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EXTRADITION AND CRIMINAL MUTUAL LEGAL ASSISTANCE - Bars to extradition

Friday, September 08, 2017 @ 12:55 PM  


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Appeal from a judgment of the British Columbia Court of Appeal allowing an application for judicial review of surrender orders made by the Minister of Justice against Badesha and Sidhu, setting the orders aside and remitting the matter to the Minister for further consideration. India requested that Badesha and Sidhu be extradited on a charge of conspiracy to commit murder contrary to the Indian Penal Code following the honour killing of Sidhu’s daughter in the Indian state of Punjab in 2000. Following an extradition hearing, Badesha and Sidhu were committed for surrender. After they raised concerns for their health and safety while in custody, the Minister took the additional step of having his officials consult with the Canadian Department of Foreign Affairs on medical care in prisons located in Punjab. Based on information received from the Canadian High Commission in India, the Department of Foreign Affairs confirmed that prisons in that area had medical facilities for the basic medical care of inmates and advised that inmates requiring more specialized care were referred to hospitals and institutes. The Minister of Justice ordered Badesha and Sidhu’s surrenders to India after determining, in accordance with s. 44(1)(a) of the Extradition Act, that it would not be unjust or oppressive to do so. The surrenders were conditional on receipt of an assurance that India would provide Badesha and Sidhu with required medical care and medications and would make every reasonable effort to ensure their safety while in custody. India also agreed to provide consular access as per its obligations under the Vienna Convention on Consular Relations. Badesha and Sidhu applied for judicial review of the Minister’s decision to the British Columbia Court of Appeal. A majority of the court concluded that it was unreasonable for the Minister to find that surrendering Badesha and Sidhu would not be unjust or oppressive in the circumstances. Accordingly, the majority ordered that the Minister’s decision be set aside and that the matter be remitted to the Minister for further consideration. The Attorney General of Canada appealed from that order.

HELD: Appeal allowed. Given the Minister’s superior expertise in Canada’s international relations and foreign affairs, he or she was in the best position to determine whether the factors weighed in favour of or against extradition. The Minister’s decision to order surrender was therefore subject to review on a standard of reasonableness. Where a person sought for extradition faced a substantial risk of torture or mistreatment in the receiving state, the surrender would violate the principles of fundamental justice and the Minister was required to refuse surrender. But where there was no substantial risk of torture or mistreatment and where the surrender was compliant with the Canadian Charter of Rights and Freedoms, the Minister was nonetheless required to refuse the surrender if it would be otherwise unjust or oppressive. In assessing whether there was a substantial risk of torture or mistreatment, diplomatic assurances regarding the treatment of the person sought could be taken into account by the Minister. The reliability of diplomatic assurances depended crucially on the circumstances of the particular case. Here, the Minister was satisfied that, based on the assurances he received from India, Badesha and Sidhu would not face a substantial risk of torture or mistreatment. The role of a reviewing court in these circumstances was not to re-assess the relevant factors and substitute its own view for that of the Minister. The majority of the Court of Appeal did not consider many of the relevant factors the Minister considered in assessing the reliability of the assurances. Considered as a whole, the factors upon which the Minister relied provided a reasonable basis for his conclusion that the health and safety assurances would meaningfully respond to the concerns they were intended to address, such that the surrenders of Badesha and Sidhu would not violate principles of fundamental justice and would not be otherwise unjust or oppressive. Further, given the circumstances in this case, which included India’s desire to maintain its extradition relationship with Canada and its relationships with other treaty partners, the fact there was no evidence of a history of India not complying with assurances given to partner nations, and the absence of evidence that Badesha and Sidhu had religious or political affiliations that would make them particular targets of torture or mistreatment, it was reasonable for the Minister to take into account consular monitoring in concluding that there was no substantial risk of torture or mistreatment. The inquiry for the reviewing court was not whether there was no possibility of torture or mistreatment, but whether it was reasonable for the Minister to conclude that there was no substantial risk of torture or mistreatment. The majority of the Court of Appeal did not consider the numerous factors that, as a whole, provided reasonable support for the Minister’s conclusion that Badesha and Sidhu would not face a substantial risk of torture or mistreatment in India. In concluding otherwise, the majority effectively substituted its view for that of the Minister.

India v. Badesha, [2017] S.C.J. No. 44, Supreme Court of Canada, B. McLachlin C.J. and R.S. Abella, M.J.Moldaver, A. Karakatsanis, R. Wagner, C. Gascon, S. Côté,R. Brown and M. Rowe JJ. September 8, 2017. Digest No. TLD-September42017011SCC