of the Article, and in the Court’s view this inherent obligation not to extradite also extends to cases in which the fugitive would be faced in the receiving State by a real risk of exposure to inhuman or degrading treatment or punishment proscribed by that Article [sc. 3].”
“110. For the United Kingdom Government and the majority of the Commission, the possibility of extraditing or deporting the applicant to face trial in the Federal Republic of Germany, where the death penalty has been abolished under the Constitution, is not material for the present purposes. Any other approach, the United Kingdom Government submitted, would lead to a ‘dual standard’ affording the protection of the Convention to extraditable persons fortunate enough to have such an alternative destination available but refusing it to others not so fortunate. This argument is not without weight. Furthermore the Court cannot overlook either the horrible nature of the murders with which Mr. Soering is charged or the legitimate and beneficial role of extradition arrangements in combating crime. The purpose for which his removal to the United States was sought, in accordance with the Extradition Treaty between the United Kingdom and the United States, is undoubtedly a legitimate one. However, sending Mr. Soering to be tried in his own country would remove the danger of a fugitive criminal going unpunished as well as the risk of intense and protracted suffering on death row. It is therefore a circumstance of relevance for the overall assessment under Article 3 in that it goes to the search for the requisite fair balance of interests and to the proportionality of the contested extradition decision in the particular case.”
“...having regard to the very long period of time spent on death row in such extreme conditions, with the ever-present and mounting anguish of awaiting execution of the death penalty, and to the personal circumstances of the applicant, especially his age and mental state at the time of the offence, the applicant’s extradition to the United States would expose him to a real risk of treatment going beyond the threshold set by Article 3. A further consideration of relevance is that in the particular instance the legitimate purpose of extradition could be achieved by another means which would not involve suffering of such exceptional intensity or duration.”
“80. The prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion cases. Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion... In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. The protection afforded by Article 3 is thus wider than that provided by Articles 32 and 33 of the United Nations 1951 Convention on the Status of Refugees... 81. Paragraph 88 of the Court’s above-mentioned Soering judgment, which concerned extradition to the United States, clearly and forcefully expresses the above view. It should not be inferred from the Court’s remarks concerning the risk of undermining the foundations of extradition, as set out in paragraph 89 of the same judgment, that there is any room for balancing the risk of ill-treatment against the reasons for expulsion in determining whether a State’s responsibility under Article 3 is engaged. 82. It follows from the above that it is not necessary for the Court to enter into a consideration of the Government’s untested, but no doubt bona fide, allegations about the first applicant’s terrorist activities and the threat posed by him to national security.”
“While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment: Soering, paragraph 91; Cruz Varas, paragraph 69; Vilvarajah, paragraph 103. In Dehwari, paragraph 61 (see paragraph 13 above) the Commission doubted whether a real risk was enough to resist removal under article 2, suggesting that the loss of life must be shown to be a ‘near-certainty’. Where reliance is placed on article 6 it must be shown that a person has suffered or risks suffering a flagrant denial of a fair trial in the receiving state: Soering, paragraph 113 (see paragraph 10 above); Drodz, paragraph 110; Einhorn, paragraph 32; Razaghi v Sweden; Tomic v United Kingdom. Successful reliance on article 5 would have to meet no less exacting a test. The lack of success of applicants relying on articles 2, 5 and 6 before the Strasbourg court highlights the difficulty of meeting the stringent test which that court imposes. This difficulty will not be less where reliance is placed on articles such as 8 or 9, which provide for the striking of a balance between the right of the individual and the wider interests of the community even in a case where a serious interference is shown. This is not a balance which the Strasbourg court ought ordinarily to strike in the first instance, nor is it a balance which that court is well placed to assess in the absence of representations by the receiving state whose laws, institutions or practices are the subject of criticism. On the other hand, the removing state will always have what will usually be strong grounds for justifying its own conduct: the great importance of operating firm and orderly immigration control in an expulsion case; the great desirability of honouring extradition treaties made with other states. The correct approach in cases involving qualified rights such as those under articles 8 and 9 is in my opinion that indicated by the Immigration Appeal Tribunal (Mr C M G Ockelton, deputy president, Mr Allen and Mr Moulden) in Devaseelan v Secretary of State for the Home Department [2002] IAT 702, [2003] Imm AR 1, paragraph 111: ‘The reason why flagrant denial or gross violation is to be taken into account is that it is only in such a case - where the right will be completely denied or nullified in the destination country - that it can be said that removal will breach the treaty obligations of the signatory state however those obligations might be interpreted or whatever might be said by or on behalf of the destination state’.” ‘The reason why flagrant denial or gross violation is to be taken into account is that it is only in such a case - where the right will be completely denied or nullified in the destination country - that it can be said that removal will breach the treaty obligations of the signatory state however those obligations might be interpreted or whatever might be said by or on behalf of the destination state’.”
“That being so, the Court considers that the assurances obtained by the French government are such as to avert the danger of the applicant’s being sentenced to life imprisonment without any possibility of early release. His extradition therefore cannot expose him to a serious risk of treatment or punishment prohibited byArticle 3 of the Convention .”
“... it is inhuman to imprison a person for life without any hope of release. A crime prevention policy which accepts keeping a prisoner for life even if he is no longer a danger to society would be compatible neither with modern principles on the treatment of prisoners during the execution of their sentence nor with the idea of the reintegration of offenders into society. Nobody should be deprived of the chance of possible release...”
“90. ... [I]n the case of adults the Court has not ruled out the possibility that in special circumstances an irreducible life sentence might also raise an issue under the Convention where there is no hope of entitlement to a measure such as parole (see Nivette v France...) ... 92. The applicant regained his liberty after 41 years’ imprisonment, an exceptionally lengthy period resulting from a sentence imposed at a time when minimum terms did not exist. However, from 1979 onwards, after he had spent fifteen years in prison, he had the opportunity to apply for release on licence at regular intervals and had the benefit of procedural safeguards. In those circumstances, the Court considers that the applicant cannot maintain that he was deprived of all hope of obtaining an adjustment of his sentence, which was not irreducible de jure or de facto. It concludes that his continued detention as such, long though it was, did not constitute inhuman or degrading treatment. 93. While accepting that a life sentence such as the one imposed on and served by the applicant necessarily entails anxiety and uncertainty linked to prison life and, after release, to the measures of assistance and supervision and the possibility of returning to prison, the Court does not consider that in the circumstances of the present case the applicant’s sentence attained the level of severity required to fall within the scope ofArticle 3 of the Convention ...”
“84The appellants Latty and Wright raise two issues on judicial review of the Minister’s order to surrender them to the United States. They say that their surrender to the United States, where they could receive sentences if convicted of 10 years to life without parole, would ‘shock the conscience’ of Canadians and thus run afoul of fundamental justice. They also say that the Minister’s refusal to seek assurances for enhanced credit for time served in pre-trial custody would offend fundamental justice. 85This Court has adopted a balancing approach to determine whether potential sentences in a requesting state would “shock the conscience” of Canadians. While affirming this approach in United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7, the Court said, at para. 67, that ‘the phrase “shocks the conscience” and equivalent expressions are not to be taken out of context or equated to opinion polls. The words were intended to underline the very exceptional nature of circumstances that would constitutionally limit the Minister’s decision in extradition cases.’ 86As in Burns,at para. 72, several factors favour surrendering the appellants Latty and Wright to the United States: bringing the appellants to trial to determine the truth of the charges; the principle that justice is best served by a trial in the jurisdiction where the alleged crime occurred; the principle that Canadians must generally accept the laws and procedures of the countries they visit; and comity, reciprocity and respect for differences among states. The factors militating against surrender include: the harsher sentences that the appellants might receive if convicted in the United States; and the possibility that evidence used in the United States might include wiretap evidence that would not be admissible in Canada. 87In my view, the Minister correctly decided that ‘[s]urrender to an extradition partner whose criminal justice system does not have all the procedural safeguards of the Canadian criminal justice system would not, in itself, violate the principles of fundamental justice.’ The appellants offer no evidence or case law to back up their assertions that the possible sentences would shock the conscience of Canadians. Furthermore, the factors favouring surrender in this circumstance far outweigh those that do not.”
“140As noted, the Minister’s second argument is that it is necessary to refuse to ask for assurances in order to prevent an influx to Canada of persons who commit crimes sanctioned by the death penalty in other states. This in turn would make Canada an attractive haven for persons committing murders in retentionist states. The ‘safe haven’ argument might qualify as a pressing and substantial objective... 141 International criminal law enforcement including the need to ensure that Canada does not become a ‘safe haven’ for dangerous fugitives is a very legitimate objective, but there is no evidence whatsoever that extradition to face life in prison without release or parole provides a lesser deterrent to those seeking a ‘safe haven’ than the death penalty, or even that fugitives approach their choice of refuge with such an informed appreciation of tactics. If Canada suffers the prospect of being a haven from time to time for fugitives from the United States, it likely has more to do with geographic proximity than the Minister’s policy on treaty assurances... 142 The fact is, however, that whether fugitives are returned to a foreign country to face the death penalty or to face eventual death in prison from natural causes, they are equally prevented from using Canada as a safe haven. Elimination of a ‘safe haven’ depends on vigorous law enforcement rather than on infliction of the death penalty once the fugitive has been removed from the country.”
“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
“69The ‘shocks the conscience’ language signals the possibility that even though the rights of the fugitive are to be considered in the context of other applicable principles of fundamental justice, which are normally of sufficient importance to uphold the extradition, a particular treatment or punishment may sufficiently violate our sense of fundamental justice as to tilt the balance against extradition. Examples might include stoning to death individuals taken in adultery, or lopping off the hands of a thief. The punishment is so extreme that it becomes the controlling issue in the extradition and overwhelms the rest of the analysis.”
“92… The real issue... is whether the state is properly to be regarded as responsible for the harm inflicted (or threatened) upon the victim.”
‘Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading …’
“In cases of alleged degrading treatment the subjective intention of those responsible for the treatment (whether by action or inaction) will often be relevant. What was the motivation for the treatment? Was its object to humiliate or debase?”
“90. ... [I]n the case of adults the Court has not ruled out the possibility that in special circumstances an irreducible life sentence might also raise an issue under the Convention where there is no hope of entitlement to a measure such as parole (see Nivette v France...) (my emphasis). The implication is plainly that such an irreducible sentence will not always raise an Article 3 issue. Moreover in Stafford v United Kingdom 35 EHRR 1121, 1144, paragraph 79, the Court observed “that a whole life tariff may, in exceptional cases, be imposed where justified by the gravity of the particular offence”
“…in the case of adults the Court has not ruled out the possibility that in special circumstances [emphasis added] an irreducible life sentence might also raise an issue under the Convention where there is no hope of entitlement to a measure such as parole…”
“This appeal raises the question whether the period of imprisonment to be served by a mandatory life sentence prisoners as punishment should be determined by the executive or the judiciary. It does not concern the question how individual cases should be approached. On the hypothesis, however, that the appeal in Anderson succeeds, it is important to guard against misunderstanding in one respect. If the role of the executive in setting the tariff should cease it does not follow that life imprisonment for murder may never, even in the worst cases imaginable, literally mean detention for life. In the Divisional Court in R v Secretary of State for the HomeDepartment, Ex p Hindley[1998] QB 751 , 769, Lord Bingham of Cornhill CJ observed that he could “see no reason, inprinciple, why a crime or crimes, if sufficiently heinous, should not be regarded as deserving lifelong incarceration for purposes of pure punishment”
“The last submission is that the policy of imposing whole life tariffs is inconsistent with the notion of a tariff which requires expression in a term of years. This is an appeal to legal logic. But there is nothing logically inconsistent with the concept of a tariff by saying that there are cases where the crimes are so wicked that even if the prisoner is detained until he or she dies it will not exhaust the requirements of retribution and deterrence.”