Date: 20081217
Docket: A-149-08
Citation: 2008 FCA 401
CORAM: RICHARD
C.J.
DESJARDINS J.A.
NOËL
J.A.
BETWEEN:
AMNESTY INTERNATIONAL CANADA and
BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION
Appellants
and
CHIEF OF THE DEFENCE STAFF FOR THE
CANADIAN FORCES,
MINISTER OF NATIONAL DEFENCE and
ATTORNEY GENERAL OF CANADA
Respondents
and
CANADIAN CIVIL LIBERTIES ASSOCIATION
Intervener
REASONS FOR JUDGMENT
DESJARDINS J.A.
[1] This is an
appeal from an order of Mactavish J. (the motions judge) of the Federal Court
(2008 FC 336) made pursuant to rule 107 of the Federal Courts Rules
(S.O.R./98-106).
[2] The
appellants brought an application for judicial review with respect to detainees
held by the Canadian Forces (the CF) in the Islamic Republic of Afghanistan and
to the transfer of these individuals to Afghan authorities. The appellants
sought various forms of declaratory relief, including a declaration that
sections 7, 10 and 12 of the Canadian Charter of Rights and Freedoms (the
Charter) apply to the detainees. The respondents in this application are the
Chief of Defence Staff for the CF, the Minister of National Defence, and the
Attorney General of Canada.
[3] As both
parties agreed that the application for judicial review would fail if the
Charter is not found to apply to the actions of the CF in these circumstances,
they jointly decided to have this issue determined by rule 107 motion on the
basis of the following questions:
1. Does the Charter apply during the armed conflict in
Afghanistan to the detention of non-Canadians by the Canadian Forces or their
transfer to Afghan authorities to be dealt with by those authorities?
2.
If the answer to the above question is "NO" then would the Charter
nonetheless apply if the Applicants were ultimately able to establish that the
transfer of the detainees in question would expose them to a substantial risk
of torture?
[4] After
answering both of these questions in the negative, the motions judge dismissed
the application for judicial review.
[5] For the
reasons that follow, I am in agreement with her reasons for judgment and with
her disposition of the case.
Question 2
[6] The
appellants addressed the second question first.
[7] They submit that
in R. v. Hape, [2007] 2 S.C.R. 292, 2007 SCC 26 (Hape), the
Supreme Court of Canada adopted a new test for determining when the Charter
should apply to Canadian authorities’ action abroad. They say (at para. 36 of
their memorandum) that the majority opinion indicated that "the principles
of sovereign equality and comity supported a general rule that the application
of the Charter to Canadian authorities on foreign soil was prohibited
‘absent either the consent of the other state or, in exceptional cases, some
other basis under international law’" (underlined in the text). The
appellants claim (at para. 37 of their memorandum) that "the majority’s
reasons in Hape also seemed to suggest that, in addition to consent,
violations of fundamental human rights could constitute another exception to
its exclusionary jurisdictional rule".
[8] The motions
judge, the appellants say, reviewed these passages in Hape, but
ultimately she concluded that the Supreme Court of Canada did not create a
fundamental human rights exception to the general rule against territoriality.
Not long after her ruling, add the appellants, a unanimous Supreme Court of
Canada in Canada (Justice) v. Khadr, 2008 SCC 28 (Khadr), "confirmed
that Hape did indeed find that the Charter applied extraterritorially in
respect of fundamental human rights violations at international law"
(appellants’ memorandum at para. 37).
[9] In my view, Khadr
has not changed the principles applicable to the concepts of territoriality and
of comity set out by the Supreme Court of Canada in Hape.
[10]
Khadr
was a Canadian citizen who was claiming access to all documents in the
possession of Canadian authorities that were relevant to his defence in
proceedings before a U.S. military tribunal.
[11]
The
Supreme Court of Canada held that, subject to ss. 38 ff. of the Canada
Evidence Act (R.S.C. 1985, c. C-5), Khadr should
be given access to the records and information that Canadian officials gave to
the U.S. military authorities as a result of the interviews the Canadian officials
conducted with Khadr at Guantanamo Bay (Khadr at para. 37). The basis
for the Court’s decision was that Canada had participated in U.S. procedures that,
pursuant to the decision of the U.S Supreme Court in Rasul v. Bush (542
U.S. 466; 124 S. Ct. 2686; 159 L. Ed. 2d 548), denied the detainees access to habeas
corpus contrary to U.S. laws and were in violation of the Geneva Conventions
to which the U.S. were signatories. The Supreme Court of Canada held that the
holdings of the U.S. Supreme Court were based on principles consistent with the
Charter and Canada’s
international obligations (Khadr at para. 21). Consequently, the participation
of Canadian officials in the illegal U.S. military procedures was, to the
extent of that participation, in violation of Canada’s
international obligations and with the principles embodied in the Charter. Khadr’s
rights under section 7 of the Charter had been violated and he was entitled to
a remedy under subsection 24(1) of the Charter. The disclosure order granted by
the Supreme Court of Canada remained territorial and was the following (Khadr
at para. 37):
The appellants must
disclose (i) all records in any form of the interviews conducted by Canadian
officials with Mr. Khadr, and (ii) records of any information given to U.S. authorities
as a direct consequence of Canada’s having interviewed him. This
disclosure is subject to the balancing of national security and other
considerations as required by ss. 38 ff. of the Canada Evidence Act.
[12]
The
order did not refer to any possible U.S. document which might have been given
to Canadian authorities by U.S. authorities. While the assistance of the
Canadian officials had been extraterritorial, the Supreme Court of Canada made
it clear that “the Hape comity concerns that would ordinarily justify
deference to foreign law have no application here" (Khadr at para.
26).
[13]
Given
the holdings of the U.S. Supreme Court, no issue of deference to U.S. laws arose. Khadr
stands therefore as a case where a Canadian citizen obtained disclosure of
documents held in Canada and produced by Canadian officials for a breach
of his rights under section 7 of the Charter by Canadian officials participating
in a foreign process that violated Canada’s international human
rights obligations.
[14]
The
factual underpinning of this decision is miles apart from the situation where
foreigners, with no attachment whatsoever to Canada or its laws, are held in CF
detention facilities in Afghanistan.
[15]
This is indeed the characterization given by the appellants
in their memorandum of fact and law (at para. 34), which reads:
The
present case is the first time Canadian courts have considered whether
individuals detained by the Canadian military on foreign soil can claim the
protections of the Canadian Charter of Rights and Freedoms.
[16]
In
his oral submission, counsel for the appellants indicated that his claim
pertains to the application of the Charter on the actions of CF personnel as
opposed to individuals detained by the CF. This new characterization still
supposes that the Charter would apply to foreigners since restraint of CF personnel
is possible only if foreigners indeed have Charter rights.
[17]
The
motions judge could not have commented on Khadr since the Supreme Court
of Canada’s decision was delivered after her decision was rendered. But she did
comment on Hape.
[18]
She
analysed in detail the appellants submission with regard to Hape and concluded
(para. 324 of her reasons):
As
a consequence, it is clear that the majority decision in Hape did not
create a “fundamental human rights exception” justifying the extraterritorial
assertion of Charter jurisdiction where such jurisdiction would not otherwise
exist.
[19]
It
is important to return to the words used by the Supreme Court of Canada in Khadr
where the Court cites Hape. At para. 18 of Khadr, what the full
bench of the Supreme Court said about Hape is the following:
In Hape, however,
the Court stated an important exception to the principle of comity. While
not unanimous on all the principles governing extraterritorial application of
the Charter, the Court was united on the principle that comity cannot be
used to justify Canadian participation in activities of a foreign state or its
agents that are contrary to Canada’s international obligations. It
was held that the deference required by the principle of comity “ends where
clear violations of international law and fundamental human rights begin” (Hape,
at paras. 51, 52 and 101, per LeBel J.). The Court
further held that in interpreting the scope and application of the Charter,
the courts should seek to ensure compliance with Canada’s binding
obligations under international law (para. 56, per
LeBel J.).
[Emphasis is
mine.]
[20]
I
understand the Supreme Court of Canada to say that deference and comity end
where clear violations of international law and fundamental human rights begin.
This does not mean that the Charter then applies as a consequence of these
violations. Even though section 7 of the Charter applies to “Everyone …”
(compare with the words “Every citizen …” in section 6 of the Charter) all the
circumstances in a given situation must be examined before it can be said that
the Charter applies.
[21]
Contrary
to the appellant’s position (at para. 88 of his memorandum), Khadr is
not dispositive of this appeal. Neither is Hape, for the same reasons.
[22]
The
motions judge did not err in her conclusion on question 2.
[23]
An
examination of question 1 and of all the circumstances of this case is
therefore necessary.
Question 1
[24]
In
the case at bar, the key issue in question 1 is whether the CF has “effective
control” over territory in Afghanistan so that the Charter
should be given territorial application over Afghan territory and over Afghan
people.
[25]
Although
the CF authorities have command and control over the CF detention facilities at
Kandahar Airfields, Kandahar Airfields is a facility shared by Canada and several International
Security and Assistance Force (ISAF) countries participating in security and
infrastructure operations in Afghanistan. This “control” of the
detention facilities by the CF cannot be considered “effective” within the
meaning of the European Court of Human Rights (ECHR) Banković v.
Belgium decision no. 52207/99 (December 12, 2001, at paras 71-73).
[26]
The
CF are not an occupying force – they are in Afghanistan at the
request and with the consent of the governing authority. That authority has not
acquiesced to the extension of Canadian law over its nationals.
[27]
The
motions judge examined the documentary evidence before her and noted the
following:
[158] … the Afghan
Compact makes it clear that rather than having Afghanistan cede its
jurisdiction to states operating within its borders, the international
community has pledged to support Afghan sovereignty over its entire territory,
and to ensure respect for that sovereignty, even in the context of military
operations within that country.
[159]
Nothing
in the Afghan Compact suggests that Afghanistan has consented to the
application of Canadian law - or any other foreign law for that matter - within
Afghanistan.
[160]
Indeed,
the Afghan Compact specifically addresses the question of the protection
of human rights within Afghan territory, providing that both the Afghan
Government and the international community:
[R]eaffirm
their commitment to the protection and promotion of rights provided for in
the Afghan constitution and under applicable international law, including the
international human rights covenants and other instruments to which Afghanistan is a party. [Emphasis
added in original.]
[Underlined emphasis is mine.]
[28]
She
then concluded:
[161]
This
provision certainly suggests that insofar as the Government of Afghanistan is
concerned, the human rights regime governing the activities of the
international community within Afghanistan is that provided for in the
constitution of Afghanistan, along with the applicable international law.
[Underlined
emphasis is mine.]
[29]
There
was evidence before the motions judge that the Governments of Afghanistan and Canada have
expressly identified international law, including international humanitarian
law, as the law governing the treatment of detainees in Canadian custody. She
said:
[162]
Insofar
as the relationship between the Governments of Afghanistan and Canada is
concerned, the two countries have expressly identified international law,
including international humanitarian law, as the law governing the treatment of
detainees in Canadian custody.
[163]
The
first document manifesting this intent is the Technical Arrangements between
the Government of Canada and the Government of the Islamic Republic of
Afghanistan. Article 1.1 of this document states that it is intended to
cover:
Canadian
activities in Afghanistan, including assistance to the ongoing armed conflict,
stabilization and development assistance in the form of PRT, assistance to the
Government of Afghanistan in the form of a Strategic Advisory Team, training of
the Afghan military, and assistance to law enforcement authorities. [at p. 2]
[164]
Article
1.4 of the Technical Arrangements then states that "In giving
effect to these Arrangements, the Participants will at all times act in a
manner consistent with their obligations under international law".
[Emphasis
added in original.]
[165]
Amongst
other things, the Technical Arrangements deal with the status of
Canadian personnel within Afghanistan. In this regard,
Article 1.2 of the Annex to the Technical Arrangements reflects the
undertaking of the Canadian government to "take measures to ensure that
all Canadian personnel ... will respect international law and will
refrain from activities not compatible with the nature of their operations or
their status in Afghanistan".
[Emphasis
added in original.]
[30]
With
regard to the detainees, she found specifically:
[166]
Finally,
in relation to the treatment of detainees, Article 1.2 of the Technical
Arrangements provides that detainees are to be afforded "the same
treatment as Prisoners of War", and are to be transferred to Afghan
authorities "in a manner consistent with international law and
subject to negotiated assurances regarding their treatment and transfer".
[Emphasis
added in original.]
[167]
Moreover,
the use of the term "Prisoners of War" in the Technical
Arrangements is significant. That is, the phrase "Prisoners of
War" describes a legal status recognized in, and defined by the branch of
international law governing armed conflict, namely international humanitarian
law. International humanitarian law has numerous sources, including instruments
such as the Geneva Convention Relative to the Protection of Civilian Persons
in Time of War, Can. T.S. 1965 No. 20. The rights of individuals detained
during armed conflicts are clearly spelled out by international humanitarian
law.
[31]
The
appellants claim (at paras. 75 to 83 of their memorandum) that the motions judge
erred in law by setting an unnecessarily high standard for establishing consent
by a foreign state. They assert that she was looking for specific language indicating
that the Government of Afghanistan had given its consent to having Canadian
Charter rights conferred to its citizens within its territory. The appellants
contend that she failed to have due regard to whether the conduct of the
Government of Afghanistan amounted to an invitation or “acquiescence” to Charter
protection being afforded to its citizens held in detention by the CF. Given that
the Afghan government clearly consents to the CF exercising a wide range of
powers, it would, according to the appellants, be illogical to conclude that "the
Afghan government would consent to Canada exercising this kind of power over
its citizens, but has drawn a line with respect to Charter protection of human
rights" (at para. 77 of appellants’ memorandum).
[32]
The
motions judge noted that the Government of Afghanistan has expressly consented
to the application of Canadian law to all “Canadian personnel”. She indicated that
the words “Canadian Personnel” were defined as specifically excluding Afghan
nationals. It followed logically, she said, that the Government of Afghanistan
has not consented to the application of Canadian law, including the Canadian
Charter in other situations (paras. 168-170 of her reasons).
[33]
Considering
that the motions judge decided according to the evidence, the intervention of
this Court is unwarranted.
[34]
The
appellants submit finally that this Court should not follow the legal reasoning
of the motions judge who rejected as being uncertain the notion of
"effective control of the person" principle, suggested by European
and British case law and other sources. She rejected this theory as being problematic
(at para. 274 of her reasons) in the context of a multinational military effort
since it would result in a patchwork of different national legal norms applying
to detainees in different parts of Afghanistan. She gave preference to
the consent-based test of Hape, a case which was binding on her (at
para. 294 of her reasons).
[35]
The
motions judge did not err in so doing.
Conclusion
[36]
I
conclude that the motions judge made no errors in answering the way she did the
two questions that were before her. The Charter has no application to the
situations therein described. There is no legal vacuum, considering that the
applicable law is international humanitarian law. As found by the motions judge
(at para. 64 of her reasons):
64
Before
transferring a detainee into Afghan custody, General Laroche must be satisfied
that there are no substantial grounds for believing that there exists a real
risk that the detainee would be in danger of being subjected to torture or
other forms of mistreatment at the hands of Afghan authorities.
[37]
The
Canadian Civil Liberties Association appeared as intervener in this case. After
considering their submissions, my conclusions remain the same.
[38]
This
appeal will be dismissed with the respondents’ costs awarded against the
appellants.
"Alice
Desjardins"
“I
agree.
J. Richard
C.J.”
“I
agree.
Marc
Noël J.A.”
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