Canada breached Charter by extraditing man to Mexico despite risk of torture: Federal Court

Judgment underscores 'Canada cannot compromise' with this type of conduct, says lawyer

Canada breached Charter by extraditing man to Mexico despite risk of torture: Federal Court
Audrey Boctor and Ronald Poulton

The Federal Court has ordered Canada to pay $500,000 in damages to a Canadian man who was extradited to Mexico to serve a prison sentence and then tortured by prison guards on multiple occasions.

In Boily v. Canada, Justice Sébastien Grammond found that the federal government breached s. 7 of the Charter, the right to life, liberty and security of the person, in extraditing Regent Boily with the knowledge there was a substantial risk he would be tortured.

“While we continue to review the judgment, we are relieved that after 12 years, justice was rendered for our client,” says Audrey Boctor, who represented Boily, along with co-counsel Olga Redko, Vanessa Ntaganda, Michel Swanston, and Christian Deslauriers. “We hope that Canada will finally accept its responsibility to Mr. Boily for these events and not prolong these proceedings any further.”

“The Federal Court’s judgment underscores that Canada cannot compromise with respect to torture and cannot turn a person over to foreign authorities when doing so will expose them to a substantial risk of torture,” she says. “The judgment is a strong affirmation of core human rights principles at the heart of our legal system.”

Mexico requested Boily’s extradition so he could complete a sentence for marijuana trafficking. Boily had escaped from prison with the help of two armed men who had shot dead a prison guard, and Mexico also wanted him to face a new prosecution stemming from the incident.

“It may come as a surprise that such a large amount of money would be awarded to someone who has been convicted of serious crimes,” writes Justice Grammond in the ruling.

“The prohibition of torture flows from the obligation to respect the human dignity of all persons ‘irrespective of their actions,’” he said, quoting R v Bissonnette, 2022 SCC 23.

Canada had argued that Boily’s criminal record seriously diminished his credibility, and that his testimony was inconsistent, uncorroborated, and contradicted by Mexican authorities and the accused prison guards. But Justice Grammond found that Boily was credible and had proven the alleged facts on a balance of probabilities.

Toronto immigration lawyer Ronald Poulton says the court’s decision is “surprising and really welcome.”

“The fact that he's not this blemish-less person, that he's got this extremely dark background, and yet, the Court accepted, notwithstanding that, protection from torture is more important than the person he is and what Canada did to him is deserving of such condemnation.”

“It puts life into these principles and these ideas and hopefully gives pause to the bureaucrats who just kind of churn out their work in getting people out of Canada,” he says.

In his reasons, Justice Grammond notes that s. 269.1 of the Criminal Code prohibits torture, and the Supreme Court of Canada has found, in Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1, and R v Bissonnette, 2022 SCC 23, that torture is counter to ss. 7 and 12 of the Charter. Section 12 protects Canadians from cruel and unusual punishment.

Canada has also ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which prohibits the extradition or deportation of a person to a country where they risk being subject to torture.

Poulton acted on Suresh v Canada, which dealt with the deportation of a refugee and alleged member of the  Liberation Tigers of Tamil Eelam back to Sri Lanka where he faced the risk of torture. The SCC found that to conform with the principles of fundamental justice under s. 7, the immigration minister should “generally decline” to deport refugees “where on the evidence there is a substantial risk of torture.”

“Section 7 rights are engaged by the removal – either by extradition, as in this case, or through deportation,” says Poulton. “Security of the person interests are breached where the conduct is a risk to life – like the death penalty – or risk to life, liberty and security of the person, through something like torture.”

“Fundamental justice, that balancing part in s. 7, is not complied with where the risk is the death penalty or torture.”

In 1998, five years after Boily moved to Mexico from Canada, Mexican police arrested him in the state of Zacatecas, after finding 500 kg of marijuana in his car. For refusing to name his accomplices, Boily said the officers suffocated him with a plastic bag, injected chili sauce and carbonated water into his nostrils, and threatened to kill him if he told anyone about it. He was sentenced to 14 years and sent to Cieneguillas prison.

But Boily managed to escape the next year. He told prison officials he had lost his glasses, and two guards took him to an eye clinic. While traveling back to the prison, armed men intercepted the vehicle, took Boily, and killed one of the guards.

He then snuck into the U.S., flew to Vermont, and then crossed into Canada by foot, living in Quebec for several years under his true identity.

In 2003, Mexico made an extradition request, so Boily could serve the remainder of his sentence and answer to charges of manslaughter and escaping legal custody. After he was arrested in 2005, the Quebec Superior Court ruled there was sufficient evidence to justify the extradition.

Under s. 40 of the Extradition Act, the decision to extradite rests with the Minister of Justice. Boily argued he faced a substantial risk of torture based on three grounds: he had been tortured during his initial arrest, he was now accused of murdering a prison guard, and he submitted human rights reports attesting to the frequent use of torture in Mexico.

After considering Boily’s submissions, the Justice Minister ordered the extradition. The Minister acknowledged the widespread use of torture in Mexico, but decided Canada could meet its obligation not to extradite a person to a country in which they face a substantial risk of torture by obtaining assurances from Mexico that its officials would take reasonable precautions to ensure his safety, that his lawyer or Canadian consular services would be able to visit or communicate with him at all times, and that he would get a trial within a reasonable time. Mexico delivered the assurances in 2006.

Boily sought judicial review of the Minister’s decision, but the Quebec Court of Appeal dismissed the application, and the Supreme Court of Canada then refused to grant leave to appeal it.

On Aug. 15, 2007, two days before the extradition date, a case officer in Ottawa’s Consular Affairs Division looked into the case and concluded that Boily would be incarcerated at the same prison from which he had escaped and at which the murdered guard had worked. Two other consular officers got to work trying to have him transferred to another prison. But the same day, Department of Foreign Affairs officials in Ottawa decided not to intervene with the Mexican authorities, and those officials abandoned their efforts.

Boily says he was tortured almost immediately upon arrival at the Cieneguillas prison. Two guards and the prison’s head of security beat him, submerged his head in a barrel of filthy water, suffocated him with a plastic bag until he became unconscious, and injected hot sauce into his nostrils. He says he was tortured on several occasions.

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