Death penalty concerns delay Thailand extradition for man held 1,200 days in B.C. custody

In this file image, people line up to be screened to enter the British Columbia Supreme Court in Vancouver, B.C. on Monday, Sept. 30, 2013. (Jonathan Hayward / THE CANADIAN PRESS)

A man wanted for murder in Thailand has asked to be released from custody as Canadian officials seek assurances he wouldn't face the death penalty if extradited – a process that has already dragged on for nearly two years.

The case, which was heard last month in B.C. Supreme Court, highlights the constitutional obligations and sensitive diplomacy involved in Canada's extradition system.

The accused – who is named Mzwake Memela, but goes by Prince Michael Obi – was arrested after arriving in Canada in 2019, and according to his lawyer has been in the North Fraser Pretrial Centre for about 1,200 days.

Twice Obi has asked to be discharged, first in 2021 then again in 2022, arguing the government lacks the "sufficient cause" required under the Extradition Act to keep him detained, but both times his applications have been dismissed.

During Obi's latest attempt, Justice Heather MacNaughton reiterated his prolonged detention has been the result of the Department of Justice's ongoing work to ensure he doesn’t face capital punishment – something she noted officials are "constitutionally required to do" before transferring his custody, and is "for Mr. Obi's benefit."

Obi is accused in the murder of Susama Ruenrit, a woman who was found dead by asphyxiation in a Bangkok hotel room in March 2019. There are 35 crimes punishable by capital punishment in Thailand, murder among them.

"Seeking a satisfactory death penalty assurance amounts to 'sufficient cause' against the discharge of Mr. Obi," MacNaughton wrote in her decision, which was posted online this week.

Canada abolished the death penalty, for the most part, in 1976, some 14 years after the country's last execution. Capital punishment for members of the military was subsequently ended in 1998.

The Supreme Court of Canada then ruled in 2001 that it would be unconstitutional to extradite two men accused in a brutal triple murder to the U.S. without a guarantee they would not face a state execution.

Those terms have since been enshrined in the extradition treaty between the two countries – but the situation is vastly more complicated with Thailand.

In Obi's case, the court heard the attorney general of Canada first requested a death penalty assurance via a diplomatic note in July 2020, and Thai authorities provided one in September of that year.

Canadian officials were not satisfied by the initial assurance provided by Thailand, however, and more diplomatic notes were exchanged in October 2020 and April 2021.

With the Canadian government still unconvinced, there were additional communications with Thailand through June 2021, the court heard, and more in July that also involved Global Affairs Canada and the Thai Ministry of Foreign Affairs.

Monthly communications continued through March 2022, culminating in two virtual meetings, and finally a third death penalty assurance from Thailand in May. Thai authorities also pledged that Obi, if ultimately convicted, would receive credit for his time served in Canadian custody.

In his latest application for discharge, Obi argued Canada has a "long track record" of requesting and receiving such assurances without gumming up extradition this long, though he pointed mostly to cases involving the U.S.

MacNaughton noted that prior to Obi's extradition proceedings, Canada has received a satisfactory death penalty assurance from Thailand in "only one case."

She cited a different extradition process involving Thailand that lasted roughly a decade, from 2001 to 2011, and was stymied partway through by a 2006 military coup in the Southeast Asian nation that added to the existing uncertainties.

In the end, Canada agreed to extradite the accused without an assurance, but with numerous reasons to believe he would not face the death penalty. 

"Thailand did not then have domestic legislation authorizing death penalty assurances," MacNaughton noted in her decision. "This does not appear to have changed."

The justice previously described the evidence against Obi in Ruenrit's murder as "entirely circumstantial," but found that had no bearing on the process. For now, that leaves him in limbo in the care of B.C. Corrections.

"While diplomatic discussions about the death penalty assurance are ongoing between Canada and Thailand, Mr. Obi’s circumstances do not warrant relief," MacNaughton wrote.