Extradition is the process through which a foreign nation can ask Canada to surrender an accused person to that nation to stand trial for their suspected crime. To be extradited, the alleged crime must be recognized as a criminal act not just in the foreign country, but also in Canada. The extradition process has three phases.

Three phases of extradition
The “Authority to Proceed” phase is where the Department of Justice decides whether to hold an extradition hearing. This decision is based on any relevant documents, the extradition treaty between Canada and the requesting country, and the Extradition Act. If the Department of Justice issues an Authority to Proceed, a court date will be set for the extradition hearing.
The “Judicial Phase” concerns the extradition hearing. In the hearing, a judge determines whether the evidence provided by the requesting country would be enough to send the person to trial in Canada if the act had been committed in Canada. If there is sufficient evidence, the judge will order the accused to be extradited pending a decision by the Minister of Justice on surrender.
In the “Ministerial Phase,” the Minister of Justice decides whether to surrender the accused. He or she must consider the case in the context of the Extradition Act, any applicable treaties, and the Canadian Charter of Rights and Freedoms. The Extradition Act outlines mandatory and discretionary grounds for refusal to surrender an accused person. The Minister of Justice can refuse an extradition request if, for example:
- the penalty for the crime is less than two years
- the accused could be subjected to torture
- the accused is a youth
- the accused has been tried in Canada for the same offence (double jeopardy protection)
- a conviction occurred in absentia (while absent from the proceedings)
- the death penalty is a possible punishment
The death penalty
Amnesty International released a report in 2023 revealing that 112 countries, more than half of the world, have abolished the death penalty. Canada abolished it in 1976. Most Canadians consider capital punishment an extreme punishment that violates fundamental human rights.
There are still states within the United States of America that impose execution. Article 6 of the Extradition Treaty between the Government of Canada and the Government of the United States of America allows Canada to refuse extradition to these states in the absence of an assurance by the American State that the death penalty will not be imposed.
In 2001, in a murder case involving two 18-year-old Canadians, the State of Washington did not provide this assurance (notably, Washington abolished the death penalty in 2023). Lawyers for the accused challenged extradition and, as a result, the case of United States v Burns landed in the Supreme Court of Canada.
Facts of United States v Burns
The 2001 Burns case concerned Sebastian Burns and Atif Rafay, both Canadian citizens, who were wanted for first-degree murder in the state of Washington. The young men were friends and classmates who attended West Vancouver High School together. When Rafay’s family moved to Bellevue, Washington, halfway through his grade 12 year, Rafay stayed in British Columbia. During summer break, the boys traveled to the United States to visit Rafay’s family.
Six days after arriving in Bellevue, Burns called 911 to report the deaths of Rafay’s father and mother. The sister, at the time of the call, was still alive but died later that night. All three victims had been brutally assaulted. The two boys claimed they had returned from the movies and discovered the scene. They quickly became suspects in the murders. Police in the United States enlisted the help of the RCMP to solve the crime. RCMP investigative work led to Burns’ and Rafay’s arrest. Authorities in the U.S. began the extradition process for the accused to stand trial for the triple homicide.
The Minister of Justice ordered both extraditions without an Article 6 assurance that Washington would not impose the death penalty. The failure to receive this assurance led the case to the British Columbia Court of Appeal (BCCA), which set aside the Minister’s decision and directed him to seek a ‘no death penalty’ assurance as a condition of the extradition. The BCCA’s direction brought about a final appeal to the Supreme Court of Canada (SCC).
Supreme Court of Canada Burns decision
In their judgment, the SCC found that extradition to a state where the death penalty may be imposed violates section 7 of the Canadian Charter of Rights and Freedoms. Section 7 states, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The Court further determined that sending the young Burns and Rafay to the United States to face possible execution was a violation of the principles of fundamental justice that would “shock the conscience” of the Canadian public.
As a result of the SCC finding, Burns and Rafay were extradited to Washington – with assurances that the death penalty would not be imposed. In May of 2004, both Burns and Rafay were convicted of three counts of murder, with each being sentenced to three consecutive life sentences with no chance of parole.
Where are they now?
Burns and Rafay have continuously attempted to appeal their convictions but have so far been unsuccessful. The case received a resurgence in public attention in 2017 after featuring in Netflix’s “The Confession Tapes” docuseries. The creator of the docuseries, Kelly Loudenberg, proposes that Burns and Rafay provided false confessions and are innocent of the murders.
“The Confession Tapes” examines the Mr. Big investigative technique used in the Burns and Rafay case. This strategy employs undercover police officers posing as gangsters to elicit confessions. Interestingly, the United States prohibits this covert investigative procedure, but relied on the evidence derived from it.
Recent developments
The Supreme Court decided, in the 2022 Bissonnette case, that consecutive life terms, with no chance of parole, were unconstitutional. A “whole life sentence” violates Section 12 of the Charter, which prohibits “cruel and unusual punishment”.
When we consider the Bissonnette case, in light of the Burns decision, there is a strong possibility that extradition will now be challenged and subsequently refused when parole ineligibility is possible. While not as punitive as the death penalty, life sentences without the possibility of parole are a violation of the Charter. As discussed, such violations must be considered in extradition cases. It will be interesting to see how extradition law evolves alongside this and other cases that challenge the Charter.
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DISCLAIMER The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.