author’s petition was dismissed by the Superior
Court for procedural and substantive reasons (see
para. 4.5 above), the Court of Appeal could have
reviewed the judgement on the merits.
under sentence of death, Canada established the
crucial link in the causal chain that would make
possible the execution of the author.
10.7 As to the State party’s claim that its conduct
must be assessed in the light of the law applicable at
the time when the alleged treaty violation took place,
the Committee considers that the protection of
human rights evolves and that the meaning of
Covenant rights should in principle be interpreted by
reference to the time of examination and not, as the
State party has submitted, by reference to the time
the alleged violation took place. The Committee also
notes that prior to the author’s deportation to the
United States the Committee’s position was evolving
in respect of a State party that had abolished capital
punishment (and was a State party to the Second
Optional Protocol to the International Covenant on
Human Rights, aiming at the abolition of the death
penalty), from whether capital punishment would
subsequent to removal to another State be applied in
violation of the Covenant to whether there was a real
risk of capital punishment as such (Communication
No. 692/1996, A.R.J. v. Australia, Views adopted on
28 July 1997 and Communication No. 706/1996,
G.T. v. Australia, Views adopted on 4 November
1997). Furthermore, the State party’s concern
regarding possible retroactivity involved in the
present approach has no bearing on the separate
issues to be addressed under question 2 below.
10.9 The Committee recalls its decision in A. R. J.
v. Australia,37 a deportation case where it did not
find a violation of article 6 by the returning state as it
was not foreseeable that he would be sentenced to
death and “because the judicial and immigration
instances seized of the case heard extensive
arguments” as to a possible violation of article 6. In
the instant case, the Committee finds that, by
preventing the author from exercising an appeal
available to him under domestic law, the State party
failed to demonstrate that the author’s contention
that his deportation to a country where he faces
execution would violate his right to life, was
sufficiently considered. The State party makes
available an appellate system designed to safeguard
any petitioner’s, including the author’s, rights and in
particular the most fundamental of rights – the right
to life. Bearing in mind that the State party has
abolished capital punishment, the decision to deport
the author to a state where he is under sentence of
death without affording him the opportunity to avail
himself of an available appeal, was taken arbitrarily
and in violation of article 6, together with article 2,
paragraph 3, of the Covenant.
10.10 Having found a violation of article 6,
paragraph 1 alone and, read together with article 2,
paragraph 3 of the Covenant, the Committee does
not consider it necessary to address whether the
same facts amount to a violation of article 7 of the
Covenant.
Question 2. The State party had conceded that
the author was deported to the United States
before he could exercise his right to appeal the
rejection of his application for a stay of his
deportation before the Québec Court of Appeal.
As a consequence the author was not able to
pursue any further remedies that might be
available. By deporting the author to a State in
which he was under sentence of death before he
could exercise all his rights to challenge that
deportation, did the State party violate his rights
under articles 6, 7 and 2, paragraph 3 of the
Covenant?
11. The Human Rights Committee, acting under
article 5, paragraph 4, of the Optional Protocol to the
International Covenant on Civil and Political Rights,
is of the view that the facts as found by the
Committee reveal a violation by Canada of articles
6, paragraph 1 alone and, read together with 2,
paragraph 3, of the International Covenant on Civil
and Political Rights.
10.8 As to whether the State party violated the
author’s rights under articles 6, and 2, paragraph 3,
by deporting him to the United States where he is
under sentence of death, before he could exercise his
right to appeal the rejection of his application for a
stay of deportation before the Québec Court of
Appeal and, accordingly, could not pursue further
available remedies, the Committee notes that the
State party removed the author from its jurisdiction
within hours after the decision of the Superior Court
of Québec, in what appears to have been an attempt
to prevent him from exercising his right of appeal to
the Court of Appeal. It is unclear from the
submissions before the Committee to what extent the
Court of Appeal could have examined the author’s
case, but the State party itself concedes that as the
12. Pursuant to article 2, paragraph 3 (a) of the
Covenant, the Committee concludes that the author
is entitled to an appropriate remedy which would
include making such representations as are possible
to the receiving state to prevent the carrying out of
the death penalty on the author.
13. Bearing in mind that, by becoming a State
party to the Optional Protocol, the State party has
recognised the competence of the Committee to
determine whether there has been a violation of the
Covenant or not and that, pursuant to article 2 of the
Covenant, the State party has undertaken to ensure to
37
98
Supra.
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