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R. v. Hape

  • Pierre-Hugues Verdier (a1)

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1 2007 SCC 26 (Sup. Ct. June 7, 2007). The decisions of the Supreme Court of Canada are available at <http://scc.lexum.umontreal.ca>.

2 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, ch. 11 (UK).

3 The Court also discussed other bases of jurisdiction in international law, including universal jurisdiction (para. 61).

4 R. v. Cook, [1998] 2 S.C.R. 597; see also R. v. Harrer, [1995] 3 S.C.R. 562; R. v. Terry, [1996] 2 S.C.R. 207; R. v. Canada (Attorney General), [1998] 1 S.C.R. 841 (precedents analyzing extraterritorial application of the Charter to evidence-gathering abroad).

5 Section 7 of the Charter provides: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

6 In particular, section 24(2) of the Charter contemplates the exclusion of evidence obtained in violation of Charter rights.

7 See Gibran Van, Ert, Using International Law in Canadian Courts 137-70 (2002); Jutta, Brunnée & Stephen, J. Toope, A Hesitant Embrace: The Application of International Law by Canadian Courts, 2002 Can. Y.B. Int'l L. 3 .

8 Restatement (Third) of the Foreign Relations Law of The United States §403 (1987).

9 Leading doctrinal sources cited by the majority do not directly support this holding. See Michael, Akehurst, Jurisdiction in International Law, 1972-73 Brit. Y.B. Int'l L. 145 ; Mann, F. A., The Doctrine of International Jurisdiction Revisited After Twenty Years, 186 Recueil Des Cours 9 (1984-III).

10 It would be otherwise if Canadian law expressly mandated acts prohibited by local law, which was not the case here. See Mann, supra note 9, at 45-46.

11 The question then would have become whether, under Canadian constitutional law, Hape could reasonably expect to enjoy the full benefits of section 8 after deliberately organizing his company and conducting its activities abroad.

12 See Slaight Commons, Inc. v. Davidson, [1989] 1 S.C.R. 1038,1056 (Dickson, C.J.) (citing Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, 349 (Dickson, C.J., dissenting)).

13 See, e.g., Hunter v. Southam, Inc., [1984] 2 S.C.R. 145, 156.

14 See, e.g., Reid v. Covert, 354 U.S. 1 (1957).

15 United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).

16 Unlike the U.S. Supreme Court, the Canadian Supreme Court seems to have attached very little significance to the accused's citizenship and other links with Canada.

R. v. Hape

  • Pierre-Hugues Verdier (a1)

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