“There is existing but conflicting case law about how and when the Charter applies outside of Canada,” said CCF Litigation Director, Christine Van Geyn. “We are intervening in this case to contribute to the development of the law. In a globalized world, Canadian executive members are more likely to act outside Canada, and it is important to clarify the limits of how the executive can conduct itself. We have proposed a test that is nuanced, respects sovereignty and comity, but also ensures that Canadian officials don’t have a ‘free pass’ while abroad.”
The CCF’s proposed test has three parts. First, the court must ask whether the officials are acting pursuant to valid laws or procedures. Second, if so, is their conduct substantially different from the principles emanating from the Charter? And third, if their conduct is substantially different from the principles of the Charter, is a substantive difference reasonable and justified in the circumstances?
The CCF is represented by Jesse Hartery and Akshay Aurora of McCarthy Tétrault.
“The current law on the extraterritorial application of the Charter is a patchwork of exceptions that create profound doctrinal problems. This has resulted in a lack of clarity and predictability for citizens and governments alike. This case provides an opportunity for the Court to revisit its case law and take a nuanced approach. It is time for the Court to say unequivocally that state actors do not have a free pass while abroad,” said Hartery.
The hearing will be live streamed on the Supreme Court of Canada’s website on May 19, 9:30 am EST, here.
For further comment, media can contact the CCF’s Litigation Director, Christine Van Geyn at [email protected]