This article by Prof. Ed Morgan was originally published in The Lawyers Weekly, April 13, 2012.
When it comes to conducting foreign affairs, it is well established that the constitution puts the weight of responsibility on the federal government. But in recent years, the courts have deviated from that rule as often as they have invoked it.In the Afghan prisoners case, the Federal Court of Canada explained that the government owes no constitutional duty when, after questioning, the military turns detainees over to a foreign government. The judgment presumed that Canadian forces require flexibility, and enjoy the discretion to deviate from domestic rules when they deal with an allied state and prisoners of war.
That ruling came within a year of the Supreme Court's first judgment on Omar Khadr's treatment in Guantanamo, where it held that the government owes a constitutional duty to a detainee held by a foreign state and turned over to CSIS for questioning. The court presumed that intelligence officers can adhere to the same domestic standards as the Charter requires of ordinary police when they deal with an allied state and national security prisoners.The courts have been equally perplexing on whether Canadian authorities should interfere with a foreign country's legal system. In the case of convicted murderer Ronald Smith, the Federal Court determined that our diplomats are constitutionally obliged to run interference with a foreign system that falls short of Canadian rules on cruel and unusual punishment. The ruling effectively ignored international standards on consular assistance, which make it a policy choice by state governments as to whether to espouse the cause of its citizen facing another state's criminal justice.
At the same time, in the case of convicted money launderer Lawrence Hape, the Supreme Court acquiesced in the RCMP's policy of complying with criminal investigations that fall short of our rules on search and seizure. The ruling effectively ignored international standards on police procedure, which make it a mandatory obligation of state governments to adhere to universal human rights norms in law enforcement matters.
In the most recent version of this constitutional tangle, the Supreme Court has managed to both restrict government in the name of the Charter and to defer to government in the name of Crown prerogative over foreign affairs. It wasn't easy, but the court addressed the second appeal brought to it by Omar Khadr in a way that put both strands of the contradictory jurisprudence into one ruling.
Khadr brought his claim directly against the Prime Minister for failing to use his position as head of government to advocate for a citizen held abroad. The case pitted the rights of an incarcerated citizen directly against the power of the federal government in international relations. It is a dilemma to which the constitution provides no easy answer: the federal executive, not the courts, is authorized to conduct foreign policy, while the courts, not the federal executive, are authorized to adjudicate individual rights and freedoms.
In the result, the Supreme Court split the difference. It opined that Khadr's rights were violated by the Prime Minister's choice of attending to foreign relations rather than to a citizen's plight. Simultaneously, it reasoned that any remedial order would interfere with the Crown's inherent discretion in foreign affairs. Accordingly, the court declared that Khadr's rights were violated by the Prime Minister's failure to do anything on his behalf, and then proceeded to deny him a remedy or to do anything on his behalf.
Where will the courts take the constitution in the foreseeable future?
The direction of the courts can be gleaned from recent cases dealing with prisoner transfers. Canada has treaty relationships with roughly a dozen countries that permit citizens convicted by the courts of a treaty partner to serve their time in Canada. Given the sensitive nature of foreign relations and cross-border crime, however, it takes a cabinet level decision to implement any transfer.
The Federal Court has decided a number of transfer cases both before and since the latest Khadr ruling. In doing so it has stayed "true" -- if that word can be used in this difficult context -- to the conflicting principles that have plagued the law. That is, the court has seen transfer agreements and their implementing legislation as conferring rights on convicts and conferring powers on government, and has done little to reconcile the two.
The recent decision in the case of Alexie Randhawa, a Canadian convicted of drug trafficking in California, is a case in point. The court made it clear that the Minister of Public Safety has discretion whether to authorize a prisoner's transfer from abroad. At the same time, it made it clear that the Minister has little discretion in overriding the right of a citizen to repatriate through the transfer system.
The Charter confirms that we value universal rights, while the traditional Crown prerogative over foreign affairs confirms that we have distinct national interests. The courts show every sign of continuing to follow both lines, finding new ways for us to have our constitutional cake and eat it too.