In a unanimous decision issued today, the Supreme Court of Canada (SCC) upheld an extradition order that will send a mother and uncle accused of killing their daughter/niece to India.
The initial extradition order had been issued by then-Justice Minister, Peter McKay in 2014. The B.C. Court of Appeal ultimately stopped the extradition over concerns about whether the accused would be mistreated or even tortured if they returned to India.
Canada’s highest court overturned the Court of Appeal decision, finding that there was no justifiable basis for Canada not to extradite to India, and that it had been reasonable for the Minister to conclude that the pair would not be tortured, based on assurances from India.
The pair are accused of planning the murder of their daughter/niece, who was ambushed and killed by a group of men in India in 2000. The daughter and her new husband had been travelling by scooter when they were attacked by armed assailants, who forced the daughter into a car and drove away. She was found in a canal the next day with her throat slit. The new husband was seriously injured in the ambush and left to die.
The daughter and the husband, a rickshaw driver, had secretly married against the wishes of her family who had “promised” her to a much older, wealthy man.
At the time of the murder, the uncle and mother were Canadian citizens living in the Vancouver area. Indian authorities claimed that they ordered the attack from Canada and paid $10,000 CAD to have their plot carried out. A court in India has already convicted the pair of murder, and wants to try them on further charges of conspiracy to commit murder.
The Extradition Order
The judge who originally committed the pair for extradition to face the charges in India cited evidence that the mother and uncle had viewed the marriage as bringing dishonor to the family. Death threats had been made to both the daughter and the husband and phone calls had been traced from the pair’s B.C. home to some of the perpetrators in India around the time of the attack.
The Minister issued surrender orders that were conditional on several assurances from India, committing to the non-imposition of the death penalty, to meeting the safety and medical needs of the pair, and to permitting them access to Canadian consular officials.
The Court of Appeal
The pair, who are now 67 and 72 years old, fought against their extradition, arguing that they would be placed in substandard prison conditions if extradited, and would not have access to adequate medical care.
They further claimed that the Minister had not received reasonable assurances from India that their health and safety would be protected if they returned to India.
A majority of the Court of Appeal found that there was a “valid basis for concern” that the pair would be subject to violence, torture, and neglect of medical care if they returned to India. The Court held that the Minister’s decision to accept India’s assurances with respect to the pair was not reasonable, as he had not considered whether the assurances meaningfully addressed possible risks, or whether the assurances could actually be implemented by India.
The Supreme Court
The SCC disagreed with the Court of Appeal, finding that the Minister was aware of the health and safety risks and had “treated them seriously”. It had been reasonable for the Minister to conclude that the pair would not face a substantial risk of torture or mistreatment based on the assurances made by the Indian government in response to his concerns.
Furthermore, it was defensible for the Minister to find that the pair’s surrender would “not be otherwise unjust or oppressive”:
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”
Eleven other individuals were put on trial in India for the murder. At first, seven were convicted and four were acquitted, and then four more were further acquitted on appeal. Three are currently serving life sentences for their roles in the attack.
The mother and uncle have been free on bail while awaiting the SCC’s decision. We will continue to follow updates in this matter, now that a decision has been handed down.
In the meantime, if you have questions or have been charged with murder or manslaughter here in Canada, contact Affleck & Barrison LLP online or at 905-404-1947. We maintain a 24-hour call service to protect your rights and to ensure that you have access to justice at all times.