In last week’s blog, I discussed how the mobility rights within Section 6 contain restrictions in their text! However, these are far from the only restrictions upon the mobility rights. Frequent readers of this series may recall how Section 1, or the reasonable limits clause, actually imposes limits on any right in the Charter to ensure that they are not applied in unreasonable ways.
In today’s blog, I will be examining how Section 1 limits the mobility rights in Section 6 by revoking the right when a Canadian has committed a crime abroad!
Over its history, Canada has signed several treaties with countries around the world to ensure that citizens who commit crimes abroad are still responsible for their actions after they leave the foreign country. These treaties allow other states to ask Canada to arrest these criminals and to send them back to stand trial for their crimes.
Many of these treaties have existed for as long as Canada has, and they have been the foundation of our relationship with several other countries- most notably the United States, which has historically included the proper enforcement of these treaties as a condition for many other deals.
When the Canadian Charter of Rights and Freedoms was signed in 1982, many people thought that Section 6- which guaranteed the right to remain in Canada- would mean the end of extradition. However, by 1985, the Supreme Court ruled that extraditing Canadian citizens serves the reasonable purpose of fighting crime and fostering international cooperation, and is therefore a reasonable limit on the right to remain in Canada.
While the court has ruled the same way on this question every time it is raised, it is worth noting that the court’s decision has never been unanimous. In each case, the same question is always asked by dissenting judges: can Canada extradite Canadians to countries where their rights are put at risk?
Before 2001, this exact scenario had happened several times. In 1991, the Supreme Court even approved two separate cases within two months that sent Canadian citizens to the United States to receive the death penalty! In fact, one person sent to the US through this process- Charles Ng- still remains on death row in California!
This all changed in 2001 with the Burns case. In this ruling, the Supreme Court reversed its usual stance and said that Canada had an obligation to make sure that its citizens would not be executed before extraditing criminals. One year later, the Suresh case would further narrow the range of possible extraditions by stating that the government cannot deport someone to a country where they risk being tortured!
These two changes have opened the door for human rights activists across Canada to seek an even broader restrictions. In particular, many activists who speak out against the Chinese government fear that extradition rules could be used to have them sent to China, where they will not have the protection of an independent and fair judiciary.
Meanwhile, others are pushing for a more protections for Canadians who are extradited. While capital punishment and torture are forbidden, any other punishment is considered permissible. Considering how many other forms of punishment, like prolonged isolated confinement, are inhumane, there is a very real concern about whether the current system truly protects Canadians!
While no major rulings have come from these efforts, cases involving protection of Canadians’ rights during extradition continue to this very day!
Please check in for my next blog, where I will continue my look into reasonable limitations on the mobility rights- particularly those related to the right to a livelihood in any province from Section 6(2)(b)!