Janice Tibbetts-Southam News - in Canada's National Post,  April 17, 2000.

 OTTAWA - Despite protests from the federal government, Italy has been given unprecedented access to the Supreme Court of Canada to argue that extraditing two accused murderers to face the death penalty in the U.S. violates fundamental human rights.

The Justice Department, in a letter to the high court, warned that the judges risk being used
as political pawns by opening the door to the Italian senate to interfere in the Canadian justice system.

"This court should not allow itself to be used as a forum for the pursuit of a political mission
by a branch of a foreign government," Rob Frater, a Justice Department lawyer, wrote on
April 21.

But only days later, Ian Binnie, a Supreme Court justice, granted the Italian senate, which is
on a global campaign to abolish the death penalty, permission to make a submission in the case of Glen Burns and Atif Rafay. The two young British Columbia men are wanted in the United States for allegedly bludgeoning Mr. Rafay's parents and mentally handicapped sister
to death at the family home in Bellevue, Wash., in 1994.

The Supreme Court will be asked on May 23 to consider whether Canada, which bans the death penalty, should be forced to seek guarantees that its citizens won't be executed when they are sent to other countries to face murder charges.

The Italian senate will oppose federal lawyers as they challenge a loss in the B.C. Court of Appeal. It found Allan Rock, then justice minister, violated the constitutional rights of Mr. Burns and Mr. Rafay when he approved the unconditional surrender of the former high school honour students to an American state where they could be put to death if convicted.

This is believed to be the first time a foreign government has been given intervenor status in Canada without a direct interest in the case. Patrick Monahan, a veteran Supreme Court analyst, said it is odd that the Supreme Court is inviting intervenors from outside the
country at a time that it is cutting back on granting standing to Canadian groups.

"It seems to me that the Canadian Constitution is something that should be left to Canadians and Canadian courts," said Mr. Monahan, a professor at Osgoode Hall Law School in Toronto.

"I guess I have some doubt about the merits of opening our doors to any foreign government that has no tangible interest in the case. Normally we would not permit our own citizens [to intervene] just because they come forward and say they happen to be interested in this."

The Italian senate, which says it is leading a campaign toward international abolition of the death penalty, was given permission to file written arguments but cannot send a lawyer to make a personal appearance at the hearing.

Under Supreme Court rules, intervenor status can be granted when a party establishes that it has an "interest" in a case and will make legal arguments that are useful and different than those of other parties.

The Italian senate acknowledges that intervention by a foreign legislative body is unusual, but argues it is in an advantageous geographical position to apprise the judges of legal developments across Europe, where extradition to countries imposing capital punishment is prohibited.

The senate, describing the death penalty as "barbaric," contends that Canada is bound as a signatory to international human rights agreements to ensure Mr. Burns and Mr. Rafay will not be put to death.

The Supreme Court's ruling will be "eagerly studied by judges and legislators around the world with respect to the growing international movement for abolition of the death penalty," says a written submission.

"Dismissal of this appeal by the Supreme Court would contribute to this movement just as granting it would set it back."

The May hearing will mark the second time the court has considered the Burns and Rafay case. The case was originally heard in March, 1999, but the subsequent retirement of two justices