Chanakya Sethi (Osgoode Hall Law School – York University) has posted “Does the Charter Follow the Flag? Revisiting Constitutional Extraterritoriality after R. v. Hape”, The Dalhousie Journal of Legal Studies, Vol. 20, No. 1, 2011. Here’s the abstract:
In the recent case of R. v. Hape, the Supreme Court of Canada concluded on the basis of international law, including principles of sovereign equality and comity, that the Canadian Charter of Rights and Freedoms cannot apply extraterritorially. The Court’s decision has been faulted by scholars of both constitutional and international law as being deeply problematic. The purpose of this essay is to accept the invitation implicit in these criticisms by revisiting Hape and asking anew, Does the Charter follow the flag? The author concludes that the Court’s reasoning in Hape rests on a flawed understanding of international law. Indeed, a more searching analysis reveals that there is ample basis to conclude that extraterritorial application of the Charter – far from being anathema to international law – is in harmony with emerging principles of state responsibility. An analysis of foreign jurisprudence provides added support for this conclusion. The question of international law aside, however, fidelity to the principles underlying the Charter necessitates an interpretation that contemplates extraterritorial application.
Download a .pdf copy of the paper via SSRN here.