Tuesday, January 27, 2009

Scope of the Charter

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...[100] The search for an answer to this question must begin with a review of the wording of the Charter itself, followed by careful consideration of recent jurisprudence from the Supreme Court of Canada as to the extraterritorial application of the Charter.

a) Section 32(1) of the Charter

[101] Section 32(1) of the Charter provides that:

This Charter applies

a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

[102] As the Supreme Court of Canada has noted, section 32(1) determines who is bound by the Charter, and what powers, functions or activities of those bodies and their agents are subject to the Charter: Hape, at ¶32.

[103] In identifying who is bound by the Charter, section 32(1) makes it clear that the Charter is intended to regulate the conduct of “state actors”: see Hape at ¶81.

[104] The respondents have previously questioned whether the Canadian Forces in Afghanistan are acting as Canadian state actors in this case: see Amnesty #1, at ¶73.

[105] However, for the purposes of this motion, the respondents have accepted that in carrying out their duties in Afghanistan, as part of both OEF and ISAF, the Canadian Forces are indeed functioning as Canadian state actors.

[106] It is noteworthy that section 32(1) does not expressly impose any territorial limits on the application of the Charter. As a consequence, it falls to the courts to interpret the jurisdictional reach and limits of the Charter: see Hape, at ¶33.

[107] The Supreme Court of Canada has recently pronounced on precisely this question in R. v. Hape, albeit in a different factual context. As the Supreme Court’s view of this issue must obviously be of central importance to the Court’s analysis in this case, it is important to have a clear understanding of precisely what the Supreme Court had to say in Hape. This will be addressed next..."

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