JUSTICE

A momentous ruling

The court refuses to condemn the death penalty

D’ARCY JENISH October 7 1991
JUSTICE

A momentous ruling

The court refuses to condemn the death penalty

D’ARCY JENISH October 7 1991

A momentous ruling

JUSTICE

The court refuses to condemn the death penalty

Retired elementary-school principal Dwight Stapley and his wife, Lola, were preparing breakfast at their home in Garden Grove, Calif., near Los Angeles, on Sept. 26 when they received a phone call from a Canadian radio station reporter. Stapley, 65, said that what he heard delighted him. That morning in Ottawa, the Supreme Court of Canada had ruled by a narrow margin of 4 to 3 that the Canadian government could extradite both convicted killer Joseph Kindler and accused mass murderer Charles Ng to the United States without assurances that the men would not be executed. Kindler faces a death sentence in Pennsylvania, while Ng (pronounced “Ing”) could face execution in California if convicted of a series of rapes, kidnappings and murders—including the slaying of the Stapleys’ 26-year-old son, Scott, in 1985. The Supreme Court majority argued that extraditing the two men would not violate their constitutional rights to be protected from cruel and unusual punishment under the Charter of Rights and Freedoms.

Lawyers for the two men said that they accepted the Supreme Court ruling, but they condemned the government for surrendering Kindler and Ng back to U.S. law enforcement officials before the United Nations Committee on Human Rights had heard their appeals. The high court ruling ended six-year legal battles by Kindler and Ng to avoid extradition, and the

ruling satisfied supporters and opponents of capital punishment. Julius Grey, the Montreal lawyer who represented Kindler, noted that three of the justices reaffirmed their opposition to capital punishment, and he added: “I believe this decision makes it impossible to revive the death penalty in Canada.”

Of the two men, Ng is the better known because of the gruesome nature of the murders to which he has been linked. The 30-year-old Hong Kong native and former U.S. marine faces 25 charges, including 12 of murder and eight of kidnapping. Most of the crimes, including the death of Scott Stapley, occurred at an isolated cabin in Calaveras County, Calif., 230 km east of San Francisco, in 1984 and 1985. His alleged accomplice,

Leonard Lake, committed suicide in June, 1985, while in police custody. Ng eluded police before they could arrest him and crossed the border into Canada, but was subsequently arrested for shoplifting and wounding a security guard in Calgary in July, 1985. The Alberta Court of Queen’s Bench sentenced him to 4V2 years in prison for those crimes in December, 1985. Since then, Ng has been serving his sentence at the Sas-

katchewan Penitentiary in Prince Albert.

Earlier, a jury convicted Kindler of firstdegree murder in Philadelphia in 1983. Evidence disclosed that he used a baseball bat to bludgeon an accomplice who was going to testify against him in a burglary case. The jury recommended the death penalty, but Kindler escaped and fled to Canada before the court had passed sentence. Until last week, he was being held at Orsainville Penitentiary, near Quebec City.

To prevent their clients’ extradition, both men’s lawyers argued that a clause in the 1976 Canada-U.S. extradition treaty stipulates that Canada can refuse to return a fugitive if it asks for and does not receive assurances that the individual will not be executed. Both the Alberta Court of Queen’s Bench, which heard the Ng case, and the Quebec Superior Court, which heard the Kindler case, ruled that the federal justice minister should decide whether to seek assurances that death sentences would not be carried out. Former justice ministers John Crosbie and Douglas Lewis both refused on the grounds that Canada could become a haven for murderers trying to escape justice. After further appeals by Ng’s lawyer, Donald MacLeod of Calgary, current Justice Minister Kim Campbell referred the issue to the Supreme Court in June, 1990.

Last week’s ruling revealed that the court was deeply divided. Writing for the majority, Justice Gérard La Forest argued that even though the men might be executed in the United States, their deaths would not result from any initiative taken in Canada, but rather from crimes committed in the United States, from trials held there and from sentences imposed there. In the dissenting opinion, Justice Peter Cory wrote that to argue that the charter provision does not apply to Ng and Kindler amounts to “an indefensible abdication of moral responsibility.” Once the decision was released, the justice department handed over both Kindler and Ng to the Americans with remarkable speed. RCMP officers drove Kindler to Montreal’s Dorval Airport, and by Thursday evening, he was in a Pennsylvania prison.

Lawyers for both men denounced the government’s swift action, claiming that their clients had not exhausted their final appeal. They said that they had asked the Geneva-based United Nations committee to review the cases, although they admitted that the UN committee could not make a binding ruling in the case. But back in California, families of some of Ng’s alleged victims expressed relief that the accused man would finally be brought to trial. Said Stapley: “We’re very pleased. We have probably aged 50 years in the last six.” Still, with trials pending, the ordeals of the families are far from over.

D’ARCY JENISH

JOHN HOWSE