In my previous post, I talked about the new ground broken by Khadr. In this post, I want to identify and offer preliminary reflections on some important questions raised by the judgment. First, though, full disclosure: I was counsel for the British Columbia Civil Liberties Association in the appeal. Second, a disclaimer: these views are strictly my own.
To recall, in my last post, I wrote
Suresh established what we termed the
“doctrine of constitutional complicity”, which holds that Canada is
constitutionally liable for human rights abuses committed by foreign
states which occur outside of Canada when (a) such abuses would violate
the Charter had they occurred in Canada at the hands of the Canadian
government; and (b) Canada has been complicit in the human rights
abuses of the foreign state.
In fact, Suresh built upon and extended two previous decisions, Burns and Singh which held that Canada would be constitutionally liable for extradition to face the death penalty (Burns), and the denial of entry to Canada which would potentially expose someone to a deprivation of their security of the person (Singh). As these three cases make clear, the textual home for this doctrine has been s. 7 of the Charter (although it need not be). Thus, in every case, the question has been whether the human rights abuse would violate s. 7 if committed by Canada within Canada. And as I mentioned earlier, the Court has looked to international human rights law as a source of the principles of fundamental justice, to determine when such violations have occurred.
