The Supreme Court of Canada in India v Badesha, has confirmed that the standard of review of reasonableness will apply to a review of a Minister's extradition decision. With that decision, an extradition order against two Canadian citizens accused of arranging an honour killing in India was reinstated.
Background
In June of 2000, the body of Jaswinder Kaur Sidhu was discovered in a village in India. The Indian government alleged that she was the victim of an honour killing arranged by her uncle, Surjit Singh Badesha and her mother, Malkit Kaur Sidhu. The Indian government requested that they be extradited to India from Canada on a charge of conspiracy to commit murder contrary to the Indian Penal Code.
Where a person sought for extradition faces a substantial risk of torture or mistreatment in the receiving state, the Minister of Justice must refuse the surrender, as it will violate the principles of fundamental justice. Where there is no substantial risk or torture or mistreatment, and where the surrender is Charter-compliant, the Minister must nonetheless refuse the surrender if he or she is satisfied that in the whole of the circumstances, it would be otherwise unjust or oppressive.
Following an extradition hearing, the Minister ordered the surrenders of Mr. Badesha and Ms. Sidhu to Indian authorities, holding that it would not be unjust or oppressive to do so. Mr. Badesha and Ms. Sidhu applied for judicial review of the Minister’s decision. The British Columbia Court of Appeal set aside the Minister’s decision and ordered that the matter be remitted to the Minister for further consideration. The majority concluded that the assurances given by India regarding health and safety could not be reasonably accepted and that the Minister’s decision was therefore unreasonable. The Attorney General of Canada appealed to the SCC.
SCC decision
The issue on appeal was whether it was reasonable for the Minister to have concluded, based on assurances received from the Indian government, that there was not a substantial risk of torture or mistreatment which would offend the principles of fundamental justice.
The SCC held that the Minister’s decision fell within a range of reasonable outcomes as the Minister considered the relevant facts and reached a defensible conclusion based on those facts. As a result, the surrender orders of the Minister were restored.
In reviewing the Minister’s decision, the SCC applied a standard of reasonableness and confirmed that the role of a reviewing court is to examine whether a decision falls within a range of reasonable outcomes and not to reassess the relevant factors and substitute its own view. The court went on to hold that a Minister’s decision to order the surrender of a person is largely political in nature, and given the Minister’s expertise in international relations and foreign affairs, he or she is in the best position to determine whether the factors weigh in favour of or against extradition.
Interestingly, following the SCC decision, Ms. Badesha and Mr. Malik filed an application for judicial review with the B.C. Court of Appeal on Sept. 21, 2017, and obtained an interim order staying their extradition until a full hearing could be heard by the court.
Takeaways
- The standard of review from a Minister's extradition decision is reasonableness.
- In determining whether the Minister's decision was reasonable, a court cannot substitute its own view for that of the Minister, but rather must determine whether the Minister considered the relevant facts and factors and whether, based upon them, the Minister's decision fell within a range of reasonable outcomes.
- This case is another example of the court's willingness to grant a specialized administrative decision maker a high level of deference.
Christopher Wirth is a partner and Maneet Sadhra is student-at-law at Keel Cottrelle LLP