On the evening of July 12, 1994, or so it is alleged, two 18-year-old Canadians, Glen Sebastian Burns and Atif Ahmad Rafay, conspired to murder Mr. Rafay's parents and sister in their Bellevue, Wash., home. It was a horrific crime. According to the charges, Mr. Burns committed the act at Mr. Rafay's direction, using a baseball bat to bludgeon the victims to death. The accused then returned to Canada, where, it is further alleged, they subsequently confessed to the murder during an RCMP undercover operation.
In time, the state of Washington formally applied for their extradition and, in time, then justice minister Allan Rock signed the extradition order. He did so, however, without seeking assurances from the Americans that Mr. Burns and Mr. Rafay would not face the death penalty if convicted -- a request he was entitled to make under the Canada-U.S. extradition treaty. The accused then successfully appealed his order to the B.C. Court of Appeal and, in turn, the federal Justice Department appealed the B.C. ruling to the Supreme Court of Canada.
Yesterday, in a unanimous 9-0 decision, the Supreme Court dismissed the federal appeal and directed the Minister of Justice to surrender the accused only if the state of Washington agreed that it would not impose the death penalty if Mr. Burns and Mr. Rafay are found guilty. Such an agreement is expected.
Except in exceptional circumstances, the court has definitively said, Canada has a constitutional obligation in such first-degree murder cases to seek assurances that the death penalty will not be invoked if the accused are extradited and convicted. This obligation, it argues, flows from Section 7 of the Charter of Rights and Freedoms, which guarantees the right of liberty and security of the person. In the court's view, the capital punishment that might otherwise await Mr. Burns and Mr. Rafay in Washington (one of 38 U.S. states that retain the death penalty) "may sufficiently violate our sense of fundamental justice as to tilt the balance against extradition."
Yesterday's decision represents a major shift in judicial opinion. In the past, the Supreme Court has maintained that Canadian opposition to the death penalty, banned by Parliament in 1976, constitutes insufficient grounds not to comply with requests for extradition. And, only 10 years ago, the court allowed the extradition without death-penalty-waiver assurances of two foreign nationals charged (and in one case already convicted) with murder in the United States: Joseph Kindler and Charles Ng.
So what has changed? Quite a bit, says the Supreme Court. In most of the democratic Western world, there is a growing consensus -- both in the arena of public opinion and in legislatures -- that capital punishment is intrinsically unjust and morally repugnant. Second, and more tellingly perhaps, both in Canada and abroad, the introduction of DNA evidence has demonstrated all too clearly that some of those previously convicted of murder -- and, in some instances, executed -- were, in fact, innocent. The Canadian cases are well-known: David Milgaard, Donald Marshall, Thomas Sophonow and Guy Paul Morin. There are dozens more in the United States. These wrongful convictions, the Supreme Court says, "provide tragic testimony to the fallibility of the legal system . . . [and weigh]powerfully in the balance against extradition without assurances."
At the same time, the court has dismissed the argument, raised by federal lawyers, that its ruling may make Canada a haven for fugitives. "There is no evidence that extradition to face life in prison without release or parole provides a lesser deterrent to those seeking a safe haven than does the death penalty," the judges said yesterday.
The court has reached the right decision. The guilt of Mr. Burns and Mr. Rafay, still to be proved, is not the issue here. Nor, ultimately, is their citizenship. If state-mandated capital punishment is a moral wrong, then it is a wrong in every legal jurisdiction.