![handle is hein.journals/wesjalals10 and id is 1 raw text is:
THAT MOST CANADIAN OF VIRTUES:
COMITY IN SECTION 7 JURISPRUDENCE
KEVIN W. GRAY*
INTRODUCTION
A great deal of judicial ink has been spilled on the application of Canadian
Charter of Rights and Freedoms' (Charter) protections extraterritorially. The Supreme
Court of Canada (SCC) has struggled to provide any conceptual clarity on how to
determine if and when those protections might apply outside Canada. In this respect, its
jurisprudence has mirrored the jurisprudence of other courts, which have similarly
struggled to determine the extraterritorial effects of human rights protections.2
In this paper, I attempt to resolve some of this conceptual uncertainty by focusing
on the scope of protections afforded by section 7 of the Charter. Section 7 protections
serve as a useful entry point into the extraterritoriality debate for two reasons. First,
domestic jurisprudence shows substantial overlap between the analysis of section 7 and
of other legal rights guaranteed by the Charter.3 Second, courts have tended to focus
Copyright C 2020 by Kevin W. Gray.
* Kevin W. Gray is a JD candidate at Osgoode Hall Law School. He holds a PhD in philosophy from
Laval University (2011) as well as the Diploma in International Law from the Hague Academy of
International Law (2015). The author acknowledges the helpful comments of Jamie Cameron, Matthew
Patterson, and Mark Mancini, as well as the two anonymous referees, on earlier versions of this paper.
1 Part I of The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11)
[Charter].
2 Domestic and international courts have taken a range of approaches to the applicability of human rights
protections extraterritorially. The European Court of Human Rights (ECHR) has adopted a test based on
the exercise of public powers outside states' borders (Loizidou v Turkey (preliminary objections) (1995),
20 EHRR 99; Al-Skeini v United Kingdom [GC], No 55721/07 [2011] IV ECHR 99 with a limited
exception for transboundary effects (Issa v Turkey Appl No 31821/96 (16 November 2004)). It has found
that military action alone would not be enough to warrant applications of human rights protections
extraterritorially (Bankovic v Belgium [GC], No 52207/99, [2001] XII ECHR 333 at para 80).
The Supreme Court of the United States has interpreted the applicability of Bill of Rights protections
even more narrowly, holding that protections under the Bill of Rights do not generally apply
extraterritorially (United States v Alvarez-Machain, 504 US 655 (1992)). However, in some cases,
individuals charged with a crime in military tribunals or commissions may be entitled to due process
rights (Reid v Covert, 354 US 1 (1956)) and to habeas corpus rights Boumediene v Bush, 553 US 723
(2008).
3 In particular, many s 7 cases involve purported violations of ss 8 through 14 of the Charter.
https://doi.org/10.5206/uwojls.v10il.8102](ViewImageLocal?handle=hein.journals/wesjalals10&div=1&collection=&method=preview&ext=.png&size=3)
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