SUPREME
COURT OF CANADA
Citation:
India v. Badesha, 2017 SCC 44
|
Appeal heard: March
20, 2017
Judgment
rendered: September 8, 2017
Docket:
36981
|
Between:
Attorney
General of Canada on behalf of the Republic of India
Appellant
and
Surjit
Singh Badesha and Malkit Kaur Sidhu
Respondents
-
and -
David
Asper Centre for Constitutional Rights, South Asian Legal Clinic of Ontario,
Canadian Lawyers for International Human Rights, Canadian Centre for Victims of
Torture and Canadian Council for Refugees
Interveners
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner,
Gascon, Côté, Brown and Rowe JJ.
Reasons for
Judgment:
(paras. 1 to 67)
|
Moldaver J. (McLachlin C.J. and Abella, Karakatsanis,
Wagner, Gascon, Côté, Brown and Rowe JJ. concurring)
|
Note: This document is subject to editorial revision before its
reproduction in final form in the Canada Supreme Court Reports.
india v. badesha
Attorney General of Canada on
behalf of the Republic of India Appellant
v.
Surjit Singh Badesha and
Malkit Kaur Sidhu Respondents
and
David Asper Centre for Constitutional
Rights,
South Asian Legal Clinic of Ontario,
Canadian Lawyers for International Human
Rights,
Canadian Centre for Victims of Torture
and
Canadian Council for Refugees Interveners
Indexed as: India v. Badesha
2017 SCC 44
File No.: 36981.
2017: March 20; 2017: September 8.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis,
Wagner, Gascon, Côté, Brown and Rowe JJ.
on appeal from the court of appeal for british columbia
Constitutional
law — Charter of Rights — Fundamental justice —Extradition
— Surrender order — Judicial review — Minister of Justice ordering surrender of
Canadian citizens for extradition — Whether it was reasonable for Minister to
conclude that there was no substantial risk of torture or mistreatment that
would offend principles of fundamental justice or that surrenders would not
otherwise be unjust or oppressive — Contextual factors in assessing reliability
of diplomatic assurances — Canadian Charter of Rights and Freedoms, s. 7 —
Extradition Act, S.C. 1999, c. 18, s. 44(1) (a).
B
and S were charged in India for allegedly arranging an honour killing that
occurred there. B is the victim’s uncle, and S is her mother. Both are Canadian
citizens residing in Canada. India sought the extradition of B and S for the
offence of conspiracy to commit murder. The Minister of Justice ordered their
surrenders, after receiving assurances from India regarding their treatment if
incarcerated, including health, safety and consular access, and determining, in
accordance with s. 44(1) (a) of the Extradition Act , that their
surrenders would not be unjust or oppressive. A majority of the Court of Appeal
concluded that the Minister’s orders were unreasonable and set them aside.
Held:
The appeal should be allowed and the surrender orders of the Minister restored.
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 received from India, there was no substantial risk of
torture or mistreatment of B and S that would offend the principles of
fundamental justice protected by s. 7 of the Charter , 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
the whole 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 consideration of multiple
factors.
In this
case, the Minister was satisfied that, based on the assurances he received from
India regarding their treatment, B and S 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 B and S fell within a range of reasonable outcomes.
Cases Cited
Adopted:
Othman (Abu Qatada) v. The United Kingdom, No. 8139/09, ECHR 2012‑I; considered: Suresh v. Canada (Minister of Citizenship
and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; referred to: Lake
v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761; Canada
(Justice) v. Fischbacher, 2009 SCC 46, [2009] 3
S.C.R. 170; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R.
283; M.M. v. United States of America, 2015 SCC 62, [2015]
3 S.C.R. 973; Kindler v. Canada (Minister of Justice),
[1991] 2 S.C.R. 779; Sriskandarajah v. United States of America, 2012
SCC 70, [2012] 3 S.C.R. 609; Divito v. Canada (Public Safety and
Emergency Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157; Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R.
631; Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281; Chahal v. United Kingdom (1997), 23 E.H.R.R. 413; Said
v. The Netherlands, July 5, 2005, Reports 2005‑VI; Thailand (Kingdom) v. Saxena, 2006 BCCA
98, 265 D.L.R. (4th) 55; Bonamie, Re, 2001 ABCA 267, 293 A.R.
201.
Statutes and
Regulations Cited
Canadian Charter of Rights and Freedoms,
ss. 6(1) , 7 .
Extradition Act, S.C. 1999, c. 18, ss. 3(2) ,
44(1) (a).
India Code Crim. Proc.
India Pen. Code.
Treaties and Other International Instruments
Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment, Can. T.S. 1987 No. 36, art. 3(1).
Extradition Treaty between the Government of Canada and the Government
of India, Can. T.S. 1987 No. 14.
International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47.
Vienna Convention on Consular Relations,
Can. T.S. 1974 No. 25.
APPEAL
from a judgment of the British Columbia Court of Appeal (Donald, Newbury and
Goepel JJ.A.), 2016 BCCA 88, 4 Admin. L.R. (6th) 280, 383 B.C.A.C. 220,
661 W.A.C. 220, [2016] B.C.J. No. 365 (QL), 2016 CarswellBC 468 (WL Can.),
allowing an application for judicial review of surrender orders made by the
Minister of Justice, setting the orders aside and remitting the matter to the
Minister for further consideration. Appeal allowed.
Janet Henchey and Diba B. Majzub, for the appellant.
Michael Klein, Q.C., and Michael Sobkin, for the respondent Surjit Singh
Badesha.
E. David Crossin, Q.C., Elizabeth
France and Miriam Isman, for the respondent Malkit Kaur
Sidhu.
John Norris and Cheryl Milne, for the intervener the David
Asper Centre for Constitutional Rights.
Ranjan K. Agarwal and Preet Bell, for the intervener the South
Asian Legal Clinic of Ontario.
Adriel Weaver and Louis Century, for the interveners Canadian
Lawyers for International Human Rights, the Canadian Centre for Victims of
Torture and the Canadian Council for Refugees.
The judgment of the Court was delivered by
Moldaver J. —
I.
Overview
[1]
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 the respondents, Surjit Singh Badesha, her uncle, and Malkit Kaur
Sidhu, her mother, both of whom are Canadian citizens residing in Canada.
[2]
India requested that Mr. Badesha and Ms. Sidhu
be extradited on a charge of conspiracy to commit murder contrary to the Indian
Penal Code. After an extradition hearing, Mr. Badesha and Ms. Sidhu were
committed for surrender. The Minister of Justice then ordered their surrenders
to India after determining, in accordance with s. 44(1) (a) of the Extradition
Act, S.C. 1999, c. 18 (“Act ”), that it would not be unjust or
oppressive to do so.
[3]
Mr. Badesha and Ms. 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 Mr. Badesha and Ms. 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 appeals from
that order.
[4]
Central to the appeal is whether Mr. Badesha and
Ms. Sidhu face a substantial risk of torture or other forms of mistreatment if
they are incarcerated in India. To surrender them in such circumstances would
violate their rights under s. 7 of the Canadian Charter of Rights and
Freedoms and render their surrenders unjust or oppressive under s. 44(1) (a)
of the Act .[1]
[5]
In assessing whether to surrender Mr. Badesha
and Ms. Sidhu, the Minister was cognizant of the health and safety risks they
might face if incarcerated in India and treated them seriously. In the end,
however, upon seeking and receiving assurances from the Indian government
designed to address his concerns about Mr. Badesha and Ms. Sidhu’s health and
safety while in custody, the Minister concluded that they did not face a
substantial risk of torture or mistreatment.
[6]
For reasons that follow, I am respectfully of
the view that the Minister’s conclusion in this regard was reasonable. I take a
similar view of his related conclusion that the surrenders were not otherwise
unjust or oppressive. In this respect, the Minister considered the case as a
whole, and determined that there was no justifiable basis for Canada not to
extradite according to its extradition treaty with India. The alleged crime for
which India was seeking Mr. Badesha’s and Ms. Sidhu’s extradition was extremely
serious, and in the Minister’s view, it was important that Canada comply with
its treaty obligations to India so that India could see “justice done on [its]
territory”: see Minister’s reasons at A.R., Vol I, at pp. 85 and 105. In short,
the Minister considered the relevant facts and reached a defensible conclusion
on the basis of those facts: Lake v. Canada (Minister of Justice), 2008
SCC 23, [2008] 1 S.C.R. 761, at para. 41.
[7]
Accordingly, I would allow the appeal and
restore the surrender orders.
II.
Background Facts
[8]
On June 8, 2000, Jaswinder Kaur Sidhu and her
husband, Sukhwinder Singh Sidhu, were travelling by scooter in the Punjab
region in India when they were attacked by a group of armed men. Sukhwinder was
seriously injured in the assault. The assailants forced Jaswinder into a car
and drove away. The next day, Jaswinder’s body was discovered on the bank of a
canal in a village close to where the attack had taken place. Her throat had
been cut.
[9]
Almost a year earlier, the couple had married in
India without the knowledge of Jaswinder’s family. Jaswinder’s family was from
a high socio-economic class. Her husband was from a low socio-economic class:
he was a rickshaw driver from a poor family. It is alleged by the Indian
government that Mr. Badesha and Ms. Sidhu strongly opposed the marriage of
Jaswinder and Sukhwinder, took steps to try to end it, and when those efforts
failed, arranged for a number of persons in India to attack and kill the
couple.
[10]
Thirteen people, including Mr. Badesha and Ms.
Sidhu, were charged in India in connection with the killing of Jaswinder and
the attack on Sukhwinder. Eleven of those charged were tried together in India.
Seven were convicted and four were acquitted of offences arising out of the
attack, including murder, attempted murder, and conspiracy to commit murder.
Four of the seven who were convicted were later acquitted on appeal. Mr.
Badesha and Ms. Sidhu are the only accused persons who remain to be tried in
this matter.
[11]
By a diplomatic note, India sought their
extradition for the offence of conspiracy to commit murder under the Indian
Penal Code: Extradition Treaty between the Government of Canada and the
Government of India, Can. T.S. 1987 No. 14. The Minister of Justice issued
an Authority to Proceed, authorizing extradition proceedings against Mr.
Badesha and Ms. Sidhu on the corresponding Canadian offences of conspiracy to
commit murder, attempt to commit murder and murder.[2]
[12]
The extradition judge found that there was a
substantial body of circumstantial evidence implicating Mr. Badesha and Ms.
Sidhu in the alleged crime, including evidence that: they viewed the marriage
between Jaswinder and Sukhwinder as bringing dishonour to their family; they
issued death threats to Jaswinder and Sukhwinder; and phone calls were placed
from Mr. Badesha’s home phone in British Columbia to some of the Indian
perpetrators around the time the couple was attacked. The extradition judge
concluded that on this evidence, a reasonable jury, properly instructed, could
find that Mr. Badesha and Ms. Sidhu hired the Indian perpetrators to kill
Jaswinder. Accordingly, he committed Mr. Badesha and Ms. Sidhu on charges of
conspiracy to commit murder and murder.
III.
Decisions Below
A.
The Minister’s Surrender Decisions
(1)
Mr. Badesha’s Surrender Order
[13]
In his submissions to the Minister, Mr. Badesha
argued that his surrender was unjust or oppressive under s. 44(1) (a) of the Act
because (1) there was no guarantee India would honour a death penalty
assurance, (2) he would not have a fair trial in India, (3) prison conditions
in India rendered his surrender contrary to principles of fundamental justice,
given his advanced age and health problems, and (4) there were significant
weaknesses in the evidence.
[14]
Commencing with the death penalty concern, the
Minister stated that absent evidence of bad faith on the part of India, he was
entitled to presume that the Indian authorities would honour any assurances they
provided, including an assurance regarding the death penalty — and he made the
surrender order contingent on receiving such an assurance.
[15]
As for Mr. Badesha’s right to a fair trial, the
Minister was satisfied that, while there were ongoing concerns with respect to
corruption and intimidation in India, there was no information before him to
suggest that Mr. Badesha would be subjected to these abuses. Absent evidence to
the contrary, he was entitled to assume that Mr. Badesha would receive a fair
trial in India and that his surrender would not violate the principles of
fundamental justice on this basis. However, as a precautionary measure, the
Minister made his surrender order conditional upon India providing an assurance
that it would allow Canadian officials to attend the court proceedings on
request.
[16]
With respect to prison conditions in India, the
Minister noted that the Ministry of External Affairs of India (“MEA”) had
advised Canada that the treatment and safety of inmates in prisons in Punjab,
the region in which Mr. Badesha would be incarcerated, was governed by the Punjab
Jail Manual. Under the terms of the Manual, medical officers
are required to make frequent visits to the prisons, are on-call 24 hours a
day, and are obliged to take such measures as are necessary for the maintenance
of the prison and the health of inmates. The MEA further indicated to the
Minister that prisons have modern equipment to provide medical treatment and
that specialist doctors visit the jails to see and treat inmates.
[17]
With a view to confirming this information, 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.
[18]
Even with this feedback, other information
identifying substandard conditions in Indian prisons left the Minister
concerned about Mr. Badesha’s health and safety while in prison. In view of
this, he made Mr. Badesha’s surrender conditional on receipt of an assurance
that India would provide Mr. Badesha with required medical care and
medications, and make every reasonable effort to ensure his safety while in
custody in India. He also made Mr. Badesha’s surrender conditional on receipt
of an assurance that India would provide immediate and unrestricted consular
access to Mr. Badesha while in custody. While the assurance he received from
India in this regard did not provide for “immediate and unrestricted consular
access”, it did provide that consular access “shall be provided as per India’s
obligations” under the Vienna Convention on Consular Relations, Can.
T.S. 1974 No. 25.
[19]
In the end, the Minister was confident that
these assurances would be respected by the Indian authorities, because India
had an interest in maintaining its extradition treaty and its “positive
political relationship” with Canada. He also noted that there were tools to
enforce the assurances. According to the Department of Foreign Affairs, if an
extradition treaty partner were to act contrary to diplomatic assurances given
to Canada, Canada could protest and take steps, including at a political level,
to ensure compliance with the assurances. Other measures were also available,
including the possible termination of Canada’s extradition treaty with India.
As well, India had a diplomatic incentive to comply with the assurances. Any
failure by India in this regard could have negative implications on India’s
relationships with other treaty partners.
[20]
The Minister found that there was abundant
evidence to support India’s allegations against Mr. Badesha and that there were
adequate procedural and legal avenues through which Mr. Badesha could adduce
defence evidence in India.
[21]
The Minister also determined that Mr. Badesha’s
extradition was a reasonable limit on his s. 6(1) right to remain in Canada
under the Charter . He noted that “much, if not all” of the evidence
needed to prosecute Mr. Badesha was available in India. Furthermore, it was in
India’s interests to prosecute Mr. Badesha for the alleged crime — an honour
killing — and that the impact of the crime was felt most acutely in India.
[22]
In sum, the Minister concluded that Mr.
Badesha’s surrender would not violate the principles of fundamental justice
contrary to s. 7 of the Charter or unjustifiably infringe s. 6(1) of the
Charter . Further, considering the case as a whole, which included the
serious nature of the alleged crime and India’s strong interest in pursuing it
on Indian soil, Mr. Badesha’s surrender would not otherwise be unjust or
oppressive.
(2)
Ms. Sidhu’s Surrender Order
[23]
Ms. Sidhu argued that her surrender was unjust
or oppressive under s. 44(1) (a) of the Act because (1) there was no
guarantee India would honour a death penalty assurance, (2) there were reports
of custodial violence and torture in India, (3) Ms. Sidhu’s personal situation,
including her health problems, would render her surrender contrary to s. 7 of
the Charter , (4) there were significant weaknesses in the
evidence, and (5) there was a delay on the part of India in seeking Ms. Sidhu’s
extradition.
[24]
The Minister stated that in the absence of
evidence of bad faith on the part of India, he was entitled to presume that the
Indian authorities would honour any assurances they provided, including an
assurance regarding the death penalty — and he made the surrender order
conditional on receiving such an assurance.
[25]
As for Ms. Sidhu’s safety concerns, the Minister
was satisfied that the Indian government was committed to addressing the
problem of violence and torture in its prisons. Nonetheless, he acknowledged
that the reports of torture and mistreatment in Indian prisons submitted by Ms.
Sidhu raised serious concerns with respect to the safety of inmates in Indian
custody, particularly female inmates. In the end, however, he determined that Ms.
Sidhu’s surrender would not be unjust or oppressive provided that it was made
conditional on assurances that India would make reasonable efforts to ensure
her safety while in Indian custody and that India would provide immediate and
unrestricted consular access to her upon request. As regards consular access,
the Minister received the same assurance from India that he received in respect
of Mr. Badesha.
[26]
The Minister also made Ms. Sidhu’s surrender
conditional on receipt of an assurance from India that Ms. Sidhu would receive
needed medical care and medications while she remained in custody. He was
satisfied that India had the ability to comply with that assurance on the basis
of information provided by the MEA and the Canadian Department of Foreign Affairs.
The Minister further noted that the same tools which were available to enforce
the assurances provided for Mr. Badesha were available for Ms. Sidhu.
[27]
As for the strength of the case against Ms.
Sidhu, the Minister determined that there was sufficient evidence to support
India’s allegations against Ms. Sidhu and that there were adequate procedural
and legal avenues through which Ms. Sidhu could adduce evidence in India.
[28]
With respect to the delay in seeking Ms. Sidhu’s
surrender, the Minister found that the Indian authorities pursued Ms. Sidhu’s
extradition in good faith and with reasonable diligence.
[29]
The Minister also determined that Ms. Sidhu’s
extradition was a reasonable limit on her s. 6(1) right to remain in Canada
under the Charter essentially for the same reasons he adopted in Mr.
Badesha’s case.
[30]
In the end, the Minister concluded that Ms.
Sidhu’s surrender would not violate the principles of fundamental justice
contrary to s. 7 of the Charter or unjustifiably infringe s. 6(1) of the
Charter . Further, considering the case as a whole, which included the
serious nature of the alleged crime and India’s strong interest in pursuing it
on Indian soil, Ms. Sidhu’s surrender would not otherwise be unjust or
oppressive.
B.
The Court of Appeal for British Columbia, 2016
BCCA 88, 4 Admin. L.R. (6th) 280
(1)
The Majority Judgment (Donald J.A., Newbury J.A.
concurring)
[31]
A majority of the Court of Appeal concluded that
it was unreasonable for the Minister to find that surrendering Mr. Badesha and
Ms. Sidhu would not be unjust or oppressive in the circumstances. While
recognizing that the Minister’s decision was subject to a standard of
reasonableness, the majority maintained that for the Minister to reasonably
accept diplomatic assurances from a requesting state, the assurances had to
“address meaningfully the risks that they are intended to mitigate” (para. 37).
[32]
The majority noted that there was a “valid basis
for concern” that Mr. Badesha and Ms. Sidhu would be subjected to
violence, torture or neglect in India if surrendered (para. 50). In the opinion
of the majority, the Minister failed to consider whether the assurances
regarding Mr. Badesha’s and Ms. Sidhu’s health and safety meaningfully
responded to this concern. The assurances amounted to promises that the laws
protecting prisoners in India would protect Mr. Badesha and Ms. Sidhu from
mistreatment. However, the reports submitted by Mr. Badesha and Ms. Sidhu
documented human rights abuses that had occurred under these same laws. The
Minister did not consider what steps India was planning to take to mitigate the
risk of violence and neglect that Mr. Badesha and Ms. Sidhu would accordingly
face despite the existence of these laws. He therefore failed to take into
account India’s capacity to fulfill the assurances regarding Mr. Badesha’s and
Ms. Sidhu’s health and safety. The only realistic protection the assurances
gave against the risk of torture or mistreatment was consular monitoring, which
the majority dismissed as an inadequate safeguard. In the final analysis, the
majority concluded that “the assurances in this case regarding health and
safety could not be reasonably accepted” and that the Minister’s decision was
therefore unreasonable in the circumstances (para. 69).
(2)
The Minority Judgment (Goepel J.A.)
[33]
Goepel J.A., writing in dissent, held that the
Minister’s decision to order the surrenders of Mr. Badesha and Ms. Sidhu was
not unreasonable given the assurances provided by India.
[34]
Goepel J.A. disagreed with the majority that the
Minister erred in failing to appreciate that India’s assurances did not
meaningfully address the health and safety risks faced by Mr. Badesha and Ms.
Sidhu. The Minister reviewed information provided by India’s MEA and the
Canadian Department of Foreign Affairs, which detailed the availability of medical
treatment in India’s prisons. In his reasons for Ms. Sidhu’s surrender, the
Minister concluded that based on this information, India had the ability to
comply with its assurances. The Minister was satisfied that India was committed
to addressing the problem of violence and torture in Indian prisons. He also
considered the diplomatic incentive for India to comply with the assurances and
that India and Canada’s relationship as extradition partners had value to both
parties. Given these considerations, it could not be said that the Minister
failed to address India’s capacity to fulfill its assurances regarding Mr.
Badesha and Ms. Sidhu’s health and safety.
IV.
Analysis
A.
General Principles of Extradition Law
[35]
It is a basic principle of extradition law that
when a person is alleged to have committed a crime in another country, he or
she should expect to be answerable to that country’s justice system: United
States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, at para. 72. As Cromwell
J. stated in M.M. v. United States of America, 2015 SCC 62, [2015] 3
S.C.R. 973, extradition is “the process by which one state assists another in
putting that principle into practice”: para. 14. The Act implements Canada’s
international obligations under extradition treaties to surrender persons for
prosecution, or to serve sentences imposed, in another country: M.M.,
at para. 14. The extradition process is founded on principles of
“‘reciprocity, comity and respect for differences in other jurisdictions’”: Canada
(Justice) v. Fischbacher, 2009 SCC 46, [2009] 3 S.C.R. 170, at para. 51,
quoting Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, at
p. 844.
[36]
The Act does not merely fulfill Canada’s
international obligations. It also serves pressing and substantial domestic
objectives. It protects the public against crime through its investigation, it
brings fugitives to justice for the proper determination of their criminal
liability, and it ensures — through international cooperation — “that national
boundaries do not serve as a means of escape from the rule of law”: M.M.,
at para. 15, citing Sriskandarajah v. United States of America, 2012
SCC 70, [2012] 3 S.C.R. 609, at para. 10.
[37]
That being said, the extradition process also
protects the rights of the person sought. At each stage of the process,
including the Minister’s decision to order the person’s surrender to its treaty
partner, there is a careful balancing of the broader purposes of the Act with
the individual’s rights and interests: M.M., at para. 16.
[38]
Where a person’s surrender offends the
principles of fundamental justice enshrined in s. 7 of the Charter , the
Minister must refuse the person’s extradition. In extradition cases, s. 7 of
the Charter should be presumed to provide at least as great a level of
protection as found in Canada’s international commitments regarding non-refoulement
to torture or other gross human rights violations: see Divito v. Canada (Public
Safety and Emergency Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157, at
para. 23. Extraditing a person to another state where there are substantial
grounds for believing that he or she would be in danger of being subjected to
torture is prohibited under art. 3(1) of the Convention
against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Can. T.S. 1987 No. 36 (“CAT”). It
follows that in the extradition context, surrendering a person to face a
substantial risk of torture or mistreatment in the requesting state will
violate the principles of fundamental justice.
B.
Standard of Review
[39]
The Minister’s decision to order the surrender
of a person falls “‘at the extreme legislative end of the continuum of
administrative decision-making’” and is seen as “largely political in nature”: Lake,
at para. 22, quoting Idziak v. Canada (Minister of Justice), [1992] 3
S.C.R. 631, at p. 659; Sriskandarajah, at para. 11. Given the
Minister’s superior expertise in Canada’s international relations and foreign
affairs, he or she is in the best position to determine whether the factors
weigh in favour of or against extradition: Lake, at para. 41. The
Minister’s decision to order surrender is therefore subject to review on a
standard of reasonableness. As this Court noted in Lake:
The reviewing court’s role is not to re-assess the
relevant factors and substitute its own view. Rather, the court must determine
whether the Minister’s decision falls within a range of reasonable outcomes. To
apply this standard in the extradition context, a court must ask whether the
Minister considered the relevant facts and reached a defensible conclusion
based on those facts. [para. 41]
C.
Section 44(1)(a) of the Act
[40]
The Minister’s discretion to order a person’s
surrender is subject to restrictions set out in the Act . Section 44(1) (a) reads
as follows:
The Minister shall refuse to make
a surrender order if the Minister is satisfied that
(a) the surrender would be unjust or oppressive having regard to all
the relevant circumstances; . . .
[41]
Given the mandatory nature of s. 44(1) (a), the
Minister must balance all the relevant circumstances to determine whether the
surrender is unjust or oppressive: Fischbacher, at para. 37. The
circumstances that will be relevant will vary depending on the facts and
context of each case: para. 38. Although it is the Minister who considers and
weighs all the relevant circumstances to determine whether the surrender would
be “unjust or oppressive”, the person sought for extradition bears the burden
of demonstrating that such circumstances exist: Németh v. Canada (Justice),
2010 SCC 56, [2010] 3 S.C.R. 281, at para. 72. If the Minister is satisfied
that a person’s surrender would be unjust or oppressive, he must refuse the
surrender and has “no discretion” to give effect to a treaty obligation to
extradite the person: at para.
69.
[42]
Where a person sought for extradition faces a
substantial risk of torture or mistreatment in the receiving state, his or her
surrender will violate the principles of fundamental justice and the Minister
must refuse surrender under s. 44(1) (a). But where there is no substantial risk
of torture or mistreatment and where the surrender is Charter compliant,
the Minister must nonetheless refuse the surrender if he or she is satisfied
that, in the whole of the circumstances, it would be otherwise unjust or oppressive.
(1)
Section 44(1) (a) of the Act and Section 7 of the
Charter
[43]
The section 44(1) (a) inquiry may require the
Minister to consider whether the surrender would violate s. 7 of the Charter .
Under section 7, “[e]veryone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in accordance with the
principles of fundamental justice.” Where the surrender is found to be contrary
to the principles of fundamental justice protected by s. 7 , it will also be
unjust or oppressive under s. 44(1) (a) and the Minister must refuse to make a
surrender order: Lake, at para. 24; M.M., at para.
115. 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). 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.
[44]
In Suresh v. Canada (Minister of Citizenship
and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, the Court stated that the
Minister’s assessment of whether the potential deportee faces a substantial
risk of torture is a “fact-driven inquiry”, which requires consideration of the
human rights record of the receiving state, among other factors: para. 39. In
the extradition context, when evaluating whether there is a substantial risk of
torture or mistreatment in the requesting state, it logically follows that the
Minister can consider evidence of the general human rights situation in that
state, which may include reports from reputable government and non-governmental
organizations: see, e.g., Chahal v. United Kingdom (1997), 23 E.H.R.R.
413, at paras. 99-100; Said v. The Netherlands, July 5, 2005, Reports
2005-VI, at para. 54. Accordingly, I am unable to accept Goepel J.A.’s
statement in his dissenting reasons that evidence of systemic human rights
abuses in a receiving state amounts to a general indictment of that state’s
justice system and is thus an “unsatisfactory underpinning for finding that an
individual’s s. 7 Charter rights will be violated if surrendered”: C.A.
reasons, at para. 125. With respect, I believe this statement is too sweeping
in nature.
[45]
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: Suresh, at para. 39. 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.
(2)
Diplomatic Assurances
[46]
In assessing whether there is a substantial risk
of torture or mistreatment, diplomatic assurances regarding the treatment of
the person sought may be taken into account by the Minister: Suresh, at
para. 39. In certain cases, the Minister may be satisfied that assurances are
required so that the person sought for extradition does not face a substantial
risk of torture or mistreatment, which would offend the principles of
fundamental justice. Where the Minister has determined that such a risk of
torture or mistreatment 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 of torture
or mistreatment. In this regard, I would emphasize that 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.
[47]
In Othman (Abu Qatada) v. The United Kingdom,
No. 8139/09, ECHR 2012-I, the European Court of Human Rights (“ECHR”) examined
whether the deportation of Mr. Qatada, which was made conditional on diplomatic
assurances, was consistent with art. 3(1) of the CAT, which prevents
expulsion where substantial grounds have been shown for believing that the
person, if deported, faces a “real risk” of being subjected to ill-treatment:
para. 185. The ECHR found that the proper inquiry to be conducted to determine
whether the deportation is consistent with art. 3(1) is “whether the assurances
obtained in a particular case are sufficient to remove any real risk of
ill-treatment”: para. 186.
[48]
The reliability of diplomatic assurances depends
crucially on the circumstances of the particular case. In Suresh, this
Court stressed that a contextual approach should be taken when determining the
reliability of assurances. The Court cautioned that assurances regarding the
death penalty are easier to monitor and more reliable than those regarding
torture: “We would signal the difficulty in relying too heavily on assurances
by a state that it will refrain from torture in the future when it has engaged
in illegal torture or allowed others to do so on its territory in the past”
(para. 124). Ultimately, however, the weight to be given to assurances involves
the consideration of multiple factors. In evaluating the reliability of
assurances, the Minister may take into account:
. . . the human rights record of the
government giving the assurances, the government’s record in complying with its
assurances, and the capacity of the government to fulfill the assurances,
particularly where there is doubt about the government’s ability to control its
security forces. [Suresh, at para. 125]
[49]
In Othman, the ECHR took a similar
contextual approach to determining the reliability of assurances:
. . . assurances are not in themselves sufficient to ensure adequate
protection against the risk of ill-treatment. There is an obligation to examine
whether assurances provide, in their practical application, a sufficient
guarantee that the applicant will be protected against the risk of
ill-treatment. The weight to be given to assurances from the receiving State
depends, in each case, on the circumstances prevailing at the material time.
[Emphasis added; para. 187.]
[50]
The ECHR noted in Othman that the threshold
question when evaluating the weight to be given to assurances is:
. . . whether the general human rights situation in the receiving
State excludes accepting any assurances whatsoever. However, it will only be in
rare cases that the general situation in a country will mean that no weight at
all can be given to assurances . . . .
More usually, the Court will assess, firstly, the quality of
the assurances given and, secondly, whether, in light of the receiving State’s
practices, they can be relied upon. [paras. 188-89]
[51]
The ECHR set out a detailed list of contextual
factors to be examined when assessing the reliability of diplomatic assurances.
Many of these factors may be considered by Canadian courts. To be clear, these
factors are not exhaustive and their relevance will depend on the circumstances
of the particular case:
1.
Whether the assurances are specific or are
general and vague;
2.
Who has given the assurances and whether that
person can bind the receiving state;
3.
If the assurances have been issued by the central
government of the receiving state, whether local authorities can be expected to
abide by them;
4.
Whether the assurances concern treatment which
is legal or illegal in the receiving state;
5.
The length and strength of bilateral relations
between the sending and receiving states, including the receiving state’s
record in abiding by similar assurances;
6.
Whether compliance with the assurances can be
objectively verified through diplomatic or other monitoring mechanisms,
including providing unfettered access to the individual’s lawyers;
7.
Whether there is an effective system of
protection against torture in the receiving state, including whether it is
willing to cooperate with international monitoring mechanisms (including
international human rights NGOs) and whether it is willing to investigate
allegations of torture and to punish those responsible; and
8.
Whether the individual has previously been
ill-treated in the receiving state.
(See Othman,
at para. 189.)
[52]
I pause here to note that assurances may fulfill
different purposes in relation to a person’s surrender. They are not always
requested where the Minister has determined that there is a substantial or
indeed any risk of torture or mistreatment in the requesting state.
Therefore, they cannot be treated as proof that such a risk exists. For
example, they may be requested by the Minister simply out of an abundance of
caution: see, e.g., Thailand (Kingdom) v. Saxena, 2006 BCCA 98, 265
D.L.R. (4th) 55, at para. 56.
(3)
Where the Surrender has been Found to be
Compliant with the Charter , the Minister Must Nonetheless Refuse the
Surrender if He or She is Satisfied that it would be Otherwise Unjust or
Oppressive
[53]
Where the Minister is satisfied that the person
sought for extradition does not face a substantial risk of torture or
mistreatment and that his or her surrender is compliant with the Charter ,
the Minister must nonetheless refuse the surrender if he or she is satisfied
that it would be otherwise unjust or oppressive: see Németh, at para.
56. As this Court observed in Fischbacher, where the surrender is
constitutional, the Minister retains a “‘residual discretion to refuse
surrender as being unjust or oppressive in view of the totality of the relevant
circumstances, including, but not limited to, the circumstances alleged to make
surrender inconsistent with the principles of the Charter ’”: Fischbacher,
at para. 39, quoting Bonamie, Re, 2001 ABCA 267, 293 A.R. 201, at
para. 47. In this regard, the Minister may take into account the circumstances
he considered when determining whether there was a s. 7 infringement or other Charter
violation, including the circumstances of the person sought and the
consequences of extradition. The Minister may also consider the seriousness of
the alleged offence and the importance of Canada meeting its international
obligations and not becoming a safe haven for fugitives from justice.
D.
The Reasonableness of the Minister’s Decision to
Order the Surrenders of Mr. Badesha and Ms. Sidhu
[54]
In his reasons for ordering Mr. Badesha’s
surrender, the Minister took note of the U.S. Department of State’s India
2013 Human Rights Report in which Indian prisons were described as being
“severely overcrowded”, that medical care was often inadequate and that inmates
were “physically mistreated” (see A.R., Vol. IV, at p. 25). Given the findings
in this report, the Minister found that Mr. Badesha’s surrender should be made
conditional on assurances from India that: (1) Mr. Badesha would receive needed
medical care and medications while in custody; and (2) India would “make every
reasonable effort to ensure his safety while in custody in the Republic of
India”. The Minister also made his surrender conditional on an assurance that
India would provide immediate and unrestricted consular access to Mr. Badesha
upon request.
[55]
With respect to Ms. Sidhu’s surrender, the
Minister stated that reports before him raised “serious concerns with regard to
the safety of inmates in Indian custody, particularly female inmates”. He also
noted Ms. Sidhu’s health problems, including her heart condition. Accordingly,
he made Ms. Sidhu’s surrender conditional on the same assurances that he
requested India provide for Mr. Badesha.
[56]
The Minister was satisfied that, based on the
assurances he received from India, Mr. Badesha and Ms. Sidhu would not face a
substantial risk of torture or mistreatment. India provided an assurance which
stated that “every reasonable effort will be made to meet the safety and
medical needs” of Mr. Badesha and Ms. Sidhu, as required under India’s Criminal
Procedure Code. India also assured that consular access would be provided
in accordance with India’s obligations under the Vienna Convention on
Consular Relations. While this assurance did not explicitly provide for
“immediate and unrestricted consular access” as requested by the Minister, he
was satisfied that the assurance was sufficient to meet that condition.
[57]
As indicated, the central question in this case
is whether it was reasonable for the Minister to find that, based on the
assurances provided by India, surrendering Mr. Badesha and Ms. Sidhu would not
violate s. 7 of the Charter or be otherwise unjust or oppressive. The
role of a reviewing court in these circumstances is not to re-assess the
relevant factors and substitute its own view for that of the Minister: Lake,
at para. 41. Rather, the court must examine whether the decision falls
within a range of reasonable outcomes. The question to be asked is: did the
Minister consider the relevant facts and reach a defensible conclusion based on
those facts (Lake, at para. 41)? In my respectful view, the
answer in this case is yes.
(1)
The Minister’s Reliance on the Assurances
Regarding Health and Safety
[58]
The majority of the Court of Appeal held that
the Minister failed to consider whether the assurances regarding health and
safety meaningfully responded to the concerns they were intended to address. In
the opinion of the majority, the assurances amounted to promises that the laws
protecting prisoners in India would ensure that Mr. Badesha and Ms. Sidhu would
not be mistreated. However, the reports submitted by Mr. Badesha and Ms. Sidhu
documented human rights abuses that had occurred under these same laws. The
only “realistic protection” the assurances gave against the risk of torture or
mistreatment was consular monitoring, which the majority of the Court found was
an inadequate safeguard to redress this risk. The Minister’s decision to order
the surrenders of Mr. Badesha and Ms. Sidhu was therefore unreasonable.
[59]
Respectfully, in reaching this conclusion, the
majority did not consider many of the relevant factors the Minister considered
in assessing the reliability of the assurances. These factors formed a
reasonable basis for the Minister’s conclusion that the surrenders of Mr.
Badesha and Ms. Sidhu would not violate the principles of fundamental justice.
[60]
As discussed, the reliability of diplomatic
assurances crucially depends on the context of the particular case. Along with
consular monitoring, the Minister took into account the following factors in
assessing the risk of torture or mistreatment faced by Mr. Badesha or Ms. Sidhu
in this case:
•
The Indian MEA provided information which
confirmed that there were medical professionals and facilities available to
inmates in prisons in the state of Punjab;
•
The Canadian Department of Foreign Affairs
received information from the Canadian High Commission in India that prisons in
the state of Punjab have medical facilities for the basic medical care of
inmates. Inmates requiring more specialized care are referred to outside
hospitals;
•
India’s efforts to enact domestic legislation
that would permit them to ratify the CAT, the fact that they were party
to the International Covenant on Civil and Political Rights, Can. T.S.
1976 No. 47, and efforts made by the Indian judiciary to address incidents of
custodial violence demonstrated that India was committed to addressing the
problem of violence and torture in Indian prisons;
•
India would want to maintain its positive
political relationship with Canada and the integrity of the extradition treaty
with Canada;
•
There were tools available to enforce the
assurances. According to the Department of Foreign Affairs, if an extradition
treaty partner were to act contrary to diplomatic assurances given to Canada,
Canada could protest and take steps, including at a political level, to ensure
compliance with the assurances. Canada could also take further measures
including immediate notification of the termination of the agreement that was
violated; and
•
The Department of Foreign Affairs informed the
Minister that because treaties and agreements are a reflection of mutual
confidence and trust between nations, a failure to honour diplomatic assurances
could have negative implications on India’s relationships with other treaty
partners.
Several of the above factors were
endorsed in Suresh and Othman as indicators of the weight to be
given to diplomatic assurances.
[61]
Furthermore, the Minister noted that there was
no history of India not complying with assurances given to its treaty partners.
He further observed there was no evidence of any corruption, intimidation or
torture involved in India’s investigation of Mr. Badesha, Ms. Sidhu or any of
the eleven co-accused in this matter. Nor was there any evidence that the seven
co-accused found guilty at trial were mistreated while in prison in India.
There was also no evidence that Ms. Sidhu and Mr. Badesha had personal
characteristics that would make them part of a category of individuals who
would be particular targets of ill-treatment in India because of their
political or religious affiliations. This specific evidence of a personal risk
to Mr. Badesha and Ms. Sidhu was not required for the Minister to find a
substantial risk of torture. However, if such evidence had been presented, it
would have militated in favour of a finding of substantial risk. In this case,
no such evidence was presented. This is to be contrasted with the situation in Othman
where the ECHR found it relevant that Mr. Qatada, a “high profile
Islamist”, belonged to a group of prisoners who were frequently ill-treated in
Jordan, and had claimed to have been previously tortured there: para. 192. Similarly,
in Chahal, the ECHR noted that Mr. Chahal, a “well-known
supporter of Sikh separatism” would be “a target of interest” for “hard-line
elements in the security forces who have relentlessly pursued suspected Sikh
militants in the past” in India: paras. 98 and 106.
[62]
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 Mr. Badesha and Ms. Sidhu
would not violate principles of fundamental justice and would not be otherwise
unjust or oppressive. 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.
[63]
In my respectful opinion, 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 Mr. Badesha and
Ms. Sidhu would not face a substantial risk of torture or mistreatment in
India, having regard to the assurances provided by India. In concluding
otherwise, the majority effectively substituted its view for that of the
Minister.
(2)
The Minister’s Reliance on Consular Monitoring
[64]
With respect, the majority of the Court of
Appeal also did not consider whether, in the particular circumstances of this
case, 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 majority stated that consular monitoring “has its limits in
mitigating the risks” of torture or mistreatment, because torture or
mistreatment often takes place covertly and those who administer it are adept
at concealing its visible signs and ensuring that authorities are not alerted.
[65]
I do not dispute this observation. However, the
real question is not whether consular monitoring could eliminate any
possibility of torture or mistreatment, but whether consular monitoring could
be a factor in the Minister’s conclusion that Mr. Badesha and Ms. Sidhu
would not face a substantial risk of torture or mistreatment. In certain cases,
to be effective, monitoring may need to be carried out by a third-party
organization, or provide for other protections, such as private and without
notice interviews conducted by experts trained to detect physical and
psychological signs of torture and ill-treatment (see, e.g., the monitoring agreed
to by Jordan and the United Kingdom in Othman, at paras. 77 and
81). But 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 Mr. Badesha and Ms. 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.
V.
Conclusion
[66]
Having regard to the factors the Minister
considered and the contextual circumstances of this case, the Minister’s
conclusion that Mr. Badesha and Ms. Sidhu would not face a substantial risk of
torture or mistreatment while incarcerated in India was reasonable. The
Minister’s further finding, based on the totality of the circumstances, that
the surrender would not be otherwise unjust or oppressive was also reasonable.
In the Minister’s view, there was no justifiable basis for Canada not to
extradite according to its extradition treaty with India. The gravity of the
alleged offence in this case was particularly relevant to the Minister. Mr.
Badesha and Ms. Sidhu are wanted in India for alleged criminal conduct of the
most horrific nature — namely, participation in a conspiracy to commit the
honour killing of a family member. The Minister noted that the alleged offence
“engages, first and foremost, the interests of the Republic of India to
prosecute” Mr. Badesha and Ms. Sidhu and stressed the “importance of seeing
justice done on India’s territory”.
[67]
In my opinion, the Minister considered the
relevant facts and reached a defensible conclusion on the basis of those facts:
Lake, at para. 41. The Minister’s decision to order the
surrenders of Mr. Badesha and Ms. Sidhu therefore fell within a range of
reasonable outcomes: Lake, at para. 41. Accordingly, I would
allow the appeal and restore the Minister’s surrender orders for Mr. Badesha
and Ms. Sidhu.
Appeal allowed.
Solicitor for the
appellant: Attorney General of Canada, Ottawa.
Solicitors for the
respondent Surjit Singh Badesha: Michael
Klein Law Corporation, Vancouver; Michael Sobkin, Ottawa.
Solicitors for the
respondent Malkit Kaur Sidhu: Sugden,
McFee & Roos, Vancouver.
Solicitors for the
intervener the David Asper Centre for Constitutional Rights: Simcoe
Chambers, Toronto; David Asper Centre for Constitutional Rights, Toronto.
Solicitors for the
intervener the South Asian Legal Clinic of Ontario: Bennett Jones,
Toronto.
Solicitors for the
interveners Canadian Lawyers for International Human Rights, the Canadian
Centre for Victims of Torture and the Canadian Council for Refugees: Goldblatt
Partners, Toronto.