8.17 On whether there has been a violation of article 7 in this regard, the State party relies, mutatis mutandis, on its previous submissions with respect to the first question posed by the Committee. In particular, 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 allow an individual the possibility of exercising all judicial recourses prior to removal to the state imposing the death penalty cannot be a violation of article 7. The State party argues that the crucial issue is whether a State party imposing the death penalty has met the standards set out in article 6 and other relevant provisions of the Covenant and not whether the State party removing an individual to a State where he is under sentence of death has provided that individual with sufficient opportunity for judicial review of the decision to remove. Citizenship and Immigration Canada is considering the potential impact of this decision on immigration removals. Author’s response on the merits, pursuant to the Committee’s request 9.1 By letter of 24 January 2003, the author responded to the request for information by the Committee and commented on the State party’s submission. He submits that by relying on the decision in Kindler v. Canada,32 in its argument that in matters of extradition or removal, the Covenant is not necessarily breached by an abolitionist state where assurances that the death penalty not be carried out are not requested, the State party has misconstrued not only the facts of Kindler but the effect of the Committee’s decision therein. 9.2 Firstly, the author argues that Kindler dealt with extradition as opposed to deportation. He recalls the Committee’s statement that there would have been a violation of the Covenant “if the decision to extradite without assurances would have been taken arbitrarily or summarily”. However, since the Minister of Justice considered Mr. Kindler’s arguments prior to ordering his surrender without assurances, the Committee could not find that the decision was made “arbitrarily or summarily”. The case currently under consideration concerns deportation, which lacks any legal process under which the deportee may request assurances that the death penalty not be carried out. 8.18 With respect to article 2, paragraph 3 of the Covenant, the State party submits that it has not violated any of the author’s Covenant rights as he enjoyed sufficient judicial review of his removal order, prior to his removal to the United States, including review of whether the removal would violate his human rights. 8.19 On the author’s current situation in the United States, the State party submits that it has been informed by the Philadelphia District Attorney’s Office, State of Pennsylvania that the author is currently incarcerated in a state penitentiary, and that no execution date has been set for him. 8.20 On 23 May 2002, the Supreme Court of Pennsylvania denied the author’s application for post conviction relief. The author has recently filed a petition for habeas corpus in the Federal District Court. An adverse decision rendered by the District Court can be appealed to the Federal Court of Appeals for the Third Circuit. This may be followed by an appeal to the U.S. Supreme Court. If the author’s federal appeals are denied, an application for clemency can be filed with the State Governor. In addition, the State party reiterates that, according to the state of Pennsylvania, there have only been three persons executed since the reintroduction of the death penalty in 1976. 8.21 Without prejudice to any of the preceding submissions, the State party apprises the Committee of domestic developments that have occurred since the events at issue in this case. On 15 February 2001, the Supreme Court of Canada held, in United States v. Burns,31 that the government must seek assurances, in all but exceptional cases, that the death penalty would not be applied prior to extraditing an individual to a state where they face capital punishment. The State party submits that 9.3 Secondly, the author reiterates that he petitioned the Canadian courts to declare that his removal by deportation would violate his rights under the Canadian Charter of Rights and Freedoms, so as to suspend his removal from Canada and “force” the United States to request his extradition, at which point he could have requested the Minister of Justice to seek assurances that the death penalty not be carried out. As the Minister of Justice has no such power under the deportation process, the State party was able to exclude the author from the protections afforded by the extradition treaty and no review of the appropriateness of requesting assurances was ever carried out. The author submits that the United States would have requested his extradition and encloses a letter, dated 3 February 1994, from the Philadelphia District Attorney’s Office, exhibited with the author’s proceedings in Canada, indicating that it will initiate extradition proceedings if necessary. Any refusal by the Minister to require assurances could then have been reviewed through the domestic court system. In “sidestepping” the extradition process and returning the author to face the death penalty, the State party is 31 32 Neutral citation 2001 SCC 7. [2001] S.C.J No. 8. 95 Supra.