International Comity and the Construction of the Charter's Limits: Hape Revisited
Bibliographic record
Abstract
In this article, the author examines the Supreme Court of Canada’s approach to international comity and Charter rights cases with foreign elements through the lens of R v Hape. Contrasting the seemingly contradictory outcomes in Hape and in the Khadr cases, the author contends that comity has a significant role in the Court’s reasoning about the Charter’s extraterritorial applicability. The author relates this reasoning to the traditional outlook of Commonwealth foreign relations law, which excluded the conduct of foreign affairs from legal control. The author proceeds in five parts. First, the author explains how previous scholarship has tended to focus on Hape’s treatment of jurisdiction under international law, rather than on international comity. Second, the author posits that comity has a “permissive” face that justifies extraterritorial action in the interests of international co-operation and a “preclusive” face that restrains the reach of Canadian standards of justice. Third, the author argues that comity’s role in Hape mirrors its role in the Court’s private international law jurisprudence. In that jurisprudence, comity’s two faces operate as an extra-legal mechanism to mediate conflicting exercises of state sovereignty, based on a classical, positivist vision of the international order. Fourth, it is shown that the majority’s reasoning in Hape reflects a positivist conception of sovereignty, international law, and comity. It presupposes a division between an external realm of sovereign power and an internal realm of peace, order, and legality. Fifth, the article evaluates Bastarache J’s concurring opinion — which attempts to normalize the treatment of rights cases with foreign elements — as an alternative framework for the extraterritorial application of the Charter. The author concludes by noting the trend in other jurisdictions to move away from and question the exclusionary outlook in foreign relations law. Whether the Canadian jurisprudence will follow that course remains to be seen.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.005 | 0.010 |
| Meta-epidemiology (narrow) | 0.000 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.002 | 0.002 |
| Science and technology studies | 0.013 | 0.049 |
| Scholarly communication | 0.017 | 0.008 |
| Open science | 0.003 | 0.007 |
| Research integrity | 0.006 | 0.013 |
| Insufficient payload (model declined to judge) | 0.006 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".