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B.C. court decision highlights Canada's system of checks and balances

The British Columbia Court of Appeal’s decision to halt the extradition of two Canadian citizens to India to answer charges in an alleged honour killing highlights the checks and balances Canada’s system has to protect its people, says Toronto criminal and civil litigator Laurelly Dale.

“It’s a testament to the protection of the right to security that our country gives to individuals that are Canadian citizens as outlined in the Charter,” she tells AdvocateDaily.com.

Dale, principal of Dale Legal Firm, notes the federal justice minister’s extradition order to send both individuals to India was subject to review on the basis of what appears to be akin to a fresh evidence application and that new information caused a material change in the facts that were before the Supreme Court of Canada earlier this year. 

“And it seems as though it’s because of this new evidence the government is not able to extradite them at this time,” she says.

The Toronto Star reports that the extradition was challenged after the Supreme Court of Canada (SCC) overturned an earlier B.C. Court of Appeal ruling that stopped the extradition of the two individuals.

Lawyers appeared in the B.C. Court of Appeal again in September to challenge the minister's extradition order on the basis that the decision to surrender the pair didn’t consider new information, says the newspaper.

In fact, the man and woman were being escorted to India via Toronto on Sept. 21 when the B.C. Court of Appeal halted their extradition, says the Star.

The B.C. court said in its ruling that day that the case was heard on an emergency basis and that the minister’s position to extradite, as outlined in a Sept. 20 letter, “constitutes a reviewable decision and, as such, is amendable to judicial review in this court under the Extradition Act, S.C. 1999, c. 18, and the matter requires further development by the exchange of documents, affidavits in support, and the creation of a record which will make for a proper determination of the issue.”

The court then adjourned the matter for a hearing “so that a proper record can be constructed and counsel can put together their arguments to assist the court.”

Dale says the case is timely given the global climate around the importance of upholding treaties between countries and preventing the torture of prisoners.

The SCC decision outlines how the two Canadian citizens were charged in India for allegedly arranging an honour killing that occurred there. India sought the extradition of the victim's mother and uncle, who reside in Canada, for the offence of conspiracy to commit murder, it says. 

Canada’s minister of justice ordered their surrender, after reciting assurances from India regarding their treatment if incarcerated in that country, says the SCC decision.

The SCC allowed the appeal and restored the surrender orders of the minister.

Dale, who has been counsel in extradition matters but is not involved in this action and comments generally, says this case is one of national importance and went all the way to the high court because it is interpreting the significance of Canada’s Extradition Act in conjunction with the Charter.

Section 44 of the Extradition Act lays out how the surrender of individuals for prosecution in another country cannot be unjust or oppressive, Dale says.

“Historically, the courts have refused to extradite someone to a country where they would face the death penalty,” she says. 

Canada abolished the death penalty in 1976.

“But it’s not just facing the death penalty that would violate our s. 7 rights under the Charter, which covers the principals of fundamental justice,” Dale says. 

“The Canadian government has said that if there is a risk that someone is going to be tortured or face an oppressive, unjust trial procedure, they will not be extradited."

Dale points to the Charles Ng case in the 1980s when Canadian authorities, in a series of rulings, held that he was to be extradited to the United States where he was facing the death penalty as an accused serial murderer, says the Los Angeles Times.

Ng was extradited to California, tired and convicted of 11 murders; he remains on death row, she adds. 

Dale says in the recent B.C. case there were assurances from the Indian government that the two Canadians would undergo a fair and just trial process, but now new information has come to light.

“We’ve come a long way since that 1985 decision; the Canadian government will not fall to political pressure now,” she says. 

“Currently, when the courts are analyzing whether a Canadian citizen or resident who is entitled to Charter protection should be surrendered to another nation to face allegations of crime, the first thought of the courts and the minister is their Charter rights,” she says. 

“[This decision] has reinforced their level of paramountcy over any type of legislation. The Charter rights are paramount to the Extradition Act and what’s in the Criminal Code. They are also paramount to any treaty Canada has signed with another nation.

“The principals of fundamental justice must be secured in trial fairness and process for that individual. Otherwise, the answer is no to extradition.”

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