A rchive Date
[ 23-02-2005 ]
Category
[ International Relations ]
sub-Categoy
[ Canada ]
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[49TH PARALLEL
Crime and Punishment
The Supreme Court's death-penalty decision is a red herring
By STEPHEN HANDELMAN
MARCH 5, 2001 / VOL. 157 NO. 9
The Supreme Court Of Canada has handed authorities in Washington State a choice worthy of Solomon - in reverse. If they want to try two young Canadians for murder, they will have to promise not to execute them. Otherwise Atif Rafay and Sebastian Burns, who have spent the past six years in a Vancouver jail fighting extradition to the U.S., could very well go free. The court's Feb. 16 decision left death-penalty opponents in both countries overjoyed. "The U.S. is now isolated on the continent," exulted Duke University law professor James Coleman, who notes that Mexico requires similar assurances from the U.S. before it will extradite murder suspects.
Isolated maybe, but the U.S. also doesn't care that much. "All we can do is bring this to people's attention," says a spokesman for the U.S. Justice Department, which formally handles extradition requests under the 1976 Mutual Legal Assistance Treaty (mlat) between Canada and the U.S. And don't expect any changes soon in 38 U.S. states, including Washington, that have the death penalty on the books. That's one reason critics of the Supreme Court decision say the only real impact will be to burnish Canada's reputation as a haven for criminals. "You commit your crime in one place, you run from consequences and accountability, and where do you go?" asks Toronto Police Chief Julian Fantino fuming. "You go to a place like Canada."
The death penalty, however, is something of a red herring. Behind the headlines in the Rafay-Burns case is a much more complex problem for law-enforcement officers and civil libertarians alike in the North American social space. The real issue, as the Supreme Court put it, is that "elimination of a safe haven [for criminals] depends on vigorous law enforcement rather than the infliction of the death penalty."
It's a key point, and a tough one. The death-penalty spat obscures the challenge posed by criminals or terrorists able to exploit differences in national jurisprudence and law-enforcement procedures on a continent whose borders are becoming virtually seamless. In fact, the Washington State murder case is a good illustration of why the "vigorous law enforcement" advocated by the court remains elusive.
The basic facts are grim. Canadian businessman Tariq Rafay, his wife Sultana and daughter Basma had recently immigrated to Bellevue, Wash., when, on July 13, 1994, their battered bodies were found at their home. A year later, Rafay's son Atif, then 19, allegedly confessed to an undercover rcmp agent in Vancouver that he had plotted the killing with his friend Burns to get life-insurance money. "The case was broken because of the excellent cooperation we had with Canadian authorities," says Marsha Herndon of the Bellevue police. But Herndon admits that such cooperation could prove troublesome if the case were to come to trial in Washington: some of the evidence gathered by the Canadians may be inadmissible in a U.S. court - wiretapping evidence, for example. "In Washington State, you can't tape or record a person without his consent," says Herndon. In other words, there is at least a slim chance that returning the duo to the U.S. could end in their going free.
Such differences in judicial procedures are one big reason why cross-border police cooperation is often unofficial. Neil Fox of the public defender's office in Bellevue hopes to use doubts about the Canadian evidence gathering as part of his plan to prove the young men's innocence. But he admits the transnational aspect of the case has complicated the defense. "We weren't able to see all the evidence prosecutors had on the grounds that the boys were in Canada and had not been arraigned," Fox says.
A decision on whether the two youths get their day in court could come in early March. Washington authorities are apparently leaning toward accepting the Canadian condition on the death penalty. For one thing, lifting the death penalty in this case doesn't bother Bellevue police. "We just want justice to be done," says Herndon.
Still, the Ottawa decision may eventually help nudge the two countries into closer legal alignment, even if their views on the death penalty remain at odds. Along with the admissibility-of-evidence problem, the very fact that six years have gone by in the extradition process is hardly a sign of swift and sure justice. Amending the current mlat agreement is one way to make changes; another is to set some common ground rules for joint investigations. "Criminals think first about the risk of detection, not the kind of punishment they might receive down the line," says Eugene Meehan, former president of the Canadian Bar Association. Making sure the same no-place-to-hide message goes out on both sides of the border could be far more important to justice than the death-penalty debate
 World Fact Book (CIA) ]
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