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

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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.

— Follow @ellekane on Twitter.

Laura Kane, The Canadian Press

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COVID-19

Court martial planned for soldier who criticized vaccine mandate, led march to Ottawa

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By Lee Berthiaume in Ottawa

The Canadian soldier who recently led a protest march to Ottawa is now facing a court martial for having spoken out against the federal government’s COVID-19 vaccine requirements while wearing his uniform.

Warrant Officer James Topp was recently notified that he will be allowed to have his case heard in a military court instead of by his chain of command, according to the army reservist’s civilian lawyer.

Phillip Millar says the decision represents a second about-face after the military initially offered his client a court martial when he was charged in February, only to rescind the offer and send his case to Topp’s unit commanders.

“It’s hard to know what they’re doing, because I don’t think they really know what they’re doing,” said Millar. “But now they’re saying it’s a court martial.”

The decision raises the stakes for Topp, according to military law experts, as courts martial are allowed to impose heavier sentences against Armed Forces members than if they are tried by their chain of command in what is known as a summary trial.

Yet it also means he will be allowed to have legal representation at trial, which wouldn’t have necessarily been the case if he was tried by his commanding officer, while his trial will receive much more public attention.

“The stakes are obviously going to be increased in a public-relations context,” said retired lieutenant-colonel Rory Fowler, who is now a lawyer specializing in military law in Kingston, Ont.

The Department of National Defence did not respond to questions about whether Topp’s case was changed from a court martial to summary trial and back again.

Topp was charged in February with two counts of conduct to the prejudice of good order and discipline after the army reservist appeared in uniform in two online videos criticizing vaccine requirements for military personnel and other federal employees.

Canadian Armed Forces members are severely restricted in the comments they can make while in uniform, particularly when it comes to criticizing government policies, in large part to protect the military from any perception of politicization.

Topp, who is now in the process of being released from the military, later led a months-long march from Vancouver that ended in Ottawa last week and was supported by many of the same organizers as this year’s “Freedom Convoy.”

He has since become a symbol of sorts for Canadians opposed to vaccines, vaccine mandates and perceived government overreach. Some Conservative MPs have also hitched their wagon to him, including leadership candidate Pierre Poilievre.

While Millar questioned the military’s back and forth with his client, and said he planned to question the way Topp’s charges were handled, he nonetheless welcomed the latest decision to allow a court martial.

That is because Topp will now be allowed to have a lawyer present during his trial, where Millar said he plans to call expert witnesses to question the need and efficacy of the military’s vaccine requirement.

The requirement imposed by chief of the defence staff Gen. Wayne Eyre late last year remains in place even though a similar mandate for most other federal public servants has now been suspended.

“It opens the door for us to call witnesses about the decision to charge him,” Millar said. “It opens the door for us to call experts on whether or not there was any science behind the mandate.”

While the shift from a summary trial back to a court martial means Topp will be afforded an independent trial with legal representation, Fowler said it also means the army reservist faces potentially stiffer penalties if convicted.

Under a summary trial, commanding officers are largely restricted to handing down reprimands and fines. If he is found guilty by court martial, however, Topp faces the threat of dismissal from the military with disgrace and up to two years in prison.

Retired colonel Michel Drapeau said while there may be a number of reasons why the military opted to change the case from a summary trial back to a court martial, he believed the latter was the appropriate venue for hearing Topp’s case.

“It provides for a trial in an open court with all Charter legal guarantees,” Drapeau said in an email. “It also provides for the provision of free legal support to the member.”

This report by The Canadian Press was first published July 5, 2022.

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COVID-19

Tamara Lich breached conditions by appearing with fellow convoy leader: Crown

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By Erika Ibrahim in Ottawa

The Crown is seeking to revoke bail for Tamara Lich, a leader of the “Freedom Convoy,” after she appeared alongside a fellow organizer in an alleged breach of her conditions.

Lich was charged in February with mischief, obstructing police, counselling others to commit mischief and intimidation for her role in the massive protest against COVID-19 restrictions that gridlocked downtown Ottawa for more than three weeks.

She was released the next month with a long list of conditions, including an order not to communicate with key convoy organizers except through counsel or in the presence of counsel. She was also banned from using all social media.

Crown prosecutor Moiz Karimjee told an Ottawa court on Tuesday that Lich breached one of her conditions by being seen with fellow protest leader Tom Marazzo at a recent gala, where she accepted an award for organizing the protest.

He argued that she should be detained.

Lich’s lawyer, Lawrence Greenspon, said he will contest the revocation of Lich’s bail and seek her release with conditions.

Ottawa police Det. Chris Benson, who is the lead on Lich’s case, told the court he reviewed video of Lich and Marazzo appearing together at the awards gala.

Greenspon asked Benson if he knew of any other evidence that Lich and Marazzo communicated before or after the brief interaction in the video, which took place in “less than three seconds.”

He asked the detective if he was aware that some lawyers from the Justice Centre for Constitutional Freedoms were present, some of whom are acting as her lawyers in civil matters.

Benson said he believed a photograph showing Lich, Marazzo and others posing together at the award ceremony shows that she breached her conditions due to her physical closeness to him.

Lich monitored the hearing remotely from an Ontario detention centre, watching on video conference and listening in from a cellphone, her blond hair in a high bun.

Both Marazzo and Lich were key spokespeople of the winter convoy protest. Marazzo is also a leader of a group called Veterans 4 Freedom, which staged several rallies in Ottawa over the Canada Day weekend.

Police sought a Canada-wide arrest warrant for Lich for the alleged breach of her bail conditions and she was arrested last week in Medicine Hat, Alta., where she lives.

Benson said he oversaw Lich’s transport from Alberta to Ottawa after she was arrested.

Lich’s surety, whose identity is protected by a court-ordered publication ban, said they became aware of the photo of Lich and Marazzo a few days after the event, and immediately contacted Lich about it out of concern that a possible violation of bail conditions took place.

The surety explained that Lich assured them that legal counsel was present at the gala.

Greenspon pointed out the evidence brought against Lich to argue she broke the bail condition consists of a very brief congratulatory interaction between her and Marazzo, adding lawyers approved the photo and were just off-camera.

He argued Benson didn’t provide any evidence that contradicted the terms of the bail conditions.

“These actions were so minimal as to amount to not being prosecuted, let alone convicted,” he said.

The purpose of the bail condition was not to preclude the brief interaction and photo that took place, Greenspon said — rather, it was to prevent a similar event to the one that took place in Ottawa earlier this year. He argued the interactions in question do not risk reoffence.

The matter should have been brought to a judicial referral hearing or some other recourse rather than the Canada-wide warrant that has led to Lich being detained for nine days, he said, noting an email showing the Crown sought the expansion from an initial Ontario-wide warrant.

Justice of the Peace Paul Harris reserved his decision until the next court appearance on Friday.

Lich is charged for her role in the “Freedom Convoy” along with a co-accused, Chris Barber, who remains out on bail.

On Tuesday morning, Barber’s lawyer was granted a publication ban on court documents showing Barber’s cellphone communications, except for those with Lich.

This report by The Canadian Press was first published July 5, 2022.

This story was produced with the financial assistance of the Meta and Canadian Press News Fellowship.

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