The federal government was ordered yesterday to resume diplomatic efforts to spare the life of a Canadian - Ronald Smith - who has spent nearly 26 years living on death row in Montana State Prison.
Mr. Justice Robert Barnes of the Federal Court of Canada condemned Prime Minister Stephen Harper and other senior officials for arbitrarily stitching together a revamped stand on clemency that reversed long-standing policy, effectively abandoning Mr. Smith to the hangman.
In 2007, Public Safety Minister Stockwell Day told Parliament that Ottawa would no longer seek clemency for Mr. Smith or any other multiple murderer facing the death penalty in a democratic country.
Judge Barnes said that fundamental fairness dictates that Canada move quickly to exert its diplomatic influence to stave off Mr. Smith's impending execution and pave the way for his possible transfer to a prison in Canada.
Lawyers for Mr. Smith called the ruling a pivotal step in their client's long quest to avoid the very fate that he initially requested after his 1983 conviction in a double homicide - execution.
"I think this is a severe slap in the face to the Harper government and a severe slap in the face to their handling of this issue and their retreat from a Canadian practice that has been universal," said defence counsel Marlys Edwardh. "To the best of my knowledge, this is unprecedented.
"This recent attempt to say that we will cherry pick who will die - which is really the effect of what the Prime Minister and Mr. Day have done - is unconscionable," she said. "I think it is an unequivocal rejection of how they treated Mr. Smith and his counsel."
Liberal Leader Michael Ignatieff was equally scornful yesterday, saying that the government cannot "pick and choose" which Canadians it will support against the death penalty.
"If Canada's opposed to the death penalty, it's opposed to it everywhere," Mr. Ignatieff said. "Therefore, saying it's up to the discretion of the government to decide whether someone lives or dies makes them accessories to the enforcement of capital punishment in another state, and we believe that's wrong."
Mr. Smith was sentenced to death for fatally shooting two young men while on a drunken road trip in 1982. He and a friend - Rodney Munro - had been hitchhiking from Red Deer, Alta., to Mexico when they were picked up by Harvey Mad Man Jr. and Thomas Running Rabbit.
Mr. Smith was convicted of shooting both men in a secluded, wooded area. Mr. Munro made a plea bargain and was transferred to Canada.
Judge Barnes said that the government acted arbitrarily and unfairly by turning its back on Mr. Smith after many years of negotiations among his lawyers, Canadian diplomatic officials and Montana officials.
He said that the new clemency policy was a pastiche of public statements made by government representatives who had obviously not engaged in any sort of systematic review or consultation.
"Government policy cannot be created by a process as amorphous and unaccountable as the one followed here," Judge Barnes said.
"The public statements of some representatives of the government implied that Mr. Smith was personally undeserving of further support," he added. Judge Barnes said that, in light of the tenuous situation that Mr. Smith found himself in, "such political comments from representatives of the government were regrettable."
Ms. Edwardh said that the ruling explicitly told Foreign Affairs officials that they have no business evaluating whether Mr. Smith's trial and appeals were fair or unfair. "We often think of the diplomatic sphere as being untouchable when it comes to judicial review," she added. "This certainly shows that it is not."