Extradition, Assurances, and Human Rights: Guidance from the Supreme Court of Canada in India v Badesha
(Forthcoming) 88 Supreme Court Law Review (2d) 273-293
18 Pages Posted: 6 Dec 2018
Date Written: May 24, 2018
This article examines the Supreme Court of Canada’s decision in India v Badesha concerning a challenge to the use of diplomatic assurances to alleviate substantial risks of serious mistreatment faced by an individual wanted for trial in a foreign state. The judgment confirms that in extradition matters, the Canadian Charter of Rights and Freedoms requires the Minister of Justice to undertake an assessment of the human rights practices of the foreign state making the extradition request. However, the impact of this human rights assessment in any future legal challenge to a Minister’s decision to surrender is likely to be tempered by administrative law considerations of reasonableness and the high degree of deference accorded to the executive in matters of foreign affairs and international cooperation. The author argues that while the Court helpfully identifies various contextual factors to be used to assess the reliability of a diplomatic assurance, the real test lies in their application, backed by the availability of robust judicial review to ensure a meaningful assessment. The article also identifies the willingness of a state to subject its record of human rights observance to review by an independent international monitoring body as an important factor in assessing the reliability of a diplomatic assurance.
Keywords: Extradition, Diplomatic Assurances, Risks of Mistreatment, Human Rights Assessment, Deference, Canadian Charter of Rights and Freedoms
JEL Classification: K33, K14
Suggested Citation: Suggested Citation