Canada could undermine the global justice system by failing to extradite a pair accused of orchestrating the honour killing of a 25-year-old B.C. woman, a government lawyer argued today before the Supreme Court of Canada.
Janet Henchey, a lawyer for the Attorney General of Canada, made the case to extradite two B.C. residents to India to face trial for their role in the murder of Jaswinder (Jassi) Sidhu in 2000.
India has requested the extradition of Malkit Sidhu and Surjit Badesha, the mother and uncle of Jassi. Her body was dumped after her throat was slashed, and her young husband, Sukhwinder (Mithu) Sidhu was badly beaten and left for dead.
The pair has argued they could face neglect or mistreatment in India's prison system, but Henchey argued any potential risks are general in nature, not "personalized" to the pair. Henchey noted that all countries have problems such as overcrowding in prisons, including Canada.
She said the case before the high court has broad implications for Canada's role in administering international justice.
"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," she said.
"If we do that, we fail to recognize the importance of extradition to the international community as a mechanism for avoiding impunity."
A surrender order signed by former Justice Minister Peter MacKay was challenged and ultimately struck down by a B.C. appeals court last year.
Henchey said a majority on the bench "erred" in that decision and relied on a "false factual record."
She also argued that India has provided assurances that Sidhu and Badesha would have access to medical treatment and would not be mistreated.
But lawyers for the accused argue those assurances are not enough to protect the pair, and that sending them to India would violate their constitutional rights under section seven of the Charter, which guarantees the right to life, liberty, and security of the person.
Badesha's lawyer Michael Klein said the issue of assurances is not in question, but whether India can deliver on them.
He said India has a fundamental, systemic problem with its prison system that puts anyone at risk. It is also unclear what constitutes "reasonable efforts" by India to ensure Badesha and Sidhu's safety, he said.
Human rights concerns
"That is what this case really wrestles with," Klein said.
Klein said Canada has a high standard for values and human rights and must ensure that rights are not violated in the course of executing international treaties.
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.
"It's very black and white, isn't it? You can either rely on them or you can't," she said.
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, and tell the country it must "clean up its prisons."
Klein told CBC News Sidhu is not currently in detention and Badesha is being held in custody, but he declined to say where, citing client-solicitor privilege.
At age 25, Sidhu was allegedly targeted for secretly marrying a man of much lower social status instead of the older man her family had arranged for her to wed in Canada.
Her mother's lawyer David Crossin argued that MacKay did not receive "meaningful" assurances she would not be tortured or mistreated in custody while awaiting trial.
Any assurance that India would follow obligations "rings hollow," because torture has become institutionalized in India's justice system, he said.
Crossin also said Sidhu could face sexual violence if sent to India.
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.
Prosecute in Canada?
"Look at the nature of the crime here. It's not a terrorism, it's not insurrection, it's allegedly an honour killing," he said. "Look at the people that are involved. They're not part of a group that would be historically tortured or maltreated or whatever."
John Norris, lawyer for the David Asper Centre for Constitutional Rights, suggested one option to mitigate any potential risk is to prosecute the pair in Canada.
"If Canada does have the possibility of prosecuting an individual as opposed to surrendering that individual, then Canada does not become a place of safe haven for fugitives," he said. "Canada does not grant impunity to fugitives. The only thing that would be lost, in my submission, is the prosecution of the individual in the foreign state."
Moldaver called that a "huge loss," and said that would lead to the erosion of extradition treaties and a flood of prosecutions in Canada.