08 Jun Lessons from the Great White North: Canada’s Supreme Court Limits Extraterritorial Application of its Charter
I just noticed this decision yesterday by the Canadian Supreme Court holding that the Canadian Charter of Rights and Freedoms generally does not apply to searches and seizures in foreign countries, even those that eventually result in evidence that is used in a trial of a Canadian citizen.
I’m far from knowledgeable about Canadian law, but it does seem that this issue is very similar to the U.S. Supreme Court’s decision in Verdugo-Urquidez to similarly limit the applicability of the U.S. search and seizure provision, the Fourth Amendment, to U.S. government actions overseas. The cases aren’t exactly the same, of course, but it is interesting that both achieved the same result by pretty different paths. The Canadian decision seems to rely heavily on principles of conflict of jurisdiction recognized under international law to reach its narrower interpretation of the Charter whereas the U.S. decision focused heavily on the text of the U.S. Constitution. But I’ll have to read the whole thing more carefully before I can say anything really useful.
One catty note: I am shocked, shocked! that the Canada Supreme Court did not actually cite the U.S. Supreme Court’s decision in Verdugo, even though the facts are quite similar and the Charter provision is pretty analogous to the Fourth Amendment (they did cite a law review article complaining about Verdugo, though). I am tempted to observe that citing foreign law is OK, in Canada’s Charter jurisprudence, as long as it isn’t American constitutional law. I’m sure that’s not right as a general matter, but it sure seems like it here.
And that’s an opposite outcome from the UK controversy involving Lord Goldsmith (no relation?) and the Human Rights Act. Are these outcomes inconsistent, or are there real differences in the texts as to application?
Diplomatic Gunboat,
quite what the outcome of the UK controversy over the territorial reach of the Human Rights Act (and, of course, the ECHR) will be is as yet unknown.
The Court of Appeal has decided in R (Al-Skeini) v. Secretary of State for Defence [2005] EWCA Civ 1609, [2007] QB 140, would apply to action by the UK public authorities (above all, the British Army) in Iraq on the basis of their effective control over persons there. This meant that, because the Army could not be said to have effective control over all of the British ‘zone’ in Iraq (and because the application of the Convention to foreign territories in general is governed by Article 56 ECHR), people simply living in the south of Iraq did not enjoy ECHR protection. On the other hand, people in the custody of UK forces (principally in military prisons) are very much under the ‘jurisdiction’ (Article 1 ECHR) of the UK, and so would enjoy protection under the ‘effective control’ principle.
However, the case has moved on to the House of Lords, which is due to give judgment on Wednesday, 13 June (see the announcement here).
Sorry, that should of course have read: ‘The Court of Appeal has decided in (…) that the Human Rights Act would apply (…).’
Incidentally, how does Lord Goldsmith come into this personally? As Attorney-General, he might have represented the Government in the House of Lords (he hasn’t appeared in the lower courts), and he would presumably – at least publicly – share the position of the Government. Has he made public statements to that effect?
Another aside:
Even the British approach might not apply to search and seizure operations by British officials abroad. While it is more than reasonable to say that a prison inmate is under the jurisdiction of the State that has imprisoned him for all practical purposes, the search and seizure situation may be more readily equated with the very limited control over only one aspect/human right that NATO forces exercised on the facts in Bankovic and Others v. Belgium and Others (where the NATO warplane clearly had power of life and death, but only that).
But there is some room for the argument that the illegality of the extraterritorial action by the RCMP officers is not necessarily determinative of the ultimate admissibility issue at the subsequent trial (and this is so even beyond the exceptions noted by the Court).
We could imagine, for example, that a Canadian officer abroad forces someone to confess to a crime. In that case, the true answer does not depend on whether the force (or deception) used was unlawful: the right to a fair trial includes a right against self-incrimination (Article 14(3)(d) ICCPR and Funke v. France, para. 44), and this applies not only in the form of a prohibition of any coercion to incriminate oneself, but also as a rule of inadmissibility once this has happened. The rule of inadmissibility does not depend on whether the force or deception used was itself a violation of the prohibition: this appears clearly from Saunders v. UK, para. 67, where the statutory obligation on Mr Saunders to incriminate oneself fell outside the scope of application of the right to a fair trial, but the Court nevertheless concerned itself with the admission of the resulting statements at his trial.
Julian, I believe you were correct to resist the temptation to observe that citing foreign law is OK in Canada’s Charter jurisprudence, as long as it isn’t American constitutional law.
I am sure others can point to more modern studies of Canadian Charter jurisprudence, but for starters I refer you to:
The Canadian Supreme Court and American Judicial Review: United States Constitutional Jurisprudence and the Canadian Charter of Rights and Freedoms by Christopher P. Manfredi: The American Journal of Comparative Law, Vol. 40, No. 1 (Winter, 1992), pp. 213-235
which argues that the adoption of the Charter led to an increase in the citation of US constitutional law by the Supreme Court of Canada. It would be interesting to see if that trend has continued.
While there may be no cite to Verdugo, the decision in Hape demonstrates the Canadian Supreme Court’s receptiveness to international law and to foreign practices generally.
The court reiterates the applicability of the ‘adoption principle’ in Canadian law at para. 39:
At para. 53, the Court notes that legislation is presumed to be in conformity with international law.
Finally, at para. 55 it states that international law should inform the interpretation of the Charter of Rights and Freedoms.
Justice Binnie’s concurring opinion further demonstrates the SCC’s keen awareness not only of foreign practices, but also the growing implications of extraterritorial application of constitutional protections.
He write at para. 184: