Re Burley (1865), 1 U.C.L.J. 34, was a decision on extradition by the Court of Common Pleas of Upper Canada. Though made two years before Confederation, the case has been cited by the Supreme Court of Canada in mobility rights and extradition cases over a century later.
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Decision
The decision was made by Sir William Buell Richards, who would later go on to become the first Chief Justice of the Supreme Court after it was established in 1875. Richards was faced with a case in which a British subject was going to be extradited to the United States, and the subject claimed that by virtue of his nationality he had a right to stay in Canada. Richards upheld the extradition as a matter of treaty law, and noted Canadian statutes seemed to recognize such extradition as legal. He wrote,
Aftermath
Even after Confederation, the creation of Canadian citizenship, and the adoption of the Canadian Charter of Rights and Freedoms, which recognized freedom of movement in section 6, the case has been cited by the Supreme Court. In Canada v. Schmidt (1987), the case was cited to state that Canada should trust the nations it extradites people to carry out trials. In United States of America v. Cotroni (1989), the Court upheld an extradition as a justified limit on section 6. The Court wrote that the limit was partially reinforced by the fact that extradition had been allowed for "well over one hundred years," and thus "extradition has been part of the fabric of our law." Re Burley was cited to make the point that since criminals can easily escape from the US to Canada, it had been "imperative that little leniency be accorded citizens in this regard."
Later, in the Supreme Court case United States v. Burns (2001), the Court was faced with the claim that Canadian citizens faced with extradition to the US had a right to stay and be tried in Canada. The Court cited Re Burley to state that "Traditionally, nationality has afforded no defence to extradition from Canada."