A judge has awarded a convicted killer and prison escapee $500,000 in damages, plus interest, after ruling that the federal government extradited him to Mexico despite knowing he faced a substantial risk of torture.
The ruling by Federal Court Justice Sébastien Grammond is believed to be the first in which a court has awarded damages for Canadian complicity in torture abroad. Mexico had provided diplomatic assurances that Régent Boily would not be tortured, and on that basis, courts in Quebec upheld his extradition, and the federal justice minister, who has the final say, allowed it to go ahead in August, 2007.
But federal government memos showed that, two days before Mr. Boily, then in his early 60s, was to be returned to Mexico, Canadian consular officials discovered that he was to be placed in the prison he had escaped from – an escape that cost a prison guard his life.
Two consular officials expressed their concerns about Mr. Boily’s safety in writing, and immediately asked Mexico to transfer him to another prison. But the Canadian Department of Foreign Affairs decided not to intervene, and the consular officials stopped pushing for the transfer.
Canada is a signatory to the International Convention Against Torture, which obliges it to make torture a crime in this country. The convention, and Canadian law, bars extradition or deportation where there is a high risk of torture. Mr. Boily said that on three occasions, his head was held under water multiple times, a plastic bag was placed on his head and hot sauce was injected into his nose. The financial award – known as Charter damages – is for Canada’s violation of Mr. Boily’s constitutional right to personal security.
Justice Grammond acknowledged that Mr. Boily’s escape cost the life of an innocent prison guard, unnamed in his ruling. But he stressed the importance of protecting human dignity, citing a Supreme Court of Canada ruling in May that ended the punishment of life without parole for mass killers.
“It may come as a surprise that such a large amount of money would be awarded to someone who has been convicted of serious crimes,” wrote Justice Grammond, a former University of Ottawa civil law dean appointed to the bench by the federal Liberals in 2017. “Can one be both an offender and a victim?”
His answer: “The legitimate punishment he deserved … did not include torture.” He added: “What makes the situation particularly shocking was the willful nature of the infringement of Mr. Boily’s rights, or in other words, the fact that the federal officials acted with full knowledge of the situation and the likely consequences of their conduct.”
Mr. Boily, who was from Quebec, had moved to Mexico in 1993, and married a Mexican citizen. In 1998, Mexican police found him with 500 kilograms of marijuana in his car and arrested him. He was sentenced to 14 years in prison for drug trafficking, and incarcerated at Cieneguillas prison in the state of Zacatecas.
Five months later, armed men intercepted a vehicle transporting him from an eye clinic to the prison, and one of the two guards accompanying him was shot and killed. Mr. Boily managed with his in-laws’ help to cross into the United States, and he made his way to the Outaouais region of western Quebec, where he lived for several years under his real name.
Mexico requested his extradition and he was arrested in 2005. After his extradition, he was convicted in Mexico of manslaughter and escaping custody and sentenced to 16 years. In 2017, he was transferred to a Canadian prison and six months later was paroled.
Maxime Bernier, People’s Party of Canada Leader, had just become foreign affairs minister in a Conservative government at the time in question. “Mr. Bernier had only been minister for three days when Mr. Boily was extradited and he has no recollection of having discussed this case with Foreign Affairs officials at the time,” spokesperson Martin Masse told The Globe and Mail. “He was not aware of the existence of this lawsuit and has no comments on the ruling.”
Audrey Boctor, a member of Mr. Boily’s legal team, said she hopes Ottawa will not appeal the ruling in the 12-year-old proceedings.
“The judgment is a strong affirmation of core human-rights principles at the heart of our legal system,” she said.
Mr. Boily had asked for $6-million, citing out-of-court settlements of roughly $11-million each between Ottawa and Maher Arar, Omar Khadr, Muayyed Nureddin, Ahmad Abou El-Maati and Abdullah Almalki, over Canadian involvement in abusive detention abroad. But Justice Grammond said it is risky to compare settlements where not all the information is on the public record.
University of Toronto law professor Kent Roach said it was “refreshing to read a judgment that is not couched in deference to the state and its reasons for acting such as maintaining good relations with Mexico and that awards damages based on how a person’s most basic human rights were violated.”
Oscar Mora, a spokesperson for the Mexican embassy in Ottawa, said it needs more time to consider the ruling before it responds. Global Affairs Canada said the government takes all allegations of mistreatment or torture of Canadian citizens seriously, is reviewing the ruling and will not comment further.
The only source of information on Mr. Boily’s torture allegations was Mr. Boily himself. The Canadian government argued that he was a serious criminal whose word could not be trusted. A Mexican jail guard denied the allegations. When a Canadian official visited Mr. Boily – he complained of the torture at the time – a medical doctor found no visible sign of torture.
Justice Grammond found Mr. Boily’s testimony consistent and plausible. He said by raising the allegations, Mr. Boily could have exposed himself to more torture. The guard appeared to know more than he would reveal, the judge said.