R. v Burns case Brief
The defendants Glen Sebastian Burns and Atif Ahmad Rafay were accused to have committed aggravated first degree murder in Washington State. In a confession to an undercover RCMP officer in British Columbia, posing as a mob boss, it is clamed that Burns was a contract killer hired by Rafay to kill his parents so that Rafay could get insurance money for their deaths. It is claimed that Burns beat the victims with a baseball bat while Rafay watched (para.10). They threw their cloths away and took a bath to wash away the blood. The accused claim that the alleged confession was a lie to gain the confidence of who they thought was a Mob Boss (para.11). They were to be extradited to the United States, where if convicted could face the death penalty. The defendants appealed the extradition to the Minster of Justice. Burns' argument and Ministers Findings
The accused claimed to the Minister that their section 6(1) (right to remain and return to Canada) charter rights would be violated if they were extradited, and that as a result the Minister should consider if the defendants could be tried in Canada (para.16). The respondents also claimed section 7 (fundamental justice) and section 12 (cruel and unusual punishment) of the charter would be violated if extradited. The appellants differentiated their case from R. v. Kindler and Ng because they were Canadian citizens, while Kindler and Ng were not. They claimed that Canada does not have the right to send its citizens away with the possibility of never returning contrary to 6(1) of the charter (para.17). The respondents also claim that their age at the time of the alleged offences, 18, should be taken into consideration. The Minister rejected the claim of banishment, because the purpose of the treaty was to allow criminals to face criminal proceedings and once proceedings have been finished the respondent's could return to Canada (para.19) He also rejected the age argument because they were considered adults here in Canada. Thirdly, he rejected the citizen argument because Canadian citizens should not see citizenship as a special circumstance to allow them to escape charges in another country. Finally he stated that Canada should not become a safe haven for criminals, even Canadians. The Minister of Justice agreed to extradite allowing for the defendants, Burns and Rafay, to go back to the United States to stand trial for aggravated first degree murder. The minister did not seek assurances. Burns and Rafay appealed the extradition without assurances to the B.C court of appeal. British Columbia Court of Appeals Decision
The B.C court of appeal set aside the Ministers decision and directed him to seek assurances. The BC court of appeal agreed that if the appellants were sentenced to death they could no longer seek return under section 6(1) of the charter (para.20). Justice McEachern of the Appeal Court disagreed with the Minister's council that extradition was only to commit the accused to trail even if the penalty was death. He saw a causal connection between extradition and section 6(1) if the accused were sentenced to death. He agreed with the appellant's claim that R. v. Kindler differentiated from their case because Kindler was not a citizen, while they were (para.20). Justice Donald also disagreed with the Ministers findings because he found that the death penalty in another country would violate a Canadians citizens section 6(1) right. He argued that Canadian citizens should see Canada as a safe haven: "access to its constitutional protections is a feature of citizenship". He found that the minister should have asked for assurances before signing extradition and that the age and nationality of the accused was a factor in this decision not to seek assurances (para.23).
Justice Hollinrake, of B.C Appeal Court, agreed with the Ministers decision and found that it would be Washington State who would deny section 6(1) of our charter,...
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