Return to Seb and Atif's Homepage

                    
                       '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
                        National Post

                    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
                    sent.

                    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
                    deported.

                    "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
                    and Freedoms.

                    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
                    Charter."

                    "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 is
                    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
                    committed.

                    "This is a haven for murderers who would face the death penalty ... I have to
                    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 court
                    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 they
                    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.



                               CBC News WebPosted Thu Feb 15 20:23:04 2001
                                

                   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
                    sister.

                    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
                    insurance money.

                         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
                    penalty.

                    But then-Justice
                    Minister Allan Rock
                    didn't ask for that
                    protection when he
                    ordered their
                    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
                    men's rights.

                    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.



                   Top court speaks out against execution

                     KIRK MAKIN
                     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
                     innocent."

                     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
                     court.

                     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
                     disabled sister.

                     Death-penalty opponents exulted at the ruling
                     yesterday.

                     "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
                     punishment.

                     "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
                     parole laws.

                     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.
                     counterpart.

                     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
                     conscience."

                     In the past, the government has consistently
                     refused to invoke a bilateral treaty right to seek
                     death-penalty assurances from the United
                     States.

                     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
                     outcome."

                     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
                     in 1997.

                     The B.C. Court of Appeal agreed, but insisted
                     on assurances that they would not be
                     executed.

                     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
                     assurances.
                     . . . 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
                     or parole.
                     . . . 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
                     capital punishment.
                     . . . 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
                     punishment.
                     . . . 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. . . .



  Thursday, February 15
                    Court protects B.C. men against death penalty

                    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
                    be executed.

                    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
                    McLellan.

                    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
                    assurances."

                    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
                    without assurances."

                    The judgment was gratefully received by one of the
                    accused.

                    “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
                    is incredible.”

                    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.”



Copyright © 2001 The Seattle Times Company

                     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
                     death penalty.

                     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
                     assurances."

                     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
                     inappropriately.

                     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
                     death penalty.

                     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
                     own country.



Copyright © 2001 The Seattle Times Company

                     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
                     Bellevue family.

                     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
                     its intentions.

                     "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
                     cover.

                     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
                     are fugitives.

                     "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
                     policy.

                     "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
                     takes."

                     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
                     yesterday.

                     "If they are extradited, if there are assurances given, we are
                     confident that a jury will acquit them,'' said Neil Fox, one of Burns'
                     attorneys.

                     "The issue of their innocence can be fairly decided without the cloud
                     of death hanging over their heads."



B.C. court denies extradition to U.S. Ruling attacks former justice minister Allan Rock, spares two Canadians a possible death sentence

                    Robert Matas
                    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
                    here."

                    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,
                    1994.

                    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
                    convicted.

                    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
                    system."

                    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
                    requested.

                    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
                    be executed.

                    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.
                    authorities.

                    "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
                    are." 



 Supreme Court to decide if B.C. men can face execution Court's oldest case: Extradited to face charges in U.S., men want guarantee against death penalty

                    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
                    baseball bat.

                    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
                    punishment.

                    "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
                    backgrounds."

                    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
                    insurance policy.

                    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 that
                    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
                    system.

                    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 of
                    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 who
                    face execution, but they have never addressed the issue of how to handle
                    Canadian citizens.

                    In 1991, in a close 4-3 decision, the court sent U.S. murderer Charles Ng,
                    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 weigh,
                    including age, nationality, the nature of the crime and the mental capacity of
                    the accused.

                    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
                    Montana.



            From the National Post May 23, 2000

Alleged murderers fight extradition to the U.S.
                    Death sentence possible: 'You cannot send a Canadian national off to be killed'

                    Janice Tibbetts
                    Southam News

                    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 of
                    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 killed,"
                    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 had
                    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 gone to
                     trial in the United States because their case is still going through the Canadian
                     courts.

                    It is the second time their case will be heard by the Supreme Court.  It originally
                    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 the latest
                    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 to the
                    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. Burns and
                    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 and
                    Mr. Rafay for fear Canada would become a safe haven for criminals fleeing the
                    death penalty in other countries.



             From the Seattle Times,  May 14. 1997

                              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 County.
     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.



            From the Seattle Times,  August 26, 1998

        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) 



           In light of what we have recently seen of the US Justice system
         in the Stan Faulder  case, we ask all Canadians to support the boys'
            bid to remain in Canada, or at the very least to demand that they
                          not face a possible death sentence if convicted.


   A Letter To  The Editor Of  "The Province" Paper:

    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
 
          Return to Seb and Atif's Homepage

                The CCADP offers free webpages to over 500 Death Row Prisoners
                                               Contact us for more information.
                                                   info@ccadp.org
            The Eyes Of The World Are Watching Now
                                                       "The Eyes Of The World Are Watching Now"


This page was last updated September 29, 2001       Canadian Coalition Against the Death Penalty
info@ccadp.org          This page is maintained and updated by Dave Parkinson and Tracy Lamourie