CCPR/C/113/D/2091/2011
cannot be justified by general considerations, such as lack of resources for police training,
and excessive punishment cannot be justified by a general deterioration of the security
situation.
4.
Thus, I understand the Views of the Committee as suggesting that the State party’s
decision to deport the author violated article 7 because it belonged to the second category of
article 7 violations — contextual violations. Under the circumstances, it was a
disproportionate response, since it caused an extremely vulnerable person significant harm,
on account of a risk for which he was responsible to a limited degree only, notwithstanding
the availability of other, less harmful alternatives for addressing the risk. I cannot exclude
the possibility that in other circumstances, involving a less vulnerable individual, posing a
greater risk to society, and who cannot be treated in the territory of a State party, the
Committee would not find the decision to deport to violate article 7 of the Covenant.
5.
The other dimension of the case, which the Views do not expound on, involves the
relationship between consideration of the substance of the communication by the
Committee and its consideration by the review bodies of the State party. According to wellestablished case law of the Committee, it does not serve as a “fourth court of appeal”, and
would not interfere with the factual findings of local courts, including their assessment of
risk, unless their decisions are manifestly arbitrary or amount to a denial of justice.d
6.
Examination of the case file does suggest, however, that the Canadian judicial and
quasi-judicial bodies which reviewed the author’s case did act in a manifestly arbitrary
fashion. According to paragraph 13 of the Federal Court judgement of 18 July 2011, the
two reasons for rejecting the plan of treatment proposed by the author were his insistence
on not receiving medication by way of injection and the voluntary nature of the proposed
plan. However, it is uncontested that for many years the author had been taking oral
medication on a regular basis and did not pose any risk to society during that period of
time, and it appears that his relapse in 2005 was due to the situation of homelessness in
which he found himself. As a result, it is hard to understand why the Canadian authorities
did not deem the housing solution introduced in the plan of treatment — i.e. that the author
would reside with his niece (who was well placed to monitor the author’s condition given
her professional qualifications in the field of supporting families of persons with mental
illness) — a key guarantee for ensuring that the author would regularly take his medication.
Furthermore, the voluntary nature of the plan of treatment derived exclusively from the
requirements of Canadian law, and it was unfair for the Canadian authorities to hold the
voluntary nature of the programme against the author. This is especially so since there is
nothing in the case file to suggest that the author was likely to withhold his consent to the
plan of treatment. Ultimately, the reviewing authorities of the State party reached a decision
which attributed very little weight to the real prospect of success of the proposed plan of
treatment, while assigning considerable weight to the speculative possibility that the author
would stop taking his medication and withdraw from the treatment programme. Moreover,
it does not appear that the State party seriously considered the possibility of monitoring the
author’s progress in the treatment programme over time, as a less harmful means of
protecting the general public.
7.
Hence, the State party review bodies manifestly failed to strike a reasonable balance
between the competing interests involved in the case at hand, which would accord
sufficient weight to the author’s rights under the Covenant, and reached an outcome that
was, in the circumstances of the case, manifestly disproportionate and thus arbitrary in
nature. Such a decision falls, as a result, under the exceptional set of cases in which the
Committee may interfere in the holdings of national judicial institutions and find a violation
of the Covenant.
d
See, for example, communication No. 934/2000, G. v. Canada, Views adopted on 8 August 2000,
para. 4.3.
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