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)  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. …