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

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: Richard, C.J., Desjardins and Noël, JJ.A.
• Date: 10 December 2008
• Citation: 2008 FCA 401,(2008), 383 N.R. 268 (FCA)
• Court: Court of Appeal (Canada)

Amnesty Intl. Can. v. Cdn. Armed Forces (2008), 383 N.R. 268 (FCA)

MLB headnote and full text

Temp. Cite: [2009] N.R. TBEd. JA.035

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

(A-149-08; 2008 FCA 401)

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

Federal Court of Appeal

Richard, C.J., Desjardins and Noël, JJ.A.

December 17, 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, in a decision reported 320 F.T.R. 257, answered both the questions in the negative and therefore dismissed the judicial review application. The applicants appealed.

The Federal Court of Appeal dismissed the appeal.

Civil Rights - Topic 8306

Canadian Charter of Rights and Freedoms - General - Application of - Territorial limits - The Federal Court of Appeal discussed the extraterritorial application of the Charter in light of the recent jurisprudence from the Supreme Court of Canada (i.e., R. v. Hape, 2007 and Khadr v. Canada, 2008) - See paragraphs 6 to 23.

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 applicants appealed - The Federal Court of Appeal dismissed the appeal.

Cases Noticed:

R. v. Hape (L.R.), [2007] 2 S.C.R. 292; 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, consd. [para. 7].

Khadr v. Canada (Minister of Justice) et al. (2008), 375 N.R. 47; 2008 SCC 28, consd. [para. 8].

Rasul v. Bush (2004), 542 U.S. 466; 124 S. Ct. 2686; 159 L. Ed. 2d 548 (U.S.S.C.), refd to. [para. 11].

Bankovic v. Belgium (2001), Decision No. 52207/99 (E.C.H.R.), refd to. [para. 25].

Counsel:

Paul Champ and Bijon Roy, for the appellants;

J. Sanderson Graham and R. Jeff Anderson, for the respondents;

Earl A. Cherniak, Q.C., Jasmine T. Akbarali and Shannon M. Puddister, for the intervenor.

Solicitors of Record:

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

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

Lerners LLP, Toronto, Ontario, for the intervenor.

This appeal was heard in Ottawa, Ontario, on December 10, 2008, before Richard, C.J., Desjardins and Noël, JJ.A., of the Federal Court of Appeal. The following decision was delivered for the court, by Desjardins, J.A., on December 17, 2008.