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Analysis The Supreme Court’s ruling in Burns is important because the case involves a critical shift in Canada’s approach to extradition in cases involving capital punishment. In “effectively overruling” the decisions in Kindler and Ng, the Burns verdict now means that almost all extraditions from Canada that do not contain assurances that the death penalty will not be imposed violate the principles of fundamental justice. In that respect, “in all but exceptional cases” any exercise of the Minister’s discretion that purports to grant an unconditional extradition in light of a capital sentence is void under s. 7 of the Charter. This ruling now shifts Canada’s approach to death penalty extradition in line with that of most European…show more content…
25 of the Extradition Act. The technical aspect of the Court’s reasoning was based on the “balancing process”, and involved evaluating whether the deprivation of liberty as a result of the extradition process was in accordance with s. 7 of the Charter. In doing so, the Court affirmed as correct the approach taken by the Court in Kindler and Ng. The Court in Burns adopted Lamer J’s discussion in Re B.C. Motor Vehicle Act that the “principles of fundamental justice” were comprised of the “basic tenets” of the Canadian legal system. According to their Honours’, the weight of relevant factors advocating extradition without assurance, including the principles of comity and fairness as inherent within the extradition process, the notion that people who travel beyond Canada’s borders also leave Canada’s legal system, and the appropriate place of trial is the state where the offence occurred, was insufficient to tilt the balance in favour of unconditional extradition. In reaching this determination, the Court in Burns cited a change in the weight of conflicting factors in the intervening decade as underpinning their decision. The Court provided three main reasons, which formed the substantive focus of the Court’s reasoning, as to why the precedent decisions in Kindler and Ng were no longer applicable in extradition cases. These factors included: i) the international trend to abolish the death penalty, ii) the concern over wrongful convictions and iii) the
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