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Criminal

SCC decision makes assumptions despite India's 'abysmal' human rights record

Canadian Press THE CANADIAN PRESS

OTTAWA — The Supreme Court of Canada has cleared the path for extradition of two B.C. residents to India to face murder charges in the so-called honour killing of a young woman.

In a 9-0 judgment Friday, the high court set aside a British Columbia Court of Appeal ruling that put the brakes on extradition over concerns about whether the accused — the woman's mother and uncle — would be poorly treated or even tortured in India.

The Supreme Court also restored federal surrender orders in the high-profile case.

In June 2000, Jaswinder (Jassi) Sidhu and her husband, Sukhwinder Singh Sidhu, were travelling by scooter in the Punjab region of India when they were attacked by armed men. Sukhwinder was seriously injured.

The assailants forced Jassi into a car and drove away. The next day, she was found on the bank of a canal with her throat slit.

Indian authorities accuse her mother, Malkit Kaur Sidhu, and uncle, Surjit Singh Badesha, of conspiracy to commit murder.

Sidhu and Badesha, who are Canadian citizens living in the Vancouver area, allegedly ordered the killing after Jassi secretly married Sukhwinder, a rickshaw driver, in 1999 instead of a wealthy, older man chosen for her.

In 2014, an extradition judge committed the pair for extradition to face the charges in India.

The judge cited evidence that Sidhu and Badesha viewed the marriage as bringing dishonour to their family, they issued death threats to Jassi and Sukhwinder and phone calls were made from Badesha's B.C. home to some of the Indian perpetrators around the time of the attack.

Peter MacKay, then justice minister, issued surrender orders conditional on several assurances from India about meeting Sidhu and Badesha's safety and medical needs, as well as access to Canadian consular officials.

Sidhu and Badesha successfully challenged the extradition in the Court of Appeal on grounds the minister did not properly consider the substance of assurances concerning the pair's health and safety in Indian custody.

In an interview with AdvocateDaily.com, Toronto criminal defence lawyer Ayo Akenroye says that while the Supreme Court has clearly stated that Canada will not be a safe haven for those who participate in or sponsor ‘honour killings,’ it has, in essence, equated India’s commitments to its human rights obligations to Canada’s standards.

“The decision made an assumption that India will honour the assurances it provided to Canada, despite evidence of that country's abysmal human rights record especially on torture and killings of suspects in police custody which has been extensively documented by human rights organizations and monitoring bodies,” says Akenroye, founding partner of Akenroye Law.

Akenroye points out that under s.7 of the Charter and s. 44(1)(a) of the Extradition Act, those facing criminal charges outside of Canada are guaranteed protection from extradition to countries with poor human rights records.

“Both the Charter and the Extradition Act give the minister of justice the authority to refuse to extradite Canadians, permanent residents and persons living in Canada, if he is of the opinion that doing so will expose such persons to substantial risk or that they will be treated badly. Such risks include torture, police brutality and in-custody killings, refusing access to proper medical care and treatment, among others,” he says.

The impacts of this case are twofold, Akenroye says. In the first place, he notes that those asking not to be extradited to face criminal charges outside of Canada will have to demonstrate personal risk based on either their race, ethnicity, political orientation, sex, sexual orientation or religious belief.

“It is no longer sufficient for an applicant challenging the extradition decision of the minister of justice to present reports of the general human rights condition in the country requesting their extradition. The standard has now been elevated to a level where the applicant must show that his/her unique personal characteristics will put him/her at risk if extradited,” he says.

The secondary impact from this decision, Akenroye says, will be that once a requesting country “provides assurance of unrestricted consular access to persons being extradited out of Canada, then the minister of justice is at liberty to ignore the human rights records of such country, however damning it might be.”

A majority of the appeal court noted there was a ``valid basis for concern'' that the two accused would be subjected to violence, torture or neglect in India if surrendered.

Both the mother and uncle have health issues. Sidhu, 67, has been admitted to hospital for treatment of a heart condition while in Canadian custody. Badesha, 72, suffers from a number of age-related conditions that have required medical care.

In its judgment Friday, the Supreme Court said MacKay was aware of the health and safety risks and ``treated them seriously.''

The court said it was reasonable for the minister to conclude the pair did not face a substantial risk of torture or mistreatment upon receiving assurances from the Indian government to address his concerns.

It was also defensible for MacKay to find, based on a broader view of the case, that the surrender of Sidhu and Badesha would ``not be otherwise unjust or oppressive,'' Justice Michael Moldaver wrote on behalf of the court.

``The gravity of the alleged offence in this case was particularly relevant to the minister,'' Moldaver said. ``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.''

Sidhu and Badesha were among 13 people charged in connection with Jassi's murder. Three are serving life sentences.

 

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