## Facts

- Glen Sebastian Burns and Atif Ahmad Rafay, Canadian citizens about 18 years old at the time, were suspected of involvement in a triple murder in Bellevue, Washington.
- After the killings, both returned to Canada.
- Canadian police conducted an undercover “Mr. Big” operation in which the respondents made statements implicating themselves in the murders.
- The United States (Washington State) sought their extradition for trial, where the death penalty was a possible sentence.
- The Canada–U.S. extradition arrangements allowed Canada to refuse surrender in death-penalty cases or to condition surrender on assurances that the death sentence would not be imposed or carried out.
- The Minister of Justice ordered surrender without seeking death-penalty assurances.
- Burns and Rafay challenged the surrender order under the Canadian Charter of Rights and Freedoms, relying mainly on s. 7 (life, liberty, security of the person; fundamental justice) and also s. 6(1) (right to remain in and enter Canada).
- The British Columbia Court of Appeal held assurances were constitutionally required and set aside the surrender order.

## Issues

1. Whether surrender to face a real risk of the death penalty, without obtaining assurances, violates s. 7 of the Charter and, if so, whether it is justified under s. 1.
2. Whether the surrender order infringes s. 6(1) mobility rights and, if so, what role that plays in assessing constitutionality.
3. Whether prior Supreme Court of Canada decisions permitting surrender without death-penalty assurances should continue to govern.

## Decision

- The Supreme Court of Canada unanimously dismissed the Minister’s appeal.
- The Court quashed the surrender order because it was made without seeking and obtaining assurances against imposition or execution of the death penalty.
- The Court held that, absent exceptional circumstances, surrender without such assurances violates s. 7 and is not justified under s. 1 on these facts.
- The Court treated s. 6(1) as reinforcing the seriousness of extradition’s impact, but grounded the result primarily in s. 7.
- The Court reconsidered and effectively displaced earlier precedent that had allowed extradition without assurances in death-penalty cases.

## Legal Principles

- Extradition that exposes a person to a real risk of capital punishment engages s. 7 interests in life and security of the person.
- In the absence of exceptional circumstances, the principles of fundamental justice require Canada to seek and obtain death-penalty assurances before surrendering a person for prosecution abroad.
- The death penalty’s irreversible character, associated stigma, and the risk of wrongful conviction support heightened constitutional scrutiny when surrender would expose an individual to execution.
- International and comparative human rights practice may inform the content of fundamental justice, even when not directly binding.
- Where treaty mechanisms permit assurances, requiring them generally does not undermine the objectives of extradition and will defeat a s. 1 justification for surrender without assurances.
- Mobility rights under s. 6(1) do not create an absolute entitlement to be tried in Canada, but the drastic interference caused by extradition can inform the strictness of the s. 7 analysis.

## Conclusion

The Court held that Canada will generally violate s. 7 by extraditing individuals to face a real risk of execution without first obtaining reliable assurances that the death penalty will neither be imposed nor carried out, and it set aside the Minister’s surrender order for failing to secure those assurances.


Minister of Just. v. Burns, [2001] 1 S.C.R. 283 (Can. 2001)