In a critical test of extradition procedures, an attorney for the state of California asked the Canadian Supreme Court Thursday to permit the return of accused mass murderer Charles C. Ng to this state, where he faces the death penalty.
At issue is whether a treaty between the United States and Canada permits Canadian authorities to extradite a fugitive without assurances a death sentence will not be sought. Canada abolished capital punishment in 1976; California reinstated it in 1977, although no one has yet been executed.
In a hearing in Ottawa, Brian Crane, a Canadian lawyer retained to represent California, urged the return of Ng, who fled California after being linked to the brutal slayings of at least 12 people in Calaveras County in 1985.
Crane defended the state against contentions that the death penalty represents cruel or unusual punishment. On the contrary, Crane said, the California justice system provides numerous procedural safeguards for capital defendants, such as automatic appeal to the state's highest court. Any defendant whose death sentence is upheld may appeal in the federal courts, he noted.
Donald MacLeod, a lawyer for Ng, said the fugitive should not be returned to the United States without a guarantee against the death penalty, which he said was "decrepit, arcane, outdated and generally ought not to be tolerated in a civilized society."
The Ng case has caused widespread concern among officials in the United States and Canada and sparked sharp public debate between supporters and opponents of capital punishment. Relatives of the murder victims were on hand outside the court Thursday, waving placards urging Ng's extradition.
Authorities have warned that if the Canadian high court bars Ng's return to California, it could be creating a legal shelter in Canada for murderers attempting to avoid execution in the United States.
The slow pace of the Ng case--along with the pending extradition of another California fugitive in a separate case--prompted former Gov. George Deukmejian to write a letter to Canadian Prime Minister Brian Mulroney in 1989. If Canada refuses to comply with extradition requests, Deukmejian wrote, "The specter of Canada becoming a haven for death-penalty fugitives may soon be realized."
Human rights advocates, rejecting the contention that Canada could become a haven for fugitives, counter that Ng's extradition would violate that country's constitutional ban on capital punishment.
"Canada has been without the death penalty since 1976 and there have been only two (extradition) cases to arise since, which doesn't suggest a large influx of fugitives," said Roger Clark, secretary-general of Amnesty International in Canada. "Further, there's no evidence in California or anywhere else in the world that the death penalty acts as a deterrent."
The Ng case unfolded in June 1985 when he and Leonard T. Lake were implicated in a series of grisly sex-torture murders at Lake's remote mountain home. Lake took poison while in custody and died, but Ng evaded capture.
Later, Ng was arrested in Calgary, Alberta, after a shoplifting incident in which a security guard was shot and wounded. Ng was sentenced to four years in prison for armed robbery and remains in custody. California authorities formally charged Ng with 12 counts of murder, as well as kidnaping, burglary and conspiracy, and sought his extradition from Canada.
Under a treaty that went into effect in 1976, Canada may refuse to turn over to the United States any fugitives that may be subject to capital punishment.
But Canadian authorities chose not to seek such assurances and, in a series of rulings, five Canadian courts have held that Ng may be extradited.
In their appeal to the Canadian Supreme Court, Ng's attorneys are arguing that his extradition, without assurances, would violate provisions of Canada's Charter of Rights and Freedoms that guarantee the "life, liberty and security" of an individual and prohibit "cruel or unusual punishment."
Among other things, lawyers for Ng contend that the death penalty as applied in California is unconstitutional because it is imposed by judges subject to electoral pressures. They note, for example, the 1986 defeat of former Chief Justice Rose Elizabeth Bird and two other justices criticized by Deukmejian and others as resistant to the death penalty.
California authorities, in legal papers prepared by state Deputy Atty. Gen. Ward A. Campbell, said the state's procedural safeguards exceed those required by the U.S. Supreme Court, and disputed the notion its judges were swayed by political pressure. The state high court, he pointed out, recently struck down a key provision of Proposition 115, an anti-crime initiative passed by voters last June.
Legal authorities note that it is common for a country to include provisions in international agreements that bar extradition for a punishment it does not recognize.
In one recent case, the European Court of Human Rights ruled that a West German being held in Great Britain could not be extradited to face murder charges in Virginia because he might face the death penalty. The court held that the return of Jens Soering would violate a provision of the European Human Rights Convention barring "inhuman or degrading treatment or punishment."
Charles D. Weisselberg, an assistant professor of law at USC, said that if extradition restrictions make it too difficult to return a fugitive, there is a risk that the country seeking the fugitive will act illegally to get him back.
But Weisselberg also puts little stock in the argument that strict extradition limits will lead to a wave of fugitives into countries without the death penalty.
"That's not a very realistic possibility," he said. "Very few of the people charged with capital offenses would be free or have the resources to go to another country." The Ng case has prompted some Canadian officials to call for an overhaul of that country's extradition law. In Calgary, fears have been expressed that if Ng is not extradited, he will be left free on the streets in Canada.
A victims rights group has vigorously protested the effort to bar Ng's extradition, as well as that of Joseph Kindler, a fugitive wanted for murder in Pennsylvania whose case also was heard Thursday by the Canadian high court.
Relatives of murder victims from California and other states assembled in Ottawa on the eve of argument to protest what they see as needless obstacles to the extradition of fugitives.
"I was told at the time (of the murders) that Ng would be back so fast his head would spin," Sharon Sellitto, whose brother died during the killing spree, said at a news conference. "This is the slowest spin on record."
The slow pace stands in sharp contrast to the mass murder case of Ramon Salcido, recently convicted and sentenced to death for the murders of his wife, two children and four others in Northern California in 1989.
Salcido fled to Mexico, which under an extradition treaty with the United States allows fugitives to be returned only if they would not face the death penalty. Mexican authorities, however, declined to invoke formal proceedings.
"He was turned over rather quickly, in informal fashion, after negotiations between the two governments," state Deputy Atty. Gen. J. Robert Jibson said this week. "These two cases are quite dissimilar."