CANADA STANDS ALONE: A COMPARATIVE ANALYSIS OF THE EXTRATERRITORIAL REACH OF STATE HUMAN RIGHTS OBLIGATIONS.

• Author: West, Leah

INTRODUCTION

In the spring of 2022, and for the first time since 2008, the Supreme Court of Canada will revisit the question of the extraterritorial application of the Canadian Charter of Rights and Freedoms. (1) The case before the court is Cpl McGregor v The Queen, an appeal of a decision of the Court Martial Appeals Court of Canada. The case arises from a Canadian Military Police (MP) investigation of Cpl McGregor for voyeurism and other offences committed against fellow members of the Canadian Armed Forces (CAF) while posted in Washington, DC, USA. While investigating those offences, CAF MPs travelled to Washington and searched Cpl McGregor's home in Alexandria, VA, alongside local law enforcement pursuant to a warrant obtained by Alexandria police from a local judge. The question before the Supreme Court is whether the Charter applies to the search of a CAF member when they are stationed abroad and whether the application of the Charter is permissible in this instance because an international treaty explicitly granted the CAF jurisdiction to investigate offences by CAF members in the US. (2)

This case is important for many reasons, not least of which being that at any given time, thousands of CAF personnel are stationed around the world and subject to Canadian criminal law. (3) In recent years Parliament has also given other Canadian security and intelligence officials increased authority and resources to operate abroad to investigate foreign-based crime and counter foreign threats to national security and defence. Today, the Royal Canadian Mounted Police (RCMP), the Canadian Security Intelligence Service (CSIS), the Communications Security Establishment (CSE) and the CAF all conduct operations, to some extent, outside of Canada to fulfill their mandates; and in doing so, their actions are both permitted and limited by various legislative authorities and common law powers. (4) Nevertheless, if, how, and to what extent their conduct abroad is governed by the Charter remains uncertain.

Presently, the leading case on the extraterritorial application of the Charter is the Supreme Court of Canada's 2007 decision, R v Hape. (5) In Hape, the RCMP partnered with law enforcement in the Turks and Caicos to investigate suspected money laundering by a Canadian businessperson. At trial, counsel for Mr. Hape sought to have the evidence collected abroad excluded under section 24(2) of the Charter. To resolve this question, the Court was called on to apply its own precedent interpreting the scope of section 32 of the Charter. (6) Section 32 is the Charter's application provision. It stipulates that the Charter applies "to the Parliament and the government of Canada in respect of all matters within the authority of Parliament... [and] to the legislature and government of each province in respect of all matters within the authority of the legislature of each province." (7)

In previous decisions, the Supreme Court held that the Charter would apply abroad unless its application created "an objectionable extraterritorial effect." (8) However, the 5-4 majority in Hape deviated from its precedent, finding instead that to comply with Canada's international legal obligations and the principle of comity, the Charter could not extend to the extraterritorial actions of Canadian law enforcement without the consent of the host state or "some other basis under international law." (9)

Following Hape's release, leading academics criticized the dubious international legal grounds that formed the basis for the majority's conclusions, (10) specifically the finding that the "extraterritorial application of the Charter is impossible." (11) Despite the "impossibility", the majority decision left an opening, noting that deference to foreign sovereignty and comity "ends where clear violations of international law and fundamental human rights begin." (12)

Less than a year later, in Canada (Justice) v Khadr, (13) the Supreme Court considered the applicability of the Charter to officials from both CSIS and the Department of Foreign Affairs and International Trade (DFAIT) who interrogated Omar Khadr while in US custody in Guantanamo Bay. In Khadr, the unanimous Court relied on the findings of the US Supreme Court to conclude that the detention regime the Americans subjected the young Canadian to at the time of CSIS's interrogation was "a clear violation of fundamental human rights protected by international law." (14) The Court held that while international law and comity "might otherwise preclude application of the Charter to Canadian officials acting abroad," since the foreign regime violated international law, comity could not preclude the Charter's application in this instance. (15) The Court went on to find that CSIS violated Mr. Khadr's section 7 rights by participating in an American process that violated Canada's international obligations. (16)

Over the past decade, lower courts have struggled to apply both Hape and the Khadr exception, especially outside of the criminal law context. (17) As Lisa Austin noted in the context of national security programs, the existing legal complexity risks undermining accountability and the rule of law. (18) The Department of Justice website validates the present uncertainty regarding the breadth of Hape's application, noting that "[t]he extent of the application of the Charter to government acts that occur outside Canada is not entirely clear as the Supreme Court has not dealt with a number of important contexts in which the Canadian government acts outside the territory of Canada." (19)

Fortunately, McGregor presents an opportunity for the Supreme Court to clarify when the Charter applies to state actors operating in foreign jurisdictions. It also offers the Court the chance to revisit its interpretation of section 32 under the principled framework for using international and comparative law in constitutional interpretation set out in its 2020 decision Quebec (Attorney General) v. 9147-0732 Quebec inc. (20) Given this opportunity, this author seeks to contribute to the practical and scholarly debate regarding the Charter's reach by for the first time, situating the Supreme Court's findings in the context of the broader discussion of the extraterritorial reach of state human rights obligations.

To that end, this paper proceeds in two parts. Part 1 engages in a critical analysis of the Supreme Court's application of the principle of sovereignty and the doctrine of jurisdiction in Hape and its prior decision, R v Cook. (21) This examination considers and expands upon prior criticism of Hape by Canadian constitutional and international legal scholars, including my own work published elsewhere. (22) However, the focus of this critique differs in that it singles in on the fact that the Supreme Court used the wrong concept of jurisdiction when analyzing the territorial reach of the Charter and the wrong legal regime to interpret the phrase in section 32 "within the authority of Parliament'. (23) Rather than relying on the doctrine of jurisdiction to interpret section 32, this part suggests the Court should have considered the concept of jurisdiction as used and understood in international human rights law instruments, and the law on state responsibility.

Part 2 then looks to international and foreign human rights law to support the argument that the "Charter unless approach" adopted in Cook, and not the categorical denial of the Charter's extraterritorial application in Hape, is the correct interpretation of section 32. It is well recognized that "international human rights law may be a useful interpretative tool to a Canadian court in deciding the meaning to be given to a provision in the Charter." (24) Human rights treaties to which Canada is a party, including the International Covenant on Civil and Political Rights (ICCPR) and regional conventions like the European Convention on Human Rights (ECHR), (25) played a significant role in the development of the Charter. (26) Yet, remarkably, the Supreme Court failed to consider these instruments when interpreting section 32 of the Charter in Hape.

Moreover, Canada is not the only state who relies on customary international law and international or regional human rights instruments to interpret the scope and reach of its municipal human rights obligations. (The term "municipal" is used throughout this paper to denote human rights obligations imposed on a state by national or local laws rather than international conventions or customary international law.) For this reason, Part 2 looks to not only the interpretation of the ICCPR and the ECHR by international bodies, but five other relevant jurisdictions to explore if, when, and how other states' municipal human rights obligations apply extraterritorially.

The results of this exercise reveal that the extraterritorial application of municipal human rights instruments exists on a spectrum with Australia and Israel falling to the restrictive end (obligations arise in narrow circumstances), while South Africa and New Zealand fall to the permissive end (obligations travel with officials at all times). The UK's exceptional approach, heavily influenced by the European Court of Human Rights (ECtHR), falls at the centre of this spectrum. It is instructive that each of the countries examined in this paper accepts that, at least in some circumstances, their nation's human rights obligations apply to their officials when operating abroad. Canada stands alone in its position that international law prohibits the extraterritorial application of the state's municipal human rights obligations. While not determinative, these case studies offer persuasive support that the principles of sovereignty and comity do not prohibit the extraterritorial application of the Charter.

Finally, based on the above, this paper concludes by offering an alternative approach to interpreting section 32 that the Supreme Court could adopt...