B.C. court upholds extradition of pair accused of 'honour killing' in India

Laura Kane The Canadian Press

Jaswinder Sidhu is seen in this undated photo.

VANCOUVER -- Two British Columbia residents accused of hiring assailants to kill a relative in India because she married a poor rickshaw driver must be extradited to face murder charges, the province's top court has ruled.

The B.C. Court of Appeal has denied Malkit Kaur Sidhu and Surjit Singh Badesha's request for a stay of proceedings and a judicial review, which their lawyers filed as the RCMP escorted them onto a Delhi-bound plane last fall.

Indian authorities allege the pair were involved in the so-called "honour killing" of Sidhu's daughter and Badesha's niece, Jaswinder Kaur Sidhu, in 2000 after she married a man from a lower socio-economic class against her family's wishes.

An RCMP operation to remove the two was halted in Toronto's airport in September 2017 when Mounties learned lawyers for the accused had filed court applications for judicial review moments earlier.

The applications argued Sidhu and Badesha weren't given the chance to review the federal justice minister's decision to extradite them and that they were denied access to counsel.

In a written decision Tuesday, the court concluded the minister's conduct did amount to an abuse of process, but it does not warrant a stay of proceedings.

"This is a close case but we conclude the balance favours denying the stay," wrote Chief Justice Robert Bauman and Justice Sunni Stromberg-Stein on behalf of a three-judge panel.

"The charges these applicants face are the most serious in our criminal justice system and the interests of India, and of our own community, in seeing them heard in court on their merits is very substantial."

The pair have enjoyed a very "long and full day in court," the judges added, noting their case has been considered by two justice ministers, the provincial appeal court and the Supreme Court of Canada.

Sidhu and Badesha have long opposed their surrender to India, arguing they would face violence and torture in Indian prisons. The country is seeking their extradition for the offence of conspiracy to commit murder.

The Supreme Court ruled unanimously in September 2017 to set aside a previous B.C. Court of Appeal ruling that had stopped extradition proceedings.

In 2017, after the Supreme Court held a hearing but before it made its decision, Sidhu and Badesha both filed new affidavits to the federal justice minister and requested she reconsider their removal from Canada.

The affidavits included statements from two of their co-accused in India who had been convicted at trial but acquitted on appeal. The men described "shocking" prison conditions and included allegations by one of the accused of being beaten and tortured.

The federal justice minister had not yet responded to their reconsideration request on Sept. 20, 2017, when the RCMP commenced a covert operation to fly the pair to India. Police flew them from Vancouver to Toronto and they were scheduled to board a flight to Delhi that night.

When news of their extradition broke in Indian media outlets that day, counsel for Sidhu and Badesha contacted a lawyer for the Department of Justice.

The lawyer wrote in an email that afternoon that the pair would not be surrendered until the justice minister made a decision on their reconsideration request. However, if Wilson-Raybould decided not to reconsider the decision, the pair may be "immediately removed," the lawyer said.

Sidhu and Badesha's lawyers filed an application for judicial review in the B.C. Court of Appeal at 6:30 p.m. Pacific time, prompting the pair to be stopped while boarding a plane that was scheduled to leave just 30 minutes later.

The appeal court found that the minister planned to refuse their reconsideration request that day and intended for the pair to be removed from Canada immediately afterward, without giving them an opportunity to consult counsel or file for a judicial review.

The department and minister failed to exercise their authority with restraint, even-handedness and fair-mindedness, and as a result there has been a "very serious adverse impact on the integrity of the justice system," the judges wrote.

"Looked at holistically, this conduct might be justified by some as 'just desserts' for two applicants who had their day in this country's highest court and were filing a weak case for reconsideration in an effort to frustrate their timely extradition to India. They were dragging out the process with delay, delay, delay," the judges wrote.

"That motivation would be understandable in a segment, perhaps a large one of Canadian society. But, respectfully, it is not one that can motivate the Department of Justice or the Minister of Justice."

Neither Bedesha nor Sidhu's lawyers responded to a request for comment.

In a statement issued Wednesday, the Department of Justice said it was pleased to see that the surrender order had been validated by the court. The department noted that Badesha and Sidhu may still elect to seek leave to appeal to the Supreme Court of Canada.