Charter Without Borders? The Supreme Court of Canada, Transnational Crime and Constitutional Rights and Freedoms

Abstract

The first decades of the Supreme Court of Canada's Charter jurisprudence have coincided roughly with an increase in the extent to which Canada is affected by transnational crime and the nation's consequential participation in inter-state efforts to combat it. The court itself has remarked on its discrete "jurisprudence on matters involving Canada's international co-operation in criminal investigations and prosecutions." This article examines the Court's adoption of a different approach to Charter analysis in cases involving transnational elements and surveys where the Court has "drawn the line" in terms of Charter application.

By way of analyzing jurisprudence on exclusion of evidence gathered abroad, extradition, deportation and mutual legal assistance, the author critiques the Supreme Court's approach to Charter analysis in cases with a transnational criminal aspect. He argues that deference to the government in its perceived need for inter-state comity has led to less rigour in the Court's application of domestic human rights standards to individuals who are facing extradition or who are being criminally investigated by and/or in another state. In conclusion, the author calls for a more robust approach to Charter application in such cases and argues that concern about extra-territorial application of the Charter does not necessarily justify a diminished level of human rights protection for individuals facing foreign process.

Keywords: Supreme Court of Canada, extradition, transnational crime, Constitution, human rights