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

• Author: Joseph Rikhof/Robert J Currie
• Pages: 587-640

587

CH AP TER 10

INTERNATIONAL

CRIMINAL COOPERATION,

HUMAN RIGHTS, AND

THE APPLICATION

OF THE

CHARTER

A. INTRODUCTION

As discussed in the preceding chapter, Canada’s internat ional 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 its exercise

of investigational and prosecutoria l functions. Historically, in terms of

how these functions operated at the t ransnational level, they were ver y

much within the real m of executive discretion, with some lim ited over-

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

law in the latter part of t he twentieth century, and in particul ar the

increasing entrenchments of both substantive and procedural r ights

for those facing crimi nal prosecution, has resulted in increasing scru-

tiny of cases t hat have transnational aspects through the human rights

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

states, has been forced to consider the huma n rights implications of

its activities and t he jurisdictional is sues in which they are enmeshed.

For example, should individuals be extr adited to foreign states with

poor human rights records? Can Can ada lawfully cooperate w ith 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 Constit ution Act, 1982,

being Schedule B to t he Canada Act 1982 (UK), 1982, c 11 [Charter].

INTERNATIONAL AND TRANSNATIONAL CRIMINAL LAW588

gathered in foreign jurisdict ions, and does their scope or applicability

differ if Canadian authorities are directly involved? Does the Charter

apply to any investigational activitie s that take place outside Canada?

As the f‌inal arbiter of the se questions, the Supreme Court of Can-

ada has developed what it has identif‌ied a s “jurisprudence on matters

involving Canada’s internationa l co-operation in criminal i nvestigations

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

dence is emblematic of the uncomfortable coexistence of international

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

being played out throughout the international community. This chap-

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

assess futu re directions. Note that the Court’s approach has consistently

been one of balancing — specif‌ically balancing the protection of human

rights by Canad ian courts with the need to ensure Ca nada is able to live

up to its international cr iminal cooperation commit ments and “inter-

national comity” generally. The result, in many ca ses, has been a dilu-

tion of Charter standa rds in cases of th is kind, as the Court seeks to

apply the Charter differently than it is applied domestically.4

B. EXTR ADITION, DEPORTATION, MUTUAL

LEGAL ASSISTANCE, AND POLICING

COOPER AT ION

As explored in Chapter 9, extradition was h istorically a creature of inter-

national law and executive di scretion. Extradition treat ies were instru-

ments that contained bindi ng obligations only as between states, and

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

2 Schreiber v Canada (At torney General), [1998] 1 SCR 841 at para 34 [Schre iber].

3 While the title of t his chapter includes “cooperat ion,” the ambit is a lso to cover

police investigations with extraterritorial aspects, such as cooperative investiga-

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

by Canadi an authorities generall y. While not all s uch cases are litera lly “cooperative,”

there is some element of c ooperation in that if Can adian authorities are i nvolved

in an investi gation anywhere outside Canad a, they must be securing s ome

cooperation, even i f that means simply the per mission of the foreign author-

ities to be where t hey are. Otherwise (and pa rticularly if coercive powe rs are

involved), they are likely acting illegally ab initio, as it is well est ablished that

one state cannot exe rcise enforcement jurisd iction on the territory of anot her;

see Chapter 2.

4 This theme was de veloped in greater detail (though pre-Hape) in Rober t J Cur-

rie, “Charter Without Bord ers? The Supreme Court of Canada, Transnat ional

Crime and Con stitutional Rights and Fr eedoms” (2004) 27 Dal LJ 235.

Internation al Criminal Coope ration, Human Rights, and t he Charter 589

not have standing before the courts of either the requesting 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 indi-

vidual in the process. Among common law states, at least, the requesting

state was required to put forward a prima facie case against the individ-

ual in order for him to be committed for extradition. 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 human rights in an indirect fash-

ion.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 executive 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 super-

visory powers over the extradition process, they tended to be driven by

what is usually referred to as the “rule of non-inquiry” in extradition mat-

ters: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,”9 inter alia.

Most importantly for present purpos es, the dominant view was that

a state’s human rights obligations and its inter national criminal cooper-

ation obligations were mutually exclusive. Even if the individual was

subject to human rights violations i n the requesting state, becaus e 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 obliga-

tions. This view, which had already been t he subject of criticism,10 ca me

5 See Anne W La Fore st, “The Balance between Liber ty and Comity in the

Evidentiar y Requirements Applicable t o Extradition Proceedi ngs” (2002) 28

Queen’s LJ 95.

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

7 See Will iam 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 Se cretariat, Inter national Co-operation in Crimin al Matters: Balancing

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

monwealth Se cretariat, 2001).

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

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

10 Chris tine van den Wyngaert, “Applying the Eu ropean Convention on Human

Rights to Ex tradition: Opening Pandor a’s Box?” (1990) 39 ICLQ 757.