Does the Charter Follow the Canadian Flag, or Canadian Passports?

With the recent release of Canada (Prime Minister) v Khadr, 2010 SCC 3 [Khadr], the application of the Canadian Charter of Rights and Freedoms to the activities of the Canadian government outside of Canada continues to occupy centre stage (see TheCourt.ca’s coverage of Khadr here). Advocates of Omar Khadr, both legal and political, continue to emphasize his Canadian citizenship as a key element of his plight. However, I would like to use this opportunity to draw attention to the dramatically less successful Charter challenges of two non-citizens also being detained at the American naval base at Guantanamo Bay, and how citizenship is used as a barrier to realizing Charter rights.

Background

Both the Federal Court and the Federal Court of Appeal have found that while the Charter did apply to the Canadian government’s interactions with Khadr, it does not apply to the Canadian government’s analogous treatment of non-citizens. On February 18th, the Supreme Court of Canada (“SCC”) denied leave to hear the appeal of Slahi v Canada (Justice), 2009 FCA 259. This means that the Federal Court of Appeal’s disturbing holding that the Charter can never protect non-Canadians outside of Canada will be binding precedent for some time.

Mohamedou Ould Slahi, a permanent resident of Canada and a Mauritanian citizen, and Ahcene Zemiri, an Algerian citizen who lived in Canada for seven years and whose wife and son continue to live in Canada, are both detainees in Guantanamo. They allege that they were visited and questioned by CSIS and the RCMP in 2003 and 2004. They seek disclosure of the content of these interviews from the Canadian government. They ask for this disclosure in order to corroborate claims of torture and abuse in their habeus corpus claims within the American legal system.

The FC Decision

At the Federal Court, Blanchard J. was satisfied that the interviews by Canadian officials did happen, and that these officials did pass on information to U.S. authorities (see 2009 FC 160). He also acknowledged the overwhelming similarity to Canada (Justice) v Khadr, [2008] 2 SCR 125 [Canada v Khadr]: “The underlying circumstances here are essentially the same as they were for Mr. Khadr; they were detained in Guantanamo Bay […] the interviews at issue were conducted by Canadian officials in Guantanamo Bay during the time the regime established under Military Commission Order No. 1, issued on March 21, 2002, governed.” It should also be noted that Slahi and Zemiri are represented by the same counsel as Khadr, Nathan Whitling of Parlee McLaws LLP.

In light of Canada v Khadr, he held that “the Charter would apply to the Canadian officers participating in the interviews of the Applicants in Guantanamo Bay, since they too were involved in a process that violates Canada’s international law obligation.” Oddly, however, after that very favourable finding for the applicants, Blanchard J. held that, despite the general application of the Charter, the section 7 guarantee that Slahi and Zeremi sought to claim did not apply.

In reviewing the section 7 case law, he concluded that “for section 7 Charter rights to apply, the circumstances must connect the claimant with Canada, whether it be by virtue of their presence in Canada, a criminal trial in Canada, or Canadian citizenship.” One immediate concern is that this is a laughably limited list of “nexus”-fulfilling circumstances, especially if Blanchard J. considers this to be an exhaustive list. For example, how could torture at the hands of Canadian stage agents not fulfill the nexus requirement?

A much more pressing concern, however, is Blanchard J.’s failure to articulate why, after the test for Charter extra-territoriality was laid out in Hape, a specific and separate extra-territoriality test is needed for each individual Charter right. Most of all, those rights guaranteed to “everyone” must surely follow the Charter when it generally applies to state agents due to the Hape exception.

His protest that “the focus on citizenship is not new” overlooks the fact that the relevant legal test for extra-territoriality is new. His use of pre-Hape case law to add a citizenship-focused gloss to the extra-territoriality is unconvincing, as is his selective quoting of Canada v Khadr, where citizenship is mentioned descriptively but never emphasized for its legal relevance. The fact that past courts may have been willing to give carte blanche to the Canadian government in its treatment of all people not holding Canadian passports does not mean they should continue, especially in light of the growing awareness and global sensitivity to human rights abuses committed in far-off lands during the “war on terror.”

The FCA Decision

On appeal, the Federal Court of Appeal delivered a shockingly brief judgment, denying Slahi and Zemeri’s claim in a mere eleven paragraphs. In an attempt to subvert Wilson J.’s well-known conclusion that section 7 protects citizens and non-citizens alike, Evans J.A. found for a unanimous court that “[t]he fact that the rights contained in some sections of the Charter are limited to Canadian citizens, while others, including section 7, are not, is not of much significance in a case where it is argued that the Charter applies extraterritorially.” Given that Blanchard J. found that the Charter itself did apply to these actions, but that it was section 7 itself that was not engaged, this finding makes little sense.

Similarly, Evans J.A.’s remark that “[s]ince Mr. Hape was a Canadian citizen, it was obvious that he had a nexus with Canada and it was unnecessary for the Court to address the question” follows in the well-known judicial tradition of interpreting a particular element of a precedent to be so obvious that the legal test completely omits any mention of it. If the Hape court intended citizenship (or some other form of “nexus”, which neither interrogation nor detention seem to constitute) to be a requirement for extra-territoriality, why did it fail to mention it? All these issues remained unanswered by both the Federal Court and Federal Court of Appeal, and (now due to the denial of leave) by the Supreme Court.

Conclusion

TheCourt.ca recently proclaimed Amnesty International Canada v Canadian Forces, 2008 FCA 401, another Federal Court of Appeal judgment denying Charter application to non-citizens, as tied for the Most Disappointing Refusal of Leave for 2009. I would like to submit an advance nomination for Slahi v Canada as the Most Disappointing Refusal of Leave for 2010. The lack of guidance from the SCC on what rules govern interactions between the Canadian state and the world’s citizens is troubling not only from the important perspective of human rights, but also in light of the simple desire for coherent and consistence jurisprudence. The SCC should be using these cases to articulate a clear doctrine of extra-territoriality – and protecting the fundamental rights of vulnerable people like Slahi and Zemeri – instead of leaving its dirty work to the court below.