FINLAY: Hello. I'm Mary Lou Finlay. BUDD: Good evening. I'm Barbara Budd. This is As It Happens. Tonight, - FINLAY: Extradition and execution: Ten years after an American killer was sent home from Canada to die, the Supreme Court changes the rules. BUDD: Hard times in Hogtown: How could a big-money, cappuccino, centre-of-the-universe burg like Toronto suddenly be drowning in red ink?
FINLAY: Who says they won't have Bill Clinton to kick around any more? As the smell grows worse around his farewell pardons, the Republicans talk investigation.
BUDD: Last tango in Manitou Beach: The campaign to keep a landmark Saskatchewan dance hall from shuffling off to Alberta.
FINLAY: And in Pennsylvania, the movement to save the world's very first radio station: A little garage made of wood and a whole lot of memories. BUDD: And Evelyn Tutchi's amazing pair of aces - not in a card game; on a golf course. The 82 year-old just sank two holes in one in the same round.
BUDD: As It Happens - the Thursday edition: radio that aims for the sweet spot.
BUDD: Well, what a difference ten years can make. The Supreme Court of Canada ruled today that Atif Rafay and Glen Sebastian Burns cannot be extradited to the United States to face the death penalty. The two Canadians were charged with the brutal murders of Mr. Rafay's father, mother and sister in Bellevue, Washington. BUDD: The Canadian government wanted to send them back to stand trial in the United States, but lawyers for the two young men argued that they shouldn't be sent back to the U.S. unless prosecutors there promised not to invoke the death penalty. The Supreme Court of Canada agreed. In doing so, the top court reversed the position it took just a decade ago in the case of American Charles Ing.
BUDD: Don McLeod was the lawyer for Mr. Ing. We reached him in Calgary.
FINLAY: Mr. McLeod?
McLEOD: Hi.
FINLAY: Hello. How are you today?
McLEOD: Very well. How are you.
FINLAY: Fine, thank you.
McLEOD: Good.
FINLAY: What did you think of this decision?
McLEOD: Obviously, given my history with the issue, I was most interested in it, and my initial reaction of course is that I applaud it. I think it makes logical sense. It complies with what I consider to be the court's previous decisions on other constitutional questions that have come before it. Obviously it's inconsistent in the end result with the case I argued almost to the week - FINLAY: Yeah. McLEOD: - a decade ago.
FINLAY: When you tried to block the extradition of Charles Ing, the Supreme Court said no. Today it did block the extradition of these two young men. Was it because they were Canadians and Ing wasn't? McLEOD: Well, explicitly, on the face of the decision, no. What the court took considerable pains to point out is how various factors which affect its interpretation of the principles of fundamental justice have changed in the last decade, and they point basically to five factors and five developments in those areas over the years as justifying the departure from the decision in Ing.
FINLAY: Well, tell us a little bit more about that.
McLEOD: Well, first off - FINLAY: What did the court think was so different? McLEOD: Well, first off, it had a look at the domestic Canadian position on the death penalty, and of course Canada has evolved away from the death penalty over the course of the last 40 years or so.
FINLAY: But there was no death penalty here when Charles Ing was tried either.
McLEOD: There was not, but what the court does point out is that at the time Ing was argued, the death penalty was still on the books under the National Defence Act and that provision was abolished, too, in the last decade, in 1998. So that would be one legislative development for domestic purposes.
FINLAY: Okay.
McLEOD: It also looked at Canada's position on the international front in terms of various United Nations resolutions and such, so again, a further development in the last decade. McLEOD: Another fact or which is case specific is that Ing was 24 years of age at the time the crimes were alleged to have been committed, some six years older than the two accused persons in the Burns and Rafay case. And it pointed to that as a relevant though not necessarily controlling factor. Indeed, in Ing, the court pointed out that age was a factor that should be taken into account, particularly if the accused person is under 18.
McLEOD: Perhaps a very significant development in the last decade relates to the fourth factor that they looked at, and that has to do with the issue of wrongful conviction. In 1991, I was able to point out to the court that that was a serious issue of concern, although a controversial one domestically within the United States. The advent of DNA and accessibility of DNA technology in the last decade has led many states, as you're I'm sure aware, to revisit their own position on the death penalty domestically within the United States of America, and the court was able to point to that as a serious concern and development in the last decade. And we have a number of cases here in Canada, though of course not capital prosecutions, nonetheless ones which show that our system is capable of error, of course referring to the notorious cases of Millgarde, Soffenal [sp] and Parsons, amongst others here in Canada.
McLEOD: The fifth factor they looked at was something called death row phenomenon - that is to say, persons suffer psychological torture in effect over prolonged periods of incarceration prior to actual execution of the death penalty, and there have been developments again over the last decade, perhaps notably, certainly in my mind, the British House of Lords invalidating Jamaican death penalty convictions on the basis of the delays being inexcusable and violating in effect principles of fundamental justice.
McLEOD: So the court was able to point to a considerable number of developments over the last decade. I might also note that, interestingly, although it wasn't pointed out in its decision, in the Ing case itself two years after it was argued and decided by the Supreme Court of Canada, the U.N. Human Rights Committee (an international body, of course) decided that Canada had itself violated an international covenant by sending Mr. Ing back to California to face the potential of lethal gas execution.
FINLAY: Okay.
But if the court - is the court saying that Canada is bound then by these international covenants? And if so, then what relevance is age, for example?
McLEOD: Well, the shift, I suppose, over the last decade could be reduced and perhaps oversimplified to this: The decision it rendered in 1991 in effect amounted to a suggestion that only in exceptional cases would it be constitutionally impermissible to send somebody elsewhere to face the death penalty. It seems to me the effect of this ruling today is that only in exceptional circumstances would it be permissible to send somebody elsewhere to face the death penalty. So there is a pronounced - FINLAY: What would those circumstances be? McLEOD: Well, I would suggest it places a very significant burden on the prosecution that's tantamount to suggesting the prosecution would have to prove culpability within a hair's breadth of absolute certainly as a precondition, because obviously a lot of the court's decision rests on the fallibility of the judicial system - FINLAY: M'hm. McLEOD: - in terms of absolute certainty in relation to convictions. That would be one. I would also suggest that there would have to be a profound and seismic shift in Canada's position on the death penalty internationally as a matter of principle to change the analytical process now in relation to these questions. FINLAY: Yes.
McLEOD: I think it would be a very rare case indeed, based on my reading of this decision, that a minister would not have to think very, very seriously before declining to seek this death penalty issue.
FINLAY: Okay.
What about Canada's in this case argument that if we - if it is known now that we will never really, under almost no circumstances, as you say, without a seismic shift in our position, extradite somebody who may face a death penalty, does that make Canada a haven for killers who don't want to swing? McLEOD: That's been an argument that I've always considered to be one of almost featherweight. There's no statistical evidence to show that, and the court pointed out, look, the very fact that somebody could be sent back to face life without possibility of parole ever is in itself something that weighs against the so- called haven argument. FINLAY: Okay, Mr. McLeod. Thank you so much.
McLEOD: Thank you.
FINLAY: Good to talk to you.
McLEOD: And you.
FINLAY: Bye-bye.
McLEOD: Bye-bye.
BUDD: Don McLeod was the defence lawyer for Charles Ing during his extradition appeals. Mr. McLeod spoke to us from Calgary.
BUDD: The tragic accident off the coast of Hawaii has a lot of people asking a lot of questions. An American Navy submarine ripped into a Japanese fishing boat as it practised a surfacing manoeuvre last week. Nine people, including four teen- agers, died in the accident. And yesterday news emerged that civilians were at the helm of the sub.
BUDD: Last night we asked a retired U.S. Navy captain to explain how such a thing could happen. Judging by the response we got on Talkback, listeners weren't satisfied by John Peters' answers. CALLER: My name is Brian Crawford. I'm calling from Chicago. I just heard the interview with John Peters, the retired sub captain, regarding the unfortunate incident with the Japanese vessel. I found myself outraged by his suggestion, his first suggestion, that to avoid this in the future a beacon should be put on a civilian vessel. The act was committed by a military vessel and the responsibility of prevention lies solely on the military vessel engaged in the maneuver. That is where the procedures need to change, not with the civilian. It can certainly help, but the military procedures need to be changed. Thank you.
CALLER: Hi. It's Mike calling from Ottawa. I was a bit disappointed with Mr. Peters' discussion of the use of a light on top of the Japanese ship to avoid collision with a submarine. The standard for navigation on water is radar, and most ships carry a radar reflector in their mast. What he also failed to mention was that the Los Angeles class submarines carry a very sophisticated surveillance radar for exactly that. It's mounted on top of their periscope mast. If the captain had elected to shine his radar, he would have seen everything within a number of miles, regardless of the haze that was present. But I suppose that'll all come out in the investigation. Thanks.
CALLER: Hello, Barbara, Mary Lou. It's John Walsh, Burley, Idaho. I just listened to that clown trying to be an apologist for the submarine, and he's totally mistaken. The sonar that that submarine has reflects around the ship, and it would have sounded the signal, the sound from the sonar, if it had been done. And I'm not so sure it as done. Also, the trawler was 165 foot long. That's over twice as long as an 18-wheeler with a trailer. I think that he's mistaken on several counts, and I think he's trying to make it look much better for the Navy than it really is. I'm not so sure that they did go through all of their precautions, and we don't know that yet, but he sure as hell is trying to make it appear that they did, and I doubt that very much. Thank you.
CALLER: My name is Matthew Barons. I'm calling from Toronto. Was just really disturbed at the callousness with which the captain just said, "Well, you know, accidents happen." And it seems to me that you can't open a newspaper or listen to the radio without hearing about another wartraining accident. I think in the last year in Canada, instances in which for example two German pilots were killed training their war planes over the Innu home land out in Labrador and Quebec, a British officer who was shot in the head during NATO exercises in the prairies, and of course all the Russian sailors who died on the Kursk.
CALLER: And now we have this incident, and it's just another sign that we haven't really evolved yet, because we're still spending billions and billions of dollars to prepare for war and to play at the game of war, and perhaps we shouldn't be surprised that we're seeing so many victims of the training for war, as well as the victims of wars. CALLER: When people are dying on the streets of our cities from homelessness because there's not enough money and we're spending over $11-billion on the military, it seems to me that we really need to rethink our priorities and ask Where should that money be going? Maclean's asked that question at the end of the year, and the majority of people were asked If you had a choice between improving the capacity of the Canadian forces to have a more modern military versus ending homelessness by spending that money for affordable housing, 85 per cent of Canadian said they would much prefer that it go to ending the crisis of homelessness. So thank you. Bye-bye.
BUDD: Well, thanks to you all for your calls. Talkback is at the other end of 416-205-3331.
