APPEAL ALLOWED

India v. Badesha, 2017 SCC 44 – Constitutional law – Charter of Rights – Fundamental justice

On appeal from a judgment of the British Columbia Court of Appeal (2016 BCCA 88) allowing an application for judicial review of surrender orders made by the Minister of Justice, setting the orders aside and remitting the matter to the Minister for further consideration.

B and S were charged in India for allegedly arranging an honour killing that occurred there. B is the victim’s uncle, and S is her mother. Both are Canadian citizens residing in Canada. India sought the extradition of B and S for the offence of conspiracy to commit murder. The Minister of Justice ordered their surrenders, after receiving assurances from India regarding their treatment if incarcerated, including health, safety and consular access, and determining, in accordance with s. 44(1)(a) of the Extradition Act, that their surrenders would not be unjust or oppressive. A majority of the Court of Appeal concluded that the Minister’s orders were unreasonable and set them aside.

Held (9-0):The appeal should be allowed and the surrender orders of the Minister restored.

The Minister’s surrender orders are subject to review on a standard of reasonableness. 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.

Where a person sought for extradition faces a substantial risk of torture or mistreatment in the receiving state, their surrender will violate the principles of fundamental justice and the Minister must refuse surrender under s. 44(1)(a) of the Extradition Act. Where there is no substantial risk of torture or mistreatment and the surrender is Charter compliant, the Minister must nonetheless refuse the surrender if he is satisfied that, in the whole of the circumstances, it would be otherwise unjust or oppressive. In this regard, the Minister may take into account the circumstances alleged to make the surrender inconsistent with the Charter, the seriousness of the alleged offence and the importance of Canada meeting its international obligations.

In assessing whether there is a substantial risk of torture or mistreatment, diplomatic assurances regarding the treatment of the person may be taken into account by the Minister. Where the Minister has determined that such a risk exists and that assurances are therefore needed, the reviewing court must consider whether the Minister has reasonably concluded that, based on the assurances provided, there is no substantial risk. However, 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. The reliability of diplomatic assurances depends on the circumstances of the particular case and involves the consideration of multiple factors.

In this case, the Minister was satisfied that, based on the assurances he received from India regarding their treatment, B and S would not face a substantial risk of torture or mistreatment. The Minister took into account relevant factors in assessing the reliability of the assurances, which formed a reasonable basis for the Minister’s conclusion that their surrenders would not violate the principles of fundamental justice. The inquiry for the reviewing court is not whether there is no possibility of torture or mistreatment, but whether it was reasonable for the Minister to conclude that there was no substantial risk of torture or mistreatment. Given the circumstances, the Minister’s decision to order the surrenders of B and S fell within a range of reasonable outcomes.

Reasons for judgment: Moldaver J. (McLachlin C.J. and Abella, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ. concurring)

Neutral Citation: 2017 SCC 44

Docket Number: 36981

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16771/index.do