Khadr (2008) and Extraterritorial Applicability of the Charter: Deepening the Morass
TheCourt.ca is pleased to present this piece from John H. Currie, Associate Professor at the University of Ottawa’s Faculty of Law, commenting on Canada (Justice) v Khadr. Our past discussion on the 2008 Khadr decision can be found here.
On May 23, 2008, the Supreme Court of Canada released a judgment (Canada (Justice) v Khadr,  2 SCR 125 [Khadr]) addressing the applicability of the Charter to the actions of CSIS and other Canadian officials in interrogating Canadian citizen Omar Khadr at Guantánamo Bay in 2003, and in passing the fruits of such interrogations to US military authorities. Pursuant to section 7 of the Charter and R v Stinchcombe,  3 SCR 326, Khadr had claimed a right to disclosure of information obtained by the Crown in this way and other information that might be relevant to the US military commission proceedings he was facing. The Court concluded that the Charter did apply to the conduct of Canadian officials at Guantánamo Bay in this case, apparently contradicting its 2007 holding in R v Hape,  2 SCR 292 [Hape], that “extraterritorial application of the Charter is impossible” (Hape, para 85). According to the Court in Khadr, the Hape principle holds true in general, but is subject to an exception “if Canada was participating in a process that was violative of Canada’s binding obligations under international law” (para 19).
Given the dubious international legal bases upon which the Hape principle is founded (some of which are described in previous posts to TheCourt.ca), Khadr’s retrenchment of that principle, even if only partial, is at first blush a welcome development. However, the Court’s unanimous and unsigned judgment in Khadr is also startlingly brief, particularly given the complexity and importance of its central issue and its dramatic qualification of the Hape principle, which a majority of the Court had asserted in categorical terms less than a year earlier. The Court’s brevity of analysis in asserting, justifying, and applying the Khadr exception raises – yet leaves unexamined – a number of fundamental uncertainties and questions. This further clouds the intelligibility and soundness of the rules governing the extraterritorial applicability of the Charter, as well as the role of international law in shaping those rules.
These difficulties flow in part from the Court’s apparent claim, in Khadr, that it is not introducing any new exception to the Hape principle at all, but rather simply applying an exception already introduced in Hape itself. This is plainly not so. As the Court acknowledges in Khadr, Hape “was based on international law principles against extraterritorial enforcement of domestic laws and the principle of comity” (para 17). The Court in Khadr continues: “The Court [in Hape] was united on the principle that comity cannot be used to justify Canadian participation in activities of a foreign state or its agents that are contrary to Canada’s international obligations” (para 18). Hence, concludes the Court, the exception it applies in Khadr was already established in Hape. Yet this line of reasoning fails to address the principal legal basis upon which the Hape principle was truly founded, which was not the non-binding principle of comity, but rather the binding “international law principles against extraterritorial enforcement of domestic laws.” While Hape suggested that the non-binding principle of comity must yield whenever Canada participated in unlawful foreign activities, nothing in Hape even hinted that the binding principles of international law limiting Canada’s extraterritorial jurisdiction must also yield in such circumstances. The latter proposition is purely an innovation of Khadr itself.
Why does this matter? What difference does it make whether the exception applied in Khadr was established in Hape (as intimated by the Court) or rather in Khadr?
There are several reasons why the Court’s approach to this issue is significant. The first is somewhat formal. The Court, as the ultimate authority on the legal meaning of the Canadian Constitution, has an obligation to explain its interpretations of the Charter in clear and transparent terms. Had the Court openly acknowledged in Khadr that it was modifying the Hape principle by articulating a new exception to it, it would naturally have been incumbent on it to provide some reasoned, intelligible and persuasive basis for doing so. However, by purporting not to introduce but merely to apply an exception to the Hape principle already propounded in Hape, the Court effectively sidesteps the need to explain itself. Of course this would not be problematic if the Court had indeed pioneered and justified the exception in Hape. Yet, as seen above, this was not the case. Nor does the Court in Khadr justify the proposition that binding principles of international law forbidding extraterritorial application of the Charter must yield to Canada’s other international legal obligations. The result of this failure to explain the legal basis for such a proposition (in either Hape or Khadr) is to give the Khadr exception, whether desirable or justifiable or not, an air of arbitrariness that undermines its authority.
More substantively, the Court’s failure to explain or justify the Khadr exception leaves unanswered the obvious question: How or why does Canada’s participation abroad, in a process that is inconsistent with its international legal obligations, lead to applicability of the Charter to that participation? Implicit in this question are many others. For example, given that the issue is the extraterritorial applicability of the Charter, and assuming that that issue must be resolved in a manner consistent with Canada’s international legal obligations, why would any such obligations that do not address the extraterritorial scope of Canada’s human rights commitments or its jurisdictional competence be relevant? Or, even assuming they are, in a confrontation between Canada’s international legal obligations which, on the one hand, purportedly compel it not to apply the Charter extraterritorially, and, on the other hand (and for reasons not made clear by the Court), compel just such extraterrestrial application, why should the latter prevail? Further, why is the issue whether Canada has participated in a process that violates its international legal obligations, rather than, simply, whether it has violated such obligations? This way of structuring the test appears to move the crucial inquiry away from the actions of Canadian officials themselves and to focus it, instead, on foreign conduct. Is it meaningful to ask whether a foreign process violates Canada’s international legal obligations? And so on. These questions, and others, require and deserve answers. Yet the Court’s approach in Khadr robs it of the opportunity to provide and defend them.
Finally, and perhaps most importantly, by failing squarely to acknowledge its creation in Khadr of an exception to the Hape principle, the Court sidesteps the need to address the underlying reasons that cry out for such an exception in the first place. Had the Court done so, it is possible that it would also have had to confront some of the more unsustainable implications of the Hape principle, as starkly illustrated on the facts of Khadr. It may seem of no great moment to deny the benefit of protections against unreasonable search and seizure to a corrupt Canadian businessman carrying out money laundering activities on a Caribbean island, especially in the name of the noble principle of upholding international law. It is altogether another matter to realize that a rule justifying such denial will also, in principle, deny protection to a Canadian child detained, interrogated, and prosecuted by a foreign government, with Canadian government collusion, on a Caribbean island of quite a different character, in violation of some of Canada’s most fundamental international legal obligations and some of the Charter’s most basic guarantees. In short, the facts of Khadr expose the untenability in principle of Hape. Rather than face that untenability, the Court in Khadr effectively evades it by reading down Hape in a manner that superficially makes it appear less untenable. In doing so, the Court not only misses its chance to disavow the flawed majority reasoning in Hape, it deepens the legal and logical morass currently governing, in the name of respect for Canada’s international legal obligations, the extraterritorial applicability of the Charter.
Note: This post is a précis of a more fully developed critique of Khadr published as: John H. Currie, “Khadr’s Twist on Hape: Tortured Determinations of the Extraterritorial Reach of the Canadian Charter,” (2008) Canadian Yearbook of International Law 307.