Getting Noor Chowdhury deported from Canada
Bangabandhu Sheikh Mujibur Rahman, the Father of the Nation, was assassinated on the 15th of August 1975 along with his family members. Finally, on 19 November 2009, the Appellate Division of the Supreme Court of Bangladesh upheld the death penalty for 12 convicts. Among these 12 condemned convicts, the Government of Bangladesh succeeded in executing only six, meaning the others were tried in absentia. One of them, Aziz Pasha, had died a natural death in 2001 in Zimbabwe. The five others - Rashed Chowdhury, Khandaker Abdur Rashid, Shariful Haque Dalim, Moslehuddin, and Noor Chowdhury - are still alive.
Among them, Noor Chowdhury (NC) entered Canada in June 1996 with a visitor's visa and applied for refugee status the following year, pleading that his life would be endangered if he returned to Bangladesh. He claimed to have been "set up" and sought "justice and protection from the government of Canada."
The Immigration and Refugee Board (IRB) of Canada, which overlooks all refugee applications, processed Chowdhury's application and determined that his story was not probable, i.e., untrue. The whole assassination trial in Bangladesh was fair, meaning NC was a fugitive from justice. IRB rejected Noor's appeal in 2002. After completing all legal procedures, Immigration, Refugees and Citizenship Canada (IRCC) issued a deportation order in 2006 and accordingly informed the Bangladesh High Commission (BHC) in Ottawa to take the necessary actions.
BHC did not move the file at that time when the Bangladesh Nationalist Party (BNP) was in power. Coincidentally, 2006 was its final year in power. Elections for the 9th Parliament were supposed to be held sometime in January 2007. However, the contentious politics between Awami League (AL) and BNP paved the way for the Bangladesh military to take control of the government leadership on 11 January 2007. It formed a new caretaker government and organised elections for the 9th Parliament on 29 December 2008. With a vast majority, AL returned to the Parliament and its President, Sheikh Hasina, was sworn in as the country's Prime Minister on 6 January 2009.
During this political turmoil, BHC remained inactive about NC's deportation case. However, the 9th parliamentary elections made it evident to Chowdhury that his free life in Canada would soon end. Accordingly, he applied for a pre-removal risk assessment inquiry in 2009 as a last resort to escape punishment.
The Bangladesh government in the meantime completed all legal procedures related to Bangabandhu and family murder case. As noted above, Bangladesh intensified its diplomatic efforts after the verdict. Unfortunately, the High Commission found the response of the Canadian government very undiplomatic, which compelled it to sue IRCC in the federal court. The subject of the suit was revealing NC's immigration status in Canada.
The court heard the High Commission's arguments and directed the Ministry to revisit its policy. Although the verdict was favourable to Bangladesh, it was not mandatory. The Government of Canada took full advantage of this discretionary judgment. In a letter, dated 29 January 2021, the Minister of Justice wrote to BHC:
"While there may be benefits in disclosing the information [about Chowdhury's status], such as supporting that Canada is not a safe haven for criminals and enhancing diplomatic relations, these benefits must be weighed against Canada's position and Canada's obligations, as affirmed by the Supreme Court of Canada, regarding the removal of a person to face the death penalty … These benefits do not take precedence over Canada's stance regarding the death penalty."
This is the nutshell of the CBC's report concerning NC's residential status and deportation. Noor Chowdhury was a fugitive from justice in 2006 when his deportation order was issued. His conviction status changed after all formalities concerning his trial were completed in 2009. The government of Canada took this changed conviction status as an excuse to alter its evaluation of the NC's pre-removal risk assessment appeal. Referring to the Supreme Court of Canada's (SCC) ruling relating to extraditing a criminal facing the death penalty, the concerned Canadian Ministry denied all requests from the BHC.
The CBC report describes NC's deportation issue as a mystery because neither country's legal system justifies his current status. Canada cannot try Noor Chowdhury as he had committed no crime on her soil. On the other hand, the Bangladesh government cannot execute the court verdict because Canada would not deport him. As a result, a condemned criminal lives freely escaping execution of the judicial process, that too, in a country like Canada.
The judicial justification as to why NC still lives in Canada remains unclear. Unclear also are the international legal and humanitarian grounds for which Bangladesh cannot get back a convict who has committed a heinous crime against the nation.
To unveil this mystery, we first must explore the details of the SCC ruling in the United States v Burns (2001) appeal case. This exploration, in turn, involves discussing four documents directly related to this case: (i) the Canada-US Extradition Treaty signed in 1971, (ii) the Canada Charter of Rights and Freedoms 1982, (iii) the Kindler v Canada deportation dispute in 1991, and (iv) Re Ng Extradition (Can.) 2001.
In all these cases, the defendants did not challenge the Minister's authority to deport them. They questioned his refusal to seek non-execution assurances before deportation. In the Kindler and Ng cases, the Supreme Court dismissed the defendants' leave to appeal, arguing that the Minister's actions were not inconsistent with Canada's Charter. However, it reversed this decision in the Burns case, contending that the defendants' Charter rights guaranteed by s.7 had been violated.
The judgment report does not explicitly state why the highest court changed its opinion in the Burns case, although the reason permeates transparently through its deliberations. The Charter protects Burns and Rafay because they are Canadian citizens, meaning the Minister should have sought non-execution assurance before signing the deportation order. Kindler and Ng could not claim this opportunity because they were not Canadian citizens. Only Canadian citizens can seek non-execution assurances under the Charter. Foreign fugitives in Canada are ineligible to demand such an assurance as a condition for surrender.
Given this line of reasoning, we can honestly question the legality and legitimacy of the Canadian government's diplomatic stand regarding NC's deportation. Being a foreign citizen, NC disqualifies himself from any protection under Canada's Charter of Rights and Freedoms. But because he has not been deported, Chowdhury lives freely in Canada after committing a heinous crime in Bangladesh.
The CBC team sought Dr. Robert Currie's opinions in this regard. He is a professor of law at Dalhousie University in Halifax and an expert in international criminal law. Professor Currie responded, "It's not justice for Bangladesh, and it's not justice for the people of Canada to have the case simply hanging in the way it is now."
The CBC investigative team updated the NC deportation deadlock to highlight the fundamental factors causing this diplomatic tension and underline its consequences. The judicial deadlock causing this crisis is the Supreme Court of Canada's ruling in the United States v Burns leave to appeal case, which allowed a condemned convict to live freely in Canada. Accordingly, Professor Currie laments: Where is our justice system? There are more legal mechanisms […] and diplomatic level tools that can be brought to bear.
In keeping with Professor Currie's suggestion, the Canadian government's NC policy is not sustainable because the underlying reasoning is not convincing. Noor Chowdhury is neither a Canadian citizen nor a permanent resident. Therefore, he does not qualify to demand Charter protection. The House of Commons enacts laws to prevent crimes on Canadian soil— this is a standard legislative procedure. Therefore, any judgment concerning NC's crime and punishment is beyond SCC's authority. NC has been denied political asylum under the refugee category and served with a deportation order, meaning he virtually has no residential status in Canada.
The judgments in the Burns case have little consequence for the NC's deportation issue. By referring to this SCC ruling, the Government of Canada is only calling the country's justice system and its international image into question.
The writer is an independent researcher and analyst.