R. v. Hape: International Law before the SCC

Originally published with: “Case comment: R. v. Hape, 2007 SCC 26”, International Law Bulletin & The Advocate, 66 (6), November 2008

8 Pages Posted: 30 Apr 2013

See all articles by Noemi Gal-Or

Noemi Gal-Or

Kwantlen Polytechnic University

Date Written: November 1, 2008

Abstract

The Supreme Court of Canada recently had occasion to tackle the extraterritorial application of the Charter and the domestic judicial interpretation and application of international law in R. v. Hape, 2007 SCC 26. Shortly thereafter, Hape came to figure prominently in the application for judicial review concerning the Canadian Armed Forces’ treatment of Afghani detainees. In an age of exponential growth in international law, a state’s judiciary cannot afford the luxury of oblivion to its domestic implications. Whether we like it or not, more than ever before, international law has become part of domestic regulation and governance, and if only by distinction. Hape glaringly illustrates this prise de conscience. It also demonstrates that in matters of security, incorporating international legal considerations within our domestic law is a complex fiat. Although the full court reached the same final decision and rejected the appeal, it was divided into three groups, reasoning along three different lines. Moreover, the two concurring judgments strongly challenged the reasons of the majority.

Keywords: Supreme Court, International law, Armed Forces, Afghanistan

Suggested Citation

Gal-Or, Noemi, R. v. Hape: International Law before the SCC (November 1, 2008). Originally published with: “Case comment: R. v. Hape, 2007 SCC 26”, International Law Bulletin & The Advocate, 66 (6), November 2008, Available at SSRN: https://ssrn.com/abstract=2257400 or http://dx.doi.org/10.2139/ssrn.2257400

Noemi Gal-Or (Contact Author)

Kwantlen Polytechnic University ( email )

12666-72nd Avenue
Surrey, British Columbia V3W 2M8
Canada

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