the death penalty was considered desirable.12 He
further refers to Protocol 6 of the European
Convention for the Protection of Human Rights and
Fundamental Freedoms and to the Second Optional
Protocol to the International Covenant on Civil and
Political Rights: "[O]ver the last fifty years there has
been a progressive and increasingly rapid evolution
away from the death penalty. That evolution has led
almost all Western democracies to abandon it". He
argues that this development should be taken into
account when interpreting the Covenant.
movement. Exercise is virtually impossible. When
a condemned inmate approaches within three days
of an execution date, he is placed under 24-hour
guard in a range of three stripped cells. This can
occur numerous times during the review and
appeal process ... Opportunity for exercise is very
limited in a small and crowded yard. Tension is
consistently high and can escalate as execution
dates approach. Secondary tension and anguish is
experienced by some as appeal and execution dates
approach for others. There is little opportunity to
relieve tension. Programmes are extremely limited.
There are no educational programmes. The prison
does little more than warehouse the condemned for
years pending execution ... Death row inmates
have few visitors and few financial resources,
increasing their sense of isolation and
hopelessness. Suicides occur and are attributable to
the conditions, lack of programmes, extremely
inadequate psychiatric and physiological care and
the tension, apprehension, depression and despair
which permeate death row."
11.10 As to the method of execution in California,
cyanide gas asphyxiation, counsel argues that it
constitutes inhuman and degrading punishment
within the meaning of article 7 of the Covenant. He
notes that asphyxiation may take up to 12 minutes,
during which condemned persons remain conscious,
experience obvious pain and agony, drool and
convulse and often soil themselves (reference is
made to the execution of Robert F. Harris at San
Quentin Prison in April 1992). Counsel further
argues that, given the cruel character of this method
of execution, a decision of Canada not to extradite
without assurances would not constitute a breach of
its Treaty obligations with the United States or
undue interference with the latter's internal law and
practices. Furthermore, counsel notes that cyanide
gas execution is the sole method of execution in only
three States in the United States (Arizona, Maryland
and California), and that there is no evidence to
suggest that it is an approved means of carrying out
judicially mandated executions elsewhere in the
international community.
11.12 Finally,
the author
describes
the
circumstances of his present custodial regime at
Folsom Prison, California, conditions which he
submits would be similar if convicted. He submits
that whereas the other detainees, all convicted
criminals, have a proven track record of prison
violence and gang affiliation, he, as a pre-trial
detainee, is subjected to far more severe custodial
restraints than any of them. Thus, when moving
around in the prison, he is always put in full shackles
(hand, waist and legs), is forced to keep leg irons on
when showering, is not allowed any social
interaction with the other detainees; is given less
than five hours per week of yard exercise; and is
continuously facing hostility from the prison staff, in
spite of good behaviour. Mr. Ng adds that unusual
and very onerous conditions have been imposed on
visits from his lawyers and others working on his
case; direct face-to-face conversations with
investigators have been made impossible, and
conversations with them, conducted over the
telephone or through a glass window, may be
overheard by prison staff. These restrictions are said
to seriously undermine the preparation of his trial
defence. Moreover, his appearances in Calaveras
County Court are accompanied by exceptional
security measures. For example, during every court
recess, the author is taken from the courtroom to an
adjacent jury room and placed, still shackled, into a
three foot by four foot cage, specially built for the
case. The author contends that no pre-trial detainee
has ever been subjected to such drastic security
measures in California.
11.11 As to the death row phenomenon, the author
emphasizes that he intends to make full use of all
avenues of appeal and review in the United States,
and that his intention was clear to the Canadian
authorities during the extradition proceedings. As to
the delay in criminal proceedings in California,
counsel refers to estimates that it would require the
Supreme Court of California 16 years to clear the
present backlog in hearing capital appeals. The
author reiterates that the judgements of the Supreme
Court in Canada did not in any detail discuss
evidence pertaining to capital procedures in
California, conditions on death row at San Quentin
Prison or execution by cyanide gas, although he
presented evidence relating to these issues to the
Court. He refers to his factum to the Supreme Court,
in which it was stated:
"At present, there are approximately 280
inmates on death row at San Quentin. The cells in
which inmates are housed afford little room for
11.13 The author concludes that the conditions of
confinement have taken a heavy toll on him,
physically and mentally. He has lost much weight
and suffers from sleeplessness, anxiety and other
nervous disorders. This situation, he emphasizes, has
12
General Assembly resolutions 2857 (XXVI) of
20 December 1971, 32/61 of 8 December 1977 and 37/192
of 18 December 1982.
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