Introduction I. The Prevailing Criticisms of Hape II. Comity and Its Functions in Hape A. The Significance of Comity B. The Two Faces of Comity in Hape/ Preclusion and Permission C. The Distinction Between the Internal and External Realms III. Comity in Private International Law A. The Structural Problem of Decentralized Legal Authority B. Preclusion and Permission in Private International Law IV. Hape and the Classical, Positivist Vision of the International Realm A. International Legal Positivism in Foreign Elements Cases B. Comity and the Two Faces of the Constitution C. The Sovereigntist Model of the Constitution V. An Alternative Approach to Extraterritoriality A. Justice Bastarache's Concurrence B. Foreign Elements and Subsidiarity C. Foreign Elements and Context Conclusion Introduction
More than a decade ago, the Supreme Court of Canada redefined the extraterritorial scope of the Canadian Charter of Rights and Freedoms. (1) In R v Hape, the accused, a Canadian businessman investigated for money laundering, had argued that his section 8 rights were infringed when Royal Canadian Mounted Police officers conducted searches of his office in the Turks and Caicos Islands under the authority of that territory's police. (2) The Court held that Charter rights could not apply to the activities of Canadian state agents operating abroad, due to the "principles of international law and comity". (3) At the time, the judgment surprised observers not only because of its unexpected departure from earlier jurisprudence, but also because of its restrictive application of the international law principles of jurisdiction. Adding to the doctrinal confusion, in the Khadr cases the Supreme Court of Canada subsequently articulated an exception to this seemingly categorical limitation on the basis of Canada's international human rights obligations. (4) To this day, the precise contours of the extraterritorial reach of the Charter and its attendant human rights exception remain unclear.
The present re-examination of the Hape judgment is prompted by a recent resurgence of interest in the field of foreign relations law. Foreign relations law, "the domestic law of each nation that governs how that nation interacts with the rest of the world", is historically identified with the United States. (5) However, scholars around the world are now devoting greater attention to elaborating this field in their own jurisdictions. (6) As Campbell McLachlan observes in his seminal treatise, there exists a "shared frame of reference" that makes it possible to study "a largely shared approach of foreign relations law in Anglo-Commonwealth states" despite internal differences. (7) In part, the relative paucity of treatments of Commonwealth foreign relations law is attributable to the traditional outlook of English law, which embraced "a set of doctrines that served to exclude the field from municipal legal control". (8)
To the extent that a corpus of Canadian foreign relations law exists, Hape is situated at its core. As a judgment about the territorial scope of constitutional rights, it implicates the fundamental question of the field: "Can the law control the conduct of foreign affairs?" (9) In Hape, the majority of the Court appeared to deliver a negative response with respect to extraterritorial state action, relying on classic foreign affairs considerations such as respect for other states and the need for transnational co-operation. Yet, the presence of these "internationalist" concerns in the judgment, notably its numerous invocations of international comity, has not been well studied. In fact, the concept of comity is more prominently associated with Canadian private international law, rather than public law.
Analyzed from a foreign relations law perspective, three interrelated features of the Hape judgment become salient. First, there is the underappreciated role of "international comity" in the majority judgment, which defined the term as "informal acts performed and rules observed by states in their mutual relations out of politeness, convenience and goodwill". (10) Frequently invoked in conflict of laws cases, comity is a protean concept that, in the broadest sense, is meant to encompass an attitude of respect by a domestic legal system toward the actions and interests of foreign sovereigns. The role of comity exposes a second feature of the judgment, which is the vision of the international legal order that it shares with the Court's private international law jurisprudence. In both contexts, comity serves to discipline the legal system's treatment of "foreign elements" cases. Third, the Court's conception of the external, international realm informs its delimitation of the territorial boundaries of the Charter and, in essence, the extent to which foreign affairs can be mediated by law. Reexamining Hape with a focus on comity provides a novel lens on the Court's approach to rights cases with foreign elements.
This paper undertakes the reappraisal in five sections, which aim to relate the Court's reasoning to the traditional, exclusionary outlook of Commonwealth foreign relations law. Section I presents the prevailing criticisms of Hape, which focus on its misapplication of the international law principles of jurisdiction. I contend that these criticisms tend to minimize the majority's reliance on the notion of international comity. Section II discusses the significance of comity and its role in the majority judgment. Two functions of comity are identified: a preclusive and a permissive role that call for deference to foreign actors and recognition of the demands of international relations, respectively. Section III argues that the applications of comity in Hape mirror its role in the Court's private international law jurisprudence. Others have observed that this jurisprudence developed a particular juristic vision of the international legal order. (11) I argue that this vision involves a classical, positivistic conception of state sovereignty, international law, and the role of comity. Under this conception, comity is conscripted as an extra-legal mechanism to mediate the structural problem of conflicting exercises of state sovereignty.
Section IV argues that the majority's reasoning in Hape emanates from this vision. I reach the conclusion that it was international comity, rather than the doctrinal rules of extraterritorial jurisdiction, that governed the Court's delimitation of the Charter. In turn, the positivist vision of the international order sustains a sovereigntist model of the Canadian Constitution that categorically divides an external realm of pre-legality from an internal realm of peace, order, and legality. The prominence of comity in Hape reflects its implicit reliance on the sovereigntist model, which resists subjecting foreign affairs to law. Finally, in Section V, I consider the merits of Bastarache J's concurring opinion in Hape as an alternative framework for the extraterritorial application of the Charter.
The Prevailing Criticisms of Hape
What is now acknowledged as a landmark decision on the territorial scope of the Charter was greeted with considerable surprise, for neither the parties' counsel nor observers had anticipated that Hape would turn on a consideration of customary international law. (12) Justice LeBel, writing for the majority, prefaced his analysis of the Charter's reach by considering "the relationship between Canadian domestic law and international law". (13) Because section 32(1) of the Charter did not expressly impose any territorial limits, he held that it was appropriate to refer to "international law and the principle of the comity of nations" to interpret and define "the jurisdictional reach and limits of the Charter". (14) Based on his analysis, LeBel J concluded that because "extraterritorial enforcement is not possible, and enforcement is necessary for the Charter to apply, extraterritorial application of the Charter is impossible". (15) In other words, the Charter could not extend beyond Canadian borders "because its application would necessarily entail an exercise of the enforcement jurisdiction that lies at the heart of territoriality". (16) The only exceptions to this rule arise where the foreign state consents to the enforcement of Canadian law and where the extraterritorial activities "would place Canada in violation of its international obligations in respect of human rights". (17) On the facts of the case, the Charter did not apply to searches and seizures taking place in the Turks and Caicos Islands under the authority of that territory's police. (18)
The commentaries that followed, naturally, tended to focus on the significance of international law to the judgment. (19) While the Court clarified the Canadian approach to the domestic reception of international law, it was its analysis of the extraterritorial application of the Charter, the topic of the present paper, that attracted greater controversy. (20) In relation to this aspect of the decision, the Hape majority's treatment of the relevant international legal principles has been criticized. McLachlan aptly expresses a representative view, contending that the majority misapplied the rules of jurisdiction:
It betrays a confusion of thought between a state's exercise of jurisdiction--its '[p]ower or authority in general'--and the limits imposed by international law on that exercise, not for the state's own benefit, but for the benefit of other states and individuals... The doctrine provides no assistance in a case where the state is already exercising its executive power outside the state. (21) In his view, the decision allowed the Canadian government to avoid responsibility for its official acts by imposing jurisdictional limits on the scope of a rights instrument. (22) And McLachlan is not alone in focusing his critique on the principles of jurisdiction. As some have argued, Hape conflated prescriptive and...