of one country on another, in so far as, even when there is
reliable evidence of the guilt of an individual or he had
already been sentenced in the United States, he could not be
extradited since Canadian penal legislation would not
consider his conduct to be an offence;
study ex officio the details of the trial and sentencing but
rather of Mr. Kindler to present, before all the organs that
had heard the case, evidence that the death penalty
violated his rights, in which case there would be an
exceptional circumstance. In so far as the author did not
present such "evidence", the State party admits that it had
not been possible to give careful attention to that
possibility.
(c)
Not to request assurances out of a desire to
see the foreign law strictly applied amounts to imposing
(in a self-inflicting manner) the law of one of the
component parts of the United States of America
(Pennsylvania) and its pro-death-penalty philosophy on
the Canadian legal and social system.
15.
Nevertheless, the most important aspect of the
exceptional circumstances is that related to the State
party's affirmations that they refer to the application of the
death penalty. I have pointed out on several occasions that
exceptional circumstances have to be considered in
relation to the possibility that the death penalty may be
applied. I do not share the idea expressed by Canada
concerning the relationship between those circumstances
and the death penalty. In my view, the most important
matter is the link between the application of the death
penalty and the protection given to the lives of persons
within the jurisdiction of the Canadian State. For them, the
death penalty constitutes in itself a special circumstance.
For that reason -and in so far as the jury decided that the
author of the communication must die – Canada had a
duty to seek assurances that Joseph John Kindler would
not be executed.
18.
It has been argued that Mr. Kindler was extradited
without any assurances being sought because to have
requested them would have prevented his handing-over to
the United States authorities. This is another assertion that
I cannot accept. On the one hand, since the State party to
the Extradition Treaty has accepted in advance that
assurances may be requested of it, it must be prepared to
give them in any case.u On the other hand, Canada is
affirming that the authorities of the United States of
America are not willing in any circumstance to give those
assurances and that they are even prepared to use
extradition as a means of imposing their conception of
penal law on Canada. I do not believe this to be the case.
19.
The problem that arises with the extradition of
Mr. Kindler to the United States without any assurances
having been requested is that he has been deprived of the
enjoyment of a right in conformity with the Covenant.
Article 6, paragraph 2, of the Covenant, although it does not
prohibit the death penalty, cannot be understood as an
unrestricted authorization for it. In the first place, it has to
be viewed in the light of paragraph 1, which declares that
every human being has the inherent right to life. It is an
unconditional right admitting of no exception. In the second
place, it constitutes – for those States which have not
abolished the death penalty – a limitation on its application,
in so far as it may be imposed only for the most serious
crimes. For those States which have abolished the death
penalty it represents an insurmountable barrier. The spirit of
the article is to eliminate the death penalty as a punishment,
and the limitations which it imposes are of an absolute
nature.
16.
The fact that the death penalty constitutes a special
circumstance derives from article 6 of the Extradition
Treaty. Of all the provisions of the Treaty, only this one
(relating to the extradition of persons who may be
sentenced to death or who have already been so sentenced)
makes it possible for one of the parties to seek from the
other assurances that the individual whose extradition is
requested will not be executed. This article stipulates that
the death penalty is different from other sentences and
must be viewed in a special way.
17.
This provision also accepts that the States parties
to the Extradition Treaty have values and traditions in
regard to the death penalty which the requesting State
must respect. Consequently, in order to guarantee respect
for those values and traditions, both have provided, in
article 6, for the inclusion of an exception rule in the
Extradition Treaty. This fact is closely linked to the
assertion which Canada made before the Human Rights
Committee to the effect that the request for assurances
was not pertinent in the case in question in so far as "The
Government of Canada does not use extradition as a
vehicle for imposing its concepts of criminal law policy
on other States".t This contention seems to me to be
unacceptable for three main reasons:
20.
In this connection, when Mr. Kindler entered
Canadian territory he already enjoyed an unrestricted right
to life. By extraditing him without having requested
assurances that he would not be executed, Canada has
denied the protection which he enjoyed and has
necessarily exposed him to be sentenced to death and
foreseeably to being executed. Canada has therefore
violated article 6 of the Covenant.
(a)
It is stipulated in the Extradition Treaty
that, where it is possible that the death penalty may be
applied, the State requested to hand over the fugitive may
seek assurances that he will not be executed and the
requesting State has accepted a priori that it may be asked
to apply a philosophy that does not accept death as a
punishment for a crime under the ordinary law;
21.
Further, Canada's misinterpretation of the rule in
article 6, paragraph 2, of the International Covenant on
Civil and Political Rights raises the question of whether it
has also violated article 5, specifically paragraph 2
thereof. The Canadian Government has interpreted
article 6, paragraph 2, as authorizing the death penalty.
(b)
The Extradition Treaty envisages that a
person may not be extradited to the United States except for
offences that are recognized as such in Canada. This would
be the clearest case of the imposition of the penal concepts
t
u
I must point out that article 6 of the Extradition Treaty
between Canada and the United States of America places
no limit on requests for assurances. The exceptional
circumstances which could provide a basis for requesting
assurances form part of the Extradition Act.
Views, para. 8.6.
132
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