Posts tagged ‘overseas’
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…
Does the Charter Follow the Flag?
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…
