Extradition

• Author: International Law Group

The State of Washington is anxious to extradite Glen Sebastian Burns and Atif Ahmad Rafay (respondents) from Canada for trial on three counts of aggravated first degree murder. Convictions will entail either the death penalty or life in prison without the possibility of parole.

The respondents are both Canadian citizens and were 18 years old when, in July 1944, police found Rafay's father, mother and sister beaten to death in their home in Bellevue, Washington. Respondents, who had been high school friends in British Columbia, conceded that they had been at the Rafay home on the night of the murders. According to their story, however, they had gone out and had come back later to discover the bodies. Respondents then fled to Canada where undercover R.C.M.P. officers later arrested them in British Columbia. The Attorney General of that province determined not to prosecute respondents there.

U.S. authorities began proceedings to extradite respondents for trial in Washington. After assessing respondents' circumstances, the Canadian Minister of Justice decreed their extradition without asking for assurances pursuant to Article 6 of the United States- Canada Extradition Treaty, 27 U.S.T. 983, T.I.A.S. 8237 (1976) that Washington authorities would neither impose nor carry out the death penalty.

Respondents then took their case to the B. C. Court of Appeal. In a majority ruling, the Court held that this unconditional extradition order would infringe respondents' mobility rights under Section 6(1) of the Canadian Charter of Rights and Freedoms. Upon the Minister's further appeal, the Supreme Court of Canada dismisses. The Court first notes that the Minister has a degree of discretion as to whether to seek assurances but that the Charter sets limits to that discretion. Death penalty cases are intertwined with constitutional values and the Court is the "guardian of the Constitution."

This case actually poses a justice issue and only obliquely a mobility matter. Nor is Section 12 of the Charter barring cruel and unusual treatment or punishment directly applicable. Taking into account other constitutional values, Section 7's guarantee of "fundamental justice" with its balance analysis is controlling. After all, granting the extradition request here would appear to rob respondents of their rights of liberty and personal security by putting their lives at risk. To extradite Canadian citizens under circumstances that breach fundamental justice would be...