U.S. murder suspect seeks protection in Canada

[Guest Warwick Green]

This guy murders a store clerk in South Carolina and then flees to Canada to avoid the death penalty. He is now asking for refugee status. There are those who say we should not return him to the US until the death penalty is taken off the table. And if the US refuses, what then do we do? Give this murderer refugee status and let him free?

U.S. murder suspect seeks protection in Canada

Associated Press

GREENVILLE, S.C. — The suspect charged with killing an Easley, S.C., pawn shop owner earlier this month has filed for refugee status in Canada.

Roger Eugene Shephard, 21, will face cruel and unusual punishment if sent back to the United States because he could face the death penalty, said Marie Helene Giroux, one of Mr. Shephard's lawyers.

“The goal is to receive assurance from the U.S. that he will not go for the death penalty,” Ms. Giroux said.

http://www.theglobeandmail.com/servlet/sto...Story/National/

[FTA Lawyer]

I don't mean to put this thread to an end but I think I've got the answer to this issue...

The presumption of innocence is the same on either side of the border...so it seems to me this refugee claimant puts himself in an awkward position.

Even under our Charter, a claim for protection must have a sufficient factual foundation to bring an "air of reality" to the claim. That is, Charter rights are not determined speculatively, you must demonstrate that the facts of your situation actually invoke the Charter sections you seek to rely on.

So...it seems to me the only way to get Charter protection from the possible cruel and unusual punishment of the death penalty is to formally admit guilt for the alleged offence. Otherwise, there is no air of reality to your claim for protection (i.e. innocent people are not put to death).

Now I'm one of the first to point out that the system isn't perfect, and Canada unfortunately has way too many high-profile wrongful convictions to prove this point. However, it seems to me a fair and balanced trade-off to make by both governments, and it balances an individual's rights versus those of the collective whole.

If you admit guilt and clearly put yourself in jeopardy of the death penalty, then Canada would be justified in withholding extradition until the punishment is taken off the table. In the circumstances, the monetary and collateral benefits to the US would be huge...no trial resources devoted to proving guilt, no mandatory appeals before death sentence etc. etc. They should welcome such a situation.

If you don't admit guilt, and want to try your luck at trial, then we must presume you to be innocent, and as such, you are not subject to the death penalty in any way but by speculation...and we don't adjudicate Charter rights speculatively. Back home you go for your trial to prove your innocence...if you fail to do so, well then you are stuck with facing whatever punishment the country of jurisdiction deems appropriate.

Now, this proposal only applies for countries which have criminal justice systems equivalent to our own...so if you don't have the benefit of the presumption of innocence and the right to a fair trial in the other jurisdiction, then we would likely have to deal with the situation differently.

With respect to the U.S. though, where geography dictates that most of these refugee claimants will come from, I think my system makes sense.

Comments?

FTA

[Charles Anthony]

If you admit guilt and clearly put yourself in jeopardy of the death penalty, then Canada would be justified in withholding extradition until the punishment is taken off the table. In the circumstances, the monetary and collateral benefits to the US would be huge...no trial resources devoted to proving guilt, no mandatory appeals before death sentence etc. etc. They should welcome such a situation.

Excellent. I would say that you put the thread to an end.

Except.... do we have such an agreement with the US?

[FTA Lawyer]

If you admit guilt and clearly put yourself in jeopardy of the death penalty, then Canada would be justified in withholding extradition until the punishment is taken off the table. In the circumstances, the monetary and collateral benefits to the US would be huge...no trial resources devoted to proving guilt, no mandatory appeals before death sentence etc. etc. They should welcome such a situation.

Excellent. I would say that you put the thread to an end.

Except.... do we have such an agreement with the US?

Well, no...I'm just proposing such a scheme be put in place.

FTA

[August1991]

From link above:

Since 2001, Canada has asked prosecutors to promise to not seek the death penalty before sending fugitives back to the United States, said Chris Girouard, spokesman for the Canadian Department of Justice.

What gives us the right to dictate to the US the degree of punishment? How would we respond if the US did the same to us?

Your proposal is interesting FTA and it amounts to a plea bargain. ("Confess to this lesser crime and you won't go to the chair.") I'll bet the US District Attorney has already tried it (and this may explain why Canada's Justice Department can make the claim above).

[Guest Warwick Green]

From link above:

Since 2001, Canada has asked prosecutors to promise to not seek the death penalty before sending fugitives back to the United States, said Chris Girouard, spokesman for the Canadian Department of Justice.

What gives us the right to dictate to the US the degree of punishment? How would we respond if the US did the same to us?

Your proposal is interesting FTA and it amounts to a plea bargain. ("Confess to this lesser crime and you won't go to the chair.") I'll bet the US District Attorney has already tried it (and this may explain why Canada's Justice Department can make the claim above).

If the Canadian courts determine that the death penalty is "cruel and unusual punishment" does that apply only to Canada or do the courts in Canada have a right to make that determination for the US as well? This is a crime committed, not in Canada, but in the US. Remember this guy killed someone in a death penalty state and fled to Canada to avoid justice by using Canadian law and the Canadian constitution. It's possible this guy could get off scot free. Canada can't try him. He has not committed a crime here.

[Charles Anthony]

What gives us the right to dictate to the US the degree of punishment?

We do not have the right.

Our Bill of Rights forces the obligation upon us.

At the same time, the US can simply look at us as harboring a criminal until we give him up to them under their terms.

[Riverwind]

If the Canadian courts determine that the death penalty is "cruel and unusual punishment" does that apply only to Canada or do the courts in Canada have a right to make that determination for the US as well? This is a crime committed, not in Canada, but in the US. Remember this guy killed someone in a death penalty state and fled to Canada to avoid justice by using Canadian law and the Canadian constitution. It's possible this guy could get off scot free. Canada can't try him. He has not committed a crime here.

Some countries will impose the death penalty for adultery or homosexuality. Does Canada have a right to decide that these acts are not crimes punishable by death?

[Charles Anthony]

Some countries will impose the death penalty for adultery or homosexuality. Does Canada have a right to decide that these acts are not crimes punishable by death?

If the "refugee" arrives on our land, we have the obligation to hear his plee -- and we do.

The only difference with adultery or homosexuality is that Canada does not consider them crimes. Period. I would hope the principle of reciprocity did not apply as it would if the alleged crime was murder.

[Riverwind]

The only difference with adultery or homosexuality is that Canada does not consider them crimes. Period. I would hope the principle of reciprocity did not apply as it would if the alleged crime was murder.

Theft is crime is Canada yet most people would agree that having your hand cut off is cruel and unusual. It is appropriate for Canada to evaluate punishments against Canadian standards before sending someone back to their country.

That said, FTA's proposal is brilliant. No one needs protection if they are innocent of the crime. If they are guilty then they still face life in jail. Personally, I think refugee claims from the US or any other democratic country should be denied immediately.

[Charles Anthony]

Theft is crime is Canada yet most people would agree that having your hand cut off is cruel and unusual.

Good example.

What should we do with such a refugee? Should we let him stay and escape justice?

[theloniusfleabag]

I agree that FTA Lawyer's idea is, on the surface, a damn good one, but there are indeed some problems.

August1991,

What gives us the right to dictate to the US the degree of punishment?

Taht isn't what we are doing, we are trying to avoid 'abetting the use of the death penalty' as punishment. The theory is, if we are willing to abet it, it would be hypocritical not to have it in Canada.

FTA,

If he confesses to crimes to ostensibly avoid death (where he is in a situation at the time to certainly not face it) is that not a confession under duress?

Secondly, it is reasonable to assume that the US would have a 'fair justice system'

Now, this proposal only applies for countries which have criminal justice systems equivalent to our own...so if you don't have the benefit of the presumption of innocence and the right to a fair trial in the other jurisdiction, then we would likely have to deal with the situation differently

but such is not always the case. Leonard Pelltier was extradited from Canada based on false testimony that was coerced out of a 'witness' (Myrtle Poor Bear, I believe) under the threat of death, from the FBI, no less. (There is a fantastic documentary called 'Incident at Oglala' which I think everyone should see. I believe Robert Redford produced or directed it. Another reference to the story can be found in the song 'Bury My Heart at Wounded Knee' by Buffy Ste. Marie, a song which to this day brings a tear to my eye)

So there is precedent to believe that the US Justice department does not always act in good faith.

Third, the idea that 'Canada is home free' for criminals is not a positive thing, how would 'punishment as a deterrent' be applied in Canada for crimes commited in another country? I am sure you know, trials are still held in cases where confessions are entered, so why would Canada shoulder this burden of cost on behalf of the US? Further, some people confess falsely, for mental or other reasons...

There was one more point/question I had, but I gotta go to bed.

[Michael Hardner]

I may be imagining things, but hasn't this happened in the past ? And I thought it unfolded basically as FTA outlined it above.

[Michael Hardner]

Maple Leaf Web Article

This article seems to say that extradiction was allowed a previous case ?

[Michael Hardner]

CBC Article

More on this issue...

[theloniusfleabag]

Dear Mr. Hardner,

This article seems to say that extradiction was allowed a previous case ?

Yes, Charles Ng was extradicted and is on death row in California. Interestingly, my dad was at the exact scene of Ng's shooting of a security guard (at the bottom of the escalator in The Bay) 10 min prior.

I tried to find info on Ng from the California Department of Corrections, but info on inmates there is rather limited. The Texas Dept. of Corrections is much more revealing.

Your other link answers some important questions.

People can be extradited only if the offence they're accused or convicted of is a crime in both countries – the "dual criminality" test. If the offence is a crime in just one of the countries, no extradition can take place

Section 44(2) of the Extradition Act gives the minister of justice the discretion to refuse extradition if capital punishment could be meted out under the laws of the extradition partner for the conduct in question.

Evidently, the Minister of Justice has the power to make a discretionary call in 'exceptional cases'.

[Rue]

The Canadian court system has regularly declined to deport illegal aliens and rejected refugee applicants on the grounds that they would be murdered if sent back to their countries.

I myself have direct knowledge of an Iranian who came to Canada and applied for refugee status and was turned down. He as known to Interpol and was part of a major heroin drug cartel and his job pure and simple was to kill people. Quite something seeing a refugee applicant in a Gucci suit, with a Rolex watch and realizing he was trained by SAVAK (The Shah's secret police) and had three black belts and could snap your neck like a twig in a second.

He and many others like him live in Toronto. What they do for a living is anyone's guess. I also know of anothe heroin pusher from a drug cartel in Canton, China. He wouldn't think twice killing you if you got in his way. Also a rejected refugee applicant and still in the country.

Here's my favourite story. A man from Nicaragua and part of the cocaine cartel floods the US with cocaine and in turn uses money to fund guns to support Gen. Samoza and his battle against then commie Ge. Noriega. The CIA made the drug cartel a success that it was while the Drug Enforcement Agency was unable to prevent this cartel from speading its poison. So it goes. Its o.k. to flood North America with heroin or cocaine as long as you are an ally against commies or in today's case the Taliban in Afghanistan.

So this lovely individual of course was on the losing side and after the war the CIA arranges him a new identity and places him in Texas. Within a year he's arrested for h aving sex with a 4 year old boy. To spare the parents of the boy and the boy any further harm, he pleads no contest. He's out after 8 months. Somehow he ends up in Canada. He goes back and forth across the US and Canadian border with 5 different names and aliases.

The bottom line he ends up in Toronto. He is arrested. He's hanging around an elementary school selling dope to 9 year olds and trying to talk boys into coming to his apartment to play. An undercover cop busts him in the act and this individual stabs the under-cover cop. Its a miracle the cop is not murdered. He gets a two year sentence. They move to deport him so his lawyer files for refugee application status. He shows up at his refugee hearing in shackles. His lawyer talks about how he should not be deported and be allowed to stay in Canada.

The Refugee Convention definition excludes individuals from the protection of refugee status if they are found to commit serious non political crimes in the country they seek asylum in.

In this individual case, this s.o.b. is still in Canada and has served his sentence. Oh no he was not deported.

By the way when he was arrested he was found to be living with a 5 year old boy he claimed was his adopted son and his apartment was full of porno.

One can only imagine what he is up to these days.

So you want stories I have plenty of them. Do I think we should not deport people because we don't believe in the death penalty? Guess.

[justcrowing]

The Canadian court system has regularly declined to deport illegal aliens and rejected refugee applicants on the grounds that they would be murdered if sent back to their countries.

I myself have direct knowledge of an Iranian who came to Canada and applied for refugee status and was turned down. He as known to Interpol and was part of a major heroin drug cartel and his job pure and simple was to kill people. Quite something seeing a refugee applicant in a Gucci suit, with a Rolex watch and realizing he was trained by SAVAK (The Shah's secret police) and had three black belts and could snap your neck like a twig in a second.

He and many others like him live in Toronto. What they do for a living is anyone's guess. I also know of anothe heroin pusher from a drug cartel in Canton, China. He wouldn't think twice killing you if you got in his way. Also a rejected refugee applicant and still in the country.

Here's my favourite story. A man from Nicaragua and part of the cocaine cartel floods the US with cocaine and in turn uses money to fund guns to support Gen. Samoza and his battle against then commie Ge. Noriega. The CIA made the drug cartel a success that it was while the Drug Enforcement Agency was unable to prevent this cartel from speading its poison. So it goes. Its o.k. to flood North America with heroin or cocaine as long as you are an ally against commies or in today's case the Taliban in Afghanistan.

So this lovely individual of course was on the losing side and after the war the CIA arranges him a new identity and places him in Texas. Within a year he's arrested for h aving sex with a 4 year old boy. To spare the parents of the boy and the boy any further harm, he pleads no contest. He's out after 8 months. Somehow he ends up in Canada. He goes back and forth across the US and Canadian border with 5 different names and aliases.

The bottom line he ends up in Toronto. He is arrested. He's hanging around an elementary school selling dope to 9 year olds and trying to talk boys into coming to his apartment to play. An undercover cop busts him in the act and this individual stabs the under-cover cop. Its a miracle the cop is not murdered. He gets a two year sentence. They move to deport him so his lawyer files for refugee application status. He shows up at his refugee hearing in shackles. His lawyer talks about how he should not be deported and be allowed to stay in Canada.

The Refugee Convention definition excludes individuals from the protection of refugee status if they are found to commit serious non political crimes in the country they seek asylum in.

In this individual case, this s.o.b. is still in Canada and has served his sentence. Oh no he was not deported.

By the way when he was arrested he was found to be living with a 5 year old boy he claimed was his adopted son and his apartment was full of porno.

One can only imagine what he is up to these days.

So you want stories I have plenty of them. Do I think we should not deport people because we don't believe in the death penalty? Guess.

Rue - the Immigration & Refugee Board would love to have these scumbags deported but the scum have dozens of loopholes and avenues of appeal. Often the home country does not want these people back and will not issue travel documents and if no other country will accept the deportee then that person can become stateless and we are forced to keep them here. Also, these people are protected under our Charter of Rights & Freedoms whether or not they are Canadians. Why do you think that Canada is known among criminals as the #1 country to which to flee. Hello!!!!!!!!!!!!!!