The harshest penalty prescribed by Canadian law is life in prison. As Canadian citizens, Burns and Rafay, if convicted, could ordinarily expect no better treatment -- and no worse: the death penalty was abolished in Canada in 1976. Ah, but this is no ordinary case. For the crimes of which the two are accused were committed in Bellevue, Washington, three years ago. The two men, both aged 21, are wanted by the United States, but fled to Canada before they could be arrested. The question is which country's standards of justice should prevail.   Under Washington law, the penalty for such brutal and premeditated murders would almost certainly be death. But under Article 6 of the Extradition Treaty between Canada and the United States, the government of Canada has the right, before surrendering a fugitive, to demand assurances that the death penalty will not be imposed. The right, but not the obligation: in July of last year, the then federal Minister of Justice, Allan Rock, agreed to hand over Burns and Rafay without seeking any such assurances, indeed without even inquiring of the likelihood of their being put to death. Had the B.C. Court of Appeal not overturned his decision last week, that might well have been their fate.

So the question becomes: How could the Justice minister of a country that officially regards capital punishment as abhorrent send two of his fellow citizens to their deaths, or the next thing to it? Either we believe it is wrong for the state to kill people, or we do not. If we do, as the Parliament of Canada has freely voted on two occasions, 1976 and 1987, then surely we believe it is just as wrong for any state, not just our own, and we are surely just as wrong to permit another state to kill, when it is within our power to prevent it, as we would be if we ourselves were responsible.

Instead, Rock, to justify his unprecedented decision, assumed the mantle and morality of Pilate. "Parliament has decided that capital punishment is not an appropriate penalty for crimes committed here," the minister gravely noted, "and I am firmly committed to that position. However, the crimes in this case were committed on foreign soil and are subject to the foreign judicial system." Although the minister was legally empowered to insist, as a condition of transfer, that the death penalty be set aside, he chose not to do so. He would not, after all, be the one that actually threw the switch. His hands are clean.

The minister, it should be said, could find support for his sophistry in a ruling of the Supreme Court of Canada. In the 1991 case of the accused mass killer Charles Ng and the convicted murderer Joseph Kindler, whose extradition was again sought by the United States, the court absolved the government of Canada of complicity in "cruel and unusual punishment," as forbidden by Section 12 of the Canadian Charter of Rights, on the grounds that "the punishment, if any, to which the fugitive is ultimately subject will be punishment imposed not by the Government of Canada, but by the foreign state." As for the suggestion that even to place them in peril of execution violated their right to "life, liberty and the security of the person" under Section 7 of the Charter, the Court argued that this applied only where the penalty imposed would "shock the conscience" of the Canadian people, as opposed to being "simply unacceptable." Capital punishment, in short, may be morally repugnant, but not so morally repugnant as all that.

Whatever its ethical content, the Court's ruling had at least a practical point in its favour: for, unlike Burns and Rafay, Kindler and Ng were American citizens. Canada thus risked becoming a "safe haven" for escaped American killers, if only to the extent that they might be sentenced to life, rather than death. Obviously, no such principle can apply in the present case: we are hardly liable to an epidemic of Canadians making weekend trips across the border to murder Americans. Yet, incredibly, that is what Rock attempted to argue.

Even where Canadian citizens are involved, the Court's disavowal of Sections 7 and 12 leaves them little protection. The B.C. court was forced instead to rely on Section 6 of the Charter, which safeguards the right of Canadians to "enter, leave and remain in Canada." It's all right to extradite people, under this rule, so long as one day they are allowed to return to Canada. But they could hardly return home, you see, if in the interim they were put to death. On such slim reeds do the rights of Canadians depend.