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

• Author: Robert J. Currie
• Profession: Schulich School of Law, Dalhousie University
• Pages: 497-538

497

CHA PTER 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 activit ies operate at the point of a unique nexus of

international l aw (both tre aty 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 its exercise

of investigational and prosecutori al functions. Hi storically, in terms of

how these functions operated at the transn ational level, they were very

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

sight by the courts. However, the r ise 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 crim inal prosecution, has resulted i n increasing scrutiny

of ca ses which have transnational aspects through the human rights

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

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

its activities and the juris dictional issue s in which they are enmeshed.

For ex ample, should i ndividuals be extradited to foreign states with

poor human rights records? Can Canada law fully cooperate wit h such

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

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

ing Schedule B to t he Canada Act 1982 (U.K.), 1982, c. 11.

INTERN ATIONAL AND TR ANSNATIONAL CRIM INAL LAW498

gathered in foreign jurisdict ions, and doe s their scope or applicabilit y

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 questions, the Supreme Court of Canada

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

volving Canada’s international co-operation in crim inal invest igations

and pros ecutions.”2 The fact that there i s such a specialized jurispru-

dence is emblematic of the uncomfortable coexistence of international

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

being played out t hroughout the intern ational community. This chap-

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

sess future directions. Note that the Court’s approach has consistently

been one of balancing — specif‌ically balancing the protection of hu-

man rights by Can adian courts w ith the need to ensure Can ada is able

to live up to its i nternational 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 A SSISTANCE

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

international law and executive discret ion. Extradition treaties were

instruments that contained binding obligations only as between states,

and while there was some judicial oversight of the process, individuals

did not have standing before the courts of eit her the requesting or re-

2 Schreiber v. Canada (Attor ney General), [1998] 1 S.C.R. 841 at para. 34 [Schreibe r].

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

police investig ations with extrater ritorial aspect s, such as cooperative invest iga-

tions by Can adian and foreign police, and t ransnational enforceme nt activ-

ities by Can adian authorities genera lly. While not all such cases are l iterally

“cooperative,” there is some elem ent of cooperation in that if Can adian author-

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

securing s ome amount of cooperation, even if that m eans simply the permi ssion

of the foreign authorit ies to be where they are. Other wise (and particul arly if

coercive powers ar e involved), they are like ly acting illegally ab initio, as it i s

well establi shed that one state cannot exerc ise enforcement jurisd iction on the

territor y of another; see Chapter 2.

4 This theme wa s developed in greater detail (though pre-Hap e) in R.J. Currie,

“Charter without Border s? The Supreme Court of Can ada, Transnational Cr ime

and Constitut ional Rights and Freedoms” (200 4) 27 Dal. L.J. 235.

Internation al Criminal Coope ration, Human Rights, and t he Charter 499

quested state to invoke any protections they may have enjoyed at inter-

national law. This is not to say that there was no protection accorded to

the individual in t he process. Among common law states, at least, the

requesting state was required to put forward a prima facie case agai nst

the ind ividual in order for him to be committed for extradition. This

provided some protection again st trial on trumped-up or questionable

charge s.5 Also, some of the traditional grounds of refusal in extradition

treaties (such as the polit ical offence exception or the non-discrimina-

tion clause6) tended to provide some protection of human rights in an

indirect fashion.7 However, these l atter mechanisms were obligatory

only in the sen se that the requesting state was bound to accept th at, if

the requested state had refused extradition on these grounds, the refus-

al did not breach the extradition treaty. The executive of the requested

state was not bound to invoke these grounds and refuse extrad ition,

but was merely legally entitled to do so. For their part, while the courts

enjoyed some supervisory powers over the extradition 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 request ing 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 tr ial,”9 inter alia.

Most importantly for present purposes, the dominant view was

that a state’s hum an 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 st ate was not actu ally involved in t he actual v iolation of

the r ight(s), it could not be held responsible for a violation of its hu-

man right s obligations. This view, which had al ready been t he subject

5 See Anne W. La Forest, “The Bal ance between Liberty a nd Comity in the

Evidentiar y Requirements Applica ble to Extradition Proceed ings” (2002) 28

Queen’s L.J. 95.

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

7 See 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 Matte rs: Balancing

the Protection of Human Right s with the Needs of Law Enforcement (London: Com-

monwealth Secr etariat, 2001).

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

9 Canada v. Schmidt, [1987] 1 S.C.R. 500 at 524 [Schmidt].