Amnesty International Canada et al. v. Canadian Armed Forces (Chief, Defence Staff) et al., 2008 FC 336

• Judge: Mactavish, J.
• Court: Federal Court (Canada)
• Case Date: January 25, 2008
• Jurisdiction: Canada (Federal)
• Citations: 2008 FC 336;(2008), 320 F.T.R. 257 (FC)

Amnesty Intl. Can. v. Cdn. Armed Forces (2008), 320 F.T.R. 257 (FC)

MLB headnote and full text

Temp. Cite: [2008] F.T.R. TBEd. MR.013

Amnesty International Canada and British Columbia Civil Liberties Association (applicants) v. Chief of the Defence Staff for the Canadian Forces, Minister of National Defence and Attorney General of Canada (respondents)

(T-324-07; 2008 FC 336)

Indexed As: Amnesty International Canada et al. v. Canadian Armed Forces (Chief, Defence Staff) et al.

Federal Court

Mactavish, J.

March 12, 2008.

Summary:

Amnesty International Canada and the British Columbia Civil Liberties Association (the applicants) applied for judicial review raising Charter issues, respecting the "actions or potential actions" of the Canadian Forces deployed in Afghanistan. The Chief of the Defence Staff for the Canadian Forces, the Minister of National Defence and the Attorney General of Canada were named as respondents. The parties agreed to have the court determine, by way of motion under rule 107, the issues of whether the Charter applied during the armed conflict in Afghanistan to the detention of non-Canadians by the Canadian Forces or their transfer to Afghan authorities to be dealt with by those authorities, and if not, then would the Charter nonetheless apply if the applicants were ultimately able to establish that the transfer of the detainees in question would expose them to a substantial risk of torture.

The Federal Court answered both the questions in the negative and therefore dismissed the judicial review application.

Civil Rights - Topic 8306

Canadian Charter of Rights and Freedoms - General - Application of - Territorial limits - Section 32(1) of the Charter provided that "This Charter applies: a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province" - The Federal Court discussed the wording of s. 32(1) and the recent jurisprudence from the Supreme Court of Canada as to the extraterritorial application of the Charter (i.e., R. v. Hape, 2007) - See paragraphs 100 to 298.

Civil Rights - Topic 8306

Canadian Charter of Rights and Freedoms - General - Application of - Territorial limits - Amnesty International Canada and the British Columbia Civil Liberties Association (the applicants) applied for judicial review raising Charter issues, respecting the "actions or potential actions" of the Canadian Forces deployed in Afghanistan - At issue was whether the Charter applied during the armed conflict in Afghanistan to the detention of non-Canadians by the Canadian Forces or their transfer to Afghan authorities to be dealt with by those authorities - The Federal Court answered this question in the negative and dismissed the judicial review application - The court held that the "effective military control of the person" test advocated by the applicants as the proper basis for establishing Charter jurisdiction was not appropriate in the context of a multinational military operation such as that which was under way in Afghanistan - Moreover, the use of such a control-based test as a legal basis on which to found Charter jurisdiction was specifically rejected by the Supreme Court of Canada in R. v. Hape (2007) - Furthermore, the Government of Afghanistan has not consented to the application of the full range of Canadian laws, including the Charter, to individuals held in detention by Canadian Forces personnel on Afghan soil - In particular, the Government of Afghanistan has not consented to having Canadian Charter rights conferred on its citizens, within its territorial limits - See paragraphs 100 to 302.

Civil Rights - Topic 8306

Canadian Charter of Rights and Freedoms - General - Application of - Territorial limits - Amnesty International Canada and the British Columbia Civil Liberties Association (the applicants) applied for judicial review raising Charter issues, respecting the "actions or potential actions" of the Canadian Forces deployed in Afghanistan - At issue was whether the Charter applied during the armed conflict in Afghanistan to the detention of non-Canadians by the Canadian Forces or their transfer to Afghan authorities to be dealt with by those authorities and if not, then would the Charter nonetheless apply if the applicants were ultimately able to establish that the transfer of the detainees in question would expose them to a substantial risk of torture - The Federal Court answered both questions in the negative and dismissed the judicial review application - The Charter did not apply to the detention of detainees - As to the question of whether it applied if the detainees were at risk of torture, the court stated that Canadian law, including the Charter, either applied in relation to detainees in Afghanistan, or it did not - The court stated that "surely Canadian law, including the Canadian Charter of Rights and Freedoms, either applies in relation to the detention of individuals by the Canadian Forces in Afghanistan, or it does not. It cannot be that the Charter will not apply where the breach of a detainee's purported Charter rights is of a minor or technical nature, but will apply where the breach puts the detainee's fundamental human rights at risk" - See paragraphs 303 to 328.

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - Amnesty International Canada and the British Columbia Civil Liberties Association (the applicants) applied for judicial review raising Charter issues, respecting the "actions or potential actions" of the Canadian Forces deployed in Afghanistan - The Chief of the Defence Staff for the Canadian Forces, the Minister of National Defence and the Attorney General of Canada were named as respondents - The parties agreed to have the court determine, by way of motion under rule 107, the issues of whether the Charter applied during the armed conflict in Afghanistan to the detention of non-Canadians by the Canadian Forces or their transfer to Afghan authorities to be dealt with by those authorities, and if not, then would the Charter nonetheless apply if the applicants were ultimately able to establish that the transfer of the detainees in question would expose them to a substantial risk of torture - Issues arose as to whether the subject-matter of the application was justiciable and whether there was still a live issue between the parties that required resolution by the court (given that detainee transfers had been suspended, at least temporarily) - The Federal Court held that it would proceed on the basis that the matter was justiciable - Further, since the detainee transfers had resumed while the matter was under reserve, a live controversy clearly continued to exist between the parties - See paragraphs 87 to 99.

Cases Noticed:

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25; 2005 SCC 35, refd to. [para. 6].

Finlay v. Canada, [1986] 2 S.C.R. 607; 71 N.R. 338, refd to. [para. 6].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 90].

R. v. Hape (L.R.) (2007), 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, appld. [para. 92].

S.S. Lotus Case, Re; France v. Turkey (1927), P.C.I.J., Ser. A., No. 10, refd to. [para. 122].

Al-Skeini et al. v. United Kingdom (Secretary of State for Defence), [2007] N.R. Uned. 125; [2007] UKHL 26, refd to. [para. 201].

Rasul v. Bush (2004), 542 U.S. 466 (U.S.S.C.), refd to. [para. 201].

Omar et al. v. United States Army (Secretary) et al. (2007), 479 F.3d 1 (D.C. Cir.), refd to. [para. 201].

Banković v. Belgium (2001), 11 B.H.R.C. 435, 2001-XII Eur. Ct. H.R. 333 (GC), refd to. [para. 202].

Issa v. Turkey (2004), 41 E.H.R.R. 567 (Eur. Ct. H.R.), refd to. [para. 202].

Al-Skeini et al. v. United Kingdom (Secretary of State for Defence), [2004] E.W.H.C. 2911 (Div. Ct.), refd to. [para. 249].

Hess v. United Kingdom (1975), 2 D&R 72 (Eur. H.R.C.), refd to. [para. 255].

X. v. Germany (Federal Republic) (1965), 8 E.H.R.R. 158, refd to. [para. 256].

Illich Sanchez Ramirez v. France (1996), 86-A DR 155, refd to. [para. 262].

Öcalan v. Turkey (2005), 41 E.H.R.R. 985, refd to. [para. 263].

R. v. Brown, [1995] C.M.A.J. No. 1, refd to. [para. 270].

R. v. Seward, [1996] C.M.A.J. No. 5, refd to. [para. 270].

R. v. Cook (D.R.), [1998] 2 S.C.R. 597; 230 N.R. 83; 112 B.C.A.C. 1; 182 W.A.C. 1, refd to. [para. 281].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1, refd to. [para. 304].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 32(1) [para. 101].

Authors and Works Noticed:

Penny, Christopher K., Domestic Reception and Application of International Humanitarian Law: Coming Challenges for Canadian Courts in the Campaign Against Terror (2007), pp. 3 [para. 277, 278]; 5 [para. 279].

Roach, Kent, R. v. Hape Creates Charter-free Zones for Canadian Officials Abroad, 53 Crim. L.Q., pp. 2 [para. 338]; 3, 4 [para. 273].

Counsel:

Paul Champ and Prof. Amir Attaran, for the applicants;

Jeff Anderson and Brian Evernden, for the respondents.

Solicitors of Record:

Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l., Ottawa, Ontario, for the applicants;

John H. Sims, Q.C., Deputy Attorney General of Canada, for the respondents.

This application was heard in Ottawa, Ontario, on January 25, 2008, by Mactavish, J., of the Federal Court, who delivered the following decision on March 12, 2008.