India v Badesha, 2017

In March 2017, Canadian Lawyers for International Human Rights (CLAIHR), in partnership with Canadian Centre for Victims of Torture (CCVT) and the Canadian Council for Refugees (CCR), intervened in India v Badesha, 2017 SCC 44, emphasizing Canada’s obligation under international law to refuse to extradite prisoners where there is an established risk such prisoners may face torture or cruel, inhuman, or degrading treatment (CIDT) in the country requesting extradition.

Background

On June 2000, Surjit Singh Badesha and Malkit Kaur Sidhu were charged in India for conspiracy to commit murder after Jaswinder Sidhu, Mr. Badesha’s niece and Ms. Sidhu’s daughter, was killed in the Punjab region. Both are Canadian citizens and were residing in Canada at the time of the murder.

India sought extradition under the Canada-India Extradition Treaty. In 2015, the Canadian Minister of Justice (the Minister) finalized their surrender orders after concluding, based partially on assurances from India regarding their treatment if incarcerated, that such surrenders would not be unjust or oppressive.

Mr. Badesha and Ms. Sidhu sought judicial review of the surrender orders by the British Columbia Court of Appeal (BCCA), which concluded that the Minister’s orders were unreasonable and set them aside. The Attorney General then appealed to the Supreme Court of Canada (SCC), which overturned the decision of the BCCA, restoring the Minister of Justice’s surrender orders. CLAIHR, CCVT, and CCR were jointly granted leave to intervene at the SCC.

CLAIHR’s Position

CLAIHR and its co-intervenors focused on the risk that Mr. Badesha and Ms. Sidhu would face violations of their human rights should they be extradited to India. Under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which Canada has ratified, States are prohibited from extraditing someone where there is substantial risk that this person will be subjected to torture or CIDT. CLAIHR argued that substantial risk should be determined practically and fairly. The Court adopted a similar perspective, finding that:

the assessment of substantial risk decidedly requires that the Minister consider the ‘personal risk’ faced by an individual…. 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. (At para 45.)

CLAIHR submitted that substantial risk cannot be effectively mitigated by diplomatic assurances, such as those given by India and relied upon by the Minister in the case. Such assurances are legally unenforceable and, CLAIHR argued, cannot effectively be monitored because torture and CIDT occur in secret and often leave no physical evidence. Moreover, receiving States have the incentive and ability to conceal these abuses and victims often do not speak up out of fear of reprisals against them and their family. CLAIHR further submitted that States carrying out the extradition themselves have little incentive to acknowledge a breach of assurance because doing so would require it to recognize its own failure in sending a prisoner to a State where they were subjected to torture or CIDT.

The Court did not take up this position and, instead, found the Minister’s decision was reasonable, based, in part, on India’s diplomatic assurances that Mr. Badesha and Ms. Sidhu would not face the death penalty, torture, or mistreatment. The Court explained 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,” (at para 46).

A final argument CLAIHR raised, which was not addressed by the Court, is that the principles that govern extradition treaties, namely comity, reciprocity, and respect for differences in other jurisdictions, must be understood in the context of Canada’s multilateral international obligations, including the prohibition on torture – a peremptory norm that States cannot opt out of, evade, or modify. CLAIHR submitted that the Minister did not provide a stand-alone assessment of the risk of torture or CIDT, but rather invoked the principles of comity and respect for extradition partners at each stage of the analysis and when deciding to rely on diplomatic assurances against ill-treatment. This approach, CLAIHR argued, did not acknowledge the absolute nature of Canada’s obligation to prohibit and prevent torture, which overrides inferior international obligations, such as comity, where conflicts between obligations arise.

CLAIHR is grateful to Adriel Weaver and Louis Century  of Goldblatt Partners LLP for their pro bono representation in this matter.

For CLAIHR’s full position, please see our joint factum.