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.