Does the Charter Apply to Landed Immigrants Detained at Guantanamo?

A few weeks ago, the Supreme Court of Canada (“SCC”) denied leave to appeal in Slahi v Canada (Justice), 2009 FCA 259, first canvassed on TheCourt.ca by Padraic Ryan here. My post aims to briefly examine the international law aspects of the case and their relation to the Charter.

Background

Slahi affirms the recent line of jurisprudence (culminating in Canada (Prime Minister) v Khadr, 2010 SCC 3) concerning the applicability of section 7’s right to life, liberty, and security of person to Canadians detained at Guantanamo Bay. Of course, “Canadian” may be a misnomer in Mr. Slahi’s case: he is a landed immigrant, which the Federal Court of Appeal ruled disqualifies him from the benefit of Charter protections overseas.

The plain language of section 7 extends its protection to “everyone,” not just citizens.  Such a broad classification would initially seem to include persons of the claimant’s status.  However, as Justice L’Heureux-Dubé rather sardonically observed in R v Cook, [1998] 2 SCR 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’.”

“Everyone” has been previously found to include non-Canadians claiming Charter protections abroad where circumstances establish a nexus with Canada. During his detention at Guantanamo Bay, Mr. Slahi was interviewed by representatives from the RCMP and Canadian Security Intelligence Service about matters relevant to his pending habeas corpus petition. Records from this interview were subsequently forwarded to U.S. authorities. Further, Mr. Slahi resided in Montreal between November 1999 and January 2000, after having been granted landed immigrant status. The question before the court was whether the Canadian government’s participation in Mr. Slahi’s interrogation and/or his residency status sufficiently connected the claimant with Canada such that his section 7 rights were engaged.

Mr. Slahi’s nationality at public international law was a central issue. Nationality — the essential link between an individual and the state – is legally founded in domestic law which controls its acquisition and loss. It forms the basis of a state’s jurisdiction over persons, both human and juridical, beyond its territory. Canadian “nationals” include both citizens and non-citizens that are entitled to rights and benefits implicit in the conferral of nationality, including Charter protection in certain extraterritorial contexts. Nationality is acquired by birth or by naturalization; this latter occurs when an alien receives Canadian nationality upon an application made by him.

The FCA Decision

Recalling that Mr. Slahi was born in Mauritania but resided in Canada for a few months upon being granted landed immigrant status, Justice Evans of the Federal Court of Appeal agreed with the lower court’s determination that granting such status does not amount to conferring nationality such as would trigger Charter rights or ground an attempt by Canada to seek jurisdiction over the claimant’s person.

As Mr. Slahi is not physically present in Canada, subject to a criminal trial currently pending in Canada, or (yet) a Canadian citizen, his circumstances were not found to establish a nexus with the state that merited an extraterritorial extension of section 7’s reach. The fact the claimant was interviewed by Canadian officials was found irrelevant to the inquiry, as the court was not prepared to extend the Charter’s applicability beyond that which had already been decided in previous cases.

Analysis

Mr. Slahi has filed a claim for seventeen grounds of relief with the United States District Court for the District of Columbia stemming from an alleged denial of due process and incidents of torture and cruel or inhuman treatment during his detention at Guantanamo Bay. I am instinctively (and perhaps idealistically) loathe to deny even the possibility of Charter protection to any person with a connection to Canada, especially someone alleging that he was the victim of such misconduct. I also understand, however, that the reach of domestic law is necessarily delimited by principles of sovereignty and judicial comity and cannot practically extend to all persons with a mere incidental link to the state.

It must be noted, however, that there is a paucity of evidence on the issue of whether the Canadian state officials who interviewed Mr. Slahi were at all complicit in the impugned process at Guantanamo Bay. If such complicity could be proven, the claimant should be deemed subject to state jurisdiction: those officials’ actions would create a nexus with Canadian government sufficient to engage the Charter. Additionally, the Canadian government may be held liable for damages originating from its officials and resulting in injustice under the international law of state responsibility for injury to aliens.

Conclusion

In this case, the Federal Courts were reticent to even speculate on the possibility that Canada was affiliated with the abuses alleged by Mr. Slahi. The absence of corroborating evidence likely informed their conclusion that the claimant was subject to the jurisdiction of the United States, not Canada, while he was detained at Guantanamo.

Accordingly, the American legal process – with its own attendant legislated rights and protections for detainees – is the most appropriate avenue for potential redress for the wrongs allegedly suffered by persons in Mr. Slahi’s situation. While this prospect may be of little consolation to the claimant, it seems (in my view) a necessary alternative given that international law, Canada’s constitutional framework, and broader geopolitical realities do not support his position.