said to have violated the author’s rights under
articles 6, 7, and 2 (3) of the Covenant, as unlike
Kindler, it did not consider the merits of assurances.
9.7 On the State party’s argument (paragraph 8.13)
that “the issue of whether Canada was required to
seek assurances that the death penalty not be applied
to Roger Judge could have been raised before
domestic courts”, the author submits that the State
party misconstrued his legal position. The author’s
proceedings in Canada were intended to result in a
stay of his deportation, so as to compel the United
States to seek extradition, and only at this point
could the issue of assurances have been raised.
9.4 As to whether the State party violated his
rights by deporting him before he could exercise all
his rights to challenge his deportation, the author
submits that the State party’s interpretation of its
obligations are too restrictive and that death penalty
cases require special consideration. By removing
him within hours after the Superior Court of
Québec’s decision (handed down late evening), it is
argued that the State party ensured that the civil
rights issues raised by the author could not benefit
from any appellate review.
9.8 On the author’s current legal position, it is
contested that no execution date has been set. It is
submitted that a Death Warrant was signed by the
Governor on 22 October 2002, and his execution
scheduled for 10 December 2002. However, his
execution has since been stayed, pending habeas
corpus proceedings before the Federal District Court.
9.5 The author argues that this restrictive
approach is contrary to the wording of the General
Comment on article 2 which States “…The
Committee considers it necessary to draw the
attention of State parties to the fact that the
obligation under the Covenant is not confined to the
respect of human rights, but that State parties have
also undertaken to ensure the enjoyment of these
rights to all individuals under their jurisdiction.” By
deporting the author to ensure that he could not avail
himself of his right of appeal, not only did the State
party violate article 2, paragraph 3, of the Covenant,
but the spirit of this general comment.
Issues and proceedings before the Committee
10.1 The Human Rights Committee has examined
the communication in light of all the information
made available to it by the parties, as provided for in
article 5, paragraph 1, of the Optional Protocol.
Question 1. As Canada has abolished the death
penalty, did it violate the author’s right to life
under article 6, his right not to be subjected to
torture or to cruel, inhuman or degrading
treatment or punishment under article 7, or his
right to an effective remedy under article 2,
paragraph 3, of the Covenant by deporting him
to a State in which he was under sentence of
death without ensuring that that sentence would
not be carried out?
9.6 The author submits that the Minister has some
discretion, under section 48 of the Immigration Act
and is not under an obligation to remove him
“immediately”. Also, domestic jurisprudence
recognises that the Minister has a duty to exercise
this discretion on a case-by-case basis. He refers to
the case of Wang v. The Minister of Citizenship and
Immigration,33 where it was held that “the discretion
to be exercised is whether or not to defer to another
process which may render the removal order
ineffective or unenforceable, the object of that
process being to determine whether removal of that
person would expose him to a risk of death or other
extreme sanction”. According to this principle, the
author believes that he should not have been
deported until he had had an opportunity to avail
himself of appellate review. It is submitted that had
his right to appeal not been curtailed by his
deportation, his case would still have been in the
Canadian judicial system when the Supreme Court
of Canada determined, in United States of America
v. Burns,34 that except in exceptional cases,
assurances must be requested in all cases in which
the death penalty could otherwise be imposed, and
he would have benefited from it.
33
[2001] FCT 148 (March 6, 2001).
34
Supra.
10.2 In considering Canada’s obligations, as a
State party which has abolished the death penalty, in
removing persons to another country where they are
under sentence of death, the Committee recalls its
previous jurisprudence in Kindler v. Canada,35 that
it does not consider that the deportation of a person
from a country which has abolished the death
penalty to a country where he/she is under sentence
of death amounts per se to a violation of article 6 of
the Covenant. The Committee’s rationale in this
decision was based on an interpretation of the
Covenant which read article 6, paragraph 1, together
with article 6, paragraph 2, which does not prohibit
the imposition of the death penalty for the most
serious crimes. It considered that as Canada itself
had not imposed the death penalty but had extradited
the author to the United States to face capital
punishment, a state which had not abolished the
death penalty, the extradition itself would not
amount to a violation by Canada unless there was a
real risk that the author’s rights under the Covenant
35
96
Supra.
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