¹ Canada (Justice) v. Khadr, 2008 SCC 28 [Khadr].

² Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.) 1982, c. 11 [Charter].

³ The Court had previously addressed this issue in R. v. Hape, [2007] 2 S.C.R. 292, 2007 SCC 26 (released 7 June 2007) [Hape].

⁴ The judgment comprises a total of forty-two paragraphs. Excluding prefatory and concluding statements, factual recitations, descriptions of lower court decisions, and analysis devoted to procedural matters, the Court devoted a mere twelve paragraphs to discussion and resolution of the case’s central substantive issue, the applicability of the Charter to the actions of Canadian government actors abroad. Khadr, supra note ? at paras. 16-27. Of these, four paragraphs are devoted to establishing the legal principles governing this issue (ibid. at paras. 16-19), whereas the remaining eight paragraphs relate to their application to the facts of the case (ibid. at paras. 20-27).

⁵ See, for example, Roach, K. “ R. v. Hape Creates Charter-Free Zones for Canadian Officials Abroad” (2007) 53 Criminal L.Q. 1;Google Scholar Currie, J.H. “Weaving a Tangled Web: Hape and the Obfuscation of Canadian Reception Law” (2007) 45 Can. Y.B. Int’l L. 55;Google Scholar Larocque, F. et al., “L’incorporation de la coutume internationale en common law canadienne” (2007) 45 Can. Y.B. Int’l L. 173.;Google Scholar Gal-Or, N. “R.v. Hape: International Law before the Supreme Court of Canada” (2008) 66 Advocate 885;Google Scholar Fairley, H.S. “International Law Comes of Age: Hape v. The Queen” (2008) 87 Can. B. Rev. 229;Google Scholar Attaran, A. “Have Charter, Will Travel? Extraterritoriality in Constitutional Law and Canadian Exceptionalism” (2009) 87 Can. B. Rev. 515.Google Scholar

⁶ Hape, supra note 3.

⁷ Ibid. at para. 85.

⁸ Khadr, supra note 1 at para. 19.

⁹ Ibid. at para. 18.

¹⁰ Ibid. at paras. 21-24.

¹¹ Ibid. at paras. 29, 31–32.

¹² Ibid. at paras. 33–35.

¹³ Ibid. at paras. 5–6.

¹⁴ Ibid. at para. 6.

¹⁵ Ibid. at paras. 7–8.

¹⁶ R v. Stinchcombe, [1991] 3 S.C.R. 326 [Stinchcombe].

¹⁷ Khadr, supra note 1 at para. 8.

¹⁸ Stinchcombe, supra note 16.

¹⁹ Purdy v. Canada (Attorney General) (2003), 226 D.L.R. (4th) 761 (B.C.S.C.), aff’d (2003), 230 D.L.R. (4th) 361 (B.C.C.A.) [Purdy].

²⁰ Khadr v. Canada (Minister of Justice) (2006), 290 F.T.R. 313, 2006 FC 509 [Khadr(FC)].

²¹ Ibid. at para. 10.

²² R v. Cook, [1998] 2 S.C.R. 597 [Cook].

²³ Khadr (FC), supra note 20 at para. 12.

²⁴ Ibid. at para. 13, citing Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1 at para. 54 [Suresh].

²⁵ Purdy, supra note 19.

²⁶ Khadr (FC), supra note 20 at paras. 17–20.

²⁷ Ibid. at paras. 20, 22.

²⁸ Khadr v. Canada (Minister of Justice), [2008] 1 F.C.R. 270, 2007 FCA 182 at paras. 29– 32 , 34 [Khadr (FCA)]. Note that this decision was released approximately one month prior to the release of the Supreme Court of Canada’s judgment in Hape, supra note 3.

²⁹ Khadr (FCA), supra note 28 at para. 34.

³⁰ Ibid. at para. 37.

³¹ Ibid.

³² Ibid. at paras. 42 , 44.

³³ Canada Evidence Act, R.S.C. 1985, c. C-5.

³⁴ Hape, supra note 3.

³⁵ Cook, supra note 22; Hape, supra note 3 at para. 182 (per Binnie J., concurring).

³⁶ Khadr, supra note 1 at para. 16.

³⁷ Ibid. at para. 17.

³⁸ Ibid. at para. 18; Hape, supra note 3 at paras. 51 , 52, 101 .

³⁹ Khadr, supra note 1 at paras. 19–20.

⁴⁰ Ibid.

⁴¹ Ibid. at paras. 21-23, relying upon Rasul v. Bush, 542 U.S. 466 (2004) and Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) [Hamdan]. Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 U.N.T.S. 31; Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 U.N.T.S. 85; Geneva Convention III Relative to the Treatment of Prisoners of War, 12 August 1949, 75 U.N.T.S. 135; Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 U.N.T.S. 287 [Geneva Conventions].

⁴² Khadr, supra note 1 at para. 24.

⁴³ Ibid. at paras 26–27, 31.

⁴⁴ Ibid. at paras. 30–31.

⁴⁵ Ibid. at para. 32.

⁴⁶ Ibid. at para. 37. This order was made subject to consideration, by a Federal Court judge, of any privilege or public interest immunity claims by the government, including any under sections 38 ff. of the Canada Evidence Act, supra note 33.

⁴⁷ Cook, supra note 22. While the majority in Hape, supra note 3, did not expressly overrule Cook, and the official report of the former indicates that Cook was “distinguished,” it is difficult to see how the majority’s conclusion concerning the impossibility of the extraterritorial application of the Charter can be reconciled with Cook’s earlier finding that such application, while rarely justified, is nevertheless permissible in limited circumstances. See also the concurring judgment of Binnie J. in Hape, supra note 3 at para. 182, commenting that the majority judgment “effectively overrules Cook.” It is also notable that the circumstances contemplated in Cook appear to bear no direct relation to the circumstances identified by the Court in Khadr, supra note 1, as justifying such exceptional extraterritorial application.

⁴⁸ Hape, supra note 3 at para. 85.

⁴⁹ Ibid. at paras. 40–46, 57-65. While the majority in Hape does also refer in the course of its reasons to the principle of comity, it makes clear that it does not consider comity to be legally binding. Rather, “comity is more a principle of interpretation than a rule of law, because it does not arise from formal obliga-tions” (ibid. at para. 47); and “[international law is a positive legal order, whereas comity, which is of the nature of a principle of interpretation, is based on a desire for states to act courteously towards one another” (ibid. at para. 50).

⁵⁰ Ibid. at para. 56.

⁵¹ Ibid. at paras. 40-46, 57-65, and 96-101.

⁵² Ibid. at para. 85.

⁵³ Ibid. at para. 94.

⁵⁴ Ibid. at paras. 69, 94, and 103-6. Section 32(1) of the Charter, supra note 2, provides that it applies to “the Parliament and government of Canada in respect of all matters within the authority of Parliament” [emphasis added].

⁵⁵ Hape, supra note 3 at para. 85.

⁵⁶ Roach, supra note 5.

⁵⁷ Hape, supra note 3 at para. 69: “In the absence of consent Canada cannot exercise its enforcement jurisdiction over a matter situated outside Canadian territory.” In fact, the core of the international legal prohibition on extraterritorial exercises of enforcementjurisdiction is limited in its application to enforcement in another’s state’s territory, not outside one’s own. See, e.g., The Case of the SS “Lotus” (France v. Turkey) (1927), P.C.I.J. (Ser. A) No. 10 at 18-19 [Lotus]: “Now the first and foremost restriction imposed by international law upon a State is that — failing the existence of a permissive rule to the contrary — it may not exercise its power in any form in the territory of another State [emphasis added].” Furthermore, international law is rife with rules, not based on consent, that permit states to exercise enforcement jurisdiction outside their own territory. To cite but two examples by way of illustration: the right of states to arrest ships flying their flag, or engaged in piracy, on the high seas (see United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 3 (entered into force 16 November 1994), arts. 94, 97, 99, 101-109, 113-14); and the right of states to use armed force against other states in self-defence (see Charter of the United Nations, 26 June 1945, Can. T.S. 1945 No. 7 (in force 24 October 1945), art. 51).

⁵⁸ Lotus, supra note 57 at 19.

⁵⁹ See Brownlie, I. Principles of Public International Law, 7th edition (Oxford: Oxford University Press, 2008) at 300–8;Google Scholar Currie, J.H. Public International Law, 2nd edition (Toronto: Irwin Law, 2008) at 339–54;Google Scholar Shaw, M.N. International Law, 5th edition (Cambridge: Cambridge University Press, 2003) at 578–93.CrossRefGoogle Scholar

⁶⁰ Brownlie, supra note 59 at 309-11 ; Currie, supra note 59 at 335-39; Shaw, supra note 59 at 577.

⁶¹ See, for example, Hape, supra note 3: “While extraterritorial jurisdiction — prescriptive, enforcement, or adjudicative — exists under international law, it is subject to strict limits under international law that are based on … the territoriality principle” (at para. 65) [emphasis added]. See also para. 69 (making the logical leap between the premise that Canada has no enforcement jurisdiction over a matter situated outside Canada’s territory and the conclusion that the matter itself “therefore falls outside the authority of Parliament); and para. 85 (reasoning that the Charter cannot apply to extraterritorial conduct — a question of its prescriptive reach — if it cannot be enforced extraterritorially, thus collapsing the distinction between prescriptive and enforcement jurisdiction entirely).

⁶² Ibid. at para. 85. Note particularly the assertion that “enforcement is necessary for the Charter to apply.” This is a clear negation of the international legal distinction between enforcement and prescriptive jurisdiction.

⁶³ Ibid. at paras. 69, 94, and 103–6.

⁶⁴ See analysis on this point in Currie, supra note 5 at 88–89.

⁶⁵ See ibid. at 89–93.

⁶⁶ See, for example, Statute of Westminster 1931 (U.K.), 22 Geo. 5, c. 4, s. 3, which confers on Parliament “full power to make laws having extra-territorial operation” [emphasis added]. See also Interpretation Act, R.S.C. 1985, c. I-21, s. 8(3); Croft v. Dunphy, [1933] A.C. 156 (J.C.P.C.) [Croft]; Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, [ 2004] 2 S.C.R. 427 at para. 141 (per LeBel J.); P.W. Hogg, Constitutional Law of Canada, 5th edition Supp. (looseleaf) (Scarborough, ON: Thomson Carswell, 2007) at paras. 12.2, 13.2; and Sullivan, R. Statutory Interpretation (Concord, ON: Irwin Law,1997) at 34.Google Scholar

⁶⁷ Croft, supra note 66 at 167 (affirming the vires of anti-smuggling legislation that authorized the seizure of vessels outside Canadian territory, and holding that the British North America Act, 1867 “imposed no territorial restriction in terms and their Lordships see no justification for inferring it”).

⁶⁸ See Macdonald, R. St. J. “The Relationship between International Law and Domestic Law in Canada,” in Macdonald, R. St. J. Morris, G.L. and Johnston, D.M. eds., Canadian Perspectives on International Law and Organization (Toronto: University of Toronto Press, 1974), 88 at 119;Google Scholar Hape, supra note 3 at paras. 39, 53 and 68.

⁶⁹ See Currie, supra note 5 at 93–94.

⁷⁰ Khadr, supra note 1 at paras. 18–19.

⁷¹ See analysis in Currie, supra note 5 at 71–85.

⁷² See Slaight Communications Inc. v. Davidson, [ 1989] 1 S.C.R. 1038 at 1056–57 [Slaight Communications] (per Dickson C.J.) (quoting his earlier comment in Reference re Public Service Employee Relations Act (Alta.), [ 1987] 1 S.C.R. 313 at 349, dissenting on another point); Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, [ 2007] 2 S.C.R. 391 , 2007 SCC 27 at para. 70 [ Health Services]: “[T]he Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified.”

⁷³ See, for example, United States v. Burns, [2001] 1 S.C.R. 283 at paras. 79-81 [Burns] (endorsing the views that international law is “of use” in interpreting the Charter and that international human rights law “should inform” and “must be relevant and persuasive” to such interpretation); Suresh, supra note 24 at paras. 46 (Charter interpretation “is informed … by international law, including jus cogens” [emphasis added]); and at para. 60 (“in seeking the meaning of the Canadian Constitution, the courts may be informed by international law” [emphasis added]); Health Services, supra note 72 at para. 20 (“international law … may inform the interpretation of Charter guarantees”); and para. 69 (“Canada’s international obligations can assist courts charged with interpreting the Charter’s guarantees”[emphasis added]). See also Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76 at paras. 9-10; Charkaoui v. Canada (Minister of Citizenship and Immigration), [2007] 1 S.C.R. 350 at para. 90; discussion in Brunnée, J. and Toope, S.J. “A Hesitant Embrace: The Application of International Law by Canadian Courts” (2002) 40 Can. Y.B. Int’l L. 3 at 33–35;Google Scholar and Beaulac, S. “Le droit international et l’interprétation législative: oui au contexte, non à la présomption,” in Fitzgerald, O. ed., Règle de droit et mondialisation: Rapports entre le droit international et le droit interne (Toronto: Irwin Law, 2007) 413.Google Scholar

⁷⁴ See Currie, supra note 5 at 75–76.

⁷⁵ Health Services, supra note 72, released the day after Hape, makes no mention of the Hape presumption of Charter conformity at all but, instead, relies on a variation of the “minimum content” rule articulated in Slaight Communications, supra note 72, and of the more flexible “may inform” approach articulated in Burns, supra note 73, and Suresh, supra note 24: see Health Services, supra note 72 at paras. 20, 69-70. Khadr itself merely refers to, without clearly endorsing, Hape’s presumption of Charter conformity (see Khadr, supra note 1 at para. 18), and subsequently refers to the more discretionary “may inform” approach espoused in Burns, supra note 73, and Suresh, supra note 24 (see Khadr, supra note 1 at para. 29).

⁷⁶ See, in particular, the highly discretionary approach to such reconciliation called for in the authorities collected in note 73.

⁷⁷ Also notable in this regard is the Court’s finding in Khadr, supra note 1 at paras. 30-32, that Charter breaches occurring abroad do not necessarily attract the same level of remedial protection as they would if committed in Canada, notwithstanding a prior finding that the Charterapplies to such breaches in principle. This would seem to suggest even greater potential for divergence between the substance of Charter protections, normally interpreted in light of Canada’s international legal obligations in the domestic context, and their content in the extraterritorial context.

⁷⁸ Per Slaight Communications and Health Services, both supra note 72.

⁷⁹ R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at 344 [Big M Drug Mart].

⁸⁰ Khadr, supra note 1 at paras. 17–19 [emphasis added]. It is unclear whether the substitution of “and” for “of” in the restatement of Hape’s presumption of conformity appearing in the final sentence of para. 19 is intentional, although it may confirm the intended applicability of the presumption to interpretation of the Charter generally and not merely s. 32(1), as argued in Currie, supra note 5 at note 89.

⁸¹ Hape, supra note 3 at paras. 51–52.

⁸² The Court also takes a certain liberty when it asserts that “[w]hile not unanimous on all the principles governing extraterritorial application of the Charter, the Court was united on the principle that comity cannot be used to justify Canadian participation in activities of a foreign state or its agents that are contrary to Canada’s international obligations.” Khadr, supra note 1 at para. 18. In fact, Binnie J., in concurring reasons, explicitly declined to endorse such a proposition on the basis of the record and submissions before the Court in Hape. Hape, supra note 3 at paras. 186-88 (per Binnie J., concurring).

⁸³ Hape, supra note 3 at paras. 40–46, 57–69.

⁸⁴ Ibid. at paras. 47–52, 96–101.

⁸⁵ Ibid. at paras. 50, 52, 101.

⁸⁶ Khadr, supra note 1 at para. 19.

⁸⁷ Ibid.

⁸⁸ Ibid. at paras. 50, 52, 101.

⁸⁹ For discussion of similar concerns arising from the majority judgment in Hape, supra note 3, see Currie, supra note 5 at 94–96.

⁹⁰ Khadr, supra note 1 at paras. 21–23.

⁹¹ See, e.g., International Covenant on Civil and Political Rights, 16 December 1966, 999 U.N.T.S. 171, art. 9(4) (in force 23 March 1976; Article 41 entered into force 28 March 1979) [ICCPR].

⁹² Geneva Conventions, supra note 41.

⁹³ Per the authorities collected in notes 72 and 73.

⁹⁴ A distinction must be drawn between these rights and any correlative rules that may speak to states’ obligations to respect them extraterritorially. These particular rights may indeed be attended by correlative state obligations to respect them beyond national territory. See, e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Authority (Advisory Opinion), [2004] I.C.J. Rep. 136 at paras. 108–11 (concluding at para. 111 that “the Court considers that the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory”); UN Human Rights Committee, General Comment 31, UN GAOR, 59th Sess., Supp. no. 40, vol. 1, UN Doc. A/59/40 (2004) at para. 12; UN Human Rights Committee, Lopez v. Uruguay, Communication no. 52/1979, UN Doc. CCPR/C/ 13//D//52/1979 ( 1981 ); Forcese, C. National Security Law: Canadian Practice in International Perspective (Toronto: Irwin Law, 2007) at 29–30.Google Scholar However, the Court’s proposition is not limited to international legal obligations having such extraterritorial scope. Rather, the Khadr exception refers to Canadian participation in foreign violations of “Canada’s binding obligations under international law” without qualification, which must necessarily include those clearly limited to its own territory. See Khadr, supra note 1 at paras. 18–19.

⁹⁵ Khadr, supra note 1 at para. 21.

⁹⁶ Ibid. at para. 24.

⁹⁷ Ibid. at para. 22.

⁹⁸ Ibid. at para. 23. Note that this mischaracterizes somewhat the USSC’s finding in Hamdan, supra note 41 . The USSC judgment ultimately turned on whether the military commission established by the US president to prosecute Hamdan had been authorized by Congress. The majority found that it had not because the relevant congressional enabling legislation required that such a commission be consistent with the “law of war.” Part of the “law of war,” Common Article 3 of the Geneva Conventions, supra note 41 , requires that tribunals be “regularly constituted” pursuant to domestic law, and American law requires that some practical need to deviate from standard court-martial practice be demonstrated before a military commission is established. As no such demonstration had been made, the establishment of the commission did not comply with American law, which meant that the “regularly constituted” requirement of Common Article 3 was not met, the commission was thus not consistent with the “law of war” and, in turn, not authorized by the congressional enabling legislation (per Stevens J., for the Court, at 69–70, 72; per Kennedy J., concurring, at pp. 8–10). While a plurality went further and found that a number of the commission’s procedural aspects departed from the procedural requirements of Common Article 3, the majority judgment limited itself to finding inconsistency with the constitution, rather than the procedures, of the commission.

⁹⁹ Might this not require some deference to the foreign process, assuming that process was consistent with the foreign state’s international legal obligations?

¹⁰⁰ Khadr, supra note 1 at para. 27.

¹⁰¹ Ibid. at para. 25.

¹⁰² This is particularly so given that, at the time of the sharing of information (to the end of 2004), Khadr was not subject to any military commission process, charges against him having only been laid in November 2005. At best, therefore, the process’s violation of the “regularly constituted court” requirement of Common Article 3 of the Geneva Conventions, supra note 41 , was purely prospective in Khadr’s case at the time of Canadian “participation” therein.

¹⁰³ See the authorities collected in notes 72 and 73.

¹⁰⁴ Charter, supra note 2, preamble: “Whereas Canada is founded upon principles that recognize the supremacy of … the rule of law” [emphasis added].

¹⁰⁵ See generally Tomuschat, C. and Thouvenin, J.M. The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes (Leiden: Martinus Nijhoff, 2006).Google Scholar

¹⁰⁶ See, e.g., the International Law Commission’s discussion of the lex specialis doctrine in its report on the fragmentation of international law. International Law Commission, “Conclusions of the Work of the Study Group on the Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law,” in Report of the International Law Commission on the Work of its Fifty-Eighth Session, U.N.G.A.O.R., 61st Sess., Supp. No. 10, UN Doc. A/61/10 (2006), II Yearbook of the International Law Commission (Part Two) at paras. 5–10. Such an analysis would remedy one of the principal failings of the majority opinion in Hape, supra note 3, which considered general principles of international law constraining the exercise of extraterritorial jurisdiction but failed to consider whether any of Canada’s international legal obligations — for example, of a human rights character — might modify the applicability of those general principles in Canada’s relations with the United Kingdom (which exercises sovereignty over the Turks and Caicos Islands, the location of the extraterritorial acts at issue). See further Currie, supra note 5 at 82–4.

¹⁰⁷ See Burns, supra note 73 at paras. 79-81 (international law is “of use” in interpreting the Charter, but international human rights law “should inform” and “must be relevant and persuasive’ to such interpretation [emphasis added]); Health Services, supra note 72 at para. 70 (“the Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified” [emphasis added]) and para. 20 (“international law … may inform the interpretation of Charter guarantees” [emphasis added]).

¹⁰⁸ Hunter v. Southam, [1984] 2 S.C.R. 145 at 156. See also Big M Drug Mart, supra note 79 at 344; Reference Re British Columbia Motor Vehicle Act, [1985] 2 S.C.R. 486 at 499; Eldridge v. British Columbia, [1997] 3 S.C.R. 624 at para. 53.

¹⁰⁹ Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441 at paras. 28, 38 (per Dickson C.J.) and paras. 50-67(per Wilson J.).

¹¹⁰ See the International Law Commission’s “Draft Articles on State Responsibility,” in Report of the International Law Commission on the Work of its Fifty-Third Session, U.N.G.A.O.R., 56th Sess., Supplement No. 10 (A/56/10), c. IV.E.1, UN Doc. A/CN.4/L. 602/Rev. 1 (2001) [Draft Articles]. See also the Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts in ibid., c. IV.E.2 [Commentaries]. The Draft Articles and the ILC Commentaries accompanying them are also conveniently reproduced in Crawford, J. The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge: Cambridge University Press, 2002).Google Scholar

¹¹¹ Draft Articles, supra note 110, art. 11.

¹¹² Ibid., art. 6.

¹¹³ That is, the fact situation faced by the Court in Hape, supra note 3.

¹¹⁴ Amnesty International Canada v. Canada (Chief of the Defence Staff), application for leave to appeal dismissed, 21 May 2009 (S.C.C.).

¹¹⁵ Amnesty International v. Canada (Chief of the Defence Staff), 2008 FC 336 (12 March 2008).

¹¹⁶ Amnesty International v. Canada (Chief of the Defence Staff), 2008 FCA 401 (17 December 2008) at para. 9.

¹¹⁷ Ibid. at para. 20.

¹¹⁸ Ibid.

¹¹⁹ Khadr, supra note 1 at para. 18.