COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

India v. Sidhu,

 

2017 BCCA 333

Date: 20170921

Docket: CA41876; CA41879

Docket: CA41876

Between:

The Attorney General of Canada on Behalf of the Republic of India

Respondent

And

Malkit Kaur Sidhu

Appellant

- and -

Docket: CA41879

Between:

The Attorney General of Canada on Behalf of the Republic of India

Appellant

And

Surjit Singh Badesha

Respondent

Before:

The Honourable Mr. Justice Donald

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Groberman

On judicial review from: An order of surrender of the Minister of Justice dated
November 27, 2014.

Oral Reasons for Judgment

Counsel for the Appellant, Malkit Kaur Sidhu

D. Crossin, Q.C.
E. France

Counsel for the Appellant, Surjit Singh Badesha

D. Crossin, Q.C.

(appearing as agent for M. Klein)

Counsel for the Respondent:

D. Majzub

Place and Date of Hearing:

Vancouver, British Columbia

September 21, 2017

Place and Date of Judgment:

Vancouver, British Columbia

September 21, 2017


 

Summary:

Application to proceed with a judicial review in an extradition appeal. Held: Application adjourned. Application to proceed on an expedited basis and the question of the Court’s jurisdiction to hear the application is deferred.  Groberman JA, dissenting, would have found the Court lacked jurisdiction to hear the application.

[1]           DONALD J.A.: This is a matter that has come before us on an emergent basis. It involves the potential surrender of two persons sought to India. A question has arisen as to what may occur upon the decision of the Minister of Justice concerning an application to reconsider the decision to surrender.

[2]           A point of difference arises in a letter dated September 20, 2017, from a general counsel of the International Assistance Group purporting to convey a position on behalf of the Minister; the effect of which, arguably, is that the persons sought may be surrendered immediately upon a Minister’s determination that she will not entertain the application to reconsider.

[3]           The matter was referred to us by the Registrar because of a concern that the initial filing in the matter yesterday was bad on its face and may be obviously invalid. Subsequent filings and the surrounding circumstances as outlined by Mr. Crossin have persuaded me that there is an arguable case, that the Minister’s position, as expressed in the letter of September 20, 2017, constitutes a reviewable decision and, as such, is amenable to judicial review in this Court under the Extradition Act, S.C. 1999, c. 18, and the matter requires further development by the exchange of documents, affidavits in support, and the creation of a record which will make for a proper determination of the issue.

[4]           Accordingly, I would adjourn this matter for hearing on an expedited basis so that a proper record can be constructed and counsel can put together their arguments to assist the Court.

[5]           I would not make any determination today on the jurisdiction of the Court to hear the matter. As I have said, I think that is a question that needs to be fully developed in argument.

[6]           SAUNDERS J.A.: I agree with the proposed outcome today of Mr. Justice Donald.

[7]           GROBERMAN J.A.: I respectfully dissent from the decision that has been given by the Court. In my view, it is clear that the letter of September 20, 2017, does not constitute a decision and, particularly, not a decision by the Minister under any provision of the Extradition Act. It is rather an interpretation of law by general counsel. The Court is entitled to expect and to anticipate that a Minister of the Crown on a matter of liberty and of general public importance will not be acting precipitously and that some time would be allowed, maybe a very limited time, for parties to appear before the Court.

[8]           In the circumstances, it is my view that the application before us is premature, that the so-called “decision” of September 20, 2017, is not a decision at all and I would find that it is clear that the Court has no jurisdiction to hear this application.

[9]           DONALD J.A.: The matter is adjourned, Mr. Justice Groberman dissenting.

“The Honourable Mr. Justice Donald”

“The Honourable Mr. Justice Groberman”