Canada (Attorney General) v. Badesha et al., 2016 BCCA 88

• Judge: Donald, Newbury and Goepel, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 26, 2016
• Jurisdiction: British Columbia
• Citations: 2016 BCCA 88;(2016), 383 B.C.A.C. 220 (CA)

Can. (A.G.) v. Badesha (2016), 383 B.C.A.C. 220 (CA);

    661 W.A.C. 220

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. FE.053

The Attorney General of Canada on behalf of the Republic of India (respondent) v. Surjit Singh Badesha (applicant)

(CA41879)

The Attorney General of Canada on behalf of the Republic of India (respondent) v. Malkit Kaur Sidhu (applicant)

(CA41876; 2016 BCCA 88)

Indexed As: Canada (Attorney General) v. Badesha et al.

British Columbia Court of Appeal

Donald, Newbury and Goepel, JJ.A.

February 26, 2016.

Summary:

Badesha and Sidhu, aged 70 and 65 respectively, were ordered by the Minister of Justice to be surrendered to the Republic of India to be tried for conspiracy to commit murder respecting a June 2000 "honour killing". They allegedly orchestrated the killing. Badesha and Sidhu sought judicial review of the Minister's decision, arguing that he received inadequate assurances from India that they would not face the death penalty or be subjected to an unfair trial, and that they would be protected from violence, torture and neglect of medical care for their health problems.

The British Columbia Court of Appeal, Goepel, J.A., dissenting, allowed the application. The court was satisfied that the formal promise not to impose the death penalty and protect their right to a fair trial was effective, particularly where Badesha and Sidhu would be entitled to consular access and the right of consular officials to attend the trial. However, given India's appalling human rights record respecting the treatment of prisoners, it was unreasonable to accept India's mere formal promise respecting protection from violence, torture and neglect of medical care. The Minister must be assured not only of the good faith of the foreign state's assurances, but that the foreign state had the capacity to carry them out. The court held that "I would set aside the orders of surrender and remit to the Minister the matter of obtaining assurances relating to the applicants' health and safety, commensurate with the risk of harm, and which provide meaningful and reliable protection from mistreatment". The Minister was to secure meaningful and effective assurances through diplomatic channels and, if no such guarantees were possible, the Minister could revisit the question whether Badesha and Sidhu could be tried in Canada.

Extradition - Topic 3343.6

Surrender to demanding country - Conditions precedent - Assurance re custodial torture, violence and proper health care - See paragraphs 33 to 74.

Extradition - Topic 3947

Practice - Judicial review - Decision to surrender (incl. standard of review) - See paragraphs 33 to 74.

Cases Noticed:

Lake v. Canada (Minister of Justice) (2008), 373 N.R. 339; 236 O.A.C. 371; 2008 SCC 23, refd to. [para. 33].

Suresh v. Canada (Minister of Citizenship and Immigration (2002), 281 N.R. 1; 2002 SCC 1, refd to. [para. 35].

Canada (Minister of Justice) v. Pacificador (2002), 162 O.A.C. 299; 60 O.R.(3d) 685 (C.A.), leave to appeal refused (2003), 312 N.R. 195; 180 O.A.C. 399; 101 C.R.R.(2d) 374 (S.C.C.), refd to. [para. 37].

Sing v. Canada (Minister of Citizenship and Immigration) - see Lai v. Canada (Minister of Citizenship and Immigration.

Lai v. Canada (Minister of Citizenship and Immigration) (2007), 307 F.T.R. 1; 2007 FC 361, refd to. [para. 38].

Othman v. United Kingdom, [2012] ECHR 56, refd to. [para. 39].

Thailand (Kingdom) v. Saxena (2006), 224 B.C.A.C. 43; 370 W.A.C. 43; 2006 BCCA 98, refd to. [para. 44].

Gwynne v. Canada (Minister of Justice) (1998), 103 B.C.A.C. 1; 169 W.A.C. 1 (C.A.), leave to appeal denied (1998), 227 N.R. 298; 120 B.C.A.C. 87; 196 W.A.C. 87 (S.C.C.), refd to. [para. 53].

United States of America v. Reumayr (2003), 184 B.C.A.C. 251; 302 W.A.C. 251; 176 C.C.C.(3d) 377; 2003 BCCA 375, refd to. [para. 53].

United States of America v. Johnstone (2013), 333 B.C.A.C. 107; 571 W.A.C. 107; 2013 BCCA 2, refd to. [para. 53].

United States of America v. U.A.S. (2013), 344 B.C.A.C. 302; 587 W.A.C. 302; 2013 BCCA 483, refd to. [para. 53].

Chahal v. United Kingdom, [1996] ECHR 54, refd to. [para. 68].

United States of America v. Cotroni; United States of America v. El Zein, [1989] 1 S.C.R. 1469; 96 N.R. 321; 23 Q.A.C. 182, refd to. [para. 72].

M.M. v. Canada (Minister of Justice) (2015), 480 N.R. 1; 2015 SCC 62, refd to. [para. 78].

Canada (Minister of Justice) v. Fischbacher (2009), 394 N.R. 139; 255 O.A.C. 288; 2009 SCC 46, refd to. [para. 80].

Argentina (Republic) v. Mellino, [1987] 1 S.C.R. 536; 76 N.R. 51; 80 A.R. 1, refd to. [para. 88].

Counsel:

M.P. Klein, Q.C., for the applicant, Surjit Singh Badesha;

M.R. Isman, for the applicant, Malkit Kaur Sidhu;

D.J. Strachan, Q.C., and D.B. Majzub, for the respondent.

This application was heard on December 7, 2015, at Vancouver, B.C., before Donald, Newbury and Goepel, JJ.A., of the British Columbia Court of Appeal.

On February 26, 2016, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Donald, J.A. (Newbury, J.A., concurring) - see paragraphs 1 to 74;

Goepel, J.A., dissenting - see paragraphs 75 to 127.