Khadr's Twist onHape: Tortured Determinations of the Extraterritorial Reach of the CanadianCharter

Abstract

SummaryThis comment reviews the Supreme Court of Canada’s May 2008 decision inCanada (Justice) v. Khadr, in which the Court announced an exception to its June 2007 holding inR. v. Hape. Hapeheld, on international legal grounds, that application of theCanadian Charter of Rights and Freedomsto the acts of Canadian officials abroad is “impossible.”Khadrheld that this was 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 theHapeprinciple, which, it is argued, is ill-founded in international law. However, the author is also critical of the Court’s failure to engage directly withHape's many flaws or to justify in any way the seemingly arbitrary exception to it propounded inKhadr. 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 theCharter.