Re Burley
Encyclopedia
Re Burley 1 U.C.L.J. 34, was a decision on extradition
by the Court of Common Pleas of Upper Canada
. Though made two years before Confederation
, the case has been cited by the Supreme Court of Canada
in mobility rights
and extradition cases over a century later.
of the Supreme Court after it was established in 1875. Richards was faced with a case in which a British subject
was going to be extradited to the United States
, and the subject claimed that by virtue of his nationality he had a right to stay in Canada. Richards upheld the extradition as a matter of treaty law, and noted Canadian statutes seemed to recognize such extradition as legal. He wrote,
, which recognized freedom of movement in section 6
, the case has been cited by the Supreme Court. In Canada v. Schmidt
(1987), the case was cited to state that Canada should trust the nations it extradites people to carry out trials. In United States of America v. Cotroni
(1989), the Court upheld an extradition as a justified limit on section 6. The Court wrote that the limit was partially reinforced by the fact that extradition had been allowed for "well over one hundred years," and thus "extradition has been part of the fabric of our law." Re Burley was cited to make the point that since criminals can easily escape from the US to Canada, it had been "imperative that little leniency be accorded citizens in this regard."
Later, in the Supreme Court case United States v. Burns
(2001), the Court was faced with the claim that Canadian citizens faced with extradition to the US had a right to stay and be tried in Canada. The Court cited Re Burley to state that "Traditionally, nationality has afforded no defence to extradition from Canada."
Extradition
Extradition is the official process whereby one nation or state surrenders a suspected or convicted criminal to another nation or state. Between nation states, extradition is regulated by treaties...
by the Court of Common Pleas of Upper Canada
Upper Canada
The Province of Upper Canada was a political division in British Canada established in 1791 by the British Empire to govern the central third of the lands in British North America and to accommodate Loyalist refugees from the United States of America after the American Revolution...
. Though made two years before Confederation
Canadian Confederation
Canadian Confederation was the process by which the federal Dominion of Canada was formed on July 1, 1867. On that day, three British colonies were formed into four Canadian provinces...
, the case has been cited by the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
in mobility rights
Freedom of movement
Freedom of movement, mobility rights or the right to travel is a human right concept that the constitutions of numerous states respect...
and extradition cases over a century later.
Decision
The decision was made by Sir William Buell Richards, who would later go on to become the first Chief JusticeChief Justice of Canada
The Chief Justice of Canada, like the eight puisne Justices of the Supreme Court of Canada, is appointed by the Governor-in-Council . All nine are chosen from either sitting judges or barristers who have at least ten years' standing at the bar of a province or territory...
of the Supreme Court after it was established in 1875. Richards was faced with a case in which a British subject
British subject
In British nationality law, the term British subject has at different times had different meanings. The current definition of the term British subject is contained in the British Nationality Act 1981.- Prior to 1949 :...
was going to be extradited to the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, and the subject claimed that by virtue of his nationality he had a right to stay in Canada. Richards upheld the extradition as a matter of treaty law, and noted Canadian statutes seemed to recognize such extradition as legal. He wrote,
Aftermath
Even after Confederation, the creation of Canadian citizenship, and the adoption of the Canadian Charter of Rights and FreedomsCanadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
, which recognized freedom of movement in section 6
Section Six of the Canadian Charter of Rights and Freedoms
Section Six of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution's Charter of Rights that protects the mobility rights of Canadian citizens, and to a lesser extent that of permanent residents. By mobility rights, the section refers to the individual practice...
, the case has been cited by the Supreme Court. In Canada v. Schmidt
Canada v. Schmidt
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...
(1987), the case was cited to state that Canada should trust the nations it extradites people to carry out trials. In United States of America v. Cotroni
United States of America v. Cotroni
United States of America v. Cotroni; United States of America v. El Zein [1989] 1 S.C.R. 1469 was a decision by the Supreme Court of Canada on extradition and freedom of movement under section 6 of the Canadian Charter of Rights and Freedoms...
(1989), the Court upheld an extradition as a justified limit on section 6. The Court wrote that the limit was partially reinforced by the fact that extradition had been allowed for "well over one hundred years," and thus "extradition has been part of the fabric of our law." Re Burley was cited to make the point that since criminals can easily escape from the US to Canada, it had been "imperative that little leniency be accorded citizens in this regard."
Later, in the Supreme Court case United States v. Burns
United States v. Burns
United States v. Burns [2001] 1 S.C.R. 283, 2001 SCC 7, was a decision by the Supreme Court of Canada in which it was found that extradition of individuals to places where they may face the death penalty is a breach of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms...
(2001), the Court was faced with the claim that Canadian citizens faced with extradition to the US had a right to stay and be tried in Canada. The Court cited Re Burley to state that "Traditionally, nationality has afforded no defence to extradition from Canada."