VANCOUVER — The British Columbia Appeal Court has overturned an extradition order against the mother and uncle of young woman murdered in India over concerns that they will be tortured.
A B.C. Supreme Court judge ordered the surrender of Malkit Sidhu and Surjit Badesha to police in India in May 2014 after finding there was enough evidence for them to face trial for the murder of 25-year-old Jassi Sidhu.
In a split decision, Justice Ian Donald said in his ruling that India's assurances about violence against prisoners are empty because of the country's record of human rights abuses.
"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 in a decision released Friday.
"In my view, there is a valid basis for concern that the applicants will be subjected to violence, torture and/or neglect if surrendered."
— Justice Ian Donald
Donald said that while the case against the brother and sister from Maple Ridge, B.C., is strong and their extradition was approved by the former Conservative government, the justice minister should consider whether the pair could be tried in Canada.
"I have no doubt that consular monitoring can be effective regarding the death penalty and the corruption/ fair-trial issues,'' Donald said. "The more worrisome issue is the day-to-day exposure to harm in custody and the risks associated with retaliation against prisoners who complain.''
Donald said that the justice minister placed heavy emphasis on consular monitoring for their safety, but that had limits.
"Consular staff may only discover a rape, beating or neglect of medical care after the fact.''
Sidhu killed over 15 years ago
The couple's extradition trial heard that Jassi Sidhu had fallen in love with a rickshaw driver on a trip to India and secretly married him several years later against the wishes of her family who had already arranged a marriage in Canada.
The young woman's body was found in a canal in Punjab province in June 2000 when she'd gone there to meet her husband.
The couple had been attacked while on a scooter and she was abducted. Her husband survived the assault.
"Right-thinking Canadians ... would be distressed at the prospect of the applicants escaping justice because of conditions in India,'' Donald said.
"Right-thinking Canadians ... would be distressed at the prospect of the applicants escaping justice because of conditions in India."
He said other than revisiting the possibility of holding the pair's trial in Canada, the justice minister could also secure meaningful and effective assurances from India about their treatment in that country.
In a dissenting opinion, Justice Richard Goepel said concerns about Badesha not getting appropriate medical care in India have been addressed with assurances that medical facilities are available in Punjab prisons.
"He is alleged to have led a conspiracy to attack and kill his niece and her husband because he did not approve of their marriage. In my opinion, the health problems ... should not shield him from extradition to face trial, just as they would not shield an accused person from facing prosecution in Canada.''
Goepel also said that he does not agree that surrendering 64-year-old Sidhu would amount to unjust oppression because most of her family lives in Canada.
Next steps 'up in the air': Lawyer
Badesha's lawyer Michael Klein said he's pleased with what he called an interesting and novel ruling.
"We're still looking at the decision, determining the effect and import of the decision, and what next steps will be undertaken. That's still up in the air at the moment.''
The extradition trial heard that Jassi Sidhu feared for her life after her family discovered letters she'd written to her husband Mithu Sidhu and that she was forced to sign a document saying she'd agree to have the marriage annulled.
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