However, the niqab has been garnering increasing attention elsewhere. In the past two weeks, two important decisions were released concerning the niqab. On 13 October 2010, the Ontario Court of Appeal opined that a niqab woman’s right to wear to the niqab in a sexual assault trial must be given due consideration. A week earlier in France, the Constitutional Council gave its approval on the constitutionality of legislation banning the niqab in public spaces. Admitted, the two decisions do not touch on exactly the same matter. Nonetheless by contrasting the decisions, one starts to sense a “Canadian flavor” in they way our courts address controversial issue where freedom of religion is implicated. The Court of Appeal’s strong push for reconciliation of rights, as well as its interest in affording a niqabi woman substantive (over formal) equality, provides some indication that multiculturalism is actively playing a role in the way the Canadian legal system operates.

Ontario in R. v. N.S. – “Bright line rules do not work”[2]

(i) Facts

N.S. alleged that she was repeatedly sexually assaulted by her uncle and her cousin, the two accused, when she was young. N.S. is Muslim and wears the niqab. At the preliminary inquiry, both accused sought that she remove her niqab when testifying at that hearing. The judge opined that the religious belief of N.S. was not sufficiently strong, largely owing to a driver’s license in which her face was visible. N.S. appealed this decision. The Superior Court quashed the decision of the preliminary inquiry judge, opining that the “judge had exceeded his jurisdiction by balancing Charter values”. The Superior Court did however trace the authority for the preliminary inquiry judge to decide on the niqab to the Criminal Code. The Superior Court then detailed the manner in which such a determination should be made and remitted the case to the preliminary inquiry judge. N.S. appealed and the accused cross-appealed.[3] The proceeding on the merits has yet to commence.

(ii) Court’s Analysis[4]

The Court recognized that its was faced with the difficult task of reconciling two claimed Charter rights. The claim by the accused was the right “to make full answer and defense at trial” (para. 49), which accords with the principle of fundamental justice. “An accused who is denied the right to see the full face of a Crown witness, particularly the accuser, during cross-examination loses something of potential value to the defence” (para. 60). The claim by N.S. was the right to wear the niqab while testifying, in accordance with the guarantee of freedom of religion contained in the Charter.

The Court undertook a painstaking analysis on the how a court should attempt to reconcile the two competing Charter rights. The Court was guided by the earlier writings of Justice Iacobucci, who said:

It is proper for courts to give the fullest possible expression to all relevant Charter rights, having regard to the broader factual context and to the other constitutional values at stake (para. 47).[5]

To this end, the Court contended that reconciliation has to be “specific to factual context” (para. 48), as rights do not float in abstract but rather apply to very real situations, which vary greatly from case to case.

The Court then detailed the specific approach to be taken by a court in weighing the competing claims of the right to wear the niqab and the right to a full defense. First, a judge would need to determine whether or not the right of N.S. to wear the niqab is protected under the s. 2(a) guarantee of freedom of religion (para. 70). If so, the second stage of the analysis would then consider whether or not the niqab would interfere with the cross-examination process in “more than a minimal or insignificant” way (para. 71). The goal at this stage is not to undertake a detailed analysis of the two competing claims but rather to assess whether the right of the accused is negatively affected in a non-trivial manner. If second stage is answered in the affirmative, then the judge must analyze the competing Charter claims and “attempt to reconcile those two rights by giving effect to both” (para. 73). The Court detailed a list of considerations to be made in reconciling the rights of N.S. and those of the accused, which included:

• The limited manner in which the niqab interferes, as it does not obstruct demeanor, tone of voice, eye movement, and body language (para 73)
• The ability of a judge to instruct a jury that difficulty that may be encountered in assessing the credibility of the Crown witness owning to the niqab is to be “redound against the Crown” (para 74)
• The nature of the proceedings, as a preliminary inquiry varies greatly from trial proceedings (para 75)
• The forum of trial, since, for example, in a case before a judge, the judge will develop an understanding of the extent of niqab’s obstruction (para. 76)
• The nature of the evidence to be given – whether it is core or peripheral (para. 77)
• The extent to which a decision about the niqab would feed alleged stereotypes against Muslims and niqabi women (para. 78)
• The fact that N.S. is testifying in a sexual assault cases, where a victim is often in a vulnerable position (para. 80)
• The public interest in ascertain the truth, which may be affect by the niqab, though also by the discomfort that the witness may feel if not allowed to wear the niqab (para. 81)
• The societal interest in having a visible administration of criminal justice (para. 82)
• The possibility of female court staff and a female judge, along with a closed hearing (para. 85)
• The possibility of different fabrics or styles of niqab (para. 86)

By giving consideration to these points, a court should do its utmost to reconcile the two Charter rights to the extent possible.

Finally, the Court made the reluctant profession that in the case that the two rights are truly irreconciable, “the right [of the accused] must prevail over the witness’s religious freedoms and the witness must be ordered to remove the niqab” (para. 88). The Court very carefully circumscribed the extent to which such a result should be an inevitability, stressing the important of genuinely assessing the competing rights. As helpful instruction, the Court provided the example that an objection over the niqab at the preliminary inquiry based solely on importance of the witness’s facial demeanour for cross-examination would fail (para. 97).

The Court did not feel that it had adequate information to make a definitive ruling, thus the case was remanded to preliminary inquiry judge to assess the case as outlined by the Court of Appeal.

France’s Constitutional Council Approves Niqab Ban

Across the Atlantic, the Constitutional Council (Conseil Constitutionnel) of France gave its final approval to government legislation banning the niqab in public spaces on 7 October 2010. The Constitutional Council is France’s highest body responsible for making sure that legislation and statutes are consistent with the Constitution of France. Legislation is sometimes referred to the Council for an opinion on its constitutionality.

The Loi interdisant la dissumulation du visage dans l’espace public was proposed in response to political and public discontent over the niqab in the public sphere – some arguing that it created discomfort and other contending that it had not place within French’s national value of laicité.[6] The core of the legislation is contained within the first two articles:

Article 1

Nul ne peut, dans l’espace public, porter une tenue destinée à dissimuler son visage.

Article 2

I. Pour l’application de l’article 1er, l’espace public est constitué des voies publiques ainsi que des lieux ouverts au public ou affectés à un service public.

II. L’interdiction prévue à l’article 1er ne s’applique pas si la tenue est prescrite ou autorisée par des dispositions législatives ou réglementaires, si elle est justifiée par des raisons de santé ou des motifs professionnels, ou si elle s’inscrit dans le cadre de pratiques sportives, de fêtes ou de manifestations artistiques ou traditionnelles.

Under the legislation, the niqab would be banned from all public forums. An individual ‘caught’ wearing the niqab would be fined 150 euros, though a male forcing a woman to wear the niqab would be given a one-year jail term and fined 30000 Euros.

After being adopted by the French National Assembly (13 June 2010) and the French Senate (14 September), the Presidents of both assemblies asked the Constitutional Council for an advisory opinion on the law (it is interesting to note that not since 1959 have the two assemblies simultaneously asked the Council for an advisory opinion on a given legislation). The Council’s recent decision confirmed the constitutionality of the law, which will take full effect in April 2011.

What is particularly interesting in the decision of the Council is the boldness with which it comes down in favour of the legislation. The commentary in Cahiers du Conseil Constitutionnel[7] on the niqab legislation explains how French parliamentary discussion on the niqab has always engendered an balancing act between, on the one hand, religious liberty, freedom of expression and respect of private life and, on the other hand, laicité, human dignity and equality of men and women. Despite this, the actual decision released by Constitutional Council remained fully silent on the former set of rights. The Council specifically cited public order, security and women’s rights as constitutional values lending support to the legislation (paras. 4-5). Thus in it’s final analysis, the Council found the proposed law conformed to the Constitution of France.[8]

A “Canadian Flavor” in the Way We Operate

By contrasting the two decisions, one begins to sense a “Canadian flavor” in the way contentious religious matters, such as the place of the niqab within society, are dealt with by our courts. R. v. N.S. is the most recent of a line of cases where the Canadian courts have grappled with religious freedoms.

Two aspects of the decision in R. v. N.S. characterize this distinct “Canadian flavour”. First, the Court of Appeal repeatedly emphasizes the importance of reconciliation. The Court comes down strongly against those dogmatically supporting either side of the niqab debate, clearing stating, “Bright line rules do not exist” (para.97). Second, the Court’s decision reveals an increased interest in substantive equality rather than formal equality. N.S. made a unique claim that the niqab was part of her identity as a Muslim and as a woman. The Court was willing to entertain this for the purpose of its analysis. These aspects of the Court’s decision greatly nuance from the decision of the Constitutional Council. The Council’s decision – in upholding the law banning the niqab in public – shows no attempt at reconciling rights. Moreover, one senses a much stronger reliance on formal equality, given the Council’s insistence that the ban would uphold the rights of women in France.

Whether or not one likes the decision of the Court of Appeal, it reveals a level of tolerance in the way minority claims and religious freedoms are received in the Canadian court system. It provides some indication that Canadian values of multiculturalism operate more than just a punch-line and, in fact, may be present in the way our courts operate.

[2] R. v. N.S. 2010 ONCA 670 at para. 97.

[3] Only one of the two accused, the cousin, was party to the appeal to the Ontario Court of Appeal.

[4] I am specifically interested in the manner in which the Court of Appeal deals with competing Charter rights. The Court outlines details in its decision the jurisdiction of the preliminary trial judge to address Charter values, which I do not present in detail here, as it is not my focus of interest in this article.

[5] Citing Justice Iacobucci, “‘Reconciling Rights’ The Supreme Court of Canada’s Approach to Competing Charter Rights” (2002), 20 S.C.L.R. (2d) 137, at 140.

[6] The French conception of laicité differs from Canadian understanding of secularism in impotant ways, which I do not believe can glossed over quickly if one is to appreciate the context in which a decisions over the niqab have been made. However, noting this point, I leave it for another discussion.

[7] Les Cahiers du Conseil constitutionnel are a publication of the Conseil. On 7 October 2010, when the Counsel released its decision on the law, a commentary on the law was released on the same day in the Cahiers du Conseil constitutionnel.

[8] The Council made on exception, namely that the niqab would be permitted in Muslim places of worship, such as mosques.

It is widely speculated that Bill 94 – proposed legislation that would bar the niqab from being worn in government offices, hospitals, and schools in Quebec – will face fierce legal challenges despite the overwhelming public support it receives in Quebec and the rest of Canada. There are three principle avenues by which one might pursue a legal challenge to this legislation.

The first is to sue the government in Quebec Superior Court, invoking the Canadian Charter of Rights and Freedoms. The Canadian Charter stipulates that everyone is fundamentally entitled to freedom of conscience and religion, subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society (as determined using the two steps outlined in the Oakes Test).

The second avenue is to bring a complaint to the Quebec Human Rights Commission alleging discrimination on the basis of the Quebec Charter of Human Rights and Freedoms. The Quebec Charter stipulates that every person is fundamentally entitled to freedom of religion (which includes the right to manifest it, according to the Bouchard-Taylor Commission), subject to proper regard for democratic values, public order and the general well-being of the citizens of Quebec, and that every person shall exercise his rights without distinction based on sex or religion.

In both of these concurrent scenarios the case would likely reach the Supreme Court of Canada, which may find the law to be constitutionally invalid and strike it down. If it does, the Quebec legislature will have the option to re-enact the law notwithstanding the relevant charter provisions, though this would be an extremely politically-risky move.

The third avenue is to bring a complaint before the UN Human Rights Committee alleging a breach of the International Covenant on Civil and Political Rights, as an Ontario man did in 1999 to challenge constitutionally-sanctioned religious discrimination in school funding. The ICCPR stipulates that everyone shall have the right to freedom of thought, conscience, and religion including the right to manifest his belief, and that he shall not be subject to coercion that would impair his ability to have or adopt a belief of his choice, subject only to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. A favourable ruling from the Human Rights Committee, while imposing a binding treaty obligation on Canada, would not be directly enforceable in domestic courts – though it too would generate strong political pressure.

Numerous arguments have been advanced in defense of Bill 94, of which I have encountered the following:

1. The niqab precludes social integration and cohesion;
2. The niqab promotes gender inequality;
3. The niqab is not in fact required by Islam, most Muslims do not wear it, and many Islamic theologians oppose its use;
4. The niqab is an archaic symbol of oppression that undermines the values of Quebec society;
5. The niqab could be used as a cover for criminal or terrorist activity;
6. The niqab poses a public security threat in situations where policy calls for one’s identity to be ascertained;
7. Immigrants should adopt the values of the society they move to;
8. We should not accommodate the practices of people from countries that do not accommodate ours.

That Quebec has a marked history of religious intolerance, and that many of these arguments may appear to be founded in anti-Muslim sentiment rather than in relevant law or public policy, provides a second, independent reason to be wary of attempts to ban the niqab. One should not ignore that this proposed legislation singles out Muslims and that it emerged within a social context noted for anti-Muslim sentiment, which in itself evokes memories of uglier periods in our history. Paul Waters, writing for the Montreal Gazette, likens the anti-niqab “bullying of outsiders to protect Quebec values” to the Duplessis-era persecution of Jehovah’s Witnesses.[1] In attempting to distinguish between legitimate opposition to the niqab and mere “bullying tactics”, I’ve identified six of the eight arguments above which I think should have absolutely no bearing on the discussion.

Argument #3 is irrelevant because the Supreme Court in Amselem affirmed that a religious practice is one that is sincerely, subjectively felt to be connected to the observance of one’s religion, regardless of whether or not the practice is universal, normative, or required by a religious authority.[2] It is not for the Canadian public, or the courts, or any given Islamic scholar to determine whether Muslim women are religiously-mandated to wear the niqab; it is for each Muslim woman to decide the extent of her obligation within the parameters of her faith.

Argument #4 is also irrelevant, because unless a religious practice infringes on someone else’s rights or freedoms the courts have no authority to pass judgment on it. Many Quebecers may subjectively perceive the niqab to be archaic and a symbol of oppression, but the same might be said of any religious practice. And regardless of what it symbolizes, as with all other religious practices, absent evidence of coercion we must presume that a woman who wears the niqab does so in free exercise of her personal autonomy.

Arguments #5 and #6 are merely diversionary. It is misleading to assert that security considerations form the basis of this legislation, and disingenuous to portray tolerance of the niqab and maintenance of habitual security practices as mutually exclusive. Accommodation will only exist to the extent that it is reasonable, as defined by the Supreme Court; it is clear, even absent specific legislation, that niqabis will have to show their faces for the purposes of obtaining ID cards, passing through security checks, etc., and there are no reported cases in Canada of niqabis refusing to do so. Nor are there documented cases of criminals disguising themselves in niqabs to avoid detection (which would hardly be inconspicuous). There is no indication that the bill is designed to, or that it would, improve Quebecers’ security.

Argument #7 is contrary to everything that is Canadian. The official policy of multiculturalism, adopted by the federal government close to 40 years ago, affirms that Canadians of all ethnic and national origins can simultaneously retain diverse cultural values and participate fully in Canadian society. Even declaring Quebec to be a “secular society” does nothing to change the entrenched legal norms of religious freedom.

Argument #8 is similarly un-Canadian; the Canadian Charter specifically prohibits allocating differential rights on the basis of national origin. Our judiciary does not punish individuals simply because we don’t like the laws of the countries they were born in.

If the government is called on to defend Bill 94 before a court or tribunal, I believe it will have to show either that the legislation is justified by the pressing policy objective of promoting social cohesion (argument #1) or that it is required to protect women’s equality rights, which are so important that they should be allowed to displace some religious freedoms (argument #2).

I believe that the second argument is likely to fail. For it to succeed would be to abruptly alter the understanding of religious freedom that has developed in Canada over the course of decades. Yes, for women to systematically don particular garb that men do not inherently suggests some element of gender inequality. But if the niqab violates the principle of gender equality, why wouldn’t the garb worn by religious Catholic and Jewish women? Why wouldn’t tube tops and miniskirts, for that matter? Despite the (ironically secular) Muslim Canadian Congress’ position that the practice of wearing the niqab marginalizes women,[3] I think the right to wear religious garb must be protected in any society that values freedom of religion. Some argue that the niqab inherently oppresses women because no reasonable person would freely choose to wear it, but we should be extremely wary about such a descent into paternalism when the stakes are as high of depriving people of fundamental freedoms. I don’t think wearing any sexually-differentiated religious attire, no matter how alien or uncomfortable, should give rise to an automatic presumption of male oppression; such a determination should only be made on a case-by-case basis. Moreover, it may be difficult to make the case that a law which singles out Muslim women in its application advances the cause of equality.

The first argument, in my opinion, has a slightly higher chance of success. According to the Oakes Test, the government would first have to show that it is acting to advance a particular pressing and substantial policy objective. I think that promoting social cohesion and integration would qualify as such an objective.

The government would then have to show that the means by which it is advancing this objective are proportional to their goal. This consists of three elements:

The government would have to show that the means are rationally connected to the objective. I believe it could meet this requirement. The full, physical separation the niqab entails promotes a reasonable apprehension among many Muslims and non-Muslims alike that wearing it precludes women from integrating into society, and that it acts as a barrier to communication which inhibits normal interaction. Many people feel intimidated or uncomfortable at the sight of the niqab, more so than other forms of religious garb, because of a fear of the unknown. Not being able to see one’s interlocutor in face-to-face encounters can be highly disconcerting, and Grey describes the niqab as “ghetto walls that a person wears” that make social participation impossible.[4] Conversely, a possible counterargument might be that it is anti-Muslim sentiment and not the niqab that is the greater threat to social cohesion, and passing a law rooted (or perceived to be rooted) in such sentiment would only push this objective further away. History has shown generally that it is the expansion, rather than the curtailment, of religious freedoms which most effectively promotes social integration. Another possible counterargument might be that the government has no authority to demand that citizens behave “sociably”.

The government would then have to show that Bill 94 infringes religious rights to the minimum extent necessary to advance its objective. This will be somewhat more difficult. If the government succeeds, in the previous step, in establishing that the niqab inherently inhibits social cohesion, than it would be reasonable to argue that banning the niqab from some public forums constitutes minimal impairment. However, it might be argued that banning the niqab from hospitals and schools goes further than necessary, and that since everyone requires access to healthcare and education (perhaps more so than other government-funded services), less coercive measures could be found to discourage the practice of wearing it. Denying medical treatment to those who would refuse to remove something essential to their religious identity seems to me extremely heavy-handed.

Lastly, the government would have to show that there is proportionality between the infringement of religious freedom and the objective being pursued. This is where I think the government’s case would most likely fall. Does the benefit of having a society which might be slightly more cohesive due to a reduced usage of the niqab outweigh the harm that would be inflicted on the small number of Muslim women who would otherwise wear it? I would argue that it does not. Any benefit that might result would be intangible and difficult to demonstrate, while the harm would be much more plainly evident. Aside from the curtailment of fundamental individual freedoms, it would send a distinct message of intolerance to and about Quebec society that could further erode constitutional protections.

Is Bill 94 targeted at the niqab, or at niqabis? Does it send the message that nobody in Quebec has the right to wear this particular religious garment? Or does it send the message that certain religious Muslim women in Quebec do not have the right to government services, healthcare, and education (which itself promotes religious and gender inequality)? Because religious freedom is so heavily entrenched in Canada, it seems to me that the two are heavily intertwined and the resulting message is ambiguous. Unless the Quebec government can disentangle the messages, and show that has an insurmountable problem with the niqab but not with those Muslim women who would wear it (and I don’t think it will be easy to show why a neutral piece of cloth is so much more repugnant to public order than, for example, the black hats worn by Hassidic Jews or the habits worn by Catholic nuns), I think its attempts to ban the niqab will fail.

Moreover, one of the driving forces behind Bill 94 is the desire to show that Quebec society is not like Iranian or Saudi societies, where women are forced to dress in certain ways. While those societies are oppressive, ours is open and protects individual rights, or so the argument goes. But I fail to see why a government that bars a particular form of dress is inherently any less oppressive than one which demands it. I think that for a government to ban certain forms of religious dress it should have to satisfy an extraordinarily high burden of proof to establish why such dress is harmful to society.

In sum, as things are now I don’t think that Bill 94 will be able to withstand legal scrutiny. While I do share some of the concerns many have expressed regarding the niqab’s potential to inhibit social cohesion, I am not entirely sure that it is categorically different from many other forms of religious practice in that regard. I tend to be less worried about the direct effects of Bill 94 than I am about the underlying societal realities it reflects. If Bill 94 is defeated, I have little doubt that the government will pursue other, less coercive, mechanisms for discouraging the wearing of the niqab and promoting a more secular, egalitarian form of Quebec identity.

To conclude, and to bring some international perspective to this analysis, it is worthwhile to consider the effects of similar laws enacted elsewhere. Turkey and Tunisia both ban the niqab from public institutions. Belgium and the Netherlands are considering similar proposals. France too has gone much further than Quebec in trying to eliminate religion from public life, banning all religious symbols from public schools and institutions. Such measures are based in what Grey calls “dogmatic secular radicalism”, and considerable jurisprudence shows the extent to which French constitutional values differ from Canadian ones. Nevertheless, despite much international criticism from human rights bodies, France’s secularism law has not been successfully challenged either under the ICCPR or the European Convention on Human Rights. One possible distinction between the French law and Bill 94, despite their similar purposes and ostensible neutrality, is that while the former primarily affected Muslim women, its effects were felt by every religious community in the same way; in contrast, the effects of the latter will be borne exclusively by Muslim women. As Canada’s Supreme Court noted in a landmark religious freedom case,[5] a law’s effects as well as its purpose can serve as the basis for a constitutional challenge.

[2] Syndicat Northcrest v. Amselem [2004] 2 S.C.R. 551 (Amselem) at para. 46. http://www.canlii.org/en/ca/scc/doc/2004/2004scc47/2004scc47.html

[3] http://www.thestar.com/living/religion/article/715872—people-think-you-re-oppressed-if-you-wear-the-niqab

[4] http://www.vancouversun.com/life/Most+Canadians+agree+with+bill+banning+burka+Poll/2727130/story.html

[5] R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295.

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.

The Khadr ordeal presents some of the difficulties faced at the interface of domestic law, international law and international affairs. First, the decision reignites the question of whether the Charter has extraterritorial application to Canadian officials abroad – in this case, those who conducted interviews in Guantanamo. Second (and what I find to be the more troubling matter), the decision raises the question of how Canada should respond to Charter violations that it commits abroad. The meekness of remedy issued in Friday’s decision hugely frustrates attempts to see Canada’s international human rights obligations crystallize in concrete corrective measures.

I. Extra-territoriality of the Charter

As explored in a recent blog posting, the Supreme Court in R. v. Hape opined that the Charter does not generally apply extraterritorially, as any such application may interfere with the sovereignty of other nations. The exception to this rule was stressed in Khadr v. (Canada) Minister of Justice, 2008, (“Khadr 2008”), where the Court opined that “if Canada was participating in a process that was violative of Canada’s binding obligations under international law, the Charter applies to the extent of that process” (para. 19). The exception granted in Khadr 2008 remains very limited in scope, as it speaks strictly to Canada’s participation in acts abroad that vitiate Charter principles. This limited scope was accepted in Khadr 2010. Khadr 2010 seems to be continuing the courts careful extension of the Charter extraterritorially, as has been occurring for the past decade.

II. Remedy – Declaring a Charter Violation

The remedy in Khadr 2010 was purely declaratory, overturning the ruling by the lower courts that Canada must ask the United States for Khadr’s repatriation. The decision comes as a huge blow to human rights enthusiasts, though not necessarily as a shock, as the Supreme Court expressed at the November hearing of the case its deep reluctance in overstepping the powers of the executive.

From the perspective of Canada’s international obligations concerning human rights, the Supreme Court’s position on the remedy is arguably problematic for two reasons. First, a purely declaratory remedy hugely frustrates the Court’s recent efforts to assert that the Charter applies extraterritorially in pursuing higher principles of justice. Canada prides herself as a champion of human rights, and to this effect has ratified such conventions as the Convention on the Rights of the Child and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Federal Court of Appeal in Khadr 2010 noted Canada as being a signatory to Convention Against Torture and asserted that the prohibition of torture should inform the scope of Section 7 of the Charter (para. 52). Canadian law would be falling hugely short of its own international human rights obligations if the human rights infractions that it committed abroad did not necessitate any concrete action beyond a mere declaration. Unfortunately, Khadr seems to have only benefited from the latter.

Of course, the obvious counter-argument – and the argument squarely pursued by the Supreme Court in Khadr 2010 – is that courts need to be very wary about overstepping the prerogative powers of the executive, “including the right to speak freely with a foreign state on all such matters” (para. 33). Thus, on the question of repatriation, the Court cautioned that “the impact on Canadian foreign relations of a repatriation request cannot be properly assessed by the Court” (para. 43). This approach accepts as a default rule that only the executive and not the courts can decide how to exercise executive powers (though allowing certain discretion by the court in exceptional circumstances). While this separation of powers is a vanguard of western constitutional democracies, I would argue that a Charter breach amounting to a breach of Canada’s international human rights obligations should create a default rule in favour of correcting that violation. Underlying this balancing act is the relative weights that are given to differing (and in this case conflicting) Canadian values. While the outcome of a request for repatriation is uncertain, it is the most Canada can do in the current situation. Such an approach would reverse the burden of proof and require the government, in seeking to uphold its decisions, to show that infringement of its prerogative power would be damaging beyond a certain threshold.

I admit to the tenuousness of this argument, as it seems to fly in the face of the separation of powers. However, the separation of powers doctrine could benefit rather than lose from being informed by international human rights. Clouded government decisions would not be given total immunity when the principles of life, liberty and freedom are at stake.

Photo by Sgt. Gerry Pilote

Lurking behind the Afghan detainee transfer scandal is the issue of whether the Canadian Charter of Rights and Freedoms (the Charter) applies to government action that occurs outside of Canada. The Charter itself provides no definitive answer because it does not contain an express territorial limitation. Section 32(1)(a) of the Charter only stipulates that it applies to “the Parliament and government of Canada in respect of all matters within the authority of Parliament …”. Writing for the majority of the Supreme Court of Canada (SCC) in R. v. Hape, LeBel J. held that the extraterritorial application of the Charter is impossible without the consent of the foreign state (para. 85).[1] While I support the ruling in Hape, I believe that given the chance, the SCC should explicitly narrow this conclusion to situations where Canadian authorities or agents would be enforcing the Charter in a foreign state. Beyond a situation that demands extraterritorial enforcement, an interest analysis should replace consent as the determinative factor in the assessment of whether the Charter applies outside of Canada.

The primary limitation on the reach of the Charter is Canada’s obligation to respect the sovereignty of other states (Hape, para. 59). Sovereignty is perhaps best thought of as the supreme power of each state to exercise jurisdiction on its territory and over its inhabitants without interference. Three organizing forms of asserting jurisdiction guide LeBel J.’s analysis of when sovereignty is undermined:

Prescriptive jurisdiction … is the power to make rules, issue commands or grant authorizations that are binding upon persons and entities. … Enforcement jurisdiction is the power to use coercive means to ensure that rules are followed, commands are executed or entitlements are upheld. … Adjudicative jurisdiction is the power of a state’s courts to resolve disputes or interpret the law through decisions that carry binding force (para. 58).

Whenever it exercises one of these forms of jurisdiction on the territory of a foreign state or over its citizens, Canada is potentially interfering with the sovereignty of a foreign state.

The difficulty lies in determining when such interference amounts to an “objectionable extraterritorial effect” that actually demands the limitation of the reach of the Charter. Of the three forms of asserting jurisdiction, the extraterritorial assertion of enforcement jurisdiction is the most intrusive and thereby, the most ‘objectionable’ to a foreign state (Hape, paras. 63-64). It is intrusive because unlike extraterritorial prescriptive and adjudicative jurisdiction, extraterritorial enforcement jurisdiction actually involves sending state agents to the foreign territory to ensure that the law is followed. If Canada were to use its agents to enforce its laws in a foreign state, it would be undermining that state’s monopoly on coercive power. International law stipulates that the extraterritorial assertion of enforcement jurisdiction is inappropriate unless the foreign state consents to it (Hape, para. 65). Thus, the extraterritorial application of the Charter depends upon whether it demands extraterritorial enforcement, and where it does, whether the foreign state has consented to it.

As the commentaries of Professors Craig Forcese and James Stribopoulos suggest, it is possible to apply the Charter outside of Canada without resorting to extraterritorial enforcement. This assertion runs contrary to LeBel J.’s assessment in Hape of what the application of the Charter entails. In Hape, he posits that both prescription and enforcement jurisdiction are necessary to apply the Charter. He goes on to reach the following conclusion:

since extraterritorial enforcement is not possible [without the foreign state’s consent], and enforcement is necessary for the Charter to apply, extraterritorial application of the Charter is impossible (para. 85).

I take issue with this conclusion because applying the Charter outside of Canada does not necessarily mean exerting extraterritorial enforcement jurisdiction. 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).

The majority of the instances in which the Charter might apply outside of Canada will not violate the sovereignty of the foreign state because they will not involve extraterritorial enforcement. As Professor James Stribopoulos argues,

[Hape] does not raise any issue about ‘enforcing’ the Charter in the Turks and Caicos Islands. The appellant’s trial was taking place in Canada. He was seeking the exclusion of evidence in Canadian proceedings. The basis for his claim was not anything done by foreign officials – it was the actions of the R.C.M.P. officers that was the subject of his complaint. How would requiring those officers to comply with the Charter undermine or even encroach on the sovereignty of Turks and Caicos?

In Hape, LeBel J. acknowledged that “comity is not necessarily offended where a state’s courts assume jurisdiction over a dispute that occurred abroad … , provided that the enforcement measures are carried out within the state’s own territory” (para. 64).[2] The extraterritorial effects of applying the Charter in such instances are minimal and hardly objectionable.

Hape should not be read as establishing a general rule that the Charter does not apply outside of Canada. It should be narrowed to establish that the Charter does not apply where doing so necessitates an extraterritorial assertion of enforcement jurisdiction. Furthermore, the consent of the foreign state should not be the determinative factor for establishing whether the charter applies outside of Canada. Courts should only limit the application of the Charter where the sovereignty of another state is unreasonably interfered with. The analysis should focus on both the nature of the assertion of jurisdiction required, and the reasonableness of that assertion, weighing the interests of both Canada and the foreign state in extending the reach of the Charter to the specific circumstances raised by the case.

Sovereignty is not absolute and comity is a two way street. Each country accepts a certain amount of interference where it is reasonable. Just as Canada should resist enforcing its law in a foreign country where it does not have a significant interest to do so, that foreign country should accept that Canada may have an interest in applying the Charter to check the behaviour of its authorities and agents overseas.

[2] Comity refers to informal acts performed and rules observed by states in their mutual relations out of, politeness, convenience and goodwill, rather than strict legal obligation (Oppenheim’s International Law, at pp. 50-51).

One of the most important functions of a written constitution is the entrenchment of certain human rights which are recognized as universal and not subject to the whims of the legislature; as such, the Canadian Charter was also an important step, as it broke with the British tradition of parliamentary supremacy by giving broad powers of judicial review to the courts, and granted even broader rights than did the US Bill of Rights (though this is partly balanced by the fact that Charter rights are subject to the notwithstanding clause).

One might worry, then, about the protection of human rights in countries that do not have written constitutions. Most notably, the UK has no formal written constitution, but instead relies on conventions and common law principles to fill in the gaps of statute law. Many such principles, written or unwritten, as well as certain statutes and treaties, have been granted constitutional force.[3] Through its emphasis on legal and political tradition, the UK has historically attempted to protect human rights and civil liberties without infringing on the sovereignty of Parliament.[4]

Another country without a written constitution is Israel. The constitutional order in Israel consists of unwritten principles, case law, the Declaration of Independence, and a number of limited Basic Laws. The 1990s saw a “Constitutional Revolution” in Israel,[5] motivated by the belief that human rights should not be left in the hands of any legislator, with the knesset adopting the Basic Laws on Human Dignity and Liberty and Freedom of Occupation that protected basic human rights and gave courts broad powers of judicial review in order to uphold them. Nevertheless, due to internal social and religious tensions, the government has continued to postpone the adoption of a formal written constitution, despite undertaking to do so since the establishment of the state.

Given the fact that constitutional principles are not as well-defined or -entrenched in Israel as they are in Canada, or even in the UK, it is interesting to take note of last week’s High Court of Israel ruling which found that privately-run prisons are unconstitutional.[6] The decision is notable for a number of reasons, chief among them that it establishes an international precedent. Private prisons are common in many countries, most notably the UK (where they have existed since the 1990s) and the US (where privatization of prisons can be traced back to the 1850s).[7] They are also prominent in France, Australia, and New Zealand, and successful constitutional challenges have not been mounted in any of these countries despite ongoing public debate. How is it that private prisons have been ruled unconstitutional in Israel, but not in the US, with its similar though better-defined base of liberal values and where the tradition of constitutional litigation is thought to be much stronger?

The Court’s decision[8] cited the political philosophies of Locke and Hobbes, as well as the constitutional principles laid out by former Chief Justice Barak. It addressed the relationship between the state and the individual, maintaining that the right to enforce criminal law through incarceration is one of the most invasive of the state’s responsibilities in exercising a monopoly on the use of force, and that the state may not delegate such fundamental tasks to private enterprise. Most importantly, using a variation of the Oakes test, it asserted that economic efficiency cannot override basic principles of human rights; depriving a person of liberty is a violation of his fundamental rights to liberty and dignity, and may only be done for the public good – not to make a profit.[9] Profiting from the exercise of the state’s authority undermines the legitimacy of this authority.

Other considerations that have been raised in public debate are concerns that a for-profit penal system may result in lobbying legislators and judges to make it easier to incarcerate individuals than the public interest would warrant;[10] in one US case, two judges were found guilty of accepting $2.6 million from a private prison company to send children to their jails.[11] Other arguments have been advanced challenging the economic efficiency and the overall effectiveness of privately-run prisons. It has also been suggested that the preponderance of private prisons in the US is a contributing factor to the US having the world’s highest rate of incarceration.[12]

Clearly, the High Court’s decision will have far-reaching implications, and may result in similar constitutional challenges elsewhere based on similar principles. That a constitutional precedent of this magnitude has been set in Israel, a country without a written constitution or a strong tradition of constitutional litigation, may cause some to rethink their conceptions of constitutionality. Clearly, a constitution is about more than having a fixed written document. In fact, it is difficult to imagine any constitution that is limited to written documents, as, in the case of Canada, is alluded to by the word “includes” in s. 52(2) of the Constitution Act, 1982. Constitutional force can be assigned to principles deriving from any source, as the High Court demonstrated in citing Locke in tandem with Barak, as well as to various means by which to interpret them. A formal written constitution is merely a tool for expressing society’s most entrenched norms; as the Israeli example illustrates, the absence of a written constitution does not necessarily suggest a normative void. As countries in the developing world strive for constitutional reform (whether it emulates the Canadian model or not), we would do well to remember that a written constitution is a means, not an end in itself.

[1] Peter Hogg, Canadian constitutional scholar, quoted at http://www.cbc.ca/news/features/constitution/

[2] Roy McMurtry, former justice minister of Ontario, quoted at http://www.thestar.com/article/215547

[3] See, for an early example, Entick v. Carrington, http://www.constitution.org/trials/entick/entick_v_carrington.htm

[4] Though in recent years we have in fact seen a trend away from parliamentary supremacy and a recognition that there may be situations in which the judiciary may override the express view of the legislator; see for example Baroness Hale’s obiter in Jackson v. Attorney General, http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd051013/jack-1.htm

[5] In the words of Aharon Barak, Chief Justice of the High Court at the time.

[6] http://www.haaretz.com/hasen/spages/1129539.html

[7] http://en.wikipedia.org/wiki/Private_prisons

[8] as reported in the Israeli media; I have yet to see the actual text

[9] http://www.haaretz.com/hasen/spages/1129516.html

[10] http://www.guardian.co.uk/commentisfree/2009/mar/03/prison-population-titan-jails

[11] http://www.nytimes.com/2009/03/28/us/28judges.html?_r=2

[12] Supra, note 10.