Saturday, March 13, 2010

Constitutional Rights for Guantanamo Detainees under the Canadian Charter?

The Canadian Charter of Rights and Freedoms, section 7 provides:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
But does “everyone” mean “everyone,” including those Canadians detained at Guantanamo Bay?

As excellent post by Canadian law student Daniel Del Gobbo at "The Court" (a blawg on the Canadian Supreme Court)" reviews the recent Canadian Supreme Court jurisprudence.  As Del Gobbo notes, “everyone” has been previously found to include non-Canadians claiming Charter protections abroad where circumstances establish a nexus with Canada, and the plain language of section 7 extends its protection to “everyone”, not just citizens. 

However, as Justice L’Heureux-Dubé rather sardonically observed in R. v. Cook, [1998] 2 S.C.R. 597, “I am not convinced that passage of the Charter necessarily gave rights to everyone in the world, of every nationality, wherever they may be, even if certain rights contain the word ‘everyone’.”

Del Gobbo goes on to discuss the jurisprudence relating to section 7's applicability to Canadians detained at Guantanamo Bay including Canadian Supreme Court's recent denial of leave to appeal in Slahi v. Canada (Justice) and Canada (Prime Minister) v. Khadr.  More on Slahi here; on Khadr here.


Comparative Constitutionalism, International, Interpretation, Recent Cases, Theory, Weblogs | Permalink

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