Bill C-323 and the Canadian Charter of Rights and Freedoms - Essay Example

of the of the of the Bill C-323 Introduction In our present problem, the Bill C -323 was introduced by a Member of Parliament on 5th October 2011, to amend the Federal Courts Act, in order to enable foreign citizens to sue the Canadian Corporations for crimes alleged to have been committed in foreign countries. For assessing the constitutionality of the bill, and jurisdiction issues, the following discussion has been taken up. Section 101of the Constitution Act Section 101 of the Constitution Act, 1867 states as follows, “The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.” This General Court of Appeal was established in the year 1878, via an Act of Parliament (Maton). Since, this Court had been created by statute, Parliament had the power to undertake modifications to it, by means of a normal federal statute. This feature was utilized by Parliament, in the year 1949, to bring to an end appeals to the Privy Council. Subsequently, in 1975, Parliament made it mandatory to obtain permission to appeal, which granted the Court significant control over its docket. However, certain exceptions to this rule were permitted. In fact, up to the year 1982, Parliament had the authority to unilaterally abolish the Supreme Court of Canada, through an ordinary statute (Maton). As such, from its very inception, it had been acknowledged that the Canadian Parliament would enjoy the power to create courts to administer federal law. This was in addition to its empowerment to institute a national court of appeal. This power of Parliament was formalized in Section 101 of the Constitution of Canada. As a consequence, the Parliament of Canada was authorized, despite any provision in the Act to the contrary, to establish a general Court of Appeal for Canada (Bushnell 19). This was in addition, to its empowerment to establish additional courts for better administration of the national laws. Canadian Federal Law As such, a federal state combines several disparate political communities under a common government for shared purposes. Moreover, it includes cantonal, provincial, or state governments for the specific purposes of the individual communities (Forsey). The laws made by the Federal Government are first announced in the Canadian Gazette. Federal bills that have received Royal Assent are published in the Annual Statues of Canada. Periodically, the Federal Government consolidates the existing laws into a single law, which is termed as the Revised Statutes of Canada (University of Toronto Faculty of Law). Supreme Court of Canada A distinguishing feature of the Supreme Court is that its existence is determined by an organic statute, namely, The Supreme Court of Canada Act 1875. It is significant that there is no constitutional law basis for the Supreme Court. In this context, Section 41 specifies that the composition of the Supreme Court of Canada cannot be altered in the absence of the consent of the ten provincial legislatures and Parliament (Malcolmson and Myers 151). Nevertheless, the Supreme Court of Canada’s decisions were subject to the rulings of the Privy Council, until 1949. Thereafter, the Supreme Court of Canada portrayed a strong inclination towards the centralist point of view. This was notwithstanding its curtailment of excessive federal centralist tendencies. This attitude of the Supreme Court was evident in the reference cases on the Senate and on the unilateral political process, vis-à-vis the Constitution, which resulted in Canadian sovereignty. It was also evident in the reference case relating to the right of Québec to secede from Canada. Finally, the Supreme Court has been proactive in safeguarding the rights of the minorities, such as the Canadian aboriginals, since the enactment of the Canadian Charter of Rights and Freedoms in the year 1982 (Bélanger). Constitutional Amendments The Supreme Court of Canada ruled in Reference re Secession of Québec that a unilateral right to secede from Canada was not provided to Québec by the public international law or the constitutional law of Canada. With regard to a referendum in Québec that clearly emphasized its objective as secession from Canada, the Supreme Court stated as follows. The emergence of a clear majority vote in such referendum would provide legitimacy to the Québec government’s efforts to bring about an amendment to the Constitution of Canada, so as to secede by constitutional means. (Bienvenu 1). However, this would not have any direct legal effect. As such, in Reference re Secession of Québec, it was contended by the Amicus Curiae that Section 101 of the Constitution Act 1867 did not empower Parliament to grant the Supreme Court the jurisdiction provided under Section 53 of the Supreme Court Act. It was also submitted that even if such authority had been provided to Parliament, the scope of that section had to be interpreted in a manner that would exclude questions of the variety submitted by the Governor-in-Council in the Reference (Bayefsky 464). In addition, Section 53 of the Supreme Court Act is distinguished by two important features, first, it establishes an original jurisdiction in the Court. Second, it obliges the Court to provide opinions of an advisory nature. As a consequence, this Section is valid from the point of view of the Constitution, only if a general court of appeal can properly exercise an original jurisdiction; and a general court of appeal can properly undertake other legal functions, such as the provision of advisory opinions (Bayefsky 464). Extra-Territorial Jurisdiction A distinct reference jurisdiction is enjoyed by the Supreme Court, which has been bestowed upon it by Section 53 of the Supreme Court Act. Consequently, the Governor-in-Council may refer important issues of law or constitutional interpretation to it. In addition, issues relating to the interpretation or constitutionality of federal or provincial legislation, powers of the Parliament, provincial legislatures, or any other important law or fact relating to any matter, can be referred to the Supreme Court. In addition, constitutional issues can be raised during regular appeals, wherein the litigants are individuals, governments or its agencies (Supreme Court of Canada). The following case law reveals the opinions of the Courts, while dealing with cases involving extra-territorial jurisdiction, on matters pertaining to foreign nationals. For instance, in Amnesty International Canada v Canada (Canadian Forces) the Federal Court of Appeal considered whether non-Canadian citizens residing outside Canada could claim Charter rights. This Court held that such individuals did not possess the rights guaranteed to everyone under Section 7 of the Charter (Rennie and Rothschild 141). Moreover, in Slahi v Canada (Minister of Justice), the Federal Court of Appeal undertook a review of the extraterritorial application of the Charter. It concluded that protection under Section 7 was available to only the following; first, non-Canadians physically residing in Canada; second, non-Canadians being tried for a criminal offence in Canada; and finally, Canadian citizens living outside Canada (Rennie and Rothschild 143). In the absence of consent, Canadian law, including the Canadian Charter of Rights and Freedoms, cannot be enforced in the territory of another nation. The international law and the gist of the Charter provide this conclusion. Section 32(1) places the onus of complying with the Charter upon Parliament, Canadian government, provincial governments, and provincial legislatures. The mere involvement of a state entity is insufficient, and the concerned activity has to fall within the authority of Parliament or legislature of each province (Yale Law School). Thus, a criminal investigation in another nation or territory does not constitute a matter that falls within the authority of Parliament or the provincial legislatures. This is due to the fact that they do not have the jurisdiction to authorize enforcement in a foreign country. As such, the international law makes it very clear that the right of a nation to exercise sovereignty within its territory is accompanied by the right to be free from interference from other nations in its affairs (Yale Law School). The Charter can apply to a case, only when the concerned nation consents to the enforcement of Canadian jurisdiction within its territory. In order to determine whether the Charter can be applied to a foreign investigation, it is necessary for the following conditions to be present. First, the concerned activity should be covered by Section 32(1) of the Charter. Thereafter, it is to be determined whether the conduct in question is that of a Canadian state entity. If this is in the affirmative, then it is to be determined if there is an exception to the principle of sovereignty that would render the application of the Charter justifiable (Yale Law School). In the majority of the cases, such exception will not exist, and as a consequence the Charter cannot be applied. For example, in R v Hape, the Supreme Court of Canada did not create a human rights exception to the general rule pertaining to territoriality. This principle was reiterated in Canada (Justice) v Khadr. These decisions made it very clear that the Charter does not necessarily apply when there are unambiguous violations of international law and human rights. The circumstances of the individual case have to be examined in their totality, before determining whether the Charter applies to them (Office of the Commissioner for Federal Judicial Affairs Canada). As such, several decisions of the Supreme Court of Canada specify the conditions to be present for the courts of the nation to undertake jurisdiction over foreign and external to the province defendants. With these rulings, a framework has been established for analyzing jurisdictional matters in civil cases. These decisions are to apply throughout Canada, and will influence Canadian businesses associated with other provinces (Nishisato and Finley). It will also affect foreign businesses that have an association with Canada. For example, Club Resorts Ltd v Van Breda and Club Resorts Ltd v Anna Charron, were cases, in which there were claims by some residents of Ontario, who had been seriously injured during a vacation in Cuba. The Canadian courts held that Ontario possessed the jurisdiction to hear the case against the Cuban defendants. Whilst deciding these cases, the Supreme Court acknowledged the necessity for the law to be predictable and certain. (Nishisato and Finley). It also expressed the necessity to ensure that cases were decided equitably and on merits. As such, the Supreme Court emphatically declared the necessity for a more predictable framework that was founded on the objective elements that could associate the subject matter of the case to the concerned court. The intention of the Supreme Court was to provide the parties of a case with an international or interprovincial feature, and better ability to predict whether a Canadian court would take upon itself jurisdiction over foreign defendants (Nishisato and Finley). In addition, the real and substantial connection test was to be employed while assuming jurisdiction over foreign defendants. However, the Court omitted to furnish adequate guidance on the interpretation of the term real and substantial. Moreover, the association had to be tangible and strong, otherwise the legitimacy of exercising such jurisdiction would be suspect (Nishisato and Finley). In this case, the Court of Appeal had devised a system, wherein the court would initially assess whether the case in question could be classified as one for which an assumption of connection could be made. This was adopted by the Supreme Court. In such cases, the defendant has the option of rebutting the presumption of connection by presenting evidence regarding the weakness of the connection. In a major initiative, the Supreme Court limited the categories, wherein a connection would be presumed to be in place (Nishisato and Finley). In the majority of the cases, such exception will not exist, and as a consequence the Charter cannot be applied. As such, the conditions for a court to presumptively possess jurisdiction have been stipulated by the Supreme Court. These are; first, the defendant should be residing or domiciled in the province. Second, the defendant should be undertaking business in that province. Third, the tort should have transpired in that province. Finally, the contract relating to the dispute should have been concluded in that province (Nishisato and Finley). The Supreme Court opined that the category of the defendant carrying on business in that province generated complex issues. In such instances, it was essential to exercise caution, so as to avert the creation of universal jurisdiction, in the area of tort claims that emerged from certain types of business or commercial activity. For instance, active advertising in the jurisdiction or access to a website from that jurisdiction would be insufficient to prove that the defendant was carrying on business in that province (Nishisato and Finley). In order to be categorized as carrying on business at that place, the defendant should actually be present in that jurisdiction. This could be via the maintenance of an office in that area, or by his regular visits to the territory of that jurisdiction. As such, this class of presumptive categories has not been finalized, and the Supreme Court tends to encourage arguments that other factors should be present for according such presumptive effect (Nishisato and Finley). Moreover, Black v Breeden and Les éditions Écosociété Inc, et al. v Banro Corporation, related to the capacity of the Canadian courts to assume jurisdiction in cases involving more than one jurisdiction. Black v Breeden concerned the defamatory statements issued in press releases by the US representatives of a US company about Conrad Black, a famous businessman of Canada. The Supreme Court of Canada ruled that the tort of defamation had transpired with the publication of the said defamatory statement. This had taken place upon these statements being read, downloaded and published in Ontario by the print media (Nishisato and Finley). . The Court held that each instance of repetition of a defamatory statement was a new publication. Conclusion In our present problem, Bill C-323 cannot be regarded as being unconstitutional. Section 7 of the Charter vests people with the right to claim extra-territorial jurisdiction. However, this is applicable, only under certain circumstances. Rights under Section 7 of the Charter can be claimed, only when; first, the claimant is a non-Canadian who is physically present in Canada. Second, the person concerned is a Canadian citizen, residing outside Canada, but under exceptional circumstances. In our case, the proposed bill pertains to the extra-territorial jurisdiction of the state. The present Bill C-323 relates to the claiming of rights by foreign nationals regarding offences committed against them by Canadian corporations in a foreign territory. According to the above discussion, the Canadian Charter of Rights and Freedoms accords extra-territorial jurisdiction, only under certain circumstances. In the majority of the cases, it had been opined by the courts that extra-territorial jurisdiction could be exercised with the consent of the concerned host country, where the offence had occurred. Consequently, Bill C-323 cannot be deemed to be unconstitutional. If this Bill were to be amended with the addition of a clause, ‘with the consent of the host nation’, then it could be reconciled with the provisions of Section 101 of the Supreme Court Act. Works Cited Amnesty International Canada v Canada (Canadian Forces). No. SCCA 63. Supreme Court of Canada. 21 May 2009. Bayefsky, Anne F. Self-determination in International Law: Quebec and Lessons Learned : Legal Opinions. The Hague, The Netherlands: Martinus Nijhoff Publishers, 2000. Print. Bélanger, Claude . The Supreme Court of Canada. 26 February 2001. Web. 20 March 2015. . Bienvenu, Pierre. "Secession by Constitutional Means: Decision of the Supreme Court of Canada in the Quebec Secession Reference." Hamline Journal of Public Law & Policy 21 (1999): 1. Print. Breeden v Black. No. SCC 19. Supreme Court of Canada. 18 April 2012. Bushnell, Ian. The Federal Court of Canada: A History, 1875-1992. Toronto, Canada: University of Toronto Press, 1997. Print. Canada (Justice) v Khadr. No. SCC 28. Supreme Court of Canada. 23 May 2008. Club Resorts Ltd v Anna Charron. No. SCC 17. Supreme Court of Canada. 18 April 2012. Club Resorts Ltd v Van Breda . No. SCC 17. Supreme Court of Canada. 18 April 2012. "Constitution Act (c.3)." Ottawa, Canada, 29 March 1867. . Forsey, Eugene A. How Canadians Govern Themselves. 2012. Web. 20 March 2015. . Les éditions Écosociété Inc, et al. v Banro Corporation. No. SCC 18. Supreme Court of Canada. 18 April 2012. Maton, William F. "The Supreme Court of Canada." 12 May 1996. The 1987 Constitutional Accord: The Report of the Special Joint Committee of the Senate and the House of Commons. Web. 20 March 2015. . Nishisato, Ira and Margot Finley. "Canada: Supreme Court Of Canada Releases Long-Awaited Jurisdiction Decisions Of Importance To Foreign Businesses And Parties With Ties To Canada." 19 April 2012. Mondaq Business Briefing. Web. 20 March 2015. . Office of the Commissioner for Federal Judicial Affairs Canada. "Amnesty International Canada v. Canada (Chief of the Defence Staff), 2008 FCA 401, [2009] 4 F.C.R. 149." 2 February 2011. Web. 22 March 2015. . R v Hape. No. 2 SCR 292. Supreme Court of Canada. 7 June 2007. Reference re Secession of Quebec. No. 2 SCR 217. Supreme Court of Canada. 20 August 1998. Rennie, Donald J and Ramona Rothschild. "The Canadian Charter of Rights and Freedoms and Canadian Officials Abroad." Supreme Court Law Review 47 (2009): 127-146. Print. Slahi v Canada (Minister of Justice). No. FCA 259. Federal Court of Appeal. 2009. Supreme Court Act. "RSC 1985 , c S-26." Ottawa, Canada, n.d. Supreme Court of Canada. "The Canadian Judicial System." 4 September 2008. Web. 20 March 2015. . "The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11." 18 March 2015. CanLII. Web. 22 March 2015. . University of Toronto Faculty of Law. "Step 2: Primary Sources of Legilsation." 2015. Bora Laskin Law Library. Web. 22 March 2015. . Yale Law School. "R v Hape [2007] 2 SCR 292 2007 SCC 26." 23 August 2010. Web. 22 March 2015. . Read More