India v. Badesha, 2017 SCC 44
On June 9, 2000, the body of Jaswinder Kaur Sidhu was discovered in a village in the Indian State of Punjab. It is the theory of the Indian government that she was the victim of an honour killing arranged by her uncle, Surgit Singh Badesha (“Badesha”) and her mother, Malkit Kaur Sidhu (“Sidhu”). Both Badesha and Sidhu are Canadian citizens and live in Canada. India sought the extradition of Badesha and Sidhu for the offence of conspiracy to commit murder. The Minister of Justice (“Minister”) ordered their surrenders after receiving assurances from India regarding their treatment if incarcerated, including health, safety and consular access, and after determining in accordance with the relevant provisions of the Extradition Act, that their surrenders would not be unjust or oppressive. A majority of the British Columbia Court of Appeal concluded that the Minister’s orders were unreasonable and set them aside.
On appeal to the Supreme Court of Canada, in a 9 – 0 decision, the court restored the Minister’s surrender orders and allowed the appeal.
The judgment of the court was delivered by Justice Moldaver.
Justice Moldaver wrote:
The Minister’s surrender orders are subject to review on a standard of reasonableness. In this case, it was reasonable for the Minister to conclude that, on the basis of the assurances he had received from India, there was no substantial risk of torture or mistreatment of Badesha and Sidhu that would offend the principles of fundamental justice protected by s. 7 of the Canadian Charter of Rights and Freedoms, and that their surrenders were not otherwise unjust or oppressive.
Where a person sought for extradition faces a substantial risk of torture or mistreatment in the receiving state, their surrender will violate the principles of fundamental justice and the Minister must refuse surrender under s. 44(1)(a) of the Extradition Act. Where there is no substantial risk of torture or mistreatment and the surrender is Charter compliant, the Minister must nonetheless refuse the surrender if he is satisfied that, in all of the circumstances, it would be otherwise unjust or oppressive. In this regard, the Minister may take into account the circumstances alleged to make the surrender inconsistent with the Charter, the seriousness of the alleged offence and the importance of Canada meeting its international obligations.
In assessing whether there is a substantial risk of torture or mistreatment, diplomatic assurances regarding the treatment of the person may be taken into account by the Minister. Where the Minister has determined that such a risk exists and that assurances are therefore needed, the reviewing court must consider whether the Minister has reasonably concluded that, based on the assurances provided, there is no substantial risk. However, diplomatic assurances need not eliminate any possibility of torture or mistreatment; they must simply form a reasonable basis for the Minister’s finding that there is no substantial risk of torture or mistreatment. The reliability of diplomatic assurances depends on the circumstances of the particular case and involves the consider of multiple factors.
In this case, the Minister was satisfied that, based on the assurances he received from India regarding their treatment, Badesha and Sidhu would not face a substantial risk of torture or mistreatment. The Minister took into account relevant factors in assessing the reliability of the assurances, which formed a reasonable basis for the Minister’s conclusion that their surrenders would not violate the principles of fundamental justice. The inquiry for the reviewing court is not whether there is 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. Given the circumstances, the Minister’s decision to order the surrenders of Badesha and Sidhu fell within a range of reasonable outcomes.