Shocks and Balances: United States v. Burns, Fine-Tuning Canadian Extradition Law and the Future of the Death Penalty

Robert Harvie & Hamar Foster, Shocks and Balances: United States v. Burns, Fine-Tuning Canadian Extradition Law and the Future of the Death Penalty, 40 Gonz. L. Rev. 293 (2005).

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Attorney General Ashcroft’s concerns reflect those uttered by King County, Washington Prosecuting Attorney Norm Maleng a few months earlier. “I am personally troubled,” he told the Seattle Times, “by the idea that a foreign government can restrict the application of our state law for a crime that occurred within our borders.” Mr. Maleng, however, was referring not to al-Qaeda but to the Supreme Court of Canada’s judgment in United States v. Burns, which dealt with a request by the United States that Canada extradite two Canadian citizens, Glen Sebastian Burns and Atif Ahmad Rafay, for trial in the state of Washington on capital murder charges.  In all but exceptional cases, the court had stated, section seven of Canada’s Charter of Rights and Freedoms requires the Canadian minister of justice to seek assurances from a country requesting extradition that the death penalty will not be sought or, if sought, will not be imposed.  The court ruled further that such assurances were necessary in Burns because it was not an exceptional case. Therein lies Mr. Maleng’s sense of discomfort, as he was apparently of the view that, in so ruling, the Supreme Court of Canada had somehow applied section seven of the Charter extra-territorially. Whether that is an accurate portrayal of the decision or not – and in our view it is not – it is certainly true that the decision limits or interferes with the discretion that Washington prosecutors normally have to seek the death penalty….Read More

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