THE Supreme Court of Canada has ruled unanimously that B.C. residents Malkit Kaur Sidhu and Surjit Singh Badesha, mother and uncle of Jaswinder (Jassi) Sidhu, 25, who was brutally slain in India’s Punjab state, can be extradited to India to face charges of conspiracy to murder in her suspected honour killing in 2000.
The judgment, released on Friday, reads: “In this case, it was reasonable for the minister to conclude that, on the basis of the assurances he received from India, there was no substantial risk of torture or mistreatment of B and S that would offend the principles of fundamental justice protected by s. 7 of the charter, and that their surrenders were not otherwise unjust or oppressive.”
“I would emphasize 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,” Justice Michael Moldaver wrote for the court.
He noted that this “criminal conduct of the most horrific nature” was especially relevant in the government’s decision to allow the extradition.
LAST March, Janet Henchey, a lawyer for the Attorney General of Canada, stressed the importance of extraditing Malkit Sidhu and Badesha of Maple Ridge, B.C., to India before the Supreme Court of Canada.
The CBC reported that Henchey noted that this case has serious implications regarding international justice while arguing that any potential risks in Indian prisons are general in nature and that all countries, including Canada, have problems such as overcrowding in prisons.
She noted: “It undermines the entire concept of extradition and sending people to the country where they have allegedly committed a crime if we refuse to surrender based on imperfections in our treaty partners, even sometimes large imperfections, without a more specific connection to the person sought’s situation.”
Henchey added: “If we do that, we fail to recognize the importance of extradition to the international community as a mechanism for avoiding impunity.”
In August 2016, the Supreme Court had agreed to hear a Crown appeal in their extradition case.
The B.C. Court of Appeal, which heard arguments in December 2015 against the extradition, had set aside the justice minister’s surrender order of May 9, 2014, in a split decision in a ruling released on February 26, 2016.
Henchey said a majority on the bench “erred” in that decision and relied on a “false factual record,” the CBC reported.
She also noted that India has provided assurances that Sidhu and Badesha would have access to medical treatment and would not be mistreated.
Badesha’s lawyer Michael Klein argued that what was relevant was whether India can deliver on those assurances, noting that India has a fundamental, systemic problem with its prison system. He said it is unclear what constitutes “reasonable efforts” by India to ensure Badesha and Sidhu’s safety.
CBC reported that Chief Justice Beverley McLachlin asked if the issue boils down to whether Canada can trust the assurances of another country, could there ever be any extradition to India.
And Justice Malcolm Rowe said repudiating India has a “tinge of neo-colonialism.”
“Are we to oversee the operation of the Indian prison system? Is that what you’re calling upon the minister to do for the Republic of India, to subject itself to our oversight?” he asked.
Klein suggested Canada could suspend extradition to India until they meet acceptable standards.
Malkit Sidhu’s lawyer, David Crossin, argued that the justice minister did not receive “meaningful” assurances that his client would not be tortured or mistreated in custody and said that torture has become institutionalized in India’s justice system. Sidhu could also face sexual violence, he said.
Justice Michael Moldaver said the context is critical in extradition cases and suggested all extradition partnerships could be in jeopardy if diplomatic assurances aren’t trusted.
“Look at the nature of the crime here. It’s not a terrorism, it’s not insurrection, it’s allegedly an honour killing. Look at the people that are involved. They’re not part of a group that would be historically tortured or maltreated or whatever,” he pointed out, the CBC reported.
The CBC said that Klein told them that Sidhu is not in detention and Badesha is being held in custody.
According to the summary of the B.C. Court of Appeal’s ruling in 2016, Justice Ian Donald and Justice Mary V. Newbury “held that the [Justice] Minister’s decision to accept India’s assurances regarding health and safety was not reasonable. Assurances must meaningfully address the risks they are intended to mitigate, and the Minister must consider whether the assurances can be implemented by the requesting state. The death penalty and consular monitoring assurances meaningfully address the risk that the death penalty will be imposed, and the risk of an unfair trial. However, the Minister did not appropriately consider the substance of the assurances on health and safety or India’s capacity to carry them out.”
Justice Richard Goepel dissented: “The Minister’s decision to order the applicants’ surrender was not unreasonable. The Minister did not fail to consider India’s capacity to fulfill its assurances regarding the applicants’ health and safety. It is not for this Court to reweigh the factors that the Minister considered in exercising his discretion to order the applicants’ surrender.”
Donald concluded in the majority ruling: “In my judgment, the Minister’s decision to accept the assurances was not within a reasonable range of outcomes for the reasons I have stated. I would set it aside. The Minister cannot give effect to his surrender orders by sending the applicants to India until he receives assurances that are meaningful and likely to be effective.”
Goepel disagreed, noting: “In my view, it cannot be said that the Minister failed to address India’s capacity to fulfill its diplomatic assurances regarding the applicants’ health and safety. Moreover, it cannot, in my opinion, be said that, in placing conditions on the applicants’ surrender, the Minister turned a blind eye to a known peril. The Minister sought assurances from India to mitigate the risk to the applicants’ health and safety. Having received such assurances, he was satisfied that the applicants’ surrender would not be unjust or oppressive, or violate the applicants’ s. 7 Charter rights.”
In 2014, in closing arguments in the B.C. Supreme Court, Crown had said that the evidence from the record of the case was that Malkit Sidhu and Badesha threatened Jassi’s new husband, Sukhwinder (Mithu) Sidhu, a poor rickshaw driver in India, on multiple occasions, telling him he would be killed because Jassi had married him against their wishes. Jaswinder was killed but Mithu survived when they were attacked in June 2000. The lawyers for the accused argued that there wasn’t enough evidence against them.
Following the 2016 ruling by the B.C. Court of Appeal, the Tribune newspaper of Chandigarh (India) reported that the Punjab state’s Jail Department expressed shock at the grounds of the rejection.
Swaran Singh, then-ASI [assistant sub-inspector] who investigated the case, said he was surprised at the judgment, and noted: “We have an open and shut case against Jassi’s mother Malkit Kaur Sidhu and her maternal uncle Surjit Singh Badesha.They ordered the killing as Sukhwinder Singh was from a weaker community, socially and economically.”
R.K. Meena, Additional DGP [Director General of Police], Jails, pointed out that 119 foreigners were lodged in Indian jails, including three from Canada. He added: “Canadian officers have visited Punjab jails several times. They have never complained of abuse or unhealthy conditions. Neither have the Canadian citizens lodged in the jails complained of inhuman conditions.”