BY Andrew Cleland
FILED UNDER
Constitutional Law
Public International Law
TAGS
abroad, Afghan detainee transfers, Afghanistan, Canada, Canadian Forces, Charter of Rights and Freedoms, enforcement jurisdiction, extraterritorial, non-intervention, overseas, R. v. Hape, sovereignty, torture
Does the Charter Follow the Flag? the Afghan Detainee Transfers Example
In 2007, Amnesty International Canada and the BC Civil Liberties Association brought an application for judicial review of the transfer of individuals detained by the Canadian Forces deployed in Afghanistan. This action arose from allegations that the Canadian Forces were not taking adequate precautions to ensure that individuals, whom the Canadian Forces captured in Afghanistan and transferred to the Afghan forces, were not being tortured. To support their application, the plaintiffs sought a declaration that sections 7, 10 and 12 of the Canadian Charter of Rights and Freedoms (the Charter) applied to individuals detained by Canadian Forces in Afghanistan. Both the Federal Court and the Federal Court of Appeal held that the Charter did not apply to the actions of Canadian Forces in Afghanistan.
Having previously argued that the Supreme Court of Canada (SCC) should narrow its ruling in Hape, I was disappointed to learn that it turned down an opportunity to hear this case. In my last entry, I argued that when establishing whether the Charter applies overseas, the foreign state’s consent should only be the determinative factor where Canadian authorities or agents would be enforcing the Charter in that state. With all due respect to Mactavish J.’s efforts to navigate Hape’s legal labyrinth, the Federal Court’s decision in Amnesty International reveals the confusion resulting from Hape. This confusion stems from LeBel J.’s assertion that the extraterritorial application of the Charter necessarily entails an extraterritorial assertion of enforcement jurisdiction (Hape, para. 85).[1] I believe that this assertion is incorrect and has lead to the mistaken assumption that aside from fundamental human rights exceptions, the extraterritorial application of the Charter is only possible with the foreign state’s consent.
In his commentary on this case, Professor Forcese suggests that the Court in Hape causes confusion by positing that the extraterritorial application of the Charter overseas must necessarily engage extraterritorial enforcement jurisdiction. In Hape, LeBel J. correctly asserts that applying the Charter entails both prescriptive and enforcement jurisdiction. But from this premise, he incorrectly moves to conclude that to apply the Charter overseas, we must always enforce it extra-territorially. As I stated in my last post,
While enforcement is most definitely required, I see no reason why it cannot occur entirely within Canada. Doing so might not be as effective as extraterritorial enforcement, but it would still deter Canadian authorities and agents operating overseas from acting in a manner that is inconsistent with the Charter (especially those who plan to return to Canada).
Thus, I submit that there are instances where the extraterritorial application of the Charter is possible without having to send Canadian agents overseas to enforce it.
The factual circumstances in Amnesty International demonstrate that applying the Charter overseas does not necessarily entail an extraterritorial assertion of enforcement jurisdiction. Firstly, the actions to be limited by the Charter were the formal arrangements entered into by Canada and Afghanistan regarding the transfer of detainees, and the decisions of the Canadian Forces to transfer detainees. Applying the Charter in this situation would not involve sending Canadian agents overseas to enforce the Charter. It would primarily require the Chief of the Defence Staff to negotiate a detainee transfer agreement that contains the appropriate safeguards against torture; and require the Canadian Forces to refuse to transfer a detainee where there is evidence of a risk of torture. As Forcese argues, “Canada would not be applying its norms to foreign actors, just asking its own nationals to abstain from overseas behaviour inconsistent with the Charter.”
Secondly, it is always possible to enforce the Charter by arresting or summoning those who violate the Charter overseas once they return to Canada. The threat of sanctions or the loss of the ability to return to Canada would deter most state actors from violating the Charter. Moreover, in this case, Canada could easily have arrested or summoned the primary defendants because they were senior state actors (the Chief of the Defence Staff, the Minister of National Defence, and the Attorney General of Canada) who spent a lot of their time in Canada. Thus, contrary to what many may think after reading Hape, it is possible to apply the Charter to overseas action without asserting extraterritorial enforcement jurisdiction.
I disagree with Mactavish J.’s conclusion that applying the Charter to the actions of the Canadian Forces in Afghanistan would result in an “impermissible encroachment” on the sovereignty of Afghanistan (para. 212). Instead of determining whether applying the Charter overseas would have actually interfered with Afghanistan’s sovereignty and then looking for consent, she jumped straight to establishing whether Afghanistan had consented to the application of the Charter (para. 145). She did so after accepting Hape’s assertion that the extraterritorial application of the Charter necessarily entails asserting extraterritorial enforcement jurisdiction (para. 121). This assumption lead her to conclude that if Afghanistan did not consent to the application of the Charter, there would be interference with its sovereignty (para 127). Thus, her reliance on Hape meant that she never actually examined the nature of the assertion of jurisdiction required to apply the Charter overseas and determined whether it interfered with Afghanistan’s sovereignty. Having already obtained consent from Afghanistan to detain individuals on Afghan soil and signed an agreement with Afghanistan governing the transfer of detainees, Canada would not have interfered with Afghanistan’s sovereignty if it refrained from transferring detainees until the adequate safeguards were being followed.
It is most disappointing that the SCC did not hear this case and clarify under what circumstances the extraterritorial application of Charter actually demands extraterritorial enforcement. Without such clarification, it seems like judges will assume that enforcement jurisdiction is always necessary when applying the Charter overseas, and thereby, conclude that Canada must obtain the foreign state’s consent to avoid violating its sovereignty. As I argued in my last entry, the consent of the foreign state should not be the determinative factor for establishing whether the charter applies outside of Canada. The analysis should first determine whether the extraterritorial application of the Charter to the specific circumstances raised by the given case, would actually interfere with the sovereignty of the foreign state. Only if it does so, should the court move to establish whether the foreign state has consented to the Charter’s application.
[1] I have not addressed the Court of Appeal’s decision because it primarily dealt with whether Hape and Khadr ([2008] 2 S.C.R. 125) created a fundamental human rights exception to the general rule against extraterritorial assertions of jurisdiction.
Andrew Cleland is a bilingual graduate of the B.C.L.-LL.B. program at McGill Faculty of Law. He has worked at the UN International Criminal Tribunal for Rwanda, the UN Office of the High Commissioner for Human Rights, and the Permanent Mission of Canada to the UN in Geneva.
One Response to “Does the Charter Follow the Flag? the Afghan Detainee Transfers Example”
As Robert J. Currie (of the Dalhousie University Faculty of Law) states: “The general principle at international law is that states may not exercise jurisdiction (particularly criminal jurisdiction) outside their own borders.”
Furthermore, Canadian law is applied in an inherently territorial fashion. According to the Criminal Code of Canada, article 6 (2) : “Subject to this Act or any other Act of Parliament, no person shall be convicted or discharged under section 730 of an offence committed outside Canada.” The general rule governing criminal law in Canada is one of territoriality.
Nevertheless, exceptions do exist to this general rule. As MacTavish J. writes in the Amnesty International case: “Canada has exercised specific extraterritorial prescriptive jurisdiction through the Military Code of Service Discipline under Part III of the National Defence Act, the Crimes Against Humanity and War Crimes Act, S.C. 2000 c. 24 and the Criminal Code, R.S.C. c. C-46, allowing it to prosecute members of the Canadian Forces for crimes committed outside of Canada” (pp. 272).
Moreover, the Supreme Court of Canada, while refusing to hear the Amnesty case, has produced a significant amount of literature regarding this issue.
In R v. Terry, McLachlin J. uses the principle of territoriality to rule out the application of the Charter in favour of a woman accused of committing a murder in Canada who subsequently fled to the United States. McLachlin J. invoked: “the exclusivity of the foreign state’s sovereignty within its territory, where its law alone governs the process of enforcement.”
In Tolofson v. Jensen, LaForest J. strengthens the notion of territoriality, stating that individuals cannot reasonably expect that foreign laws will be applied to their actions:
“Ordinarily people expect their activities to be governed by the law of the place where they happen to be and expect that concomitant legal benefits and responsibilities will be defined accordingly. The government of that place is the only one with the power to deal with these activities. The same expectation is ordinarily shared by other states and by people outside the place where an activity occurs.”
In R v. Cook, the Supreme Court, in contrast with the Terry case, produced a decision which significantly expands the potential for extra-territorial application of the Charter. In similar fashion to the Terry case, at issue in the Cook case was an interrogation of a Canadian citizen made by Canadian police officers while in US territory. According to Prof. Currie, a two-part justification for extra-territorial application of the Charter was established: “first, this was not an objectionable extra-territorial application of the Charter because the Canadian law was being applied to the detectives on the basis of their nationality, another well-known ‘jurisdictional competence under international law.’ As arms of the Canadian state, they [*242] were inherently amenable to Charter jurisdiction — irrespective, apparently, of their geographical location. Second, applying the Charter to this interrogation, even though it occurred on U.S. territory, did not interfere with American sovereignty since it was directed at the activities of Canadian officers acting within the context of a Canadian investigation, aimed at the ultimate result of a criminal trial in Canada. For a domestic court to apply the Charter at the subsequent trial did not engage American sovereign rights in any way, and thus applying the Charter extra-territorially was permissible in such ‘rare circumstances’ as this case demonstrated.”
The latter portion of Prof. Currie’s explanation provides some interesting insight into the necessity of obtaining the consent of the foreign country. If it can be proven that the sovereignty of the foreign country has not been infringed upon, perhaps then there is no need to obtain consent.
This line of reasoning has, however, been discarded by the Supreme Court in R. v. Hape but if it were to be resurrected and applied to the Amnesty case, then perhaps it could facilitate the application of the Charter in the context of the Afghan detainee case.