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Court sides with mother, uncle in B.C. case expected to affect extraditions

67-year-old Surjit Badesha and 63-year-old Malkit Sidhu are seen in this artist impression at B.C. Supreme Court.

Sheila Allan

British Columbia's highest court has ruled the mother and uncle of a young woman who was slain in India could be tortured if sent to face criminal charges, ordering Ottawa to better ensure their safety abroad or consider charging them in Canada.

The Department of Justice says it is considering next steps and one legal expert expects the case to head to the Supreme Court of Canada.

The ruling could be a boost for others fighting extradition to countries in which prisoners are mistreated.

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The B.C. Court of Appeal ruled in favour of Malkit Sidhu and Surjit Badesha in a split decision Friday.

They are charged in India with conspiracy to commit murder, in connection with the death of Ms. Sidhu's daughter, Jaswinder. She was slain in June, 2000, and her mother and uncle are alleged to have arranged the killing from B.C. because the woman, in her mid-20s, married a man who was considered to be of an inferior social class.

Justice Ian Donald, writing for the majority, said assurances from India that the pair will not be mistreated while in custody do not go far enough given the country's "appalling" record when it comes to prisoners.

"In my view, there is a valid basis for concern that the applicants will be subjected to violence, torture and/or neglect if surrendered," he wrote.

Ms. Sidhu, 65, and Mr. Badesha, 70, had also argued India might not offer a fair trial and back out of its commitment not to impose the death penalty. The appeal court rejected those arguments and Justice Donald wrote the more worrisome issue is the day-to-day exposure to harm in custody. The accused submitted reports by Amnesty International and the Asian Centre for Human Rights that discuss poor conditions, torture and deaths in Indian prisons.

"The Minister places heavy emphasis on consular monitoring, but it has its limits in mitigating the risks. Consular staff may only discover a rape, beating or neglect of medical care after the fact," Justice Donald wrote.

A Department of Justice spokesperson, in an e-mail, said the decision is being carefully reviewed.

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Michael Klein, the lawyer for Mr. Badesha, said in an interview the ruling was obviously good news for his client but it's unclear where the case will go from here.

The lawyer for Ms. Sidhu did not return a message seeking comment.

Eric Gottardi, a Vancouver defence lawyer who did not work on the case, said he expects the federal government will attempt an appeal to the Supreme Court of Canada.

He said Friday's ruling could have impacts that go well beyond this particular case.

"Anyone who's facing extradition to India will be squarely relying on this precedent to say: 'You can't do it,'" Mr. Gottardi said, adding similar arguments could be made by those fighting extradition to other countries.

He said extradition files involving India are infrequent. Extradition cases in B.C. are generally brought by the United States.

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The Department of Justice said it could not confirm the number of extradition cases involving India "due to the confidential nature of state-to-state communication."

David Matas, a Winnipeg-based human-rights lawyer, said cases involving assurances from other countries are relatively rare. But he said such assurances "can't just be taken at face value."

"There's got to be a mechanism of implementation. You can't just say assurances are enough," he said in an interview.

While Justice Donald and Justice Mary Newbury ruled in favour of Ms. Sidhu and Mr. Badesha, Justice Richard Goepel dissented. He wrote that the minister's decision to surrender the accused for extradition was reasonable.

"Without diminishing the gravity of the applicants' submissions, I am of the view that … such general sweeping indictments of another country's criminal justice system and prisons are an unsatisfactory underpinning for finding that an individual's … Charter rights will be violated if surrendered," he wrote.

"Such sweeping indictments may also have profound implications for our country's relationship with its extradition partners, such as India."

The appeal court ruling said Jaswinder Sidhu met her husband, a rickshaw driver, in 1994 and secretly married him in 1999. Her uncle had arranged for her to instead marry a man who was 70.

She and her husband were attacked while out for a ride on a motor scooter. He was beaten and had his ring finger cut off, but survived. Three people are currently serving life sentences in connection with the incident.

The appeal court ruling said Ms. Sidhu and Mr. Badesha had been enraged by the young woman's defiance and "resorted to hostility, violence and threats in an attempt to break up the marriage."

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Based in Vancouver, Sunny has been with The Globe and Mail since November, 2010. More


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