United States v. Burns: death and extradition.

• Author: McLaughlin, Dino

I begin by attempting to frankly state my biases. First, I am a passionate and lifelong abolitionist. I have been utterly repulsed by the death penalty since I first discovered it in the pages of Tom Sawyer. Second, I have difficulty in interpreting recent decisions from the Supreme Court of Canada, no doubt due to inadequacies of my own. United States v. Burns continues my problem; I applaud the result while remaining somewhat mystified by the methodology.

Burns deals with a number of complex constitutional problems which arise out of extradition law and the death penalty. Although the provisions are complex, the concepts are straightforward. When the extradition of someone located in Canada is sought, the matter goes before an extradition judge to determine whether extradition is available. It is then in the discretion of the Minister of Justice whether he or she seeks assurance from the extraditing state that the death penalty will be waived as a condition of extradition.

The Supreme Court of Canada had addressed this in the cases of Kindler v. Canada (Minister of Justice) and Reference re: Ng Extradition (Canada). The court gave great deference to the discretion of the Minister of Justice and held that only in exceptional cases would the use of that discretion contravene the Charter. In Kindler, the majority held that the extradition without assurances did not contravene the Charter's prohibition against cruel and unusual punishment contained in Section 2, while the majority also held that the extradition would not shock the conscience and was not contrary to the principles of fundamental justice contained in Section 7. It appeared that in denying the extradition in Burns, the Minister of Justice was on sound constitutional ground following the directions of the Supreme Court of Canada, exercising a discretion that could only trigger Charter review in exceptional cases.

It appears that on the facts, Burns is somewhere in the middle between Kindler and Ng with regard to the heinousness of the crimes and the level of disgust which they invoke. Two 18-year-old boys were sought for extradition in a particularly brutal murder in the State of Washington, a state which retains the death penalty. The Minister of Justice authorized their extradition without assurances with regard to the death penalty, and the matter was brought before the British Columbia Court of Appeal. In that court, one dissenting justice would have allowed the extradition...