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Clemency Intervention – Statement of Procedures

• Overview
• Other Remedies
• Applying for Clemency Intervention
• Factors that May be Considered
• Receipt of the Application

Canadians facing a death sentence in a foreign country may ask the Government of Canada to seek clemency on their behalf.

This document explains how to apply for clemency intervention. It also sets out how the government will assess the request and communicate its decision.

Overview

 "Clemency intervention" is a request by the Government of Canada to the authorities in another country asking that the death penalty not be applied or—if the sentence has already been passed— not be carried out against a Canadian citizen.

Any Canadian citizen facing the possibility of a death sentence in a foreign judicial process can ask the Government of Canada for clemency intervention.

It is important to understand that, although Canada may request that a death penalty not be applied or carried out, the foreign country alone decides whether to grant clemency.

It is also important to note that in most legal systems, clemency affects the death penalty only, not the verdict. If a person has been found guilty of a crime, clemency, if granted, will not change that verdict. Any other lawful penalty may still be imposed. In many instances where clemency is granted, the death sentence is commuted to a term of imprisonment.

The procedures described in this document apply only to intervention by the Government of Canada to seek clemency in a death penalty case. They do not affect the government's provision of other consular services.

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Other Remedies

The Government of Canada strongly urges applicants and their advisers to vigorously pursue all avenues for both clemency and exoneration available under the law and practice of the foreign country. Government of Canada clemency intervention is only one of those avenues. Others may include legal appeals, petitions to specific officials and remission in recognition of good behaviour.

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Applying for Clemency Intervention

The person facing the possibility of a death penalty may apply to the Government of Canada for clemency intervention at any time during the legal process after arrest. That person may also designate a representative to apply on his or her behalf. The Government of Canada will carefully consider every application by a Canadian citizen for clemency intervention on its own merits.

The request for clemency intervention should be made in writing by the person facing the death penalty, or by his or her representative. The request should clearly state:

• the full name and date of birth of the applicant (the person facing the death penalty);
• that the applicant is a Canadian citizen;
• the name of the country and city or town where the offence is said to have occurred;
• the jurisdiction where the penalty will be imposed or carried out (if different from above);
• the current status or phase of legal proceedings against the applicant (for example, pre-trial, trial or sentencing);
• whether the applicant is detained or incarcerated and, if so, where;
• current contact details for the applicant and, if applicable, his or her representative;
• the nature of the offence alleged or proved and the name and section number of any relevant statute or law;
• that punishment for the offence includes the possibility of a death sentence;
• whether urgent action is necessary (for example, the execution date has already been set or there is a possibility the execution will be carried out without warning), and, if urgent action is necessary, the date by which it is needed; and
• any information that will help the Government of Canada decide whether to intervene (see below "Factors that may be considered").

If the application is submitted by a representative, it must include a written statement signed by the applicant, that:

• authorizes the representative to act on behalf of the applicant; and
• allows the Government of Canada to release the applicant's personal information to the representative.

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Factors that May be Considered

Applicants should include with their application a description and assessment of factors they believe the Government of Canada should consider. The factors relevant to each case will vary depending on individual circumstances, but may include:

1. Local conditions

A)  General

• Is the country considered a democratic state that respects the rule of law?
• Is the country in compliance with international human rights standards?
• Does the country's criminal legal system meet applicable international standards, such as fair and public hearings?

B)  Specific

i)   Due process

• Was the applicant informed at the time of arrest of the reasons for the arrest?
• Was the applicant promptly informed, in a language he or she understood, of any charges against him or her?
• Was the applicant informed of the right to have the Canadian embassy or consular post told of the arrest and allowed to communicate with consular officials, as provided for by Article 36 of the Vienna Convention on Consular Relations?
• Was the applicant brought promptly before a judge or other officer authorized by law to exercise judicial power?
• Did or does the applicant have the right to legal counsel?
• If so, was the applicant promptly informed of the right to counsel?
• Was the applicant permitted to exercise the right to legal counsel?
• Did or does the applicant have the right to have legal counsel assigned to him or her, in any case where the interests of justice require it?
• Did or does the applicant have the right to free legal counsel if he or she lacks the means to pay for it?
• Under the foreign legal system, was the applicant presumed innocent until proven guilty?
• Was a trial held, or is it scheduled to be held, within a reasonable time frame?
• If not, was the applicant entitled to release under the foreign legal system?
• Was a trial held, or will one be held, before an independent tribunal or regularly constituted court established by law?
• Was the trial conducted in public, or will it be conducted in public, unless exclusion of the public or press is strictly necessary?
• Have adequate time and facilities been provided, or will they be provided, to allow the applicant to prepare his or her defence, and to communicate with counsel he or she has chosen?
• Did or does the applicant have the right to be tried in person and to defend against the charges in person or with legal counsel he or she has chosen?
• Did or does the applicant have the right to examine witnesses and to call witnesses on his or her own behalf?
• Did or does the applicant have the right to the services of a competent interpreter so that the applicant was or is fully informed of the charges against him or her and of the content of the relevant evidence?
• Did or does the applicant have the right not to be compelled to testify or confess guilt?
• Does the foreign criminal legal system prohibit conviction based on statements made as a result of torture?
• Would the death penalty be imposed only if the charge were proven beyond a reasonable doubt?

ii)  Limitations on the death penalty

• Was the applicant older than 18 at the time of the alleged offence?
• Is the applicant a pregnant woman who will be pregnant at the proposed time of execution?
• Is the applicant a new mother?
• Is the applicant mentally or psychologically disabled?
• Would the death penalty only be imposed as a result of a final judgment of a competent court?
• What are the forms of punishment alternative to the death penalty?
• Would the death penalty be carried out in a way that inflicts the minimum possible suffering?
• Would the death penalty be carried out even if an appeal were pending? Would it be carried out while any other recourse procedure or other proceedings relating to pardon or commutation of the sentence were still pending?

iii)  Torture and other cruel, inhuman or degrading treatment

• Was the applicant subjected to torture or other cruel, inhuman or degrading treatment during detention?
• What prison conditions has the applicant been held in?
• Is the proposed manner of execution a form of torture or other cruel, inhuman or degrading treatment?

2. Nature of the crime

• Is the offence one of the most serious crimes that, under Canadian law, would warrant the most severe punishment available? That is, is it an intentional crime with lethal or other extremely grave consequences for the victim or victims?
• What are the circumstances under which the crime is alleged to have been committed? For example, what was the nature of the crime, the number of victims and the manner in which it was committed? Were there any extenuating circumstances?
• Was it a crime for which the death penalty was prescribed by law at the time of its commission?
• After the crime was alleged to have been committed, did the law change to allow for a lesser penalty?

3. Availability of local remedies

• Does the country's legal system provide any effective legal remedies that could reverse or suspend the applicant's death penalty?
• Did or does the applicant have the right to appeal the conviction or sentence to a court of higher jurisdiction?
• Does the applicant have the right to seek pardon or commutation of the sentence within the jurisdiction?

4. Other relevant considerations

• Are there other relevant factors of which the Government of Canada should be made aware?

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Receipt of the Application

Applicants or their representatives should address their application to Canada's Minister of Foreign Affairs. They may deliver it to any Canadian embassy or consulate abroad or, in
Canada, to:

Minister of Foreign Affairs
Foreign Affairs and International Trade Canada
125 Sussex Drive
Ottawa, Ontario KIA 0G2

Attention: Clemency Application

The Minister of Foreign Affairs will forward the application to the Governor in Council, with a recommendation for decision. The Governor in Council will decide whether to make a clemency intervention. The Minister of Foreign Affairs will notify the applicant of that decision in writing.

If clemency intervention is authorized, the Government of Canada will decide what form the intervention will take. The government will take into consideration the views of the applicant, local law and practice in such matters and any applicable international conventions.

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Publication Information

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