An extradition order against two Canadian citizens accused of arranging an “honour killing” in India has been restored by the Supreme Court of Canada.
In India v. Badesha 2017 the top court reversed a B.C. Court of Appeal decision, where a majority of the province’s top court had concluded that orders by Canada’s Minister of Justice to deport the accused to stand trial in India were unreasonable and set them aside.
In the high-profile case, the body of Jaswinder Sidhu was discovered in a village in India and the Indian government accused Surjit Badesha, Sidhu’s uncle, and Malkit Sidhu, her mother, of conspiracy to commit murder. Both of the accused were residing in Canada at the time of the alleged crime.
Canada’s minister of justice ordered their surrenders to the Indian authorities, after receiving assurances from India regarding their treatment if incarcerated, including health, safety and consular access. The minister determined that their surrenders would not be unjust or oppressive.
The two accused then applied for judicial review of the minister’s decision to the British Columbia Court of Appeal. A majority of that 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.
“Central to this appeal is whether Mr. Badesha and Ms. Sidhu face a substantial risk of torture or mistreatment in India that would render their surrenders unjust or oppressive under s. 44(1)(a)” of the Extradition Act, wrote Justice Moldaver in a unanimous 9-0 decision at the Supreme Court. “The question for this Court is whether it was reasonable for the Minister, in the circumstances, to conclude that, on the basis of the assurances he received from the Indian government, there was no substantial risk of torture or mistreatment which would offend the principles of fundamental justice.”
Moldaver ruled that the minister’s conclusion that Badesha and Sidhu would not face a substantial risk of torture or mistreatment while incarcerated in India was reasonable.
“In my opinion, the Minister considered the relevant facts and reached a defensible conclusion on the basis of those facts,” Justice Moldaver wrote.
In reaching his decision, however, Justice Moldaver touched on what evidence should be considered in assessing the potential danger faced by those accused of crimes in countries requesting their deportation, which could impact how evidence of human rights abuses are considered in other cases.
“The Attorney General of Canada contends that ‘generic evidence’ of human rights conditions in the receiving state cannot establish, on its own, that the person sought faces a substantial risk of torture or mistreatment. With respect, I disagree. The assessment of substantial risk decidedly requires that the Minister consider the ‘personal risk’ faced by an individual… But I would not foreclose the possibility that there may be cases in which general evidence of pervasive and systemic human rights abuses in the receiving state can form the basis for a finding that the person sought faces a substantial risk of torture or mistreatment.”
Ranjan Agarwal, who represented the South Asian Legal Clinic of Ontario as an intervener at the Supreme Court, says this passage is the most important part of the ruling for Canadians facing extradition to countries that have a history of torture or medical neglect amounting to torture.
Agarwal says the attorney general’s position meant that the minister would not be able to rely on NGO reports that established that India has a history of torture and medical neglect but would instead have to marshal specific evidence of neglect or mismanagement of the accused’s medical treatment or evidence that India is unlikely to send a doctor to care for the accused.
“That is almost impossible given that evidence of human rights abuses is very difficult to obtain and is necessarily private and hidden from the public,” says Agarwal. “The court rightly rejected this view, and held that general evidence could be relied upon.”
Nikos Harris, an appellate lawyer and professor at the Peter A. Allard School of Law in Vancouver, says this decision emphasizes the international importance of extradition regimes and the comity between nations. Harris points out that in addition to Canada having an interest in justice being served abroad, Canada also has interest in having “alleged offenders for offences in Canada also to be extradited back to Canada.
“I think the [B.C.] court of appeal decision had really significant implications because of it essentially said that an aspect of another country’s justice system and detention system simply could not be trusted to enforce the regulations and laws that were on the books,” Harris says.
Michael Klein, who represented Badesha, did not wish to comment on the decision yet but indicated he would discuss it with his client and take his instructions on what to do next.