The Extraterritorial Application of the Canadian Charter to Detainees in Canadian Military Custody: A Re-Examination of the Federal Court of Canada Case Amnesty International Canada V. Canada (Canadian Forces)

By Grover, Sonja | The High Court Quarterly Review, October 2008 | Go to article overview

The Extraterritorial Application of the Canadian Charter to Detainees in Canadian Military Custody: A Re-Examination of the Federal Court of Canada Case Amnesty International Canada V. Canada (Canadian Forces)


Grover, Sonja, The High Court Quarterly Review


Abstract: In Amnesty International Canada v. Canada (Canadian Forces), the Federal Court of Canada held that the Canadian Charter of Rights and Freedoms does not protect against the transfer of detainees held by Canadian Forces to Afghan authorities even if the transfer exposes detainees to a substantial risk of torture. This paper sets out the legal basis for extension of the Canadian Charter to the detainees. The argument is made that international law principles themselves prohibit the abrogation or derogation from a higher standard of human rights protection potentially available to a vulnerable group. It is explained how that principle applies in this case. The paper thus examines the question of extraterritorial jurisdiction in the application of human rights protections. The interplay between international law and the domestic human rights law of the State when on foreign soil with effective military custody and control over foreign detainees is explored.

**********

1. (A) Background

1.1 The Applicant's Petition in Amnesty International Canada v. Canada (Canadian Forces) [2008] F.C.J. No. 356; 2008 FC 336 was summarized in the judgment as follows:

(i) The applicants allege that the formal arrangements which have been entered into by Canada and Afghanistan do not provide adequate substantive or procedural safeguards to ensure that individuals transferred into the custody of the Afghan authorities, as well as those who may be transferred on to the custody of third countries, are not exposed to a substantial risk of torture.

(ii) The applicants ask for a declaration that sections 7, 10 and 12 of the Canadian Charter of Rights and Freedoms apply to individuals detained by the Canadian Forces in Afghanistan. (1) They further seek various forms of declaratory relief relating to the alleged breaches of detainees' Charter rights.

(iii) The applicants also seek a writ of prohibition preventing the transfer of detainees captured by the Canadian Forces to Afghan authorities, or to the custody of any other country, until such time as adequate substantive and procedural safeguards have been put into place.

(iv) Finally, the applicants ask for a writ of mandamus compelling the respondents to enquire into the status of detainees previously transferred to Afghan authorities, and requiring the respondents to demand the return of these individuals.

(v) Named as a respondent to this application is General Rick J. Hillier--the Chief of the Defence Staff for the Canadian Forces. The other respondents are the Minister of National Defence and the Attorney General of Canada.

(vi) ... the applicants' application for judicial review relies entirely on the Canadian Charter of Rights and Freedoms for its legal foundation. The parties thus agree that if the Charter does not apply to the conduct of the Canadian Forces in issue in this case, it necessarily follows that the application for judicial review must be dismissed. (2)

1.2 It is to be noted that "the Department of State of the United States, the Afghan Independent Human Rights Commission, the United Nations High Commissioner for Human Rights, and the United Nations Assistance Mission in Afghanistan have all recognized the serious systemic problem of detainee torture and abuse in Afghan prisons." (3) Thus, the allegations of torture and other maltreatment inflicted on detainees transferred from Canadian military custody to Afghan custody as well as allegations of missing transferred detainees are particularly worrisome. (4)

1.3 The Federal Court of Canada maintained that Amnesty International Canada v. Canada (Canadian Forces) involved "novel and important questions that will undoubtedly have significant implications for the exercise of Canadian military power, and may, as well, have potential consequences for cases well beyond the facts of this one. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Extraterritorial Application of the Canadian Charter to Detainees in Canadian Military Custody: A Re-Examination of the Federal Court of Canada Case Amnesty International Canada V. Canada (Canadian Forces)
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.