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EXTRADITING ACCUSED
MURDERERS TO THE U.S.

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Sponsored link.


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Quotations:

bullet"...in Canada, the death penalty has been rejected as an acceptable element of criminal justice. Capital punishment engages the underlying values of the prohibition against cruel and unusual punishment. It is final and irreversible. Its imposition has been described as arbitrary and its deterrent value has been doubted." Supreme Court of Canada, "United States v. Burns," 2001-FEB-15
bullet"The death penalty puts an end to the enjoyment of the right to life, which is the most fundamental human prerogative, as universally recognized in such legal instruments as the Universal Declaration of Human Rights. It is a cruel, inhuman and degrading sentence and has been demonstrated to serve absolutely no deterrent function, which is why Mexico has joined in international efforts towards its abolition and is in favour of all measures to that end." Statement by the Government of Mexico, 1997-NOV-13. 1

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Summary:

With the exception of the United States, almost all industrialized countries have abandoned the death penalty. For example, countries wishing to join the European Union must have first removed capital punishment from its law codes. It is generally regarded as cruel and unusual punishment, completely lacking in any power to deter murderers. There is the additional concern of an executed person later being found innocent.

Of the countries with common borders with the United States:

bulletCanada abandoned the death penalty for most crimes in 1976 and for all crimes in 1998.
bulletMexico is abolitionist for most crimes. Five states forbid capital punishment in their constitutions. Their last execution was in 1937. It is theoretically possible for the government to execute persons convicted of "high treason committed during a foreign war, parricide, murder with malice aforethought, arson, kidnapping, piracy and grave military offences." However, such action is extremely unlikely.  1
bulletRussia retains capital punishment statutes on their books, but have not executed criminals in many years. They executed their last prisoner on death row in 1996.

When faced with a request to extradite an accused murderer from Mexico to a U.S. state that exercises the death penalty, the Mexican government requires assurances from the state that they will not seek the capital punishment. So do the countries of the European Union. The U.S. routinely gives guarantees that the death penalty will not be imposed. They are often given reluctantly.

Canada's record has been mixed:

bullet1975: A Native American, Leonard Peltier was charged after a shootout with the FBI that resulted in the deaths of two agents. He was extradited from Canada and is now serving two live sentences in Kansas. There are strong suspicions that he was convicted on the basis of tainted evidence.
bullet1985: An American, Charles Ng, was arrested in Canada for a "spree of sexual torture and murder." 2 He fought against his extradition to the U.S. until the Canadian Supreme Court ruled in 1991 that he could be extradited to California, even though he would face the death penalty. He is currently on death row in a California prison.
bullet1991: An American, Joseph Kindler, was convicted of murdering a teenager who had been scheduled to testify against Kindler in a U.S. burglary case. The Canadian government decided to extradite him to the U.S. without requesting assurances that he would not be executed. The Canadian Supreme Court ruled that the federal government had this power.
bullet1991: A Philippino, Rudy Pacificador, was charged by the Philippine government in the assassination of a provincial governor there, in 1986. The Canadian government obtained assurances that he would not be executed if extradited to the Philippines. His case is still pending in Canada.
bullet1992: A Native Canadian, Lee Robert O'Bomsawin was charged with two counts of first-degree murder in a shooting in Florida. Ottawa extradited him only after obtaining assurances from the state of Florida that he wouldn't be executed. He was sentenced to life imprisonment.
bullet1999: The Supreme Court of Canada ruled unanimously that a Canadian teenager and his friend could not be extradited to the state of Washington for a triple murder case unless the state assured Canada that the accused would not be executed. More details below.

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The Rafay and Burns case:

The State of Washington charged two Canadians, Atuif Rafay, and one of his friends, Glen Sebastian Burns, with aggravated first degree murder in the brutal killing of Rafay's parents and sister in 1994. They were both 19 years of age at the time of the killings. They were arrested in neighbouring British Columbia in 1995, and held in separate pre-trial jail facilities in Vancouver and Surrey, BC. They allegedly confessed in 1995 to undercover Royal Canadian Mounted Police (RCMP) officers that they conspired to kill the three family members in order to collect insurance policies worth about CAN $400,000 (about $233,000 in U.S. funds). The accused maintain that they are innocent and that the confession was coerced. 

On 2001-FEB-15, "In an unanimous [9 - 0] ruling that emphasized the fallibility of the criminal justice system worldwide and the increasing number of wrongful convictions, the country's top court said Canada must always seek assurances the death penalty will not be imposed on suspects -- Canadians or any other nationality -- it extradites for trial abroad." 3

The Supreme Court ruled "In the absence of exceptional circumstances, assurances in death penalty cases are always constitutionally required." The Justices did not define "exceptional circumstances," although they did say that such instances "would be rare." Their decision was based on Section 7 of the Canadian Charter of Rights and Freedoms, which deals with "fundamental justice". It "applies because the extradition order would, if implemented, deprive the respondents of their rights of liberty and security of the person since their lives are potentially at risk." 

The court cited "...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." They named, as examples, five Canadians wrongfully convicted of murder and released in recent years: Donald Marshall, David Milgaard, Guy Paul Morin, Thomas Sophonow and Gregory Parsons. The court stated that there have been "factual developments" since 1991, when it had ruled in favor of the unconditional extraditions of two American fugitives: Charles Ng and Joseph Kindler. These developments included an increase awareness of the frailties of the justice system and more wrongful convictions uncovered. They declared that their ruling applied to citizens of all countries being extradited from Canada; the citizenship of Rafay and Burns was a marginal issue. Their youth was also considered "of limited weight." The Supreme Court specified that it was not ruling on whether the death penalty is "cruel and unusual punishment."

There were five Interveners in the case -- all opposed to the death penalty: Amnesty International, the International Centre for Criminal Law & Human Rights, the Criminal Lawyers Association, the Washington Association of Criminal Defence Lawyers and the Senate of the Republic of Italy.

Within hours of the court decision, Canada's Justice Minister Anne McLellan prepared a request to the state of Washington. It will be sent via diplomatic note from Canada's embassy in Washington DC.

Canada's most prominent criminal lawyer, Edward (Eddie) Greenspan, stated "In my estimation, this [court ruling] puts Canada at the forefront of the entire world as a very strong anti-death penalty country." He was one of Glen Sebastian Burns' lawyers.

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Related essay on this site:

bulletFacts about the death penalty: Countries which have abandoned the death penalty.

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References

  1. "Status of the international covenants on human rights: Question of the death penalty," UN Economic and Social Council, 1998-JAN-16, at: http://www.unhchr.ch/Huridocda/Huridoca.nsf/ This lists the current status of the death penalty, worldwide.
  2. "Prominent Canada - U.S. extradition cases," The Toronto Star, 2001-FEB-16, Page A6.
  3. Tonda MacCharles, "Top court spares murder suspects from execution," The Toronto Star, 2001-FEB-16, Page A6.
  4. "United States v. Burns," Supreme Court of Canada. Full text is at: http://www.lexum.umontreal.ca/csc-scc/en/rec/

Copyright 2001 by Ontario Consultants on Religious Tolerance
Originally written: 2001-FEB-16
Latest update: 2001-FEB-16
Author: B.A. Robinson

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