International Criminal Cooperation, Human Rights, and the Application of the Charter

• Author: Robert J Currie, Dr Joseph Rikhof
• Pages: 530-575

530

CHAPTER 10

INTERNATIONAL

CRIMINAL COOPERATION,

HUMAN RIGHTS, AND

THE APPLICATION OF

THE

CHARTER

A. INTRODUCTION

As discussed in the preceding chapter, Canada’s international crim-

inal cooperation activities operate at the point of a unique nexus of

international law (both treaty and customary) and domestic laws. The

latter serve two functions: they implement Canada’s international law

obligations, but also both empower and control the state in it s exercise

of investigational and prosecutorial functions. Historically, in terms of

how these functions operated at the transnational level, they were very

much within the realm of executive discretion, with some limited over-

sight by the courts. However, the rise of international human rights

law in the latter part of the twentieth century, and in particular the

increasing entrenchments of both substantive and procedural rights

for those facing criminal prosecution, has resulted in increasing scru-

tiny of cases that have transnational aspects t hrough the human rights

lens. Particularly si nce the inception of the Charter,1 Canada, like other

states, has been forced to consider the human rights implications of

its activities and the jurisdictional issues in which they are enmeshed.

For example, should individuals be extradited to foreign states with

poor human rights records? Can Canada lawfully cooperate with such

states, and to what extent? What standards apply to evidence which is

1Canadian Char ter of Rights and Freedoms, Part I of the Constitut ion Act, 1982, be-

ing Schedule B to the Ca nada Act 1982 (UK), 1982, c 11 [Charter].

Internat ional Criminal Co operation, Human Right s, and the Charter 531

gathered in foreign jurisdictions, and does their scope or applicability

differ if Canadian authorities are directly involved? Does the Charter

apply to any investigational activities that take place outside Canada?

As the f‌inal arbiter of these que stions, the Supreme Court of Canada

has developed what it has identif‌ied as “jurisprudence on matters in-

volving Canada’s international co-operation in criminal investigations

and prosecutions.”2 The fact that there is such a specialized jurispru-

dence is emblematic of the uncomfortable coexistence of international

criminal cooperation and human rights laws, a tension which is in fact

being played out throughout the international community. This chap-

ter will survey and analyze these developments,3 with some effort to

assess future directions. Note that the Court’s approach has consist-

ently been one of balancing—specif‌ically balancing the protection of

human rights by Canadian courts with the need to ensure Canada is

able to live up to its international criminal cooperation commitments

and “international comity” generally. The result, in many cases, has

been a dilution of Charter standards in cases of this kind, as the Court

seeks to apply the Charter differently than it is applied domestically.4

B.EXTR ADITION, DEPORTATION, AND

MUTUAL LEGAL ASSISTANCE

As explored in Chapter 9, extradition was historically a creature of

international law and executive discretion. Extradition treaties were

instruments that contained binding obligations only as between states,

and while there was some judicial oversight of the process, individ-

uals did not have standing before the courts of either the requesting

2Schreiber v Canad a (Attorney General), [1998] 1 SCR 841 at para 34 [Schreiber].

3While the tit le of this chapter includes “cooper ation,” the ambit is also to cover

police investi gations with extrate rritorial aspect s, such as cooperative invest iga-

tions by Can adian and foreign police, and t ransnational enforce ment activ-

ities by Can adian authorities gener ally. While not all such cases a re literally

“cooperative,” there is some ele ment of cooperation in that if Ca nadian author-

ities are involved i n an investigation anywher e outside Canada, they must be

securing s ome cooperation, even if that me ans simply the permi ssion of the

foreign authoritie s to be where they are. Other wise (and particularly i f coercive

powers are involved), they are li kely acting illegally ab initio, as it is well estab-

lished that one st ate cannot exercise en forcement jurisdiction on t he territory of

another; see Chapt er 2.

4This theme wa s developed in greater detail (though pre-Hape) in Robert J Cur-

rie, “Charter without B orders? The Supreme Court of Canada, Transn ational

Crime and Con stitutional Rights an d Freedoms” (2004) 27 Dal LJ 235.

INTERNATIONAL AND TR ANSNATIONAL CRIMINAL LAW532

or requested state to invoke any protections they may have enjoyed

at international law. This is not to say that there was no protection

accorded to the individual in the process. Among common law states,

at least, the requesting state was required to put forward a prima facie

case against the individual in order for him to be committed for extra-

dition. This provided some protection against trial on trumped-up or

questionable charges.5 Also, some of the traditional grounds of refusal

in extradition treaties (such as the political offence exception or the

non-discrimination clause6) tended to provide some protection of hu-

man rights in an indirect fashion.7 However, these latter mechanisms

were obligatory only in the sense that the requesting state was bound

to accept that, if the requested state had refused extradition on these

grounds, the refusal did not breach the extradition treaty. The execu-

tive of the requested state was not bound to invoke these grounds and

refuse extradition, but was merely legally entitled to do so. For their

part, while the courts enjoyed some supervisory powers over the extra-

dition process, they tended to be driven by what is usually referred to

as the “rule of non-inquiry” in extradition matters:8 that courts will

not inquire into the rule of law or level of human rights protection in

the requesting state, since these are matters best left to the executive

in its carrying on of the state’s international relations. The courts of

the requesting state were, as the Supreme Court of Canada put it, to be

“trust[ed] . . . to give the fugitive a fair trial,”9inter alia.

Most importantly for present purposes, the dominant view was

that a state’s human rights obligations and its international criminal

cooperation obligations were mutually exclusive. Even if the individual

was subject to human rights violations in the requesting state, because

the requested state was not actually involved in the violation of the

right(s), it could not be held responsible for a violation of its human

rights obligations. This view, which had already been the subject of

5See Anne W La Forest, “The B alance between Libert y and Comity in the

Evidentiar y Requirements Applicable to E xtradition Proceedi ngs” (2002) 28

Queen’s LJ 95.

6See Chapter 9, Sections B(1)(b)(v) & (vi).

7See Willi am C Gilmore, “The Provisions De signed to Protect Fundament al

Human Right s in Extradition and Mutua l Legal Assistance Treat ies” in Com-

monwealth Secr etariat, Internat ional Co-operation in Criminal Matter s: Balancing

the Protection of Human Rights w ith the Needs of Law Enforcement (London : Com-

monwealth Secr etariat, 2001).

8See Chapter 9, Section B(1)(b)(vii).

9Canada v Schmidt, [1987] 1 SCR 500 at 524 [Schmidt].