TORONTO - A decision by the Conservative government to stop seeking clemency for the only Canadian on death row in the U.S. was arbitrary, unfair and made it more likely the convicted killer will be executed, Federal Court heard Monday.
The change in midstream had an "extremely adverse effect" on ongoing efforts with the governor of Montana to have Ronald Smith's sentence commuted, lawyer Lorne Waldman told Federal Court Judge Robert Barnes.
"This is a matter of life and death for Mr. Smith," Waldman said.
"Everyone knows his best hope is for clemency."
Smith, of Red Deer, Alta., was sentenced to die in 1983 after he pleaded guilty to killing two men in cold blood during a drug and alcohol-fuelled trip across Montana with two buddies.
While the case turns on complicated administrative and constitutional legal arguments, it also raises questions about Prime Minister Stephen Harper's social policies as he fights for re-election.
Outside court, Waldman said Canadians should take a close look at the Harper government's conduct in this case.
"Up and until now, we protected all Canadians . . . Once they got into trouble, they had a right to be protected," Waldman said.
"This principle is being abandoned by this government trying to pander to some law-and-order agenda. It should be an election issue."
In court, Waldman called the case one of "broken promises."
He produced documents showing Montana Gov. Brian Schweitzer open to commuting the sentence if Smith were repatriated to Canada.
Then without notice or explanation, Ottawa decided last fall that it was abandoning its decade-long fight to save Smith from a lethal injection, court heard.
Only after Public Safety Minister Stockwell Day, in response to media questions, said it would send "the wrong message" to repatriate the double killer did it become apparent something had changed.
The government took no note of the fact that Smith has turned his life around in prison, Waldman said.
Nor can it attempt to "disguise" the sudden about-face as a legitimate policy decision immune from court scrutiny, the lawyer said.
"There was no policy decision. It was a decision about Mr. Smith."
"I just don't know who made it," Barnes said at one point.
Court heard the government has never offered any formal rationale for its decision, which blindsided Smith's lawyers and Foreign Affairs officials, who had been interceding with the governor of Montana on his behalf.
Even if Barnes concluded the government had adopted a new policy which is immune from judicial review, Ottawa nevertheless was obliged to ensure it applied the policy to Smith fairly, court heard.
Waldman noted that Smith had come to rely on Canadian assurances made over many years that the government would seek clemency.
In an affidavit, former Liberal foreign affairs minister Bill Graham said the Harper government's stance "signals approval" to Montana's governor of Smith's death sentence.
Smith still has one more appeal pending in the U.S. before a date for his execution could be set, although his lawyers fear that could happen in the spring.
Smith's legal team wants Barnes to order the government to resume fighting to have the sentence commuted.
Government lawyers were slated to make their case for dismissing the suit on Tuesday.
