This is an extract of our Charter Application To Irpa document, which we sell as part of our Immigration and Refugee Law Notes collection written by the top tier of University Of Ottawa students.
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PART VII: CHARTER APPLICATION TO IRPA Why use the constitution through litigation strategy?
1) remedy options 2) procedural fairness 3) can assist if appealed R v Hape 2007 SCC F: investigation re: money laundering by a CDN citizen in Turks and Caicos islands. Question about unreasonable search and seizure executed by the RCMP. The trial took place in Canada. The search was authorized in TC, but accused alleged that the government cannot enforce Charter extra-territorially. I: Were the accused's rights violated through s. 8?
D: No; FT rights not abrogated Ratio: For charter to be applied extra-territorially, court must ask whether 1) activity falls into activity of 32(1) (whether or not state agent/actor carried the activity out) and 2) whether there is an exception to the principle of sovereignty that would justify Charter application (Ex. human rights violation or consent of the state - rare) 3) should evidence be excluded?
Reasons: The way in which the evidence was obtained does not undermine its reliability. Fair trial rights in Canada is the correct framework to apply rather than considering the applicability of the Charter in another jurisdiction. Generally, you apply the law of the jurisdiction that you are in. In this case, the RCMP were operating under the authority of the law in TC. Dissent 1 (Bastarache, Rothstein, Abella): Charter should apply, but the context of its application will change depending on the situation. 32(1) defines who acts, not where they act( includes all actions of officers) Dissent 2 (Binnie): Looks to Cook which requires that act falls within 32(1) and that it interferes with sovereignty authority (producing objectionable extraterritorial effect) - not the case for either here. TC searches were conducted by local police in conformity with local laws. Canada v Khadr 2010 SCC 3 (Extra Territoriality application) (Case #2) F: 15 year old Canadian in Afghanistan who allegedly threw a grenade and killed an American solider. Captured in Afghanistan and detained in Guantanamo Bay. Repatriation back to Canada was denied several times, as he was a Canadian citizen. Canadian officials (CSIS and Foreign Affairs) questioned Khadr at Guantanamo, promised secrecy, but handed information over to the US. Was not allowed to sleep for more than 3 hours at a time and had bright lights shining on him the whole time. Canadian authorities were made aware of this cruel and unusual punishment. I: Were the accused's s. 7 rights violated? Was Canada complicit in torture? What is the appropriate remedy?
D: declaration ordered; judiciary doesn't have authority to compel repatriation but government should take steps to rectify
1 Ratio: Where torture techniques are used contrary to the principles of fundamental justice, the Charter is applicable (essentially an extension of Hape). Reasons: The remedy must be decided by the government. Visa Officers acting Abroad: o technically, the charter does apply to their actions, but it's limited o Decisions have been challenged based on sections 16 and 20(1) (Abbasi v Canada 2010 FC 288) but have generally been unsuccessful Section 6 (Mobility Rights) o Abdelrazik v Canada 2010 FC: "Charter rights are not dependent on the wisdom of the choices Canadians make, nor their moral character or political beliefs. Foolish persons have no lesser rights under the Charter than those who have made wise choices or are considered to be morally and politically upstanding" - Harrington J o "one cannot prove that fairies and goblins do not exist any more than Mr. Abdelrazik or any other person can prove that they are not an Al Qaida associate." Abdelrazik v Canada 2010 FC F: Sudanese- Canadian citizen granted CR status in 1993. While in Canada he associated with 2 individuals that were terrorists but there is no evidence he was involved in any illegal activity. While in Sudan at Canadian embassy fearing torture and detention by authorities, he sought Canada to repatriate him by any safe means at its disposal because his passport expired while he was there. While in Sudan, he was tortured, detained and questioned by CSIS while detained. A global travel ban was listed through UN 1267 CTTEE. I: Were the accused's 6(1) rights violated?
D: Yes; application allowed Ratio: Where citizen outside of Canada, government has a positive obligation to issue emergency passport. Any effort not to do so is regarded as a prima facie s. 6(1) violation unless justifiable. Reasons: Evidence of bad faith may be considered when invoking remedy under Charter. Canada was not responsible for taking extraordinary means in bringing him to Canada. The government was responsible here because of the bad faith and motive demonstrated. S. 6 only applies to citizens, and not permanent residence. CSIS complicit in detention. NOTE: He was on the no fly list at the time. He tried many times to abide by conditions government gave him before they issued passport, but they refused to issue the passport.
Divito v Canada 2013 SCC (PRISONER TRANSFER) F: Canadian citizen who pled guilty to serious drug charges in the US and was sentenced. He applied under ITOPA to be transferred to Canada. Both countries must consent and MPS has discretion. Divito's request was approved by US, but not by MPS due to offence - said that return
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