International Comity and the Construction of the Charter's Limits: Hape Revisited

In this article, the author examines the Supreme Court of Canadas' approach to international comity and Charter rights cases with foreign elements through the lens of R v Hape. Contrasting the seemingly contradictory outcomes in Hape and in the Khadr cases, the author contends that comity has a significant role in the Courts' reasoning about the Charters' extraterritorial applicability. The author relates this reasoning to the traditional outlook of Commonwealth foreign relations law, which excluded the conduct of foreign affairs from legal control. The author proceeds in five parts. First, the author explains how previous scholarship has tended to focus on Hapes' treatment of jurisdiction under international law, rather than on international comity. Second, the author posits that comity has a p"ermissive" face that justifies extraterritorial action in the interests of international co-operation and a p"reclusive" face that restrains the reach of Canadian standards of justice. Third, the author argues that comitys' role in Hape mirrors its role in the Courts' private international law jurisprudence. In that jurisprudence, comitys' two faces operate as an extralegal mechanism to mediate conflicting exercises of state sovereignty, based on a classical, positivist vision of the international order. Fourth, it is shown that the majoritys' reasoning in Hape reflects a positivist conception of sovereignty, international law, and comity. It presupposes a division between an external realm of sovereign power and an internal realm of peace, order, and legality. Fifth, the article evaluates Bastarache Js' concurring opinion-which attempts to normalize the treatment of rights cases with foreign elements-as an alternative framework for the extraterritorial application of the Charter. The author concludes by noting the trend in other jurisdictions to move away from and question the exclusionary outlook in foreign relations law. Whether the Canadian jurisprudence will follow that course remains to be seen.