Canada violates the International Covenant on Civil and Political Rights for deporting an individual suffering from paranoid schizophrenia

01.06.2015

A.H.G. v. Canada (2091/2011)

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Summary

In April 2015, the Human Rights Committee was asked to consider whether Canada had violated its obligations under the International Covenant on Civil and Political Rights in its decision to deport an individual suffering from paranoid schizophrenia.

A.H.G. v. Canada (2091/2011)

Este artículo también se encuentra en español aquí

Summary

In April 2015, the Human Rights Committee was asked to consider whether Canada had violated its obligations under the International Covenant on Civil and Political Rights in its decision to deport an individual suffering from paranoid schizophrenia.

The communication was submitted by a Jamaican national under the Optional Protocol to the Covenant.

Background

The author is a Jamaican citizen, born on 27 July 1962. The author came to Canada as an immigrant on 27 October 1980. In 1993, he was diagnosed with paranoid schizophrenia and subsequently admitted as a patient at the Centre for Addiction and Mental Health in Toronto. The author also suffers from diabetes.

Following his release from the Centre in 1995, the author lived independently without incident until 2005. In 2005, the author was found guilty of assault with a weapon, receiving a sentence of one day in jail, in addition to 80 days of pre-sentence custody. In 2006, he was found guilty of failure to appear. In May 2007, he was detained by Canada Border Services Agency and remained on an immigration hold until his subsequent removal to Jamaica.

The Immigration and Refugee Board ordered his deportation as a result of his conviction for assault with a weapon. An appeal against this decision was filed before the Immigration Appeal Division and was dismissed on 31 January 2008. It was noted that the author had committed three assaults in 2005 in a few months and that there was no medical evidence to explain the deterioration of his condition, or to suggest that a change in medication could stabilise his condition such that he would be at less risk of re-offending. The Immigration Appeal Division stressed the seriousness of the offence, and determined that the prospects of rehabilitation were low, while risks to the general public were high. As for the author’s family in Canada, the evidence was that the author had contact with one sister in Canada, but had not seen his other brothers and sisters in Canada for years. The author had a son in Canada, but had not seen him in many years and did not know his name. The Immigration Appeals Division determined that there would be no dislocation of the family if the author was removed. Finally, it was found that the author had provided no evidence as to the degree of hardship that he would experience if returned to Jamaica.

On 26 February 2008, the author filed an application for a pre-removal risk assessment, in which he submitted that he would face serious risks to his life and welfare should he be returned to Jamaica. He stressed, in particular, the absence of a family network; the inadequacy of mental health care in Jamaica; his need for on‑going support, failure of which would result in further deterioration of his mental condition; and the increased likelihood of violent physical encounters with the Jamaican police. The author’s application was rejected on 30 April 2008, as it was determined that the author was neither a Convention refugee, nor a person in need of protection. As a result, the removal order against him became enforceable.

On 3 June 2008, the author’s leave to appeal for judicial review was denied by the Federal Court.

On 28 November 2008, the author filed an application on humanitarian and compassionate grounds. The application was refused, however, on the basis that the disruption to the author’s family in Canada would be minimal, that there was a risk he would return to dangerous behaviour and that appropriate treatment was available in Jamaica. On 22 April 2010, the author’s application was rejected.

A psychiatric evaluation dated 28 September 2009 confirmed in the meantime that the author’s criminality stemmed from his mental illness.

On 18 July 2011, the Federal Court dismissed the author’s application for judicial review of the April 2010 decision. As a result of this decision, the author’s removal from Canada was scheduled for 29 August 2011. On 23 August 2011, the author made a request to the Border Services Agency that his removal be deferred, on the basis of a new pre-removal risk application filed on the same date. The deferral request was denied, however, as a second pre-removal risk application did not prevent removal under the Immigration and Refugee Protection Act.

The author subsequently brought a motion before the Federal Court requesting a stay of execution of the removal order against him.

On 22 August 2011, the author was notified by the Border Services Agency that he would be deported to Jamaica on 29 August 2011.

On 27 August 2011, the author’s application for a stay of execution of his removal order was denied.

On 28 August 2011, the author filed this communication with the Committee under the Optional Protocol to the Covenant and made a request for interim measures. The author claimed that he was the victim of violations by Canada of his rights to: (i) life, (ii) freedom from cruel and inhuman treatment, (iii) freedom from arbitrary or unlawful interference with the family, and (iv) protection of the family (under articles 6, 7, 17 and 23 of the Covenant respectively).

On 29 August 2011, the author was deported to Jamaica. Canada received notice from the Committee of the author’s request for interim measures shortly after the author’s flight to Jamaica had taken off. 

The Committee’s decision

Regarding the admissibility of the author’s claims, the Committee considered that the author had failed to substantiate his allegations under articles 6, 9 and 10 of the Covenant. The Committee accordingly declared this part of the communication inadmissible under article 2 of the Optional Protocol. The Committee found the author’s remaining claims under articles 7, 17 and 23 of the Covenant to be admissible.

On the merits, the Committee recalled that the aim of article 7 of the Covenant was to protect both the dignity and the physical and mental integrity of the individual, while also recognising State parties’ legitimate interest in protecting the general public.  The Committee noted that the author was mentally ill and in need of special protection, that he had lived in Canada for most of his life and that his deportation was the result of criminal offences recognised as being related to his mental illness. Furthermore, the Committee observed that his deportation had effectively resulted in the abrupt withdrawal of available medical and family support upon which he was dependent.

In the light of the above, the Committee concluded that Canada had violated the author’s rights under article 7 of the Covenant. Having found a violation of article 7, the Committee decided not to examine separately the author’s claims under articles 17 and 23 of the Covenant.

In accordance with article 2(3)(a) of the Covenant, the Committee observed that Canada was under an obligation to provide the author with an effective remedy, including by allowing him to return to Canada and by providing him with adequate compensation. The Committee found that Canada was also under an obligation to prevent similar violations in the future.

Canada must now submit its written response within six months of the Committee’s decision, including information on the action taken in the light of the Committee’s recommendations, and ensure that the Committee’s decision is published widely.

Sam Hunter Jones is an international lawyer, based in London.

Category:

Region
  • North America
Topic
  • Treaty body strengthening process
Mechanism
  • Human Rights Committee (CCPR)
Country
  • Canada