The Canadian Charter of Rights and Freedom is often described as a “living tree”, due to its ability to remain dynamic in the face of political change. Unlike its American counterpart, the Charter has been successful in reflecting the changing values and beliefs of its citizen’s and has shown flexibility in interpreting laws to serve a free democratic society. International government organizations (IGO) such as the World Trade Organization (WTO) and NATO were created to tackle economic and security issues to establish new systems of global governance. Global governance is defined as, “The sum of the many ways individuals and institutions, public and private, manage their common affairs.” However, these international organizations are now beginning to influence spheres of law making, which were traditionally considered domestic. This interference is a double-edged sword. The rise of global governance poses a serious threat to the supremacy of the Canadian Charter. There is tremendous pressure being generated by the international community on domestic institutions to conform to a globally defined set of norms and laws. The rise of globalization has led to cooperation between countries in areas of banking, economy and trade through banking institutions, multinational corporations, and intergovernmental agreements. Nations also cooperate on matters of security such as terrorism and money laundering. The power of international law leads to erosion of local jurisdictions in favor of intergovernmental agreements, due to legal obligations. International decision-makers create norms and laws for countries to follow with little regard to local constitutions. Although Canada is prominent within the international community as a “middle power”, the community continues to be heavily influenced by the United States. The U.S heavily influences Canadian trade, commerce, security and intergovernmental agreements, which are often in opposition to the Canadian Charter.
This essay seeks to determine specific instances where the pressure of being part of a global community has undermined the rights of citizens as protected by the Charter. Canadian government has been repatriating citizens and transferring the judicial process to other governments or IGO entities. Canada recently established FINTRAC (Financial transactions and Reports Analysis Center of Canada), which is an organization, tasked with spying on the finances of Canadian citizens. The goal of this organization is to track cases of money laundering, however this is a direct violation of section 8 of the Charter. This is an example of how International persuasion has directly influenced domestic policy. Canada has accepted controversial treaties and trade agreements such as NAFTA and WTO that are in violation of the Charter’s principals. Global Governance poses a clear challenge to the Charter of Rights and Freedom as the idea of a “supreme law” is being diminished.
It would be wrong to assume all international institutions undermine the Canadian Charter. Entities such as the United Nations (UN), ad hoc conventions, and non-government organizations, empower the Charter. Many of these organizations advocate for human rights, which only act to legitimize the Canadian Charter. An article published by Osgood law school, titled “BEYOND SELF-CONGRATULATION: The Charter at 25 at an international perspective” argues:
The Charter represented a local translation of internationally recognized minimal common denominators. It permitted rights-holders to assert ownership of these rights and it allowed those tasked to protect or interpret these rights to consider them as our homemade response to discrimination, unfairness, or abuse.
The Universal Declaration of Human Rights allows the Canadian judicial system to provide a domestic interpretation of human rights violations. Analyses of the conduct of Canadian military operations in Afghanistan demonstrate clear instances of breach in Charter rights of Canadian citizens living or working abroad. The case of Omar Khadr, embodies the clash between the Charter and foreign policy obligations. Omar Khadr was captured in July 2002 at the age of 15, for killing an American Special Forces officer. He was detained at Guantanamo Bay, and questioned by Canadian officials. Information collected during the interrogation was then handed over to Central Intelligence agency (CIA). This helped the Americans capture and persecute him. The court documents of Justice O’Reilly indicated that there had been an “infringement” of section 7 of Khadr’s Charter Rights, which protects the life, liberty, and security of an individual and states that; “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”. When the Canadian security intelligence service (CSIS) agents violated the principles of justice, the Canadian government had a duty to protect Khadr. Justice O’Reilly recommended that the Crown repatriate Khadr from American custody. Professor Errol P. Mendes, who specializes in Human rights, claims in his article, Dismantling the Clash between the Prerogative Power to Conduct Foreign Affairs and the Charter in Prime Minister of Canada et al v, that the rights of Canadian citizen living abroad are often ignored in favor of foreign policy.
The Federal Court of Appeal seemed to stress that when ultimately those documents were disclosed by order of the Supreme Court, they revealed that the Canadian officials involved not only participated in the process that did not conform to international human rights norms that Canada was bound by, but they had done so knowingly.12 This heightened level of complicity in the torture of a Canadian citizen forced a re-examination by the Federal Court…response to one of the most serious breaches of a Canadian citizen’s rights.
Khadr’s case as an alleged “terrorist” is unchartered territory for the Constitution. Medes states that Justice O’Reilly was trying to protect Khadr from improper questioning methods, by requesting that the documentation of his interrogation be returned to him. This was done so that the information, extracted from him unlawfully, could not be used in a case against him and the Canadian government has an obligation to protect its citizen’s ‘security’. It was also noted that the Charter applies to the Canadian officials who did the interrogation on Khadr, yet continued to abuse his rights. The Courts also argued for Section 24 (1) of the Charter to be called upon specifically:
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
Both Justice O’Reilly and a majority of the Court of Appeals applied Section 24(1) to Khadr’s case. However, the Harper government counteracted the courts decision by asserting that this interfered with foreign policy. The Crown broadly argued that Canadian citizens rights are valid only on Canadian soil. This created a clash between the government foreign policy and the Supremacy of the Charter. The Foreign Minister, under Department of Foreign Affairs and International Trade Act, does have the authority to conduct foreign policy excluding Charter rights using section 1. However, this exception only applies under circumstances of war. According to Mendes, overriding section 7 of the charter in favor of section 1 requires sufficient justification from the Foreign Minister. Professor Peter Hogg who is one of the leading scholars on Constitutional law confirms this prerequisite. The Crowns claimed that repatriation undermined foreign policy, however this argument is questionable, as the government did not mention the nature of the interference or the evidence. The only clarification given by the Crown was that:
While the Crown tried to assert the order to request repatriation would not be effective as there was “one chance in a million” that the U.S. would comply, this argument faced two “reality tests” in the view of the majority of the Court of Appeal.
The Crown has failed in its duty to protect Khadr and undermined section 7 of the Charter, the government has not even attempted to negate Khadr’s sentence. There is evidence that suggests Canada did not want to anger the United States on transferring Khadr. Intergovernmental agreements within foreign policy tend to ignore Charter rights, U.S obligations and expectations from agreements pressure the Crown.
Canada’s erosion of Charter rights is not exclusively seen in security, but recent cases, suggest breaches in privacy as protected by the Charter. Although privacy laws are not specifically stated in the Charter except in section 8: “Everyone has the right to be secure against unreasonable search and seizure.” The Supreme Court has claimed that privacy is implicitly protected under the Charter. A note worthy case was Hunter et al. v. Southam Inc, which is the first case to use section 8 to protect the privacy of the individual.
Financial Transactions and Reports Analysis Center of Canada (FINTRAC) was created to combat the growing Global concern over money laundering. However, this breaches of section 8 of the Charter. FINTRAC was created in 2000, to track the finances of Canadians both domestically and internationally and it reports directly to the minister of finance. Its role was expanded in 2001 to include the Terrorist Financing Act, allowing CSIS to freely access Canadians finances. FINTRAC’s methods of gathering information violates section 8 of the Charter, as it forces Canadian businesses to conduct background checks on consumer and by doing so puts the consumers at risk for identity theft. FINTRAC essentially spies on the finances of Canadian citizens and any transactions over 10,000, by private individuals, are flagged as suspicious. FINTRAC forces small business to conduct background checks on their customers, but the risks of information disclosure makes the customers weary of identity theft. The target group to FINTRAC has been Jewelers. During a Senate hearing, the Canadian Jewelers Association (CJA), keenly pointed out the adverse effect FINTRAC was having on the market:
These small companies have built their businesses on trust. Consumers have come to expect their right to privacy, especially when shopping in a retail environment. Auction houses are excluded from the DPMS AML/ATF regulations, which create an uneven playing field even within the jewellery sector and is an area open to potential money laundering and terrorist financing abuse.
Intrusion by the government into the private sphere of its citizens is in direct violation of section 1 of the charter, which outlines the principles to create a free and democratic society. The Canadian Jewelry association claims that FINTRAC violates a social contract between the consumer and Capital. Corporations that do not disclose the financial information of its customers face fines of up to two Million-dollar or/and five-year imprisonment. FINTRAC also demands small businesses to store and record information under threat of similar penalties. The threat of financial and legal penalties is forcing corporations to disclose the personal information of its clients. Under section 8 of the Charter, it would appear, FINTRAC has breached the Charter. FINTRAC methods of gathering information, resembles the Hunter et al. v. Southam Inc case, in which it was concluded that business owners have privacy rights from the government. The Court decided that individuals have a “reasonable expectation of privacy” as protected by the under the Charter. According to an article by Julia Lawn and Andrew Bernstein, Primacy to Privacy? The Supreme Court and the Privacy Threshold in Edwards, justification must be provided any time there is a need to collect information. In comparison to other countries, instances of money laundering in Canada have been extremely rare. Therefore, the justification for the creation of FINTRAC appears to stem from international pressure specifically from the G7, which agreed on the FATF mandate to combat money laundering.
Trade and commerce has become dominantly international embodying norms and laws that govern the relationships between governments. The relationships between governments have taken the shape of IGO’s such as the World Trade Organization (WTO) and treaties such as the North American Free Trade Agreement (NAFTA). The Charter of Rights and Freedom excludes property rights, as there was a fear it may lead to an unfair advantage towards corporations. Although NAFTA and the WTO do not specifically violate Charter rights, they do disregard some of the principles of Charter of Rights and Freedom’s and erode sovereignty. For instance, the infamous chapter 11 of NAFTA agreement provides property rights only to foreign governments. Professor Stephen Clarkson, at the University of Toronto, argues that Brain Mulroney’s desire to enact NAFTA at all costs has led to erosion of Canadian sovereignty; “… add external tier to the country’s Constitution, one that was shortly to be joined by hundreds of the WTO’s even more intrusive rules”. When Chapter 11 of NAFTA took effect in 1994, not many people understood its interpretation; it allowed foreign entities exclusively to bypass the domestic judicial system. Clarkson claims that Chapter 11 of NAFTA allowed complete freedom to the United States and Mexico to conduct business without any interference from local laws. Chapter 11 allows foreign investors to ignore environment laws, as well as, laws that abrogate the Charter rights, such as the well being of indigenous people. The United States also tends to use its influence as an economic power when trade disputes arise. For example, in the soft wood lumber dispute Canadian soft lumber, which was cheaper then American lumber, was unfairly tariff additionally so as to allow American companies to compete. Canada took the United States to the WTO and won the case. However, the United States was eager to make new provisions for the lumber market that would favor American production even against free trade agreement. This suggests that treaties such as NAFTA, do not benefit Canadian trade or industries. NAFTA has eroded the Charter as international agreements bypass or undermine Canadian interests.
The World Trade Organization has 144 members, all of which conform to the organization’s norms and rules, unlike most IGO’s, WTO’s laws are enforceable. As in the case of NAFTA, WTO also violates Charter laws however it does not challenge the notion of “the supreme law” of the Constitution. The WTO is tasked with solving trade disputes through a judicial process. The Judicial arm of the WTO is seen as authentic as decision makers are not nationals of the disputing country and disputes are settled in an unbiased fashion. Although the WTO has authority and is capable of enforcing decisions, it fails to gain legitimacy over the disputed country. Democracy can be in danger if the laws ‘forced’ upon it by the WTO are outside its control; essentially the WTO ignores local laws and concerns. The disregard by the WTO to recognize local laws and the importance of a Charter, may lead to an erosion of democracy due to the ever-growing influence of global governance.
When examining the erosion of the Charter specifically repatriating citizens, FINTRAC, NAFTA and WTO, it emphasis the threat of global governance. The ever-increasing realm of globalization threatens to diminish the sovereignty, where by decision-making is transferred out of the State and into the international realm. The Crown fails to recognize that once the country signs into a treaty the international arena creates expectations and norms that overlap with sovereignty. These intrusions from the intergovernmental agreements have breached Canadian Charter’s principles; that same principal that was meant to protect the Canadian identity.
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