Skurka's Spin: Can the death penalty return to Canada?
Pierre-Hugues Boisvenu, senator boisvenu, ottawa
Steven Skurka, CTV Legal Analyst
Published Monday, February 6, 2012 6:06AM EST
Fifty years have passed since the last person was executed in Canada.
A debate about restoring the death penalty was renewed last week after a Conservative senator suggested that murderers should have ropes placed in their cells to decide whether to kill themselves. He did add, however, that he objected to the death penalty.
The Senator apologized for the comment, but later noted that he was simply expressing an opinion shared by a number of Canadians.
The episode spurred one National Post columnist to argue that bringing back the death penalty was a worthy topic of debate in this country. He pointed to a 2010 Angus Reid survey that found that almost two-thirds of Canadians supported capital punishment for homicide.
If the political will existed, could legislation be introduced by the government to reintroduce the death penalty to Canada?
In order to answer this question, the Supreme Court of Canada's decision in 2001 in the case of Sebastian Burns and Atif Rafay needs to be revisited.
Burns and Rafay were eighteen-year-old Canadian citizens who were wanted to face trial for multiple counts of first-degree murder in the state of Washington. Both young men were facing the prospect of the death penalty if convicted.
Rafay's parents and sister were found bludgeoned to death at the family home. The key pieces of evidence against Burns and Rafay were alleged confessions to an undercover RCMP officer posing as a crime boss. There were admissions that Burns killed the three victims with a baseball bat while Rafay observed. The motive alleged for the horrific crime was that Rafay would inherit his parents' assets and receive the proceeds of a life insurance policy that would be shared with Burns.
Burns and Rafay returned to Canada and American authorities sought to extradite them to the state of Washington for their joint trial. The Canadian justice minister ordered their extradition without seeking assurances that Burns and Rafay wouldn't suffer the death penalty. The B.C. Court of Appeal set aside the ministerial decision and directed the Canadian government to seek such assurances as a condition of surrender. An appeal was subsequently launched to the Supreme Court of Canada.
The nation's highest court reached a unanimous decision. The Supreme Court recognized that Canada's legal system is fallible and that a fair trial doesn't always guarantee a safe verdict. However, in cases of capital punishment, there is no correction possible. The final outcome could be the killing of innocent people.
The Supreme Court of Canada highlighted that largely because of the progress made in forensic testing, including DNA testing, a few instances of wrongful convictions for murder had been documented in Canada. The names of Donald Marshall Jr., David Milgaard, Guy Paul Morin, Thomas Sophonow and Greg Parsons were examples provided by the court. It should be noted that David Milgaard languished in a prison cell for almost 23 years as an innocent man. It doesn't require much imagination to speculate about the tragic result if a rope had been slid through his prison bars.
The Supreme Court of Canada held the death penalty was final, irreversible and its deterrent value was questionable. The imposition of the death penalty had been described as arbitrary and its implementation led to psychological and physical suffering. The Supreme Court accepted that capital punishment engaged the underlying values of the prohibition against cruel and unusual punishment set out in the Charter of Rights.
Ultimately, the Supreme Court of Canada upheld the decision of the B.C. Court of Appeal. The court accepted that it wasn't in accordance with the principles of fundamental justice under the Charter if assurances relating to the death penalty weren't sought as a condition of surrender for Burns and Rafay.
The legacy of this landmark decision is that the death penalty will most assuredly be held to be unconstitutional if it is ever enacted as legislation by any government of Canada. The notwithstanding clause is in place to override the Charter infringement but no federal government has ever relied on the provision. The potential for the clause to be invoked by any government for capital punishment appears extremely remote.