Does the Charter Follow the Flag? Revisiting Constitutional Extraterritoriality after R v Hape

Jacques Maritain, the noted philosopher and political thinker and a principal drafter of the Universal Declaration of Human Rights, once contended that “political philosophy must get rid of the word, as well as the concept, of Sovereignty.” He reasoned as much “not because [sovereignty] is an antiquated concept,” or “because the concept of Sovereignty creates insuperable difficulties and theoretical entanglements in the field of international law,” but because “this concept is intrinsically wrong and bound to mislead us if we keep on using it.” Maritain’s proposal may have been exceedingly bold and his criticisms perhaps too harsh, but they nonetheless resonate over half a century later in light of the Supreme Court of Canada’s recent decision in R v Hape. The judgment in Hape, where the Court concluded on the basis of international law, including principles of sovereign equality and comity, that the Canadian Charter of Rights and Freedoms cannot apply extraterritorially, has been described as “deeply problematic on many levels.” Criticisms from scholars of both constitutional law and international law have been far from reserved. John Currie, for example, has assailed the Court for giving Canadian government officials “a blank cheque ... to violate the Charter with impunity as long as they do so abroad.” Given Hape’s purported grounding in principles of international law, it is not without some irony that the decision has been criticized for its reliance on an “incomplete—frankly, incorrect—view of international law,” the result of which is that the Court has “sacrifice[d] a basic aspect of Canadian sovereignty itself: namely expectations that Canadian officials respect Charter values when they act in their official capacity at home or abroad.” Equally troubling as the substantive outcome of Hape, however, is the criticism of the approach adopted by the Court in articulating its reasoning. The majority opinion has been faulted for its largely technical analysis of international law without any meaningful discussion of “the basic values and aspirations of the Charter or what the Charter means to Canada’s image of itself, especially when it presents itself to the world.” Moreover, the Court is criticized for its “radical” approach to reconciling its own precedents, forsaking a scalpel in favour of a sledgehammer. The decision in Hape “does not build on or attempt to distinguish prior precedents in this area but rather rejects them, as a critic working outside of the system might do,” Kent Roach has argued, concluding that “[t]his is not the way that judges should develop the law.” The purpose of this essay is to accept the invitation implicit in these criticisms by revisiting Hape and asking anew: Does the Charter follow the flag? The importance of this question is self-evident. The Charter is a cherished part of Canada’s Constitution; the two decades of jurisprudence that have sought to shape and give life to its amorphous protections mark the signal achievement of the Supreme Court of Canada in its modern era. More pragmatically though, as Amir Attaran has suggested, “Hape is an imperfect judgment that cannot last.” If that is indeed the case, as the Court’s more recent jurisprudence strongly suggests it is, then an analysis of potential alternatives serves to advance discussion of this important question. In this paper, I conclude that the Court’s reasoning in Hape rests on a flawed understanding of international law. Indeed, a more searching analysis reveals that there is ample basis to conclude that extraterritorial application of the Charter—far from being anathema to international law—is in harmony with emerging principles of state responsibility. An analysis of foreign jurisprudence provides added support for this conclusion. The question of international law aside, however, fidelity to the principles underlying the Charter necessitates an interpretation that contemplates extraterritorial application. This paper is divided into three parts. In Part I, I review the decision in Hape on its own terms, limiting my discussion to those aspects of international law discussed by the Court itself. I attempt to show that the Court’s conclusions on Canada’s extraterritorial jurisdiction and the authority of Parliament are based on a flawed assessment of international law. I also argue that the Court’s subsequent decision to recognize an exception to those conclusions exposes fatal contradictions within the Hape doctrine. In Part II, I propose a different way to look at the question of the Charter’s extraterritorial application through the lens of sovereign responsibility. I review several judgements of foreign high courts that show why this alternative approach is more consonant with emerging principles of international law. Finally, in Part III, I endeavour to demonstrate how the approach offered in Part II can be reconciled with the Charter and Hape, offering my view of how the Court might proceed in the future by building on the principal minority opinion in Hape itself

Constitutional Cases 2010: An Overview

With important decisions concerning Charter remedies, freedom of speech, the right to counsel, the division of powers, and the interpretation of First Nations treaties, 2010 was a significant year on the constitutional front. It was also a controversial year: only 56 per cent of constitutional cases were unanimous in judgment, in contrast to the overall average for the year of 75 per cent. That split was especially palpable in the federalism and Aboriginal rights cases, where two sharply divided camps tended to emerge. In the Charter arena, the Court showed notable deference to the legislative and executive branches while eschewing categorical rules in favour of case-by-case balancing tests that afford it greater flexibility. Looking to the future, the surprise retirements of Justices Binnie and Charron present the government with a significant opportunity to influence the direction of the Court. In particular, the retirement of the Justice Binnie may reinforce the present direction in which the Court appears to be moving, at least in constitutional cases, if his successor’s jurisprudential disposition is comparable to that of the present government’s previous appointees

Constitutional Cases 2011: An Overview

The last year was a high-profile one for the Court in constitutional matters: Two cases, PHS and the Securities Reference, are especially noteworthy, not just for their political significance, but for their likely impact on constitutional jurisprudence in years to come. Several other decisions concerning freedom of association, equality rights and Aboriginal rights also reflected important developments in their respective areas, and in one case underscored deep divisions on the Court. Notably, 2011 was a year of unusual unanimity on the Court in the constitutional area: The justices agreed in all but four constitutional cases. That said, where the justices split, a core group comprising the Chief Justice and Justices Binnie, Charron, Rothstein and Cromwell were most likely to sign on to the majority opinion. Continuing a trend in recent years, the more liberal Justices LeBel, Fish and Abella found the mselves writing separately relatively frequently, as did the especially independent-minded Justice Deschamps. For the second year in a row, Prime Minister Stephen Harper will have a chance to change the face of the Court given the retirement of Justice Deschamps. With the appointment of her successor, Justice Wagner, Mr. Harper has appointed five justices, making 2012 the first year of a “Harper Court”. With two approaching mandatory retirements, by the time of the next federal election Mr. Harper will have had an opportunity to appoint a clear majority of justices, who will shape the jurisprudence of the Court for years to come

Constitutional Cases 2011: An Overview

This paper provides an overview of the constitutional decisions of the Supreme Court of Canada released in the calendar year 2011. It was a high-profile one for the Court in constitutional matters: Two cases, PHS and the Securities Reference, are especially noteworthy, not just for their political significance, but their likely impact on constitutional jurisprudence in years to come. Several other decisions concerning freedom of association, equality rights and Aboriginal rights also reflected important developments in their respective areas, and in one case underscored deep divisions on the Court.Notably, 2011 was a year of unusual unanimity on the Court in the constitutional area: the justices agreed in all but four constitutional cases. That said, where the justices split, a core group comprising of the Chief Justice and Binnie, Charron, Rothstein and Cromwell JJ. were most likely to sign-on to the majority opinion. Continuing a trend in recent years, the more liberal LeBel, Fish and Abella JJ. found themselves writing separately relatively frequently, as did the especially independently-minded Deschamps J.For the second year in a row, Prime Minister Stephen Harper will have a chance to change the face of the Court given the retirement of Deschamps J. With the appointment of successor, Mr. Harper has appointed five justices, making 2012 the first year of a “Harper Court.” With two justices approaching mandatory retirements, by the time of the next federal election Mr. Harper will have had an opportunity to appoint a clear majority of justices, who will shape the jurisprudence of the Court for years to come

Constitutional Cases 2011: An Overview

The last year was a high-profile one for the Court in constitutional matters: Two cases, PHS and the Securities Reference, are especially noteworthy, not just for their political significance, but for their likely impact on constitutional jurisprudence in years to come. Several other decisions concerning freedom of association, equality rights and Aboriginal rights also reflected important developments in their respective areas, and in one case underscored deep divisions on the Court. Notably, 2011 was a year of unusual unanimity on the Court in the constitutional area: The justices agreed in all but four constitutional cases. That said, where the justices split, a core group comprising the Chief Justice and Justices Binnie, Charron, Rothstein and Cromwell were most likely to sign on to the majority opinion. Continuing a trend in recent years, the more liberal Justices LeBel, Fish and Abella found the mselves writing separately relatively frequently, as did the especially independent-minded Justice Deschamps. For the second year in a row, Prime Minister Stephen Harper will have a chance to change the face of the Court given the retirement of Justice Deschamps. With the appointment of her successor, Justice Wagner, Mr. Harper has appointed five justices, making 2012 the first year of a “Harper Court”. With two approaching mandatory retirements, by the time of the next federal election Mr. Harper will have had an opportunity to appoint a clear majority of justices, who will shape the jurisprudence of the Court for years to come

Does the Charter Follow the Flag? Revisiting Constitutional Extraterritoriality after R v Hape

Jacques Maritain, the noted philosopher and political thinker and a principal drafter of the Universal Declaration of Human Rights, once contended that “political philosophy must get rid of the word, as well as the concept, of Sovereignty.” He reasoned as much “not because [sovereignty] is an antiquated concept,” or “because the concept of Sovereignty creates insuperable difficulties and theoretical entanglements in the field of international law,” but because “this concept is intrinsically wrong and bound to mislead us if we keep on using it.” Maritain’s proposal may have been exceedingly bold and his criticisms perhaps too harsh, but they nonetheless resonate over half a century later in light of the Supreme Court of Canada’s recent decision in R v Hape. The judgment in Hape, where the Court concluded on the basis of international law, including principles of sovereign equality and comity, that the Canadian Charter of Rights and Freedoms cannot apply extraterritorially, has been described as “deeply problematic on many levels.” Criticisms from scholars of both constitutional law and international law have been far from reserved. John Currie, for example, has assailed the Court for giving Canadian government officials “a blank cheque ... to violate the Charter with impunity as long as they do so abroad.” Given Hape’s purported grounding in principles of international law, it is not without some irony that the decision has been criticized for its reliance on an “incomplete—frankly, incorrect—view of international law,” the result of which is that the Court has “sacrifice[d] a basic aspect of Canadian sovereignty itself: namely expectations that Canadian officials respect Charter values when they act in their official capacity at home or abroad.” Equally troubling as the substantive outcome of Hape, however, is the criticism of the approach adopted by the Court in articulating its reasoning. The majority opinion has been faulted for its largely technical analysis of international law without any meaningful discussion of “the basic values and aspirations of the Charter or what the Charter means to Canada’s image of itself, especially when it presents itself to the world.” Moreover, the Court is criticized for its “radical” approach to reconciling its own precedents, forsaking a scalpel in favour of a sledgehammer. The decision in Hape “does not build on or attempt to distinguish prior precedents in this area but rather rejects them, as a critic working outside of the system might do,” Kent Roach has argued, concluding that “[t]his is not the way that judges should develop the law.” The purpose of this essay is to accept the invitation implicit in these criticisms by revisiting Hape and asking anew: Does the Charter follow the flag? The importance of this question is self-evident. The Charter is a cherished part of Canada’s Constitution; the two decades of jurisprudence that have sought to shape and give life to its amorphous protections mark the signal achievement of the Supreme Court of Canada in its modern era. More pragmatically though, as Amir Attaran has suggested, “Hape is an imperfect judgment that cannot last.” If that is indeed the case, as the Court’s more recent jurisprudence strongly suggests it is, then an analysis of potential alternatives serves to advance discussion of this important question. In this paper, I conclude that the Court’s reasoning in Hape rests on a flawed understanding of international law. Indeed, a more searching analysis reveals that there is ample basis to conclude that extraterritorial application of the Charter—far from being anathema to international law—is in harmony with emerging principles of state responsibility. An analysis of foreign jurisprudence provides added support for this conclusion. The question of international law aside, however, fidelity to the principles underlying the Charter necessitates an interpretation that contemplates extraterritorial application. This paper is divided into three parts. In Part I, I review the decision in Hape on its own terms, limiting my discussion to those aspects of international law discussed by the Court itself. I attempt to show that the Court’s conclusions on Canada’s extraterritorial jurisdiction and the authority of Parliament are based on a flawed assessment of international law. I also argue that the Court’s subsequent decision to recognize an exception to those conclusions exposes fatal contradictions within the Hape doctrine. In Part II, I propose a different way to look at the question of the Charter’s extraterritorial application through the lens of sovereign responsibility. I review several judgements of foreign high courts that show why this alternative approach is more consonant with emerging principles of international law. Finally, in Part III, I endeavour to demonstrate how the approach offered in Part II can be reconciled with the Charter and Hape, offering my view of how the Court might proceed in the future by building on the principal minority opinion in Hape itself