Burns and Rafay revisited: Why the federal policy shift on doomed Canadians violates the spirit of what the Supreme Court said

The recent announcement that the Canadian government will no longer seek clemency for Canadian citizens sentenced to death in the United States and elsewhere is deeply troubling. It leaves Canada as the only nation to have abolished the death penalty that will not seek clemency when its citizens face execution in the United States. It reverses a long-standing policy and marks a step backwards for Canada on the human rights front.

The change in policy will apply only to countries that are considered to be democratic and which offer fair trials. It is, to say the least, fallacious to assume that everyone on death row in the United States has received a fair trial. Regardless, a fair trial is no excuse for tolerating a cruel and inhuman punishment, or for denying someone mercy.

The change in policy also sits in sharp contrast to the principles at the heart of the Supreme Court of Canada’s (“SCC”) landmark judgment in United States v Burns, [2001] 1 SCR 283 [Burns and Rafay]. At issue in that case was whether the Charter obligated the Canadian government to ensure that an individual facing extradition from Canada to face capital charges in another country would not be sentenced to death. Taking note of the fact that Canada had unconditionally abolished the death penalty domestically as well as the clear momentum worldwide towards abolition, the Court concluded that there was such an obligation. Since that time, it has therefore been a requirement that the Canadian government seek and obtain reliable assurances from a country seeking extradition from Canada of an individual charged with a capital crime that the death penalty will not be sought.

So Canada is required to intervene to ensure that individuals of any citizenship will not face the death penalty if they are removed from Canada. But now in some cases – such as that of Ronald Smith, currently on death row in the state of Montana – Canadian citizens who are arrested, tried and sentenced to death outside of Canada will not benefit from the aid and assistance of their own government. Canada will not even try to save their lives. It is hard to imagine how those disparities can be reconciled in any principled fashion.

It is true that the new policy does not contravene the letter of the SCC’s judgment in Burns and Rafay, which dealt with extradition, rather than clemency. But it certainly runs counter to the spirit of Burns and Rafay. Surely the SCC’s decision stands for the proposition that, when Canada is in a position to take action that might forestall use of the death penalty, Canadian authorities should do so.

Seeking clemency on behalf of a Canadian citizen facing execution abroad will not automatically save his or her life. That ultimate power lies only with the authorities in the state that has imposed the death sentence. But surely Canada should try – as vigorously and forcefully as possible.