Does The Charter Follow the Flag? Revisiting Constitutional Extraterritoriality after R v Hape

Jacques Maritain, the noted philosopher and political thinker and a principal drafter of the Universal Declaration of Human Rights, once contended that “political philosophy must get rid of the word, as well as the concept, of Sovereignty.” He reasoned as much “not because [sovereignty] is an antiquated concept,” or “because the concept of Sovereignty creates insuperable difficulties and theoretical entanglements in the field of international law,” but because “this concept is intrinsically wrong and bound to mislead us if we keep on using it.” Maritain’s proposal may have been exceedingly bold and his criticisms perhaps too harsh, but they nonetheless resonate over half a century later in light of the Supreme Court of Canada’s recent decision in R v Hape. The judgment in Hape, where the Court concluded on the basis of international law, including principles of sovereign equality and comity, that the Canadian Charter of Rights and Freedoms cannot apply extraterritorially, has been described as “deeply problematic on many levels.” Criticisms from scholars of both constitutional law and international law have been far from reserved. John Currie, for example, has assailed the Court for giving Canadian government officials “a blank cheque ... to violate the Charter with impunity as long as they do so abroad.” Given Hape’s purported grounding in principles of international law, it is not without some irony that the decision has been criticized for its reliance on an “incomplete—frankly, incorrect—view of international law,” the result of which is that the Court has “sacrifice[d] a basic aspect of Canadian sovereignty itself: namely expectations that Canadian officials respect Charter values when they act in their official capacity at home or abroad.” Equally troubling as the substantive outcome of Hape, however, is the criticism of the approach adopted by the Court in articulating its reasoning. The majority opinion has been faulted for its largely technical analysis of international law without any meaningful discussion of “the basic values and aspirations of the Charter or what the Charter means to Canada’s image of itself, especially when it presents itself to the world.” Moreover, the Court is criticized for its “radical” approach to reconciling its own precedents, forsaking a scalpel in favour of a sledgehammer. The decision in Hape “does not build on or attempt to distinguish prior precedents in this area but rather rejects them, as a critic working outside of the system might do,” Kent Roach has argued, concluding that “[t]his is not the way that judges should develop the law.” The purpose of this essay is to accept the invitation implicit in these criticisms by revisiting Hape and asking anew: Does the Charter follow the flag? The importance of this question is self-evident. The Charter is a cherished part of Canada’s Constitution; the two decades of jurisprudence that have sought to shape and give life to its amorphous protections mark the signal achievement of the Supreme Court of Canada in its modern era. More pragmatically though, as Amir Attaran has suggested, “Hape is an imperfect judgment that cannot last.” If that is indeed the case, as the Court’s more recent jurisprudence strongly suggests it is, then an analysis of potential alternatives serves to advance discussion of this important question. In this paper, I conclude that the Court’s reasoning in Hape rests on a flawed understanding of international law. Indeed, a more searching analysis reveals that there is ample basis to conclude that extraterritorial application of the Charter—far from being anathema to international law—is in harmony with emerging principles of state responsibility. An analysis of foreign jurisprudence provides added support for this conclusion. The question of international law aside, however, fidelity to the principles underlying the Charter necessitates an interpretation that contemplates extraterritorial application. This paper is divided into three parts. In Part I, I review the decision in Hape on its own terms, limiting my discussion to those aspects of international law discussed by the Court itself. I attempt to show that the Court’s conclusions on Canada’s extraterritorial jurisdiction and the authority of Parliament are based on a flawed assessment of international law. I also argue that the Court’s subsequent decision to recognize an exception to those conclusions exposes fatal contradictions within the Hape doctrine. In Part II, I propose a different way to look at the question of the Charter’s extraterritorial application through the lens of sovereign responsibility. I review several judgements of foreign high courts that show why this alternative approach is more consonant with emerging principles of international law. Finally, in Part III, I endeavour to demonstrate how the approach offered in Part II can be reconciled with the Charter and Hape, offering my view of how the Court might proceed in the future by building on the principal minority opinion in Hape itself.

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