|
Charter - s.32 Application. Canada v. Boloh 1(a)
In Canada v. Boloh 1(a) (Fed CA, 2023) the Federal Court of Appeal considers the geographical application of the Charter:[55] In any event, the Charter and all of the sections the respondents invoke do not apply. Canadian state conduct did not lead to the respondents being in northeastern Syria, did not prevent them from entering Canada, and did not cause or continue their plight. The respondents’ own conduct and persons abroad who have control over them alone are responsible. In no way is the Government of Canada infringing the respondents’ right to liberty nor on these facts is it violating a principle of fundamental justice (section 7), arbitrarily detaining the respondents (section 9), inflicting cruel and unusual punishment on them (section 12) or discriminating against them (section 15). To the extent these rights are being infringed, entities other than the Government of Canada are responsible.
[56] Further, the application of the Charter in this case would be extraterritorial and invalid. True, sometimes the Charter can apply to circumstances outside of Canada: see e.g., Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44. But for that to happen, there must be some action or involvement by the Government of Canada to attract the application of the Charter. In particular, there must be either evidence of "“Canadian participation in a process that violates Canada’s international law obligations”" or "“consent by the foreign state to the application of Canadian law”": R. v. McGregor, 2023 SCC 4 at para. 18; see also R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292 at paras. 51-52 and 101 and Canada (Justice) v. Khadr, 2008 SCC 28, [2008] 2 S.C.R. 125 at paras. 18-19. Neither is present here.
[57] As the Federal Court found, there is no evidence of Canadian participation or contribution to the respondents’ plight. A foreign state has not consented to the application of Canadian law. Instead, the respondents’ plight stems from foreign causes and the actions or omissions of the Autonomous Administration of North and East Syria, the Syrian Democratic Forces, or both. Thus, in this case, the Charter does not apply. . R. v. McGregor
In R. v. McGregor (SCC, 2023) the Supreme Court of Canada considered the s.32 'application' provision of the Charter, here in light of it's extra-territorial jurisdiction:[18] The starting point of the analysis is the text of the Constitution. The scope of application of the Charter is delineated in s. 32(1):32 (1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. This Court’s decision in Hape is the governing authority on the territorial reach and limits of the Charter under s. 32(1). Under the Hape framework, the Charter generally cannot apply to Canadian authorities involved in an investigation conducted abroad. This general rule is qualified by two exceptions: (1) consent by the foreign state to the application of Canadian law (para. 106); and (2) Canadian participation in a process that violates Canada’s international law obligations (paras. 51‑52 and 101; see also Canada (Justice) v. Khadr, 2008 SCC 28, [2008] 2 S.C.R. 125, at paras. 18‑19).
|
