Human Rights Day: Revisiting United States v. Burns, 2001 SCC 7, 20 years later

Par Benjamin Wilner, avocat

December 10 is Human Rights Day, the date in 1948 on which the United Nations General Assembly adopted the Universal Declaration of Human Rights. The Canadian Charter of Rights and Freedoms recognizes the right to life, liberty and security of the person. In Canada, the death penalty has not been practiced since 1962. But what about when other countries who still have the death penalty seek Canada’s cooperation to extradite individuals facing serious crimes? The Supreme Court’s decision in United States v. Burns, 2001 SCC 7, gives the answer.

December 10 is Human Rights Day, the date in 1948 on which the United Nations General Assembly adopted the Universal Declaration of Human Rights.

On this day, we take an opportunity to revisit a leading decision in Canadian extradition law that is directly linked to the respect of human rights, both in this country and abroad.

Extradition is a delicate process in Canada, pitting individual rights against the country’s need to respect its international obligations. Since 1999 and the adoption of the new Extradition Act, Canada eased it evidentiary and procedural requirements on other countries who seek the extradition of a given person — including Canadian citizens. The new act made it simpler for other countries to request, and obtain, the extradition of those they seek to prosecute for crimes alleged to have been committed in their territory, by people who find themselves in Canada after the fact.

In the case of extradition for serious crimes where the death penalty could be a foreseeable consequence of being prosecuted and sentenced in a foreign country, the Minister enjoyed a broad discretion to surrender someone for extradition with or without assurances from the requesting state that the death penalty will not be imposed in case the person is convicted.

While ordinarily reticent to interfere with the exercise of the Minister of Justice’s discretion, in United States v. Burns, 2001 SCC 7, the Supreme Court of Canada upheld an absolute: that the death penalty is not an acceptable option if Canada is to extradite people to foreign state.

In Burns,the Supreme Court addressed the manner in which persons sought for extradition may be surrendered to foreign countries that seek the death penalty.

The unanimous Court’s decision was ultimately that extradition without assurances 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 Unites States sought the extradition of two Canadian citizens, Glen Sebastian Burns and Atif Ahmad Rafay, to Washington State for the murder of Rafay’s father, mother, and sister in Bellevue, Washington. The Bellevue police, at first, did not have enough evidence to charge the men, but once the men had returned to Canada, the RCMP initiated an elaborate undercover operation (what would later come to be referred to as a “Mr. Big Operation  — see the Supreme Court’s decision in R. v. Hart, 2014 SCC 52 on the matter). This operation elicited alleged confessions from the two men taking credit for having committed the murders.

The men were arrested in British Columbia and a committal order was issued for their extradition. Then Minister of Justice Allan Rock signed an unconditional order for surrender to extradite both men to the United States to stand trial without assurances in respect of the death penalty. Washington State provided for life imprisonment as a minimum punishment and allowed for the death penalty.

Burns and Rafay sought a judicial review of the Minister’s order before the British Columbia Court of Appeal. The majority justices set aside the Minister’s decision and ordered him to seek assurances against the use of the death penalty, as described in Article 6 of the Extradition Treaty between Canada and the United States, which permitted for extradition to be refused if assurances against the death penalty were not given. The dissenting justice would not have interfered with the Minister’s decision.

The Minister of Justice appealed that decision to the Supreme Court.

[30] The root questions here are whether the Constitution supports the Minister’s position that assurances need only be sought in exceptional cases, or whether the Constitution supports the respondents’ position that assurances must always be sought barring exceptional circumstances, and if so, whether such exceptional circumstances are present in this case.

[35] The question is not whether we agree with the Minister’s decision. The only issue under the Charter is whether, as a matter of constitutional law, the Minister had the power to decide as he did. The Charter does not give the Court a general mandate to set Canada’s foreign policy on extradition. Yet the Court is the guardian of the Constitution and death penalty cases are uniquely bound up with basic constitutional values. While the death penalty arises as a possibility only in a small fraction of the extradition cases dealt with by the Minister and departmental officials, it raises issues of fundamental importance to Canadian society.

[59] It is evident that the respondents are deprived of their liberty and security of the person by the extradition order. Their lives are potentially at risk. The issue is whether the threatened deprivation is in accordance with the principles of fundamental justice.

[60] This Court has recognized from the outset that the punishment or treatment reasonably anticipated in the requesting country is clearly relevant. Section 7 is concerned not only with the act of extraditing, but also the potential consequences of the act of extradition…

[67] While we affirm that the “balancing process” set out in Kindler and Ng is the correct approach, the phrase “shocks the conscience” and equivalent expressions are not to be taken out of context or equated to opinion polls. The words were intended to underline the very exceptional nature of circumstances that would constitutionally limit the Minister’s decision in extradition cases. The words were not intended to signal an abdication by judges of their constitutional responsibilities in matters involving fundamental principles of justice.

[68] Use of the “shocks the conscience” terminology was intended to convey the exceptional weight of a factor such as the youth, insanity, mental retardation or pregnancy of a fugitive which, because of its paramount importance, may control the outcome of the Kindler balancing test on the facts of a particular case.  The terminology should not be allowed to obscure the ultimate assessment that is required:  namely whether or not the extradition is in accordance with the principles of fundamental justice.  The rule is not that departures from fundamental justice are to be tolerated unless in a particular case it shocks the conscience.  An extradition that violates the principles of fundamental justice will always shock the conscience.  The important inquiry is to determine what constitutes the applicable principles of fundamental justice in the extradition context.

[69] The “shocks the conscience” language signals the possibility that even though the rights of the fugitive are to be considered in the context of other applicable principles of fundamental justice, which are normally of sufficient importance to uphold the extradition, a particular treatment or punishment may sufficiently violate our sense of fundamental justice as to tilt the balance against extradition.  Examples might include stoning to death individuals taken in adultery, or lopping off the hands of a thief.  The punishment is so extreme that it becomes the controlling issue in the extradition and overwhelms the rest of the analysis.  The respondents contend that now, unlike perhaps in 1991 when Kindler and Ng were decided, capital punishment is the issue.   

[76] The death penalty has been rejected as an acceptable element of criminal justice by the Canadian people, speaking through their elected federal representatives, after years of protracted debate. Canada has not executed anyone since 1962. Parliament abolished the last legal vestiges of the death penalty in 1998 (An Act to amend the National Defence Act and to make consequential amendments to other Acts, S.C. 1998, c. 35) some seven years after the decisions of this Court in Kindler and Ng. 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, and I am firmly committed to that position.”

[77] While government policy at any particular moment may or may not be consistent with principles of fundamental justice, the fact that successive governments and Parliaments over a period of almost 40 years have refused to inflict the death penalty reflects, we believe, a fundamental Canadian principle about the appropriate limits of the criminal justice system.

[84] The United Nations Commission on Human Rights Resolutions 1999/61 (adopted April 28, 1999) and 2000/65 (adopted April 27, 2000) call for the abolition of the death penalty, and in terms of extradition state that the Commission

[r]equests States that have received a request for extradition on a capital charge to reserve explicitly the right to refuse extradition in the absence of effective assurances from relevant authorities of the requesting State that capital punishment will not be carried out;

Canada supported these initiatives. When they are combined with other examples of Canada’s international advocacy of the abolition of the death penalty itself, as described below, it is difficult to avoid the conclusion that in the Canadian view of fundamental justice, capital punishment is unjust and it should be stopped.

[89] This evidence does not establish an international law norm against the death penalty, or against extradition to face the death penalty. It does show, however, significant movement towards acceptance internationally of a principle of fundamental justice that Canada has already adopted internally, namely the abolition of capital punishment.

[95] The avoidance of conviction and punishment of the innocent has long been in the forefront of “the basic tenets of our legal system”. It is reflected in the presumption of innocence under s. 11(d) of the Charter and in the elaborate rules governing the collection and presentation of evidence, fair trial procedures, and the availability of appeals. The possibility of miscarriages of justice in murder cases has long been recognized as a legitimate objection to the death penalty, but our state of knowledge of the scope of this potential problem has grown to unanticipated and unprecedented proportions in the years since Kindler and Ng were decided. This expanding awareness compels increased recognition of the fact that the extradition decision of a Canadian Minister could pave the way, however unintentionally, to sending an innocent individual to his or her death in a foreign jurisdiction.

[117] The recent and continuing disclosures of wrongful convictions for murder in Canada, the United States and the United Kingdom provide tragic testimony to the fallibility of the legal system, despite its elaborate safeguards for the protection of the innocent. When fugitives are sought to be tried for murder by a retentionist state, however similar in other respects to our own legal system, this history weighs powerfully in the balance against extradition without assurances.

[133] The final issue is whether the Minister has shown that the violation of the respondents’ s. 7 rights that would occur if they were extradited to face the death penalty can be upheld under s. 1 of the Charter as reasonable and demonstrably justifiable in a free and democratic society. The Court has previously noted that it would be rare for a violation of the fundamental principles of justice to be justifiable under s. 1. Nevertheless, we do not foreclose the possibility that there may be situations where the Minister’s objectives are so pressing, and where there is no other way to achieve those objectives other than through extradition without assurances, that a violation might be justified. In this case, we find no such justification.

[136] With respect to the argument on comity, there is no doubt that it is important for Canada to maintain good relations with other states. However, the Minister has not shown that the means chosen to further that objective in this case — the refusal to ask for assurances that the death penalty will not be exacted — is necessary to further that objective. There is no suggestion in the evidence that asking for assurances would undermine Canada’s international obligations or good relations with neighbouring states. The extradition treaty between Canada and the United States explicitly provides for a request for assurances and Canada would be in full compliance with its international obligations by making it. More and more states are becoming abolitionist and reserving to themselves the right to refuse to extradite unconditionally, as already mentioned.

[143] We conclude that the infringement of the respondents’ rights under s. 7 of the Charter cannot be justified under s. 1 in this case. The Minister is constitutionally bound to ask for and obtain an assurance that the death penalty will not be imposed as a condition of extradition.

[144] We conclude that the infringement of the respondents’ rights under s. 7 of the Charter cannot be justified under s. 1 in this case. The Minister is constitutionally bound to ask for and obtain an assurance that the death penalty will not be imposed as a condition of extradition.

The decision in its entirety may be read here.