Gibran van Ert is an associate with Hunter Litigation Chambers, Vancouver.

¹ Convention Relating to the Status of Refugees, [1969] Can. T.S. no. 6 [Refugee Convention].

² Hinzman v. Canada (Minister of Citizenship and Immigration), 2006 FC 420, affirmed 2007 FCA 171; Sepet v. Secretary of State for the Home Department, [2003] U.K.H.L. 15.

³ Lebedev v. Canada (Minister of Citizenship and Immigration), 2007 FC 728 at para. 28 (Lebedev).

⁴ Ibid. at para. 63.

⁵ Ibid. at para. 70.

⁶ Krotov v. Secretary of State for the Home Department, [2004] E.W.C.A. Civ 69; B. v. Secretary of State for the Home Department, [2003] U.K.I.A.T. 20.

⁷ Lebedev, supra note 3 at para. 78.

⁸ Ibid. at paras. 79–82.

⁹ Canadian Security Intelligence Services Act, R.S.C. 1985 c. C-25.

¹⁰ The secret is partly out: Blanchard J. quotes from the decision, without citing it, at para. 28 of his reasons.

¹¹ R. v. Hape, [2007] 2 S.C.R. 292. The amicus also cited R. v. Harrer [1995] 3 S.C.R. 562 and R. v. Cook [1998] 2 S.C.R. 597.

¹² Reasons at para. 38.

¹³ NationalCorn Growers Association v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324 at 1372–3 (explaining that ambiguity may be patent or latent, and a latent ambiguity may only be discerned by having recourse to an underlying international agreement at the outset of the interpretive process). See also Hape, supra note 11 at para. 53 (explaining that international law values and principles “form part of the context in which statutes are enacted”).

¹⁴ Reasons at paras. 46–7, citing Hape at paras. 47, 48, and 53.

¹⁵ Reasons at para. 48, citing Hape at para. 39.

¹⁶ Reasons at para. 52.

¹⁷ Reasons at para. 53.

¹⁸ Reasons at para. 55.

¹⁹ E.g., Re Criminal Code ss. 275 & 276 (1897) 27 S.C.R. 461; R. v. Libman, [1985] 2 S.C.R. 178 at 208.

²⁰ Treaty between the United Kingdom and Siam Respecting the Extradition of Fugitive Criminals, [1911] U.K.T.S. No. 23.

²¹ Extradition Act, SC 1999, c. 18.

²² United States v. Burns, [ 2001 ] 1 S.C.R. 283.

²³ Reasons at para. 40.

²⁴ Reasons at para. 93. See also paras. 94–127.

²⁵ Reasons at para. 135.

²⁶ Reasons at paras. 143–5.

²⁷ Reasons at para. 161.

²⁸ Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Concerning the Abolition of the Death Penalty in All Circumstances, [2002] E.T.S. no. 187; Reasons at para. 162.

²⁹ Reasons at paras. 163–7.

³⁰ Reasons at para. 168.

³¹ Reasons at paras. 169, 171, and 174 [court’s emphasis].

³² Second Optional Protocol to the 1989 International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty, 999 U.N.T.S. 302.

³³ International Commercial Arbitration Act, R.S.O. 1998, c. I.9 as amended.

³⁴ Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law, 21 June 1985.

³⁵ Bayview Irrigation District No 11 and ors v. Mexico, Award, ICSID Case no. ARB(AF)/05/1 (19 June 2007).

³⁶ North American Free Trade Agreement, [1994] Can. T.S. no. 2.

³⁷ Treaty between the United States of America and Mexico Respecting the Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande 1944, ( 1944) U.S.T.S. 994.

³⁸ Reasons at para. 11.

³⁹ Reasons at para. 13.

⁴⁰ Dunsmuir v. New Brunswick, 2008 SCC 9; Reasons at para. 60.

⁴¹ Reasons at para. 63.

⁴² Reasons at para. 71 ; see also para. 73.

⁴³ Reasons at para. 76.

⁴⁴ R. v. Stinchcombe, [1991] 3 S.C.R. 326.

⁴⁵ Reasons at para. 2. No explanation is offered in the Reasons as to what the “local law” of the US military prison at Guantanamo Bay, Cuba, may be.

⁴⁶ Reasons at para. 1.

⁴⁷ Ri. v. Hape, [2007] 2 S.C.R. 292.

⁴⁸ Reasons at para. 17.

⁴⁹ Reasons at para. 18.

⁵⁰ Reasons at para. 19.

⁵¹ Reasons at para. 20.

⁵² Reasons at para. 21. The US decisions are Rasul v. Bush, 542 US 466 (2004) and Hamdan v. Rumsfeld 126 S. Ct. 2749 (2006).

⁵³ Reasons at para. 24.

⁵⁴ Reasons at para. 25.

⁵⁵ Reasons at para. 26.

⁵⁶ There is another possibility: perhaps if Khadr were detained in North Korea, for example, Canadian courts could find that the Hape exception applies, even without a ruling by that country’s courts, by holding that North Korea’s conduct was somehow contrary to international law. That may not be so, for the Hape exception purports to be directed at Canada’s international obligations, not those of foreign states (e.g., Hape at para. 101; Khadr at para. 18). Furthermore, it is not the usual role of domestic courts to sit in judgment of the international legality of acts by foreign states, and both North Korea and Canada might legitimately object to a court embarking on such an inquiry. However, the Khadr decision is hardly rigorous in applying the distinction between violations of Canada’s obligations and violations by the US of its own obligations, as its exclusive reliance on US Supreme Court authority illustrates. Assuming that Hape/Khadr do permit (indeed, require) an applicant for Charter relief in such a case to establish a violation of international law by the detaining state, there is always the possibility that the conduct of that state might not actually be contrary to international law, in which case a person in Khadr’s position would again be left without a remedy.

⁵⁷ Reasons at para. 27.

⁵⁸ Reasons at para. 37.

⁵⁹ Reasons at para. 36.

⁶⁰ Immigration and Refugee Protection Regulations, SOR/ 2002–227.

⁶¹ Agreement between the Government of Canada and the Government of the United States of American for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries, [2004] Can. T.S. no. 2.

⁶² Immigration and Refugee Protection Act, S.C. 2001 , c. 27.

⁶³ Refugee Convention, supra note 1.

⁶⁴ Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, [1987] Can. T.S. no. 36.

⁶⁵ Canadian Council for Refugees v. Canada, 2007 FC 1262.

⁶⁶ Quoted in the Reasons at para. 67.

⁶⁷ Reasons at para. 56.

⁶⁸ Reasons at para. 64.

⁶⁹ Reasons at paras. 77–8.

⁷⁰ Reasons at para. 78.

⁷¹ Reasons at para. 92.

⁷² Reasons at para. 103.

⁷³ Reasons at para. 108.

⁷⁴ Reasons at para. 130.

⁷⁵ Reasons at paras. 122–3.

⁷⁶ E.g., Chua v. Minister of National Revenue, [2001] 1 FC 608 (TD).