A judge has awarded a convicted murderer and prison escapee $500,000 in damages, plus interest, after ruling that the federal government extradited him to Mexico despite knowing he faced a significant risk of torture. Federal Court Judge Sebastien Grammond’s decision 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 Viceroy Boyle would not be tortured, and on that basis, the courts in Quebec upheld his extradition and the federal Minister of Justice, who has the final say, allowed it to take place in August 2007. But federal government memos showed that, two days before Mr. Boyley, then in his 60s, was to return to Mexico, Canadian consular officials discovered they were going to put him in the jail he had escaped from — an escape that it cost a jailer his life. Two consular officials expressed their concerns for Mr. Boyley’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 consular officials stopped pushing for the transfer. Canada is a signatory to the International Convention against Torture, which obliges it to criminalize torture in this country. The convention and Canadian law prohibit 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 over his head and hot sauce was poured into his nose. The financial award – known as Charter damages – relates to Canada’s violation of Mr. Boyley’s constitutional right to personal security. Opinion: An ambassador’s regret: Canadians not treated equally when facing problems abroad Judge Grammond acknowledged that Mr Boily’s escape cost the life of an innocent prison guard, who was not named in his judgment. But he stressed the importance of protecting human dignity, citing a Supreme Court of Canada ruling in May that ended life sentences without parole for mass murderers. “It may come as a surprise that such a large sum of money would be awarded to someone convicted of serious crimes,” wrote Justice Grammond, a former dean of civil law at the University of Ottawa who was appointed to the bench by the federal Liberals in 2017. Can one be both a perpetrator and a victim?’ His response: “The lawful punishment he deserved … did not involve torture.” He added: “What makes the situation particularly shocking was the willful nature of the violation of Mr. Boyley’s rights, or in other words, the fact that federal officials acted with full knowledge of the situation and the potential consequences of their conduct.” Mr. Boily, who was from Quebec, had moved to Mexico in 1993 and married a Mexican national. 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 imprisoned in Cieneguillas prison in Zacatecas state. Five months later, gunmen intercepted a vehicle taking him from an eye clinic to prison, and one of the two guards accompanying him was shot and killed. Mr. Boily, with the help of his in-laws, managed to cross into the United States and made his way to the Ottawa 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 he was released on parole. Maxime Bernier, leader of the People’s Party of Canada, had just become foreign minister in a Conservative government at the time. “Mr. Bernier had only been minister for three days when Mr. Boyley was extradited and he does not recall discussing this case with Foreign Affairs officials at the time,” spokesman Martin Maas told The Globe and Mail. “He was not aware the existence of this lawsuit and has no comments on the decision.” Audrey Boctor, a member of Mr. Boily’s legal team, said she hopes Ottawa will not appeal the decision in the 12-year process. “The decision is a powerful affirmation of the core principles of human rights at the heart of our legal system,” he said. Mr. Boily had asked for $6 million, citing out-of-court settlements of about $11 million each between Ottawa and Maher Arar, Omar Khadr, Muayyed Noureddine, Ahmad Abu El-Maati and Abdullah Almalki, for Canada’s involvement in abusive detention abroad. But Judge Grammond said it’s dangerous to compare settlements where not all the information is in the public record. University of Toronto law professor Kent Roach said “it’s refreshing to read a decision that is not couched in deference to the state and its reasons for action, such as maintaining good relations with Mexico, and that awards damages based on how whereby a person’s most basic human rights were violated.” Oscar Mora, a spokesman for the Mexican embassy in Ottawa, said he needed more time to review the decision before responding. Global Affairs Canada said the government takes all allegations of ill-treatment or torture of Canadian citizens seriously, is reviewing the decision and will not comment further. The only source of information about Mr. Boyley’s allegations of torture was Mr. Boyley himself. The Canadian government argued that he was a serious criminal whose word could not be trusted. A Mexican prison guard denied the charges. When a Canadian official visited Mr. Boyley – he complained of torture at the time – a doctor found no visible sign of torture. Judge Grammond found Mr Boily’s evidence consistent and reasonable. He said that by pressing charges, Mr Boyley could have exposed himself to further torture. The guard appeared to know more than he was letting on, the judge said.
