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.
Regards,
Blair
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