abolitionist state that has ratified the Covenant is
necessarily required to refuse extradition or to seek
assurances that the death penalty would not be
applied. In Kindler v. Canada,16 the Human Rights
Committee asked, “Did the fact that Canada had
abolished capital punishment…require Canada to
refuse extradition or request assurances from the
United States…that the death penalty would not be
imposed against Mr. Kindler”. The State party notes
the Committee’s statement in this regard that it “does
not find that the terms of article 6 of the Covenant
necessarily require Canada to refuse to extradite or
to seek assurances.” These comments were repeated
in the Committee’s views in Ng v. Canada17 and
Cox v. Canada.18
assurances did
Constitution.22
Supra.
Supra.
18
the
Canadian
8.10 On the question of whether removing the
author to a state where he was under a sentence of
death without seeking assurances violates article 7 of
the Covenant, the State party submits that the
Committee has held that extradition or removal to
face capital punishment, within the parameters of
article 6, paragraph 2, does not per se violate article
7.24 It also notes the Committee’s finding that there
may be issues that arise under article 7 in connection
with the death penalty depending on the “personal
factors regarding the author, the specific conditions
of detention on death row, and whether the proposed
method of execution is particularly abhorrent”.25
8.8 The State party argues that at the time of the
author’s removal, 7 August 1998, there was no
domestic legal requirement, that Canada was
required to seek assurances from the United States
that the death penalty would not be carried out
against him. While the Supreme Court of Canada
had not ruled on this issue in the immigration
context, they had dealt with it in relation to
extradition, finding, in the cases of Kindler v.
Canada (Minister of Justice),20 and Reference Re Ng
Extradition,21 that providing the Minister with
discretion as to whether to seek assurances that the
death penalty would not be carried out and the
decision to extradite Kindler and Ng without seeking
17
violate
8.9 It further argues that a State party’s conduct
must be assessed in light of the law applicable at the
time when the alleged treaty violation took place: at
the time of the author’s removal there was no
international legal requirement requiring Canada to
seek assurances that the death penalty would not be
carried out against Roger Judge. It submits that this
is evidenced by the Committee’s interpretation of the
Covenant in Kindler, Ng and Cox (supra). In
addition, the United Nations Model Treaty on
Extradition23 does not list the absence of assurances
that the death penalty will not be carried out as a
“mandatory ground for refusal” to extradite an
individual but it is listed as an “optional ground for
refusal”. Finally, it submits that whether abolitionist
states should be required to seek assurances in all
cases when removing individuals to countries where
they face the death penalty is a matter of state policy
but not a legal requirement under the Covenant.
8.7 As to the Second Optional Protocol to the
International Covenant on Civil and Political Rights,
aiming at the abolition of the death penalty pursuant
to which States parties are required to take all
necessary measures to abolish the death penalty
within their jurisdictions, the State party refers to the
Committee’s finding that for States parties to the
Second Optional Protocol, its provisions are
considered as additional provisions to the Covenant
and in particular article 6.19 It submits that the
instrument is silent on the issue of extradition or
removal to face the death penalty, including whether
assurances are required. The State party expresses no
view on whether this instrument can be interpreted
as imposing a requirement that assurances be sought,
but emphasizes that it is not currently a party to the
Second Optional Protocol. Therefore, its actions may
only be scrutinized under the provisions of the
Covenant.
16
not
8.11 The State party argues that, in the instant case,
the Committee rejected as inadmissible any claims
respecting the author’s personal factors, conditions
of detention on death row or the method of
execution. The only issue that is raised is whether
Canada’s failure to seek assurances that the death
penalty will not be applied violates the author’s
rights under article 7. The State party argues that if
the imposition of the death penalty within the
parameters of article 6, paragraph 2, does not violate
article 7, then the failure of a State to seek
assurances that the death penalty will not be applied
cannot violate article 7. To hold otherwise would
mean that the imposition of the death penalty within
the parameters of article 6, paragraph 2, by State X,
would not constitute torture, cruel, inhuman or
degrading treatment or punishment, but that a state
which extradites to State X without seeking
Supra.
22
19
G. T. v. Australia, supra.
23
General Assembly resolution 45/116.
20
[1991] 2 S.C.R. 779.
24
Kindler v. Canada, supra.
21
[1991] 2 S.C.R. 858.
25
Kindler v. Canada, supra.
93
Ibid., at page 840.
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