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Extradition without guarantees that the extradited person will not face the death penalty may be a breach of section 7 of the Canadian Charter of Rights and Freedoms and cannot be upheld under section 1.
The police department in Bellevue, Washington, of the United States accused two Canadian citizens, Glen Sebastian Burns and Atif Ahmad Rafay, of murdering Rafay's family.[3] After returning to Canada, Burns and Rafay confessed to undercoverRoyal Canadian Mounted Police. The RCMP used the Mr. Big tactic to extract the confessions, a practice that is illegal in the United States, but legal in Canada. After the investigation was complete, Burns and Rafay claimed their confessions were false, highly manipulated, and that jurors were biased by the media coverage of the crime. Nonetheless, plans were made to extradite Burns and Rafay.[4]
The extradition would be possible through an extradition treaty under which the Minister of Justice for Canada may seek assurances that the fugitive accused would not be subject to the death penalty. However, the Minister of Justice did not seek assurances in the case. Burns and Rafay launched a number of Charter challenges to the Canadian government's decision, including that section 6mobility rights provided them rights against extradition and to be charged in Canada (since the murders occurred in the US, Canada could only charge them with planning the crime, so this option was ruled out).
It was further argued that, while the Kindler case had held that it was not a breach of fundamental justice to extradite persons regardless of the risk of execution, the Burns case was special because it involved Canadian citizens; section 6 rights against exile were used to reinforce this argument.
The decision of the Court was unanimous and anonymously written, and held that extradition in this case, involving the risk of execution, would indeed be unconstitutional under the Charter. Indeed, the government of Canada should always try to avoid execution, except in "exceptional circumstances" (likely to mean crimes against humanity). However, the Court rejected any arguments made under section 6, by citing precedent that while extradition, in and of itself, violates section 6, this was permissible under the reasonable limits clause in section 1 of the Charter. The Court also found it useful to cite the case Re Federal Republic of Germany and Rauca. Since the rights claimant in that case was extradited even though he was so old he would probably die in prison, and thus his rights to return to Canada would be constitutionally denied, in this case, constitutional denial of Burns and Rafay's rights to return to Canada as well made sense — as, whether executed or given a life sentence, Burns and Rafay, if convicted, were not expected to return.
The Court also declined to consider the case on the basis of the section 12 ban on cruel and unusual punishments. This was because section 32 makes section 12 binding only on punishments dispensed by the Canadian government, not the US government. While Burns might then be of little relevance to a section 12 debate if the Canadian government restored the death penalty in Canada, the Court did hint that execution "engages the underlying values of the prohibition against cruel and unusual punishment," noting its impossibility to correct (in cases of wrongful conviction) and its perceived arbitrary nature.
While section 12 was of little direct consequence in Burns, there was precedent that the government of Canada has some responsibility to consider possible outcomes of extradition under section 7 of the Charter (and section 12, like other legal rights, helps to define the broad principles of section 7).[5]
Section 7 guarantees rights to life, liberty and security of the person, to be deprived only with respect to fundamental justice. The applicability of section 7 was thus evident through the infringement of Burns and Rafay's right to life, liberty and security of the person, since "Their lives are potentially at risk."
Extradition might then breach fundamental justice because, according to precedent in Canada v Schmidt, if the harm faced by the extradited persons is serious enough, it "shocks the conscience" of the Canadian population. Still, the Kindler case had indicated that extradition regardless of the risk of execution was not a breach of section 7. The Court in Burns thus had to overrule this.
While acknowledging Kindler's "balancing process", the Court wrote that various factors considered in this process will change with the times, and in this case the Court was confronted with more of the "practical and philosophic difficulties associated with the death penalty".
In considering the relationship between fundamental justice and execution, the Court wrote that "philosophic" views of fundamental justice that viewed execution as "inconsistent with the sanctity of human life" were not subject to judicial review, and that the Court could instead consider more legal issues such as "the protection of the innocent, the avoidance of miscarriages of justice, and the rectification of miscarriages of justice where they are found to exist." Hence wrongful convictions were especially to be feared in cases involving execution.
There were arguments that allowing a risk of execution could be compatible with fundamental justice, since the accused had committed a crime in another state and thus no longer had the benefits of Canadian law, and since states should work together to fight crime. However, there were also arguments that this extradition was contrary to fundamental justice. These included that execution no longer existed in Canada itself, and the legal importance of this state of affairs was reinforced by 40 years of continuity.
The Court also cited Reference Re BC Motor Vehicle Act to note that international law was important in defining fundamental justice, and while there was no international law against execution per se, international politics are moving in that direction, and more and more states have abolished the death penalty.
The Court paid a fair amount of attention to the risk of wrongful conviction, and how the Court had a duty to protect the innocent. This duty is based in part on section 11 of the Charter, which includes a right to, for example, presumption of innocence. To illustrate this point, cases of wrongful convictions were cited from Canada (the case of Donald Marshall, Jr. was specifically mentioned), the US and the United Kingdom.
While "[t]hese miscarriages of justice of course represent a tiny and wholly exceptional fraction of the workload of Canadian courts in murder cases," the Court wrote, "where capital punishment is sought, the state's execution of even one innocent person is one too many." The Court also acknowledged the "death row phenomenon" as a section 7 concern, noting the psychological stress that would be involved if one is sentenced to die.
The Court cited statements from parliament on capital punishment. The judgement noted that parliament abolished the last death penalty under Canadian law in 1998 with amendments to the National Defence Act. The court cited statements by the Cabinet to characterize this and other acts of Parliament. "In his letter to the respondents, the Minister of Justice emphasized that 'in Canada, Parliament has decided that capital punishment is not an appropriate penalty for crimes committed here...'."
In balancing the arguments that this extradition could be compatible or contrary to fundamental justice, the Court concluded that many of the goals of the Crown could have been met even if Canada had requested that the US would not seek the death penalty. There was thus an infringement of section 7, and the Court then had to consider whether it could be justified under section 1. The Court ruled the infringement was not justified.
While the government had a sufficient objective for infringing the right, namely working with the US cooperatively to fight crime and to keep good relations with the US, it was not necessary to risk execution for these objectives to be met. Asking that the death penalty should not be sought should not hurt relations with the US because the extradition treaty allows for this. There was also a concern about keeping dangerous criminals out of Canada, but the Court replied that criminals might not find extradition with the risk of a life sentence more attractive than the risk of execution, and thus it was not proven criminals would flee to Canada.
Resulting extradition and trial
In March 2001, less than a month after the ruling, Burns and Rafay were extradited to the United States with assurances from prosecutors handling the case that they would not seek the death penalty. During the trial in 2004 (it was delayed by a number of factors), prosecutors claimed that Burns and Rafay plotted to kill Rafay's family and share the money from an insurance policy and the sale of the family home. Burns claimed that his confession to undercover RCMP officers that he and Rafay killed Rafay's family was the result of coercion by the police. Defense lawyers noted that no forensic evidence linked the two men to the crime.[6][7][8][9]
In May 2004, both men were found guilty of three counts of murder and each was subsequently sentenced to three consecutive life sentences without the possibility of parole.[10][11][12]
Burns's family immediately began to fight to have the case overturned on appeal, alleging numerous problems with the investigation and improper rulings by the judge.[11] In 2007, Sebastian Burns's sister produced a documentary about coercion by police. The family is continuing its efforts, and a website has been posted that claims to debunk the entire case.[13]
In July 2014, the Supreme Court of Canada ruled to limit the admissibility of evidence obtained in the sort of RCMP Mr. Big undercover operations that were used to obtain confessions from Burns and Rafay.[14]
This ruling states that the admissibility of such evidence may be limited in cases of very young or vulnerable suspects. Burns and Rafay were among the youngest suspects ever targeted in an RCMP undercover operation. In late 2014, both men filed paperwork to seek an appeal in light of the 2014 Supreme Court of Canada decision.[15] The murder was the subject of two episodes of the 2017 Netflix documentary-series The Confession Tapes[16] and True Crime Garage podcasts.[17][18]
In an extradition, one jurisdiction delivers a person accused or convicted of committing a crime in another jurisdiction, into the custody of the other's law enforcement. It is a cooperative law enforcement procedure between the two jurisdictions, and depends on the arrangements made between them. In addition to legal aspects of the process, extradition also involves the physical transfer of custody of the person being extradited to the legal authority of the requesting jurisdiction.
Cruel and unusual punishment is a phrase in common law describing punishment that is considered unacceptable due to the suffering, pain, or humiliation it inflicts on the person subjected to the sanction. The precise definition varies by jurisdiction, but typically includes punishments that are arbitrary, unnecessary, or overly severe compared to the crime.
In the United States, capital punishment is a legal penalty throughout the country at the federal level, in 27 states, and in American Samoa. It is also a legal penalty for some military offenses. Capital punishment has been abolished in 23 states and in the federal capital, Washington, D.C. It is usually applied for only the most serious crimes, such as aggravated murder. Although it is a legal penalty in 27 states, 20 of them have authority to execute death sentences, with the other 7, as well as the federal government and military, subject to moratoriums.
Capital punishment in Canada dates to Canada's earliest history, including its period as first a French then a British colony. From 1867 to the elimination of the death penalty for murder on July 26, 1976, 1,481 people had been sentenced to death, and 710 had been executed. Of those executed, 697 were men and 13 women. The only method used in Canada for capital punishment of civilians after the end of the French regime was hanging. The last execution in Canada was the double hanging of Arthur Lucas and Ronald Turpin on December 11, 1962, at Toronto's Don Jail. The National Defence Act prescribed the death penalty for certain military offences until 1999, although no military executions had been carried out since 1946.
Capital punishment in India is a legal penalty for some crimes under the country's main substantive penal legislation, the Indian Penal Code, as well as other laws. Executions are carried out by hanging as the primary method of execution per Section 354(5) of the Criminal Code of Procedure, 1973 is "Hanging by the neck until dead", and is imposed only in the 'rarest of cases'.
Section 7 of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section: the right to life, liberty and security of the person. Denials of these rights are constitutional only if the denials do not breach what is referred to as fundamental justice.
Reference Re Ng Extradition was a 1991 case in which the Supreme Court of Canada held that it was permissible to extradite Charles Ng, a fugitive, to the United States, where he was wanted on charges of several murders and might face the death penalty. The issue came before the court in the form of a reference from the federal government, which asked the court for an advisory opinion as to whether the extradition of a fugitive threatened with execution would violate the Canadian Charter of Rights and Freedoms.
Kindler v Canada (Minister of Justice) was a landmark decision of the Supreme Court of Canada that held that the government policy that allowed for extradition of convicted criminals to a country in which they may face the death penalty was valid under the Canadian Charter of Rights and Freedoms. The Court repeated that finding in Reference re Ng Extradition in 1991. However, Kindler was essentially overruled in 2001 with United States v. Burns.
Section 12 of the Canadian Charter of Rights and Freedoms, as part of the Constitution of Canada, is a legal rights section that protects an individual's freedom from cruel and unusual punishments in Canada. The section has generated some case law, including the essential case R. v. Smith (1987), in which it was partially defined, and R. v. Latimer (2001), a famous case in which Saskatchewan farmer Robert Latimer protested that his long, mandatory minimum sentence for the murder of his disabled daughter was cruel and unusual.
The death row phenomenon is the emotional distress felt by prisoners on death row. Concerns about the ethics of inflicting this distress upon prisoners have led to some legal concerns about the constitutionality of the death penalty in the United States and other countries. In relation to the use of solitary confinement with death row inmates, death row phenomenon and death row syndrome are two concepts that are gaining recognition. The death row syndrome is a distinct concept, which is the enduring psychological effects of the death row phenomenon, which merely refers to the triggers of the syndrome. There are also those sentenced to death in countries with a moratorium on executions, for whom no term has been theorized, but for which there are also a number of psychological ramifications.
Wrongful execution is a miscarriage of justice occurring when an innocent person is put to death by capital punishment. Cases of wrongful execution are cited as an argument by opponents of capital punishment, while proponents say that the argument of innocence concerns the credibility of the justice system as a whole and does not solely undermine the use of the death penalty.
Capital punishment is a legal penalty in Japan. The Penal Code of Japan and several laws list 14 capital crimes. In practice, though, it is applied only for aggravated murder. Executions are carried out by long drop hanging, and take place at one of the seven execution chambers located in major cities across the country. The only crime punishable by a mandatory death sentence is instigation of foreign aggression.
Canada v Schmidt, [1987] 1 S.C.R. 500, is a decision by the Supreme Court of Canada on the applicability of fundamental justice under the Canadian Charter of Rights and Freedoms on extradition. While fundamental justice in Canada included a variety of legal protections, the Court found that in considering the punishments one might face when extradited to another country, only those that "shock the conscience" would breach fundamental justice.
Capital punishment is a legal penalty in Taiwan. The long list of capital offences, for which the death penalty can be imposed, includes murder, treason, drug trafficking, piracy, terrorism, and especially serious cases of robbery, rape, and kidnapping, as well as for military offences, such as desertion during war time. In practice, however, all executions in Taiwan since the early 2000s have been for murder.
Capital punishment is a legal penalty in Pakistan. Although there have been numerous amendments to the Constitution, there is yet to be a provision prohibiting the death penalty as a punitive remedy.
Capital punishment in Armenia was a method of punishment that was implemented within Armenia's Criminal Code and Constitution until its eventual relinquishment in the 2003 modifications made to the Constitution. Capital punishment's origin in Armenia is unknown, yet it remained present in the Armenia Criminal Code of 1961, which was enforced and applied until 1999. Capital punishment was incorporated into Armenian legislation and effectuated for capital crimes, which were crimes that were classified to be punishable by death, including treason, espionage, first-degree murder, acts of terrorism and grave military crimes.
Soering v United Kingdom 161 Eur. Ct. H.R. (1989) is a landmark judgment of the European Court of Human Rights (ECtHR) which established that extradition of a German national to the United States to face charges of capital murder and their potential exposure to the death row phenomenon violated Article 3 of the European Convention on Human Rights (ECHR) guaranteeing the right against inhuman and degrading treatment. In addition to the precedent established by the judgment, the judgment specifically resulted in the United States and the State of Virginia committing to not seeking the death penalty against the German national involved in the case, and he was eventually extradited to the United States.
Earl Washington Jr. is a former Virginia death-row inmate, who was fully exonerated of murder charges against him in 2000. He had been wrongfully convicted and sentenced to death in 1984 for the 1982 rape and murder of Rebecca Lyn Williams in Culpeper, Virginia. Washington has an IQ estimated at 69, which classifies him as intellectually disabled. He was coerced into confessing to the crime when arrested on an unrelated charge a year later. He narrowly escaped being executed in 1985 and 1994.
Mr. Big is a covert investigation procedure used by undercover police to elicit confessions from suspects in cold cases. Police officers create a fictitious grey area or criminal organization and then seduce the suspect into joining it. They build a relationship with the suspect, gain their confidence, and then enlist their help in a succession of criminal acts for which they are paid. Once the suspect has become enmeshed in the criminal gang, they are persuaded to divulge information about their criminal history, usually as a prerequisite for being accepted as a member of the organization.
Capital punishment in Malawi is a legal punishment for certain crimes. The country abolished the death penalty following a Malawian Supreme Court ruling in 2021, but it was soon reinstated. However, the country is currently under a death penalty moratorium, which has been in place since the latest execution in 1992.
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