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.

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).