Hape v. Her Majesty the Queen (Attorney-General of Ontario intervening)

Abstract

Relationship of international law and municipal law — Canadian Charter of Rights and Freedoms — Interpretation and application — Interpretation of Section 32(1) of Charter — Jurisdictional scope — Extraterritorial application — Canada’s obligations under international law — Domestic reception of international law — Doctrine of adoption — Prohibitive rules of customary international law as interpretative aid — Principle of respect for sovereignty of foreign States — Principle of non-intervention — Principle of respect for territorial sovereignty of foreign States — Comity as interpretative principle — Presumption of conformity of Canadian legislation to international law — Investigatory actions by Canadian law enforcement officials in Turks and Caicos Islands — Whether Section 8 of Charter applying to searches and seizures by Canadian police outside Canada

Territory — Territorial sovereignty — Customary international law — Principle of respect for sovereignty of foreign State — Principle of sovereign equality — Article 2(1) of United Nations Charter — 1970 UN General Assembly Declaration applying principle to non-UN Member States — Principle of non-intervention — Principle of respect for territorial sovereignty of foreign States — Whether extraterritorial application of Canadian Charter of Rights and Freedoms interfering with sovereign authority of foreign State

Jurisdiction — Principles of jurisdiction — Principles arising from sovereign equality and duty of non-intervention — Bases of jurisdiction — Interplay between various forms and bases of jurisdiction — Whether extraterritorial exercise of jurisdiction permissible — Enforcement jurisdiction — Limits on extraterritorial jurisdiction based on sovereign equality, non-intervention and territoriality principle — Principle of consent — Whether Canada permitted to exercise enforcement jurisdiction over matter outside Canadian territory without consent of other State — Whether Canadian Charter of Rights and Freedoms having extraterritorial application — Whether Section 32 of Charter having territorial limitations

Human rights — Protection of fundamental human rights when Canadian officers investigating abroad — Effective participation in fight against transnational crime — Requirement that Canadian officials follow foreign laws and procedures — Comity — Whether foreign procedures violating fundamental human rights — Balance — Whether international law or Canadian Charter of Rights and Freedoms appropriate vehicle to achieve balance — Whether Charter applying extraterritorially

Comity — Comity of nations as interpretative principle — Appropriateness of comity — Whether any clear violations of international law — The law of Canada