Results | SCC-Authors-Cited

Watt, D. L., Beedell, J., Regimbald, G., Ragan, G., & Estabrooks, M. (2022). Supreme Court of Canada practice 2022. Carswell.

Webb, M. (2011). The Constitutional Question of Our Time: Extraterritorial Application of the Charter Afghan Detainees Case. National Journal of Constitutional Law, 28, 235.

West, L. (2022). Canada Stands Alone: A Comparative Analysis of the Extraterritorial Reach of State Human Rights Obligations. UBC Law Review, 55, 845.

West, L. (2022). ‘Within or outside Canada’: The Charter’s application to the extraterritorial activities of the Canadian Security Intelligence Service. University of Toronto Law Journal, 73(1), 1–52. https://doi.org/10.3138/utlj-2021-0105

Since the swift passage of the Anti-Terrorism Act in 2015, the Canadian Security Intelligence Service (CSIS) has had the unprecedented and highly controversial authority to take ‘reasonable and proportionate’ measures to reduce threats to Canadian security. While there are some limits to the types of measures CSIS can employ, the Canadian Security Intelligence Service Act permits the use of measures that would otherwise contravene the laws of Canada or limit a right protected by the Canadian Charter of Rights and Freedoms so long as they are judicially authorized by the Federal Court. As new threats proliferate around the world, it is anticipated that CSIS will increasingly carry out this mandate overseas. Yet review bodies tasked with monitoring CSIS’s use of threat reduction measures (TRMs) report that CSIS has never sought judicial authorization to conduct a TRM. Why? One answer may be that CSIS has concluded that the Charter does not govern actions carried out abroad, and, as such, their extraterritorial conduct falls beyond the reach and oversight of the Federal Court. Whether the Charter applies to CSIS’s overseas conduct ostensibly lies in the Supreme Court of Canada’s leading case on the extraterritorial application of the Charter, R v Hape. This article canvasses domestic and international law, as well as intelligence law theory, to explain why that presumption is wrong. Wrong, not least because the majority opinion in Hape is deeply flawed in its analysis and application of international law. But also, because intelligence operations are so distinguishable from the transnational criminal investigations at issue in Hape, the Court’s findings are inapplicable in the former context. In short, this article demonstrates that applying Hape to the actions of CSIS officers not only leaves their actions beyond the scrutiny of Canadian courts but also creates a significant human rights gap.

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Verdier, P.-H. (2008). International Decisions: R. V. Hape. The American Journal of International Law, 102(1), 143–148. https://www.jstor.org/stable/40007775

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Ert, G. van. (2008). Canadian Cases in Public International Law in 2006–7 / Jurisprudence canadienne en matière de droit international public en 2006–7. Canadian Yearbook of International Law, 45, 527–346. https://doi.org/10.1017/S0069005800009425

Evidence — letters rogatory — public policy against extraterritorial applications of US lawMorgan, Lewis & Bockius LLP v. Gauthier (2006), 82 OR (3d) 189 (29 August 2006). Ontario Superior Court of Justice.The applicant MLB was a US law firm carrying on business principally in Philadelphia. It sought an order from the Ontario Superior Court of Justice giving effect to a letter of request issued by the Court of Common Pleas of Philadelphia County, Pennsylvania. This court sought the assistance of the Ontario court in obtaining document production and testimony from the respondent, Claude Gauthier, a Canadian citizen resident in Ontario.

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Sun, K. (2019). International Comity and the Construction of the Charter’s Limits: Hape Revisited. Queen’s Law Journal, 45, 115.

Sethi, C. (2011). Does the Charter Follow the Flag-Revisiting Constitutional Extraterritoriality after R v Hape. Dalhousie Journal of Legal Studies, 20, 102.

Saunders, P., Currie, R. J., Akhavan, P., Brunnée, J., Van Ert, G., McDorman, T. L., Mégret, F., Mgbeoji, I., Mickelson, K., Reif, L. C., Waters, C. P. M., & Castel, J.-G. (2019). Kindred’s international law, chiefly as interpreted and applied in Canada (Ninth edition.). Emond.

"The book delivers a comprehensive overview of the foundational concepts, principles, sources, and institutions of the international legal system and how they are experienced and practiced domestically and in foreign relations"-- Résumé de l'éditeur.

Roach, Kent. (2007). R. v. Hape Creates Charter-Free Zones for Canadian Officials Abroad Editorial. Criminal Law Quarterly, 53(1), 1–4. https://heinonline.org/HOL/P?h=hein.journals/clwqrty53&i=3

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Milanovic, M. (2011). Extraterritorial application of human rights treaties: law, principles, and policy. Oxford University Press.

McLachlan, C. (2014). Foreign relations law. Cambridge University Press.

"[E]very international dispute is of a political character, if by that is meant that it is of importance to the State in question. Thus viewed, the proposition that some legal questions are political is an understatement of what is believed to be the true position. The State is a political institution, and all questions which affect it as a whole, in particular in its relations with other States, are therefore political"-- Provided by publisher.

Keitner, C. I. (2011). Rights beyond borders. Yale Journal of International Law, 36, 55.

Noura, K. (2013). L’application de la Charte canadienne des droits et libertés par les valeurs: l’article 32. In G. A. Beaudoin, E. Mendes, & S. Beaulac (Eds.), Canadian Charter of Rights and Freedoms (5th ed.). LexisNexis Butterworths.

Jorgensen, L. (2013). In Plain View: R v Jones and the Challenge of Protecting Privacy Rights in an Era of Computer Search. UBC Law Review, 46, 791.

Ireland-Piper, D. (2012). Extraterritorial criminal jurisdiction: Does the long arm of the law undermine the rule of law? Melbourne Journal of International Law, 13(1), 122–157.

Gray, K. W. (2020). That Most Canadian of Virtues: Comity in Section 7 Jurisprudence. Western Journal of Legal Studies, 10, 1.

Fairley, H. S. (2008). International Law Comes of Age: Hape v. the Queen. Canadian Bar Review, 87(1). https://cbr.cba.org/index.php/cbr/article/download/4097/4090

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Delas, O., & Robichaud, M. (2008). Les difficultés liées à la prise en compte du droit international des droits de la personne en droit canadien: préoccupations légitimes ou alibis? Revue Québécoise de Droit International, 21(1), 1–53. https://www.erudit.org/en/journals/rqdi/2008-v21-n1-rqdi05255/1068938ar/abstract/

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Currie, R. J. (2020). International & transnational criminal law (Third edition.). Irwin Law.

"International criminal law has focused on the prosecution of truly international crimes--genocide, crimes against humanity, war crimes, and aggression. The emerging field of transnational criminal law reflects the fact that our post-Cold War, post-9/11 world has seen the growth of transnational crimes of international concern, such as terrorism, money laundering, organized crime, and human and narcotics trafficking, as well as transnational crimes of domestic concern, which are simply ordinary domestic crimes that involve the jurisdiction of more than one state. This book surveys these two related but increasingly distinct fields with a focus on Canada, bringing together in one accessible text topics that are of increasing importance in a world of globalized crime, from a substantive perspective and through examination of the expanding range of international tribunals dealing with such crimes. This third edition updates caselaw and international practice from Canada, including substantial revisions relating to the prosecution of cross-border crimes. It also combines examinations of international courts and tribunals, transnational criminal law treaties, and recent literature to provide a unique perspective on these two international law disciplines that, while best viewed as separate, retain a common heritage and some overlapping concepts and applications."-- Provided by publisher.

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