A visit by former Vice President Dick Cheney in September received a similar welcome, as have other visits by Bush administration officials. Already in 2004, a group called Lawyers Against the War tried to bring torture charges against Bush by filing criminal charges.

The number of voices calling for investigation and prosecution is growing and now includes several mainstream human rights organizations, including Amnesty International and Human Rights Watch. On the political stage, federal NDP Immigration critic Don Davis urged the government to deny Cheney entry into Canada.

The evidence against Bush and Cheney also continues to mount. The Canadian Centre for International Justice teamed up with the New York based Center for Constitutional Rights to file a 70-page draft indictment against Bush ahead of his visit to Canada. The indictment was accompanied by 4000 pages of evidence that described the U.S. program of extraordinary rendition, the torture of detainees at Guantanamo Bay, and secret CIA detention sites.

Bush himself has on various occasions admitted to authorizing torture techniques, such as waterboarding. In an interview with American journalist Matt Lauer, Bush claimed the technique was legal because his lawyers told him it was. He then went on to dismiss the criticism that he got the lawyers to give him the legal opinions he wanted.

But international law and human rights experts have convincingly disagreed with Bush and his lawyers on the legality of these techniques, based on the following definition of torture set out in the Convention Against Torture:

“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity…”

Despite the overwhelming evidence presented, Canadian officials failed to even reply to the draft indictment. In response, four former and current US detainees from Guantanamo Bay filed a private torture prosecution with a B.C. court. However, this attempt was quickly quashed by the Attorney General of British Columbia.

Critics have aptly described both this action by the Attorney General as well as the federal government’s disregard of the draft indictment as examples of “politics trumping law.”

Canada ratified the Convention Against Torture in 1987, which obliges the government to investigate anyone within its borders believed to have committed torture.  Canada has also incorporated anti-torture provisions into its criminal code.

Human rights advocates had hoped the Obama administration would open an investigation of Bush and his officials, arguing the American legal system was the most appropriate jurisdiction. But almost three years into his mandate, Obama has shown very little interest in pursuing any action. This failure of the United States government therefore puts the burden of investigation and prosecution on other countries that have ratified the convention.

Canada failed these obligations when it refused to consider an investigation of Bush and Cheney, despite the presence of considerable evidence.

There are however encouraging signs that even Bush may be aware of the real possibility he may one day be investigated for his role in the torture of U.S. detainees.

Bush was scheduled to speak in Switzerland last February but cancelled at the last minute. Many suspect this may be because of the real possibility of a torture investigation based on complaints filed in Switzerland by torture survivors.

If more countries seriously consider their obligations under the Convention Against Torture, Bush and his officials may find their travel destinations outside the United States to be severely limited.

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.

Authoritarian Leadership

This blog is certainly not the forum to engage in an ideological debate. Moreover, prorogation of Parliament is not unusual. Since Canadian Confederation, the Parliament has been put on hold 105 times. However, it is the timing and circumstances of this prorogation which has drawn nationwide criticism. While this is not a problem under Canadian domestic law, it is arguably contrary to “soft” international law. In my previous entry I came to the conclusion that there was, at the very least, the existence of some soft international law requiring the principles of democracy to be promoted.

By proroguing Parliament, University of Toronto constitutional scholar Peter Russell argues, Prime Minister Harper’s leadership has taken “an authoritarian direction…minimiz[ing] his exposure to critical review.” In doing so he killed 36 government bills, and five more Conservative senators took their seats allowing the Tory government to take control of Senate committees. In pausing the legislative process and halting governmental committees from operating, Harper has put the internationally-guarded democratic process at risk.

What makes the prorogation even more internationally relevant and reprehensible is that it came right as the government was facing heat from parliamentary committees about whether Tory officials had knowledge that detainees handed over by Canadian troops in Afghanistan to local authorities were to face torture.

Breaching a Duty to Investigate and Punish?

Regardless of Harper’s reasoning for proroguing Parliament (i.e. for Canadians to focus on the upcoming Olympics), it has the effect of interfering with the investigation of those who may have had knowledge of the torture of detainees in Afghanistan. Such an investigation could lead to the discovery of breaches of the UN’s Convention Against Torture. While the investigation will resume come spring, it is uncertain whether the delay could harm the process.

In the Valesquez Rodriguez case, the Inter-American Court of Human Rights held that States have an obligation to investigate violations of human rights treaties, such as the Torture Convention. By effectively interfering with the committee that was investigating the matter in Canada, this requirement may have been breached.

While these links could be seen as somewhat of a stretch and while the prorogation will attract political, rather than legal criticism, these relatively soft contraventions of international legal principles makes Harper’s decision even more troublesome.