Canada v Schmidt

The defendant was a Canadian citizen named Helen Susan Schmidt, who along with her son Charles Gress and his friend Paul Hildebrand had kidnapped a young girl in Cleveland, Ohio. Schmidt claimed to believe the girl was her granddaughter and that the girl's biological mother kept her in a home ill suited for a child. Helen Schmidt then lived with the girl for two years in New York City before her arrest in 1982. She was charged with kidnapping (a federal offence in the United States) and with child-stealing (an offence in Ohio). That same year she was acquitted of kidnapping, but she fled to Canada before her state trial commenced. She was captured in Ontario and was prepared to be extradited.

While being charged for child-stealing after having been acquitted of kidnapping would not violate the double jeopardy clause in the Fifth Amendment to the United States Constitution, as the states are not bound by this amendment, Schmidt fought the extradition as a violation of double jeopardy rights under section 11(h) of the Canadian Charter.

The majority decision was written by Justice Gerard La Forest. After the Supreme Court found it had jurisdiction to review the case, it considered whether extradition law aside from Charter law was violated. Under extradition law, a hearing in Canada would ascertain if there was sufficient evidence of a crime that could be criminal in Canada as well as in the other nation. It was argued that the extradition hearing should guard against double jeopardy, since this was an essential right in Canadian law. However, the hearing is not a trial, and the Supreme Court decided that arguments about double jeopardy are a defence that would be more suited for a trial. The case Re Burley (1865) was cited to demonstrate that Canada should trust the receiving country to carry out the trial.

Moving on to consider section 11(h) of the Charter, the Court considered the argument that the crimes of kidnapping and child-stealing were too similar. The Court noted that while the Canadian government's decisions in extradition are bound by the Charter under section 32, the actions of a foreign government are not. This was relevant to section 11(h), since its rights are held against trials and the Canadian government would not be conducting the trial. The Court went on to argue many other rights under section 11 would also be irrelevant to extradition. For example, section 11 guarantees the presumption of innocence, but in practice Canada already extradites persons to countries that do not presume innocence.

Section 6 of the Charter, which provides mobility rights for Canadian citizens, was not considered because the Court had already dealt with the issue in Re Federal Republic of Germany and Rauca and found extradition could be a justified limit on rights against exile.

Finally, the Court considered section 7 of the Charter, which guarantees the right to life, liberty and security of the person, except when a deprivation of these rights is in accordance with fundamental justice. The Court noted that the executive government's decisions to extradite, the extradition hearing and even the treaty could be subject to section 7. The extradition itself could violate section 7 by putting a person at risk of having his or her rights breached.

The Court found that punishments in another country might be so excessive that the Canadian government should not put persons at risk by extraditing them there. For example, torture would be unacceptable, and to make this point the Court cited Altun v. Germany (1983), a case considered by the European Commission on Human Rights. In general, a potential punishment that "shocks the conscience" will violate fundamental justice in extradition cases. However, the Court urged some deference to the executive government in these cases. Additionally, the fact that a foreign justice system would be very different from Canada's would not necessarily make it unjust. Compared to regular operations in another country, the variety of guarantees under fundamental justice in Canada could be seen as "finicky," and thus they need not be considered in extradition cases. The presumption of innocence was one right the Court identified that if breached would not shock the conscience, even though it is part of fundamental justice in Canada. This shocked conscience theory would also be less disruptive to efforts to ensure fugitives meet justice.

Ultimately, however, Schmidt lost her case. While double jeopardy is a part of fundamental justice in Canada, La Forest wrote, "I do not think our constitutional standards can be imposed on other countries." The majority found that the charge would be in accordance with "traditional procedures" in Ohio. Finally, it found that "It is interesting that, as we saw, the United States Supreme Court has repeatedly held that successive prosecutions at the federal and state level do not automatically offend against the due process clause, the spirit and content of which bears some resemblance to s. 7 of the Charter, although the courts would act to prevent oppressive behaviour."

The case has been cited in a number of subsequent extradition cases, including Kindler v. Canada (1991), in which it was found potential execution would not shock the conscience, and later United States v. Burns (2001), which overturned Kindler. In Suresh v. Canada (Minister of Citizenship and Immigration) (2002), the Court ruled a possibility of torture would shock the conscience. However, the use of the shocked conscience doctrine has not gone without criticism. Professor Peter Hogg, in noting how the definition of fundamental justice has been ambiguous and that the courts have taken on "enormous discretion," argues a shocked conscience is particularly difficult to measure. He writes that cruel and unusual punishment (prohibited by section 12 of the Charter) should obviously be shocking potential punishments. However, he observes that some potential punishments considered cruel and unusual in Canada have been considered acceptable in extradition. Thus, Hogg notes that some punishments considered "cruel and unusual, ...are not shocking or unacceptable!"[1]

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