One last, last chance: accused in 'honour killing' case appeal for clemency

Just how many last chances can an accused killer get?

That's the question at the heart of an unusual set of proceedings which kicked off this week in the B.C. Court of Appeal.

At stake: the futures of Malkit Kaur Sidhu and Surjit Singh Badesha, the B.C. pair accused of masterminding the slaying of Sidhu's daughter, Jaswinder (Jassi) Sidhu.

All that's missing: 'a hood over their heads'

Lawyers for Sidhu and Badesha are hoping for a stay of extradition proceedings against their clients as a remedy for what they claim was an elaborate plan to whisk the pair out of the country last September. 

They believe the government wanted to deny them any opportunity for more appeals following what was expected to be a rejection of a plea for clemency to Justice Minister Jodi Wilson-Raybould.

They'll make that case in April. But on Tuesday, Badesha lawyer Michael Klein gave a preview as part of an application for disclosure of government documents he believes could reveal an abuse of process.

"This is the minister of justice. This is the person in charge of the justice system for this country. And it is significant conduct," he argued.

"I thought the minister's behaviour in this regard was scandalous. There was only one thing missing — and that was a hood over their heads."

All the way to the Supreme Court of Canada

The arguments centre around exactly where a person's legal options end after they've been ordered out of the country.

The appeal court proceedings are only the latest twists and turns in an 18-year odyssey that began with the death of Jassi Sidhu, the 25-year-old slain in 2000 for what Indian authorities claim was the sin of defying her family's wishes by marrying a poor Indian rickshaw driver.

Sidhu's throat was slit and her body dumped in a canal when she and her new husband were attacked by a group of armed men in the Punjab.

The young woman's mother and uncle were taken into custody in 2012. The B.C. Supreme Court ruled in favour of extradition in 2014, but the appeal court stayed that finding.

The case climbed all the way to the Supreme Court of Canada where a unanimous ruling last September set the wheels in motion for Badesha and Sidhu's removal.

But before that could happen, Wilson-Raybould had to rule on one final appeal for clemency, filed before the Supreme Court ruling, arguing the pair might face mistreatment and torture in India.

That's when things got complicated.

No right to a judicial review?

According to Klein, a plan was hatched to remove Badesha and Sidhu from pretrial custody in B.C.  to the tarmac at Pearson airport on Sept. 20.

They were in the custody of RCMP officers, with Indian police on hand, ready to whisk them back to India when a last-minute filing to the B.C. appeal court forced a dramatic halt to proceedings. 

Wilson-Raybould had yet to render her final judgment. But the inference was clear: within minutes of a negative decision coming down, Badesha and Sidhu would have been shipped off to India, denying them any further legal options.

When pushed by the appeal court judges, government lawyer Deborah Strachan didn't argue that interpretation.

"The real complaint here is whether that is correct in law — that the minister could take steps to surrender immediately upon a decision being made, and thereby preclude an opportunity for judicial review," she told the panel.

"It will be our argument that the minister takes the view that the applicants are not allowed another period of 30 days for judicial review."

A 'drastic remedy'?

Strachan faced some tough questions from the judges, who asked if the government deliberately set out to deprive Sidhu and Badesha of the right to counsel.

She put it differently: "The minister's position is that the applicants were not afforded the opportunity to contact counsel and that there was no intention to take positive steps to enable them to do that."

Strachan opposed the application for disclosure, but also said it was important to keep attention on the "main event" — even if the minister's actions were judged to be wrong, would that qualify for a stay to the extradition and an end to an 18-year quest for justice for a young woman allegedly killed for asserting her independence?

Earlier in the day, Klein had argued that a stay was warranted.

"A stay is a drastic remedy," he said. "But a stay also sends a message as to how the minister is to conduct themselves."

Strachan disagreed.

"If these proceedings are stayed, that's it," she told the court. "The court has what it needs to determine whether this conduct was egregious."