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'Death penalty is no longer on'
Opposition says Canada may become haven for killers:
Supreme Court drops strong hints that capital punishment
would violate Charter
Luiza Chwialkowska and Francine Dubé, with files from Jonathon Gatehouse
OTTAWA - The Supreme Court of Canada
issued a strong condemnation of capital
punishment yesterday in a ruling that some
legal experts say makes the return of the
death penalty almost impossible.
The Supreme Court ruled unanimously that
Canada cannot extradite people without first
seeking assurances they will not face the
death penalty in the country to which they are
The court was ruling on the case of Glen
Sebastian Burns and Atif Ahmad Rafay, two
British Columbia men accused of bludgeoning
to death Mr. Rafay's parents and sister in
Washington state. The judgment means Mr.
Burns and Mr. Rafay, who fled to Vancouver
after the 1994 murders, can remain in
Canada until U.S. authorities guarantee they
would not face execution if convicted.
Experts said the ruling could also provide a
new avenue for appeals to immigrants and
refugee claimants who would face execution if
"I think for all practical purposes, the death
penalty is no longer on for Canadians," said
Clayton Ruby, a prominent criminal lawyer
who defended Mr. Rafay.
The court's ruling went beyond the question of
extradition and hinted strongly that if the
death penalty were ever reinstated in
Canada, it would constitute cruel and unusual
punishment and violate the Charter of Rights
The court wrote that capital punishment "is
final. It is irreversible. Its imposition has been
described as arbitrary. Its deterrent value has
been doubted. Its implementation necessarily
causes psychological and physical suffering. It
has been rejected by the Canadian Parliament
for offences committed within Canada."
The court's reasoning "would prevent any
right-wing government from reintroducing the
death penalty in Canada," said Mr. Ruby. "It's
now a violation of section seven of the
"This decision has grave implications for
whether Canada can ever bring back the
death penalty," agreed Errol Mendes, a
professor of constitutional law at the
University of Ottawa.
Some critics attacked the decision as one that would make Canada a haven
for U.S. fugitives.
Priscilla de Villiers, president of Canadians Against Violence, said she
opposed to the death penalty in Canada. But she said people who commit
crimes elsewhere should face the penalties of the land where the crime is
"This is a haven for murderers who would face the death penalty ... I have
think of the victims," said Ms. de Villiers, whose teenage daughter was
murdered in 1991. "If you commit a heinous crime in any part of the world,
who are we to dictate the sentence?"
"The Supreme Court has effectively put out the welcome mat for other
murderers," said Vic Toews, the Canadian Alliance justice critic.
Peter MacKay, the Progressive Conservative justice critic, accused the
of "effectively rewriting" Canada's extradition laws, "without one word of
debate from elected officials."
Anne McLellan, the Minister of Justice, said those comments were an
"appalling misrepresentation" of the judgment, and said the accused killers
will be extradited as soon as Canada receives the necessary assurances
from officials in the state of Washington.
"We are not a safe haven," she said. "This country will not be a safe haven.
The Supreme Court has upheld the right of the Minister to extradite," noting
the decision leaves the Minister discretion for "exceptional cases."
The ruling could also affect how Canada treats immigrant and refugee
claimants who face the death penalty if deported.
Citizen and Immigration officials have deported individuals even though
faced execution in their homeland. There are two cases before immigration
tribunals that could be affected by the decision.
The decision also extends the protection from capital punishment to
Canadian citizens and non-citizens on Canadian soil, rejecting government
objections such a move would turn Canada into a "safe haven" for criminals
seeking to elude the death penalty, which is illegal here but still on the books
in 38 U.S. states.
The 72-page decision catalogues a list of convicted murderers who were
later exonerated, including Donald Marshall and David Milgaard.
Tears after ruling on death penalty extradition
OTTAWA - Two Canadian men cannot be
extradited to the U.S. to face triple murder
charges unless Ottawa gets a guarantee that
they won't face the death penalty, the Supreme
Court of Canada has ruled.
In a strongly worded statement against executions the court noted,
" in the Canadian view of fundamental justice, capital punishment
is unjust and should be stopped." Ottawa abolished the death penalty in 1976.
Clayton Ruby, representing suspect Atif Rafay,
said his client was overcome with emotion when
he heard the ruling.
"He sobbed when we told him the news, he was
extremely relieved," Ruby said. "He hoped that
something had been accomplished in this case
that would assist not only him but others."
If the U.S. government doesn't agree to waive the
death penalty the two men will be released,
according to Ruby. There are reports that the
U.S. is prepared to offer assurances.
Rafay and a friend, Sebastian Burns, are
accused of killing of Rafay's father, mother and
The family was found bludgeoned to death with a
baseball bat in their Bellevue, Washington home
five years ago.
Police say the victims
were killed so that the
accused could collect
about $400,000 in
FROM MAY 23, 2000: Canadian men fight
extradition, death penalty
Rafay and Burns were arrested a year later in
West Vancouver, where they went to high school
together. They allegedly confessed to the RCMP
in statements that are now being challenged.
Canada's extradition treaty with the U.S. allows
Ottawa to ask for assurances that Canadians
being sent to the States won't face the death
Minister Allan Rock
didn't ask for that
protection when he
extradition in 1996.
He said the men
would get a fair trial
and saw no reason for special protection.
The B.C. Supreme Court overruled him in 1997,
concluding that the extradition order violated the
In Thursday's ruling the high court said Ottawa
can extradite citizens unconditionally only under
exceptional circumstances. It said the
government had failed to prove that this case
met that test.
JUSTICE REPORTER - Globe and Mail
Friday, February 16, 2001
Condemning the death penalty as an
irrevocable horror, the Supreme Court of
Canada demanded yesterday that two
Vancouver men accused of a triple murder be
extradited to the United States only if it
guarantees they would not face execution.
The court said a recent roll call of wrongful
murder convictions in Canada and the United
States "provides tragic testimony to the
fallibility of the legal system -- despite its
elaborate safeguards for the protection of the
The court effectively blocked any notion of
reinstating capital punishment in Canada,
saying flatly that it has been discredited both as
a deterrent and a punishment.
"It is final," a 9-0 majority said. "It is
irreversible. Its imposition has been described
as arbitrary. It's deterrent value has been
doubted. Its implementation necessarily causes
psychological and physical suffering.
"The instances in Canada are few, but if
capital punishment had been carried out, the
result could have been the killing by the
government of innocent individuals."
"The names of Marshall, Milgaard, Morin,
Sophonow and Parsons signal prudence and
caution in a murder case," the court said.
After the ruling, Justice Minister Anne
McLellan said she will contact the U.S. State
Department and expects no hitches in
obtaining the assurances demanded by the
If so, accused killers Glen Sebastian Burns and
Atif Rafay will likely arrive in Washington
state within days to be tried for the gruesome
1994 slayings of Mr. Rafay's parents and his
Death-penalty opponents exulted at the ruling
"They have said that the barriers to
reintroducing the death penalty are so
constitutionally profound that it really cannot
happen now," said Marlys Edwardh, one of
Mr. Rafay's lawyers.
Alliance justice critic Vic Toews told reporters
in Ottawa that he is temporarily more
concerned with the possibility of Canada being
turned into a "safe haven" for fugitive
murderers than he is with the issue of capital
"The rule of law changes with the members of
the court," he said. "The court has opened up a
door to allowing terrorists and murderers from
other jurisdictions to come to Canada."
Mr. Toews also expressed fears that if
convicted, Mr. Burns and Mr. Rafay will
quickly transfer back to Canada to serve their
prison terms and take advantage of Canadian
But Ms. McLellan said that it is a myth that
the Canadian system is softer on those serving
life terms. She said the average Canadian lifer
spends more time in prison than his U.S.
Yesterday's ruling detailed some of the most
flagrant wrongful convictions in Canada and
abroad. It concluded that there is no
convincing justification for Canada's
deferential posture to the United States --
especially at a time when the world is moving
toward the abolition of capital punishment.
The government can continue to consider each
case individually, the judges said, but only in a
truly "exceptional" case can an individual be
extradited without the requisite assurances.
The court made no attempt to define what
would constitute such a case.
Yesterday's ruling was based on the Charter
of Rights guarantee of the right to life, liberty
and security of the person.
"The rule is not that departures from
fundamental justice are to be tolerated unless,
in a particular case, it shocks the conscience,"
the court said.
"An extradition that violates the principles of
fundamental justice will always shock the
In the past, the government has consistently
refused to invoke a bilateral treaty right to seek
death-penalty assurances from the United
It has instead cited the integrity of the U.S.
justice system and raised the spectre of
Canada becoming a safe haven.
The court gave both points short shrift
yesterday. It said Mexico and most of Europe
routinely seek assurances from the United
States before honouring extradition requests.
"If they don't [give the assurance], we would
open the door and let Mr. Rafay and Mr.
Burns go," Ms. Edwardh said in an interview.
"But in reality, I can't imagine it happening.
What U.S. district attorney would say: 'If I
can't kill them, let's let them go free?' "
The court intimated the same, adding that
requests for assurances do not shock or
scandalize those countries seeking fugitives.
"Seeking assurances that the death penalty will
not be imposed does not amount to asking for
lawlessness," it said.
In 1991, two U.S. fugitives -- Joseph Kindler
and Charles Ng -- failed in a similar bid to
avoid extradition. In a remarkable twist
yesterday, the court suggested it would have
ruled the opposite way today.
"The arguments against executions without
assurances have grown stronger since this
court decided Kindler and Ng in 1991," it said.
"A balance which tilted in favour of extradition
without assurances in Kindler and Ng now tilts
against the constitutionality of such an
Mr. Burns and Mr. Rafay met at a Vancouver
high school. A year after the killings, they
confided to RCMP undercover officers that
Mr. Burns -- clad only in underwear to make it
easier to clean off bloodstains -- had beaten
the victims with a baseball bat while Mr.
Rafay looked on.
Their alleged motive was to cash in on the
family home and an insurance policy. Aged 18
at the time, both men were ordered extradited
The B.C. Court of Appeal agreed, but insisted
on assurances that they would not be
Excerpts from the ruling
There was no convincing argument that
exposure of the respondents to death in prison
by execution advances Canada's public interest
in a way that the alternative -- death in prison
by natural causes -- would not. This is perhaps
corroborated by the fact that other abolitionist
countries do not, in general, extradite without
. . . The Minister has not pointed to any public
purpose that would be served by extradition
without assurances that is not substantially
served by extradition with assurances, carrying
as it does in this case the prospect on
conviction of life imprisonment without release
. . . 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.
. . . If Canada suffers the prospect of being a
haven from time to time for fugitives from the
United States, it likely has more to do with
geographic proximity than the Minister's policy
on treaty assurance.
. . . Assurances are sought not out of regard
for the respondents, but out of regard for the
principles that have historically guided this
country's criminal justice system and are
presently reflected in its international stance on
. . . At the international level, the abolition of
the death penalty has emerged as a major
Canadian initiative and reflects a concern
increasingly shared by most of the world's
democracies. International experience thus
confirms the validity of concerns expressed in
the Canadian Parliament about capital
. . . At the present time, it appears that the
death penalty is not abolished -- apart from
exceptional offences such as treason -- in 108
countries. These general statistics mask the
important point that abolitionist states include
all the major democracies except some of the
United States, India and Japan.
. . . The finality of the death penalty, combined
with the determination of the justice system to
try to satisfy itself that the conviction is not
wrongful, inevitably produces lengthy delays
and the associated psychological trauma to
death row inhabitants, many of whom may
ultimately be shown to be innocent.
. . . There is an instinctive revulsion against the
prospect of hanging a man after he has been
held under sentence of death for many years.
What gives rise to this instinctive revulsion?
The answer can only be our humanity: we
regard it as an inhuman act. . . .
By KIRK MAKIN
Globe and Mail Update with Canadian Press
Canada should not send two Vancouver men to face a murder trial in the
United States without assurances that they will not be executed, the
Supreme Court of Canada ruled Thursday.
The court said the sobering record of wrongful convictions over the
past decade is proof enough that Canada cannot condone or be a party
to capital punishment.
The decision means that Glen Sebastian Burns and Atif
Ratay will not be extradited to Washington state to face
trial for the gruesome murders of Mr. Rafay's parents
and developmentally handicapped sister.
The family was found beaten to death with a baseball
bat in their Bellevue, Wash., home on July 12, 1994.
Mr. Rafay and Mr. Burns were 18 at the time.
Both men lost their bid to stay in Canada in 1997
following an extradition hearing. The B.C. Court of
Appeal agreed then that they should be extradited, but it
insisted that the federal Department of Justice request
assurances from the United States that they would not
Justice Minister Allan Rock had adamantly refused to
ask for such assurances in the past, and the Crown
appealed the order to the Supreme Court.
The case will go back to current Justice Minister Anne
In its decision Thursday, the court ruled 9-0 that it
would folly to rely on an imperfect justice system when it
comes to life or death.
"There was no convincing argument that exposure of the
respondents to death in prison by execution advances
Canada's public interest in a way that the alternative,
death in prison by natural causes, would not. This is
perhaps corroborated by the fact that other abolitionist
countries do not, in general extradite without
The ruling, which was written "by the Court," came
close to overruling its own 1991 decision to return two
U.S. fugitives Joseph Kindler and Charles Ng to
face possible executions.
"The arguments against executions without assurances
have grown stronger since this Court decided Kindler
and Ng in 1991," it said Thursday. "Canada is now
abolitionist for all crimes, even those in the military field.
"The international trend against the death penalty has
become clearer. The death penalty controversies in the
requesting state the United States are based on
pragmatic, hard-headed concerns about wrongful
convictions. None of these factors is conclusive, but
taken together, they tilt the ... balance against extradition
The judgment was gratefully received by one of the
He said `Thank you,' said Edward Greenspan, lawyer
for Mr. Burns, shortly after talking with his client. What
more need be said? I think he was quite choked up and
overwhelmed. This has been a long time coming. As the
court points out, . . . people awaiting the death penalty
or facing that penalty are under psychological stress that
The ruling is a marvellous victory, Greenspan added.
``Forever and a day in this country we will never see the
ugly head of the death penalty again. Never.
Local News : Thursday, February 15, 2001
Canada's high court rules that two men
facing murder charges won't be extradited
The Associated Press
OTTAWA - Canada's highest court ruled unanimously today that
two Canadian men wanted on murder charges in Washington state
cannot be extradited for trial without assurances they won't face the
The matter now goes back to the Canadian justice minister to seek
the assurances from Washington state before the men, Atif Rafay
and Glen Sebastian Burns, can be sent to Seattle for trial.
Rafay and Burns, now in their mid-20s, are wanted in the slayings of
Rafay's father, mother and sister. The family was found beaten to
death with a baseball bat in their Bellevue, Wash., home on July 12,
1994. Rafay and Burns were 18 at the time.
They were arrested a year later in Vancouver, British Columbia,
after confessing to undercover Royal Canadian Mounted Police
officers in statements that are now contested. They have been held
in Vancouver jails since then.
In its 9-0 ruling, the Supreme Court of Canada said, "We agree
that the Canadian Charter of Rights and Freedoms does not lay down
a constitutional prohibition in all cases against extradition unless
assurances are given that the death penalty will not be imposed.
"We hold, however ... that such assurances are constitutionally
required in all but exceptional cases. We further hold that this case
does not present the exceptional circumstances that must be shown
before the minister could constitutionally extradite without
The court ruled on a 1996 decision by former Justice Minister Allan
Rock to surrender the men to the United States without protection
from the death penalty.
It was the first time Canadians had been offered up on such charges
without assurance they would not be executed if convicted.
The Canadian Justice Department brought the case, hoping to
overturn a British Columbia Court of Appeal ruling that Rock acted
An extradition treaty with the United States allows Canada's justice
minister to seek assurances that a Canadian to be extradited won't
face death. Canada abolished the death penalty in 1976.
Prosecutors in King County earlier said they would wait until the
Canadian Supreme Court ruled before deciding whether to seek the
The victims were found dead in their home on July 13, 1994. Sultana
Rafay, 56, was beaten to death and left with a shawl draped over her
head. Her husband, Tariq, was clubbed in his bed. Their autistic
daughter, Basma, 21, was also attacked as she slept.
Prosecutors say the motive was money: about $350,000 in life
insurance and the value of the family home. They allege that Burns
stripped to his underwear to keep his clothes from getting bloodied as
he beat the victims to death with a baseball bat, and that Rafay
watched and helped make it look like a robbery.
Rafay, home from his freshman year at Cornell University, and his
friend Burns told police they found the victims when they came home
from a movie. They returned to Vancouver, British Columbia, a few
days later, and murder charges were filed in 1995.
The B.C. Court of Appeal ruled 2-1 in 1997 that Rock misused his
ministerial discretion by offering to extradite the men unconditionally.
Assurances the men would not face death should have been sought
to protect their right, as Canadian citizens, to "enter, remain in and
leave Canada," said the majority.
Rafay's lawyer argued this point before the high court last spring.
"The surrender of these two young citizens without assurances is a
violation of their right to enter (Canada), because imposition of this
penalty will irrevocably prevent them from exercising this right,"
Marlys Edwardh argued.
The high court has also considered whether unconditional extradition
constitutes cruel and unusual punishment.
Lawyers for the Italian senate, which launched a global mission to
abolish the death penalty, and Amnesty International argued
Canadians should not have to face a penalty not endorsed by their
Local News : Friday, February 16, 2001
Canada says pair can't face death penalty
By Michael Ko
Seattle Times staff reporter
King County Prosecuting Attorney Norm Maleng will have to
guarantee not to seek the death penalty against two fugitives before
Canada will send the men back to stand trial in the slaying of a
In a 9-0 ruling, Canada's Supreme Court yesterday ruled that the
case against Atif Rafay and Glen Sebastian Burns failed to meet the
exceptional circumstances that would allow them to be extradited
without a guarantee against their execution.
Rafay and Burns, who are Canadian citizens, are suspects in the
1994 bludgeoning deaths of Rafay's parents and sister, who lived in
Bellevue's Somerset neighborhood. Rafay and Burns fled to
Vancouver, B.C., after the killings. In 1995, they were charged with
three counts each of aggravated first-degree murder.
If Maleng seeks life imprisonment, lawyers for Rafay and Burns said
their clients will be extradited immediately. But should he refuse,
Rafay and Burns, by law, will be freed in Canada.
While Canadian Minister of Justice Anne McLellan announced
yesterday that she has begun formal diplomatic procedures to secure
Maleng's promise, the King County prosecutor's office did not reveal
"At this point, we aren't giving any lengthy response about what
we're going to do," said Maleng spokesman Dan Donohoe. "We're
going to review the (Supreme Court's) opinion, consult our attorneys
here and the attorneys in Canada, and then we'll make a decision."
Maleng, a Republican prosecutor who took office 22 years ago, has
sought the death penalty 18 times out of 68 possible
aggravated-murder cases since capital punishment was reinstituted in
the state in 1981, Donohoe said.
Jurors sentenced five people to death. Although some of those cases
are pending, no one has been executed.
In previous interviews, Maleng has said that he asks for the death
penalty only in the most extreme cases and allows defense attorneys
and family members to present mitigating evidence on behalf of the
accused. In 1997, he described the Rafay killings as "exactly the kind
of case" that Washington's capital-punishment law was designed to
Canada abolished the death penalty in 1976. Extraditing Rafay and
Burns to a country that supports the death penalty, the Supreme
Court ruled, violates their rights as Canadian citizens, even if they
"In Canada, the death penalty has been rejected as an acceptable
element of criminal justice," the Supreme Court wrote. "Capital
punishment engages the underlying values of the prohibition against
cruel and unusual punishment. It is final and irreversible.
"At the international level, the abolition of the death penalty has
emerged as a major Canadian initiative and reflects a concern
increasingly shared by most of the world's democracies."
Breese Davies, one of Rafay's lawyers, said the court went further
than almost anyone expected in denouncing the death penalty. Legal
scholars had predicted a split decision.
The lengthy court process, meanwhile, has frustrated local police.
According to police, in July 1994, Rafay watched as Burns beat
Rafay's parents and sister to death with an aluminum baseball bat.
Later, the two friends allegedly told undercover Canadian police
officers that they killed the family to cash in on a life-insurance
"We weren't surprised by the decision because we know the
Canadian government has a strong stance against the death penalty,"
said Bellevue police spokeswoman Marcia Harnden. "At this point,
we just want Rafay and Burns back here so we can have some
closure and get some justice for the family, in whatever form that
Lawyers for the accused men said the high court's ruling allows them
to move to the more crucial business of proving their clients'
innocence. Rafay and Burns, both 25, are being held at the
Vancouver Law Center. Rafay marked his 25th birthday in jail
"If they are extradited, if there are assurances given, we are
confident that a jury will acquit them,'' said Neil Fox, one of Burns'
"The issue of their innocence can be fairly decided without the cloud
of death hanging over their heads."
British Columbia Bureau
Tuesday, July 1, 1997
VANCOUVER -- Two Canadians wanted by
the United States for allegedly bludgeoning
three family members to death with a baseball
bat have won an important legal battle in their
fight to stay in Canada.
In a 2-1 split decision that includes harsh
criticism of former justice minister Allan Rock,
the British Columbia Court of Appeal ruled that
the rights of Glen Burns and Atif Rafay, under
the Canadian Charter of Rights and Freedoms,
would be violated if they were extradited to a
country that could sentence them to death.
The House of Commons, in free votes in 1976
and 1987, supported the abolition of the death
penalty, Mr. Justice Ian Donald stated.
However, Mr. Rock, who authorized the
extradition, "appears to have given only lip
service to a fundamentally important aspect of
Canadian policy, namely that we have decided
through our elected representatives that we will
not put our killers to death," Judge Donald said.
Mr. Burns and Mr. Rafay, both 21, are
Canadian citizens, he added, and "it is one thing
to send Americans to face their own system of
justice, but I think it is a profoundly different
thing for a Canadian minister to expose a citizen
of Canada to a penalty we have abolished
The case is believed to be the first time in
Canada that the courts are dealing with the
extradition of a Canadian to the United States
to face the death penalty.
Deborah Strachan, a Justice department
lawyer, said yesterday in an interview that the
court's ruling was under review and that federal
government lawyers have not yet decided
whether an appeal will be filed in the Supreme
Court of Canada.
The United States government requested the
extradition of Mr. Burns and Mr. Rafay to face
charges of murder in the deaths of Mr. Rafay's
parents, Tariq and Sultana, and his 19-year-old
sister, Basma, in Bellevue, Wash., on July 12,
Prosecutors maintain the two men, who were
18 years old at the time, committed the
murders to collect on an insurance policy and
the value of the family home.
Mr. Rafay's family had lived in Vancouver but
moved to Washington state for work reasons.
Classmates and honour students in school, Mr.
Burns and Mr. Rafay were arrested in
Vancouver in July of 1995.
Mr. Rock approved the extradition without
seeking assurances from the U.S. government
that the two men would not be executed if
In a news release issued at that time, Mr. Rock
stated that he was firmly committed to the
abolition of capital punishment. "However, the
crimes in this case were committed on foreign
soil and are subject to the foreign judicial
In Seattle, prosecutor Norm Maleng has said
the killings were the kind of case the state's
capital-punishment law was designed to cover,
but he did not say if the death penalty would be
Judge Donald ruled that the extradition would
violate a Canadian's right, under the Charter, to
enter, remain in and leave Canada.
When Mr. Rafay and Mr. Burns returned to
Canada after the killings, "they came to the
place where they were ordinarily resident and
in doing so, they exercised a right of citizenship
guaranteed by section 6 (1) of the Charter.
They came home," he stated.
However, if they were extradited and put to
death, their return to Canada would be
impossible, he added.
The government has an obligation not to force
citizens out of the country with the jeopardy of
never returning, he said.
Judge Donald's decision was supported by
Chief Justice Allan McEachern, who stated
that, in his view, the law does not permit the
extradition of Canadian citizens to the United
States without an assurance that they will not
The extradition would actually extinguish
Charter rights, he added.
A dissenting opinion was expressed by Mr.
Justice Harold Hollinrake, who concluded that
the court could not interfere with the exercise of
the minister of justice's discretion in
surrendering the two Canadians to U.S.
"It is not the minister's decision that will or may
deny the Charter rights," he added. "It is the
laws and actions of the state of Washington that
will lead to those being denied, if in fact they
Janice Tibbetts Southam News
OTTAWA - The Supreme Court of Canada will
settle the oldest case in its books Thursday
when it hands down a verdict on whether
Canadians charged with crimes abroad can be
extradited to face the death penalty.
Almost 40 years after the last Canadian was
put to death in this country, Atif Rafay and
Glen Burns want the court to force Ottawa to
seek guarantees they won't be executed by
Washington state if they're found guilty of
bludgeoning Mr. Rafay's family to death with a
The two British Columbia men, who are both
in their mid-20s, have been jailed for six
years while their troubling case has wound its
way through political and legal channels,
including two hearings in the Supreme Court.
Their high-profile lawyers, Edward Greenspan
and Clayton Ruby, argue that subjecting the
two young men to the death penalty would
shock the Canadian conscience.
Several organizations opposed to the death
penalty have taken their side, including
Amnesty International and the Italian Senate,
which is on a global campaign to end capital
"It should be unconscionable for any
Canadian minister of justice in the year 2000
or for the rest of humanity to send any
Canadian citizen back to face the death
penalty," Mr. Greenspan argued before a packed courtroom last May.
The Supreme Court is expected to rule on the meaning of Canadian
citizenship and the constitutional guarantee under the Charter of Rights and
Freedoms for all Canadians to enter, live in and leave the country.
Mr. Burns and Mr. Rafay are former high school honour students who are
described in court documents as coming from "relatively privileged
They were arrested in 1995 in Vancouver after confessing to undercover
RCMP officers that they had killed Rafay's parents and mentally handicapped
sister at the Rafay family home near Seattle in 1994 to collect a $400,000
Their lawyers contend that then-justice minister Allan Rock was wrong to
order the unconditional surrender of the fugitives in 1996 without seeking
assurances from the United States they would not be executed.
The Justice Department, in a written submission to the court, counters
deciding whether to surrender a fugitive is a "political decision" involving
international relations and the justice minister, therefore, it should retain the
power to decide each case individually.
Mr. Rock, saying Canada will not be a safe haven for those accused of
murder, had agreed to extradite the pair after determining they were
charged with a "particularly heinous crime" and should face the U.S. justice
Under a Canada-U.S. extradition treaty, either country can seek assurances
against the death penalty, but it is not mandatory.
Ottawa took the case to the Supreme Court after losing in the B.C. Court
Appeal, which found Mr. Rock did not place enough weight on the men's
Canadian citizenship and only paid lip service to Canada's elimination of the
death penalty in 1976.
The Supreme Court also heard the case in 1999, but the retirement of two
judges who sat at the original hearings caused the court to order a rehearing
for the reconstituted bench.
The judges have wrestled in the past with whether to extradite accused
face execution, but they have never addressed the issue of how to handle
In 1991, in a close 4-3 decision, the court sent U.S. murderer Charles
who fled to Canada, back to his home country to face the death penalty.
At the time, the court set out criteria a future justice minister should
including age, nationality, the nature of the crime and the mental capacity of
Amnesty International maintains Canada is one of the only Western
countries to return murder suspects to the United States without seeking a
guarantee against execution.
There are now only two Canadians on death row, both of whom have been
convicted of murder: Michael Roberts in Washington and Ron Smith in
Alleged murderers fight
extradition to the U.S.
Death sentence possible: 'You cannot send a Canadian national off to be killed'
OTTAWA - Defence lawyers for two former high school honour students facing
a possible death sentence if convicted of murder in the United States will today
argue in the Supreme Court of Canada against the government's plans to
extradite the pair.
Clayton Ruby and Edward Greenspan, who are defending the two British
Columbian men, will argue the federal government is violating the constitutional
rights of Glen Burns and Atif Rafay by surrendering them to the United States
without seeking a guarantee they will not be put to death if found guilty.
Mr. Burns and Mr. Rafay are wanted in the state of Washington on charges
bludgeoning Mr. Rafay's parents and mentally handicapped sister to death with
a baseball bat at the family home near Seattle in 1994.
Mr. Ruby said he hopes the Supreme Court will be sympathetic toward the
two, particularly in light of the recent execution in Vietnam of a Canadian
woman convicted of drug trafficking.
"We hope it's time to say you cannot send a Canadian national off to be
Mr. Ruby said in an interview. "There's no question these people should be
extradited to stand trial, but the real question
is, can you kill them?"
In an RCMP undercover investigation in 1995, after Mr. Burns and Mr. Rafay
returned to Vancouver, they confessed they planned the multiple murder to
collect a family insurance policy worth $400,000.
The pair, who were 18 years old at the time of the killings, have not yet
trial in the United States because their case is still going through the Canadian
It is the second time their case will be heard by the Supreme Court.
considered the matter in March, 1999, but ordered a rare rehearing because
two judges retired before the court made up its mind.
Dozens of lawyers will reassemble today before the nine judges so that
appointments to the court, Justice Louise Arbour and Justice Louis LeBel, can
participate in the decision.
In an unprecedented move, the court has also granted intervenor status
Italian Senate, which is carrying out a campaign to abolish the death penalty.
The senate will argue that Canada's refusal to seek guarantees for Mr.
Mr. Rafay violates fundamental human rights laws and the Supreme Court's
decision will send a signal to courts around the world.
The federal government launched the challenge in the Supreme Court after
losing in the B.C. Court of Appeal in 1997. Then-justice minister Allan Rock's
refusal to protect Mr. Burns and Mr. Rafay against execution would be a violation
of a Charter of Rights guarantee for all citizens to have the right to enter, remain
in, and leave Canada, the court ruled.
Under a Canada-U.S. extradition treaty, either country can seek assurances
against the death penalty, but it is not mandatory.
The court found Mr. Rock was wrong to not to seek a guarantee for Mr. Burns
Mr. Rafay for fear Canada would become a safe haven for criminals fleeing the
death penalty in other countries.
Rafay extradition order 'misinformed,' says lawyer
by Louis T. Corsaletti Seattle Times Eastside bureau
VANCOUVER, B.C. - Defense attorneys yesterday argued that theCanadian justice
minister did not have sufficient information when he ordered two young
Canadian citizens extradited to Washington to face murder charges in King
They also told a three-judge panel of the British Columbia Court of Appeal that Justice Minister Allan Rock erred when he didn't ask the King County prosecutor whether the death penalty would be imposed if Atif Rafay and Sebastian Burns were convicted of the charges.
Rafay, 21, and Burns, 22, face possible death-penalty charges in King County in the July 1994 slaying of Tariq and Sultana Rafay, both 56, and Rafay's 19-year-old sister, Basma, in their home in Bellevue's Somerset neighborhood.
They have been in custody since their arrest at their North Vancouver home in July 1995.
One dispute centers on the refusal of British Columbia Supreme Court Justice Howard Callaghan to allow testimony by Royal Canadian Mounted Police Cpl. Jim Dallin, who headed the four-month undercover operation that led to statements about the slayings by Rafay and Burns. Only RCMP Cpl. Al Haslett and Constable Gary
Shinkaruk, who repeatedly met Rafay and Burns, testified.
Dallin, the defense argued, would have been able to supply more information on how the undercover operation was carried out and how hard the two undercover agents pushed to get the statements from Rafay and Burns.
At the conclusion of the hearing yesterday, Chief Justice Allan McEachren said, "These are very difficult questions and it will take some time to review everything."
During the final day of the two-day hearing, Rafay's attorney, Patrick Beirne, told the panel that Rock must base his decision on Canada's Federal Charter, which, he noted, bans the death penalty and prohibits extradition to any country where a defendant faces it.
"The minister never determined from King County if the death penalty would be imposed,"
Beirne said. "This panel could direct Rock to review the information further.
"Canada has never shipped a Canadian to face a death penalty in another country."
Last July, when Rock handed down his extradition order, he said that if Rafay and Burns
were convicted, Canada would not ask for assurances that the two men be spared the death penalty.
The crimes, Rock explained, were on foreign soil and are subject to the foreign judicial system. He emphasized there "cannot be a rule that Canadians will never be returned for trial in the United States in cases where the death penalty might be sought."
But Michael Klein, attorney for Burns, said that under the extradition treaty between the two countries, those assurances can be sought.
Queen's Counsel David Frankel noted that Rock's decision essentially said that there cannot be a general rule against returning Canadian citizens to the United states to face criminal charges.
"No court could order the minister, in any death-penalty case involving Canadians to seek assurances of no death penalty," he said. "Each case is examined on its merits."
Frankel also argued that the defense never suggested in briefs to Rock that that he could not make a proper decision because he did not have enough information.
A decision from the appeals panel is not expected until late summer.
Atif Rafay, a Canadian accused of killing his family in Bellevue 5 years
ago, has hired a new attorney to fight extradition to the United States.
Ian Donaldson, now representing Rafay, is preparing a brief to be presented to the Canadian Supreme Court. He replaces Patrick Bierne, who withdrew from the case 2 months ago for health reasons.
Rafay and Sebastian Burns, both 22, have been in custody in Vancouver, B.C., since their arrest in North Vancouver 3 years ago. They face homicide charges in King County for the July 1994 slaying of Tariq and
Sultana Rafay, both 56, and Rafay's 19-year-old sister, Basma, in their home in Bellevue's Somerset neighborhood.
As citizens of Canada, which has outlawed capital punishment, they are fighting extradition on grounds that they may face the death penalty in King County.
Donaldson said he expects the Supreme Court to hear arguments in Ottawa before the end of the year.
Michael Klein, who represents Burns, has filed his brief with the high court.
The B.C. Supreme Court and former Canadian Minister of Justice Allen Rock earlier approved extradition. But those rulings were overturned by the B.C. Court of Appeal.
David Frankel, senior general counsel for the Department of Justice in Vancouver, then took the case to Canada's highest court. (source: Seattle Times)
RAFAY / BURNS CASE BEGS TACTICS REVIEW
After I read your article on the Rafay-Burns case,
I began to wonder why the Supreme Court of Canada
won't review the tactics used by the undercover officers.
If some gangster started insinuating that I had better
co-operate or be subjected to the "dead men tell no tales"
policy, I'd confess to anything. Even if I suspected that
the gangster was a police officer, I'd still confess - I wouldn't
want to risk being wrong. The Crown agreed at the hearing
that the physical evidence was consistent with innocence
and that the "confessions" (which were inconsistent and
contradictory) were the "linch pins" of the case. Such
dubious evidence shouldn't be admitted. What a person
says to save his or his family's life shouldn't be used to
extradite him to a country known for executin innocent
people. ----Jordan Wilson, Vancouver,Nov 4, '98
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