said to have violated the author’s rights under articles 6, 7, and 2 (3) of the Covenant, as unlike Kindler, it did not consider the merits of assurances. 9.7 On the State party’s argument (paragraph 8.13) that “the issue of whether Canada was required to seek assurances that the death penalty not be applied to Roger Judge could have been raised before domestic courts”, the author submits that the State party misconstrued his legal position. The author’s proceedings in Canada were intended to result in a stay of his deportation, so as to compel the United States to seek extradition, and only at this point could the issue of assurances have been raised. 9.4 As to whether the State party violated his rights by deporting him before he could exercise all his rights to challenge his deportation, the author submits that the State party’s interpretation of its obligations are too restrictive and that death penalty cases require special consideration. By removing him within hours after the Superior Court of Québec’s decision (handed down late evening), it is argued that the State party ensured that the civil rights issues raised by the author could not benefit from any appellate review. 9.8 On the author’s current legal position, it is contested that no execution date has been set. It is submitted that a Death Warrant was signed by the Governor on 22 October 2002, and his execution scheduled for 10 December 2002. However, his execution has since been stayed, pending habeas corpus proceedings before the Federal District Court. 9.5 The author argues that this restrictive approach is contrary to the wording of the General Comment on article 2 which States “…The Committee considers it necessary to draw the attention of State parties to the fact that the obligation under the Covenant is not confined to the respect of human rights, but that State parties have also undertaken to ensure the enjoyment of these rights to all individuals under their jurisdiction.” By deporting the author to ensure that he could not avail himself of his right of appeal, not only did the State party violate article 2, paragraph 3, of the Covenant, but the spirit of this general comment. Issues and proceedings before the Committee 10.1 The Human Rights Committee has examined the communication in light of all the information made available to it by the parties, as provided for in article 5, paragraph 1, of the Optional Protocol. Question 1. As Canada has abolished the death penalty, did it violate the author’s right to life under article 6, his right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment under article 7, or his right to an effective remedy under article 2, paragraph 3, of the Covenant by deporting him to a State in which he was under sentence of death without ensuring that that sentence would not be carried out? 9.6 The author submits that the Minister has some discretion, under section 48 of the Immigration Act and is not under an obligation to remove him “immediately”. Also, domestic jurisprudence recognises that the Minister has a duty to exercise this discretion on a case-by-case basis. He refers to the case of Wang v. The Minister of Citizenship and Immigration,33 where it was held that “the discretion to be exercised is whether or not to defer to another process which may render the removal order ineffective or unenforceable, the object of that process being to determine whether removal of that person would expose him to a risk of death or other extreme sanction”. According to this principle, the author believes that he should not have been deported until he had had an opportunity to avail himself of appellate review. It is submitted that had his right to appeal not been curtailed by his deportation, his case would still have been in the Canadian judicial system when the Supreme Court of Canada determined, in United States of America v. Burns,34 that except in exceptional cases, assurances must be requested in all cases in which the death penalty could otherwise be imposed, and he would have benefited from it. 33 [2001] FCT 148 (March 6, 2001). 34 Supra. 10.2 In considering Canada’s obligations, as a State party which has abolished the death penalty, in removing persons to another country where they are under sentence of death, the Committee recalls its previous jurisprudence in Kindler v. Canada,35 that it does not consider that the deportation of a person from a country which has abolished the death penalty to a country where he/she is under sentence of death amounts per se to a violation of article 6 of the Covenant. The Committee’s rationale in this decision was based on an interpretation of the Covenant which read article 6, paragraph 1, together with article 6, paragraph 2, which does not prohibit the imposition of the death penalty for the most serious crimes. It considered that as Canada itself had not imposed the death penalty but had extradited the author to the United States to face capital punishment, a state which had not abolished the death penalty, the extradition itself would not amount to a violation by Canada unless there was a real risk that the author’s rights under the Covenant 35 96 Supra.