United States v. Burns
Encyclopedia
| United States v. Burns | ||||||
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 Supreme Court of Canada |
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| Argued May 23, 2000 Decided February 15, 2001 |
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| Holding | ||||||
| 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. | ||||||
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United States v. Burns [2001] 1 S.C.R.
Supreme Court Reports
The Supreme Court Reports is the official reporter of the Supreme Court of Canada. Since the creation of the Supreme Court, all of its decisions have been published in the Reports, in both English and French. The first volume was published in 1877 containing the first case ever heard by the...
283, 2001 SCC 7, was a decision 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 which it was found that extradition
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...
of individuals to places where they may face the death penalty is a breach of fundamental justice
Fundamental justice
Fundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...
under section 7
Section Seven of the Canadian Charter of Rights and Freedoms
Section Seven 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, namely the right to life, liberty, and...
of the Canadian Charter of Rights and Freedoms
Canadian 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...
. The decision reached this conclusion through a discussion of evidence regarding the arbitrary nature of execution, although the Court did not go so far as to say execution was also unconstitutional under section 12
Section Twelve of the Canadian Charter of Rights and Freedoms
Section Twelve of the Canadian Charter of Rights and Freedoms, as part of the Charter and 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...
of the Charter, which forbids cruel and unusual punishment
Cruel and unusual punishment
Cruel and unusual punishment is a phrase describing criminal punishment which is considered unacceptable due to the suffering or humiliation it inflicts on the condemned person...
s.
The case essentially overruled Kindler v. Canada (Minister of Justice)
Kindler v. Canada (Minister of Justice)
Kindler v. Canada was a landmark decision of the Supreme Court of Canada where it was held that the government policy that allowed for extradition of convicted criminals to a country where they may face the death penalty was valid under the Canadian Charter of Rights and Freedoms...
(1991) and Reference re Ng Extradition
Reference re Ng Extradition
Reference Re Ng Extradition was a 1991 case in which the Supreme Court of Canada held that it was permissible to extradite a fugitive to a country in which he might face the death penalty...
(1991). In Burns, the Supreme Court justices claimed to be considering different kinds of evidence.
Background
The case revolved around two Canadian citizens, Glen Sebastian Burns and Atif Ahmad Rafay, who were accused of murdering Rafay's family by the police departmentBellevue Police Department (Washington)
The Bellevue Police Department is located in Bellevue, Washington. As of 2006, there were 176 commissioned officers and 95 civilian employs. The department's annual operating budget is about $38 million . It services over 120,000 people. The main Bellevue Police Station is located in Bellevue...
in Bellevue, Washington
Bellevue, Washington
Bellevue is a city in the Eastside region of King County, Washington, United States, across Lake Washington from Seattle. Long known as a suburb or satellite city of Seattle, it is now categorized as an edge city or a boomburb. The population was 122,363 at the 2010 census.Downtown Bellevue is...
, of the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
. After returning to Canada, Burns and Rafay confessed to undercover
Undercover
Being undercover is disguising one's own identity or using an assumed identity for the purposes of gaining the trust of an individual or organization to learn secret information or to gain the trust of targeted individuals in order to gain information or evidence...
Royal Canadian Mounted Police
Royal Canadian Mounted Police
The Royal Canadian Mounted Police , literally ‘Royal Gendarmerie of Canada’; colloquially known as The Mounties, and internally as ‘The Force’) is the national police force of Canada, and one of the most recognized of its kind in the world. It is unique in the world as a national, federal,...
. After the investigation was complete, Burns and Rafay claimed their confessions were fabricated, but plans were nevertheless made to extradite them.
The extradition would be possible through an extradition treaty under which the Minister of Justice for Canada
Minister of Justice (Canada)
The Minister of Justice is the Minister of the Crown in the Canadian Cabinet who is responsible for the Department of Justice and is also Attorney General of Canada .This cabinet position is usually reserved for someone with formal legal training...
may seek assurances that the fugitive accused would not be subject to the death penalty. However, the Minister of Justice
Allan Rock
Allan Michael Rock, PC is a lawyer, former Canadian politician, diplomat and now the President of University of Ottawa. He was Canada's ambassador to the United Nations and had previously served in the Cabinet of Jean Chrétien, most notably as Justice Minister and Health Minister .Rock was...
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 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...
mobility 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
Exile
Exile means to be away from one's home , while either being explicitly refused permission to return and/or being threatened with imprisonment or death upon return...
were used to reinforce this argument.
A documentary concerning this case was made in 2007 Mr. Big (film)
Mr. Big (film)
Mr. Big is a 2007 documentary directed and produced by Tiffany Burns and edited by Alec MacNeill Richardson. The documentary examines the "Mr. Big" undercover methods used by the Royal Canadian Mounted Police...
Decision
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 be 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 1Section One of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...
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, it made sense that in this case Burns and Rafay's rights to return could also be constitutionally denied. (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
Section Thirty-two of the Canadian Charter of Rights and Freedoms
Section Thirty-two of the Canadian Charter of Rights and Freedoms concerns the application and scope of the Charter. Only claims based on the type of law contemplated by this section can be brought before the Court....
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). Section 7 guarantees rights to life
Right to life
Right to life is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being...
, liberty
Liberty
Liberty is a moral and political principle, or Right, that identifies the condition in which human beings are able to govern themselves, to behave according to their own free will, and take responsibility for their actions...
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
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...
, if the harm faced by the extradited persons is serious enough, it "shocks the conscience
Shocks the conscience
Shocks the conscience is a phrase used as a legal standard in the United States and Canada. An action is understood to "shock the conscience" if it is perceived as manifestly and grossly unjust, typically by a judge.-United States:...
" 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 Kindlers "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 Re B.C. Motor Vehicle Act
Re B.C. Motor Vehicle Act
Reference re Section 94 of the Motor Vehicle Act, [1985] 2 S.C.R. 486 was a landmark reference submitted to the Supreme Court of Canada regarding the constitutionality of the British Columbia Motor Vehicle Act...
to note that international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
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
Section Eleven of the Canadian Charter of Rights and Freedoms
Section Eleven of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution's Charter of Rights that protects a person's legal rights in criminal and penal matters. This includes both criminal as well as regulatory offences, as it provides rights for those accused by...
of the Charter, which includes a right to, for example, presumption of innocence
Presumption of innocence
The presumption of innocence, sometimes referred to by the Latin expression Ei incumbit probatio qui dicit, non qui negat, is the principle that one is considered innocent until proven guilty. Application of this principle is a legal right of the accused in a criminal trial, recognised in many...
. To illustrate this point, cases of wrongful convictions were cited from Canada (the case of Donald Marshall, Jr.
Donald Marshall, Jr.
Donald Marshall, Jr. was a Mi'kmaq man who was wrongly convicted of murder. The case inspired a number of disturbing questions about the fairness of the Canadian justice system, especially given that Marshall was an Aboriginal; as the Canadian Broadcasting Corporation put it, "The name Donald...
was specifically mentioned), the US and the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
. While "These 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
Death row phenomenon
The death row phenomenon, also known as the death row syndrome, is a term used to refer to 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...
" as a section 7 concern, noting the psychological stress that would be involved if one is sentenced to die.
The Court also 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 StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
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
Coercion
Coercion is the practice of forcing another party to behave in an involuntary manner by use of threats or intimidation or some other form of pressure or force. In law, coercion is codified as the duress crime. Such actions are used as leverage, to force the victim to act in the desired way...
by the police. Defence lawyers noted that no forensic evidence linked the two men to the crime.
In May 2004, both men were found guilty of three counts of murder and were subsequently sentenced to three consecutive life sentences, without the possibility of parole
Parole
Parole may have different meanings depending on the field and judiciary system. All of the meanings originated from the French parole . Following its use in late-resurrected Anglo-French chivalric practice, the term became associated with the release of prisoners based on prisoners giving their...
.
Burns' family immediately began to fight to have the case overturned on appeal, alleging numerous problems with the investigation and improper rulings by the judge. In 2007, Sebastian Burns' sister Tiffany produced a documentary about coercion
Coercion
Coercion is the practice of forcing another party to behave in an involuntary manner by use of threats or intimidation or some other form of pressure or force. In law, coercion is codified as the duress crime. Such actions are used as leverage, to force the victim to act in the desired way...
by police. The family is continuing its efforts, and a website has been posted that claims to debunk the entire case.
An overlooked factor in all reporting of this case was the change in defence theory. Counsel defended the men against extradition, claiming that the confession captured on videotape was, in fact, the men "play acting" to please an RCMP undercover operative whom they were led to believe was "Mr. Big" the head of a Canadian "Mafia" organization. During a sophisticated sting operation the two nineteen year olds were convinced that, if the "Mafia" leader could trust them, they would be included in the criminal organization and that the fictitious "Don" might even finance a movie they were writing. Once the US dropped all demands for a death penalty and the men were extradited, public defenders took over the defence. At this point the defence theory changed. Rafay and Burns now claimed that they were "frightened" into confessing. Michael Levine, a court-qualified expert in undercover tactics, was retained to review the file and the videotapes. It was his opinion that the confession captured on video was a typical and common phenomenon occurring in "Mr. Big" types of sting operation, called "Criminal Bragadoccio." It was Levine's emphatic belief that the nature of the confessions, as viewed through the lens of his many thousands of hours of planning, managing and taking part in sting operations of the same genre, was more than likely false. Levine, who also opined that the investigation was substandard in that standard avenues of investigation that might have yielded exculpatory information were avoided, advised the defence team, however, that the "fear" defence, in his opinion, would result in a quick conviction and that the judge would then have no alternative but to deny expert testimony, as no expert is needed to tell a jury whether or not they were observing fear or not. Unfortunately, Levine was prophetic. The change in defence also had another by-product: a legal conundrum that, unless a legal miracle occurs, will leave Burns and Rafay in prison for the rest of their lives, with no hope of appeal. Since they lost the trial on the defence claim of coerced (by fear) confessions, they can no longer appeal on the basis of what their original claim was (play acting) at the time they were fighting extradition.
See also
- List of Supreme Court of Canada cases (McLachlin Court)
- Re BurleyRe BurleyRe 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.-Decision:The decision was made by...
- United States of America v. CotroniUnited States of America v. CotroniUnited 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...
- Mr. Big (film)Mr. Big (film)Mr. Big is a 2007 documentary directed and produced by Tiffany Burns and edited by Alec MacNeill Richardson. The documentary examines the "Mr. Big" undercover methods used by the Royal Canadian Mounted Police...