AHG v Canada

• Jurisdiction: Derecho Internacional
• Date: 25 March 2015
• Docket Number: (Communication No 2091/2011)
• Court: United Nations Human Rights Committee

United Nations Human Rights Committee.2

(Communication No 2091/2011)

AHG

and

Canada1

Human rights — Whether author's claims sufficiently substantiated — Whether author's claims incompatible ratione materiae with International Covenant on Civil and Political Rights, 1966 — Whether deportation in violation of obligations of State Party under Covenant — Right to life — Prohibition of torture and cruel, inhuman or degrading treatment — Right to liberty and security of person — Right to privacy and family — Whether State Party violating its obligations under Article 7 of Covenant — Effective remedy — Compensation

International tribunals — Provisional measures of protection — Duty of compliance — United Nations Human Rights Committee — Indication of provisional measures — Compliance necessary as part of good faith participation in system of individual communications — United Nations Human Rights Committee

Summary:3The facts:- The author, a Jamaican national, was deported by the State Party to Jamaica, his deportation being imminent when he submitted his communication. Although the Committee had issued a request for interim measures, the author was already on the plane to Jamaica when the State Party received the request not to extradite him. The author had lived in Canada for thirty-one years since 1980. He was diagnosed with clinical schizophrenia in 1993 and received treatment in Toronto. On the basis of a conviction for assault with a weapon in 2005, he was detained by the Canada Border Services Agency in 2007 until his removal to Jamaica. The Immigration Appeal Division (“the Division”) dismissed his appeal against the decision by the Immigration and Refugee Board which had initially ordered his

deportation. The Division had determined that there would be no dislocation of the family if the author was removed. The author's leave to appeal for judicial review, application for a pre-removal risk assessment, application to remain in Canada on compassionate grounds and a request for deferral of his removal were all subsequently rejected by the relevant State Party authorities

The author claimed that his removal to Jamaica was disproportionate to his crimes, especially as they related directly to his mental illness, and as it would expose him to a risk of being arbitrarily deprived of his life in violation of Article 6(1)4 of the International Covenant on Civil and Political Rights, 1966 (“the Covenant”) and of being subjected to persecution, torture or other cruel, inhuman or degrading treatment or punishment in breach of Article 75 of the Covenant. The author claimed that his removal constituted arbitrary interference with his family in violation of Articles 176 and 237 of the Covenant. Additionally, he claimed that his rights under Articles 7, 108 and 9(2)(3)9 were violated when he arrived in Jamaica due to the hospital conditions and the treatment he received from the Jamaican police. The State Party argued that his claims under Articles 2(3), 6(1), 7, 17 and 23 of the Covenant were inadmissible on the grounds of non-substantiation, while his claims concerning his treatment in Jamaica were inadmissible ratione materiae. On the merits, the State Party argued that the removal was reasonable and proportionate to the gravity of the crimes and the danger that he posed to the public.

Held:- The State Party had violated the author's rights under Article 7 of the Covenant by deporting him.

(1) The State Party had not considered the possibility of returning the author to Canada since it considered it inappropriate for the Committee to issue interim measures in this instance. Pursuant to Rule 92 of its Rules of Procedure, interim measures were essential to the Committee's role under the

Optional Protocol, and failure to implement interim measures was incompatible with the obligation to respect in good faith the procedure of individual communications (para. 8)

(2) The author had failed to substantiate for admissibility purposes his claims under Articles 9 and 10 of the Covenant with respect to his alleged arrest and detention by Jamaican police, and had failed to prove how the State Party should have been aware of this risk. His claims under Article 6 of the Covenant were insufficiently substantiated and thus inadmissible. The communication was admissible insofar as it appeared to raise issues under Articles 2(3), 7, 17 and 23(1) of the Covenant (paras. 9.3–9.7).

(3) The provisions of Article 7 of the Covenant aimed to protect both the physical and mental integrity of the individual. In the present case, while the State Party's legitimate interest in protecting the general public was noted, the deportation to Jamaica of the author, a mentally ill person who was in need of special protection and had lived in Canada for most of his adult life, on account of criminal offences recognized to be related to his mental illness and which effectively resulted in abrupt withdrawal of medical and family support which the author needed, constituted a violation of Article 7 of the Covenant. Given this finding, there was to be no separate examination of the author's claims under Articles 17 and 23, read alone and in conjunction with Article 2(3) of the Covenant (paras. 10.3–10.5).

(4) Under Article 2(3)(a) of the Covenant, the State Party was obliged to provide the author with an effective remedy by making reparation to the author by allowing him to return to Canada if he so wished, and providing compensation. The State Party was obliged to avoid similar violations in the future (para. 12).

(5) The State Party was to provide the Committee, within 180 days, with information about the measures taken to give effect to its Views, which it requested be published (para. 13).

Individual Opinion of Ms Seibert-Fohr (concurring): (1) The Committee's views were based on the particular circumstances of this case. Deportation per se did not result in violation of the prohibition of cruel, inhuman or degrading treatment. It only constituted a violation of Article 7 if there were substantial grounds for believing that there was a real risk of irreparable harm such as that contemplated by Articles 6 and 7 of the Covenant in the receiving country (i.e. non-refoulement) or if the decision-making process in the deporting country itself amounted to cruel, inhuman or degrading treatment, such as in the present communication (para. 3).

(2) In the latter category of cases, the Committee had to consider the particular circumstances of each communication in order to determine whether the decision-making process was cruel, inhuman or degrading. The State Party's own conduct vis-à-vis the individual was at issue in this category of Article 7 cases, so there could be no deference to domestic authorities. If the treatment of a deportee reached the threshold proscribed by Article 7 of the Covenant, such as in the present case, a violation had to be found (para. 4).

Individual Opinion of Mr Shany (concurring): (1) Article 7 was absolute in nature in the sense that the treatment or punishment which was per se deemed to be cruel, inhuman or degrading, or tantamount to torture, could have never been justified. There was a second category of Article 7 violations — contextual violations. Thus, a form of treatment or punishment which did not violate Article 7 per se, but under the ruling circumstances represented a disproportionate response to the need to respect or ensure the rights of others or to protect the general interest of the public, might also have been deemed contrary to Article 7, precisely for its disproportionate nature. The absolute nature of Article 7 thus appertained primarily to treatment and punishment which was unjustifiable per se and could therefore not be subject to external balancing of interests designed to justify cruel, inhuman or degrading treatment or punishment. However, Article 7 did not preclude resort in other cases to internal balancing of interests designed to determine whether treatment or punishment could be justified under certain circumstances. The present case was a contextual violation (para. 3).

(2) The other dimension of the case which the Views did not expound was the relationship between consideration of the substance of the communication by the Committee and its consideration by the review bodies of the State Party. It was well established that the Committee did not serve as a fourth court of appeal and would not interfere with the actual findings of local courts, including their assessment of risk, unless their decisions were manifestly unreasonable or amounted to a denial of justice. The State Party's review bodies manifestly failed to strike a reasonable balance between the competing interests involved, which would have accorded sufficient weight to the author's rights under the Covenant, and reached an outcome that was in the circumstances of the present case manifestly disproportionate and thus arbitrary in nature (paras. 5–6).

Individual Opinion of Mr Rodngríez-Rescia (partly dissenting): (1) The Committee was correct in finding a violation of the rights set forth in Article 7 of the Covenant. However, it should have considered this circumstance in the framework of Article 2610 of the Covenant, even though the author had not invoked that provision. The Committee should have applied the jura novit curia principle, especially when dealing with situations in which States should promote and defend rights of vulnerable persons (para. 2).

(2) The Committee's practice of avoiding analysis of articles invoked by authors because it had already identified a violation of other articles was not in keeping with the comprehensive analysis that should characterize a communication in general. The Committee should have found that the author's expulsion under the terms in which it took place constituted arbitrary encroachment by the State on the protection of privacy and the family beyond the limits of reasonableness required in such...