Khadr's Twist on Hape: Tortured Determinations of the Extraterritorial Reach of the Canadian Charter

(2008) 46 Canadian Yearbook of International Law 307-335

29 Pages Posted: 10 May 2014 Last revised: 31 May 2014

See all articles by John Currie

John Currie

University of Ottawa - Faculty of Law

Date Written: 2008

Abstract

This paper reviews the Supreme Court of Canada's May 2008 decision in Canada (Justice) v Khadr, in which the court announced an exception to its June 2007 holding in R v Hape. Hape held, on international legal grounds, that application of the Canadian Charter of Rights and Freedoms to the acts of Canadian officials abroad is "impossible". Khadr, on the other hand, held that this is not so if the acts of Canadian officials abroad amount to participation in a process that violates Canada's international legal obligations. The author welcomes this partial retrenchment of the Hape principle, which, it is argued, was ill-founded in international law. However, the author is also critical of the Court's failure to engage directly with Hape's many flaws or to justify in any way the seemingly arbitrary exception to it propounded in Khadr. These failures, it is argued, serve only to deepen the legal and logical incoherencies that currently characterize, in the name of respect for Canada's international legal obligations, the rules governing the extraterritorial applicability of the Charter

Keywords: Khadr, R v Khadr, Supreme Court of Canada, Hape, R v Hape, international, legal, law, Canada, Charter

Suggested Citation

Currie, John, Khadr's Twist on Hape: Tortured Determinations of the Extraterritorial Reach of the Canadian Charter (2008). (2008) 46 Canadian Yearbook of International Law 307-335. Available at SSRN: https://ssrn.com/abstract=2434740

John Currie (Contact Author)

University of Ottawa - Faculty of Law ( email )

57 Louis Pasteur Street
Ottawa, Ontario K1N 6N5
Canada

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