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The Sovereign Charter: Security, Territory and the
Boundaries of Constitutional Rights
Irina Ceric
Kwantlen Polytechnic University

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Original Publication Citation
"The Sovereign Charter: Security, Territory and the Boundaries of Constitutional Rights (2012-13) 44:2 Ottawa Law Review 353

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The Sovereign Charter: Security, Territory
and the Boundaries of Constitutional Rights
IRINA CERIC*

“The Sovereign Charter” takes as its starting point the
Supreme Court of Canada’s decision in Charkaoui v
Canada, which struck down some portions of the
security certificate process of the Immigration and
Refugee Protection Act as contrary to s. 7 of the Charter.
Although this decision was hailed as a victory, I argue
that Charkaoui redraws long-standing divisions along
long-standing lines of alleged risk, allegiance and origin. I then explore the emergence of tentative shifts
in jurisprudential conceptions of state sovereignty
and extra-territoriality through a consideration of
four post-Charkaoui decisions: the two judgments in
the Omar Khadr matter, the Amnesty International
claim regarding Afghan POWs detained by the Canadian military and a case with respect to an overseas RCMP investigation. The article then develops
three arguments about the dialectical process by which
changing notions of sovereignty both determine and
are reflected in the territorial reach of the Charter, and
theorize this process as one in which rights continue
to constrain ways of challenging disciplinary power at
the same time as they minimally limit its reach. These
three meditations consider rights and sovereignty as
a juridical “act”, through the lens of international law
and in the context of biopolitics.

*

Le concept de « Charte souveraine » tire son origine
de la décision rendue par la Cour suprême du Canada
dans Charkaoui c Canada, qui a invalidé certaines parties
du processus du certificat de sécurité prévu à la Loi
sur l’immigration et la protection des réfugiés au motif
qu’elles contrevenaient à l’article 7 de la Charte. Bien
que cette décision ait été saluée comme une victoire,
je soutiens que l’arrêt Charkaoui ranime de vieilles
controverses de même que des visions anciennes
des concepts de risques présumés, d’allégeance et
d’origine. J’explore ensuite l’émergence de tentatives de renversements dans les conceptions jurisprudentielles de la souveraineté de l’État et de
l’extraterritorialité dans quatre décisions rendues
dans la foulée de l’arrêt Charkaoui : soit les deux
jugements prononcés dans l’affaire Omar Khadr, la
poursuite intentée par Amnistie internationale relative aux prisonniers de guerre afghans détenus par
l’armée canadienne et une cause portant sur une
enquête menée à l’étranger par la GRC. L’article
élabore par la suite trois arguments au sujet du processus dialectique en vertu duquel des notions novatrices de souveraineté déterminent la portée territoriale de la Charte, et définit ce processus comme
permettant aux droits de continuer à restreindre les
manières de contester les pouvoirs disciplinaires
tout en limitant de façon minimale leur portée. Ces
trois formes de réflexion examinent les droits et
la souveraineté en tant qu’« actes juridiques » selon la
perspective du droit international et dans le contexte
des biopolitiques.

Irina Ceric, JD, LLM, of the Bars of Ontario and New York. This article arises from a master’s thesis
written under the supervision of Prof. Shin Imai at Osgoode Hall Law School of York University.
It was substantially revised while I was a Visiting Researcher at Harvard Law School’s Institute for
Global Law and Policy. I thank Prof. Imai for his guidance and mentorship; all errors and omissions
are my own.

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Table of Contents
355
358
358
363
364
366
367
372
375
378

I.
II.

III.
IV.

V.

INTRODUCTION
CHARKAOUI AND ITS PREDECESSORS
A.
Charter Jurisprudence Pre-Charkaoui
B.
Charkaoui
POST-CHARKAOUI
SOVEREIGNTY: THREE DELIBERATIONS
A.
The State of Rights: Acts of Sovereignty and the Charter
B.
International Law, State Sovereignty and the Domestic Realm
of the Charter
C.
Biopolitics and the Rights of the Abandoned
CONCLUSIONS

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The Sovereign Charter: Security, Territory
and the Boundaries of Constitutional Rights
IRINA CERIC*

I. INTRODUCTION
The jurisprudential borders of the Canadian state appeared to shift in the aftermath
of the landmark judgment of the Supreme Court of Canada (Supreme Court or
the Court) on the constitutionality of the security certificate provisions of the
Immigration and Refugee Protection Act.1 By granting limited constitutional rights to
non-citizens implicated in national security proceedings, the decision in Charkaoui
v Canada (Citizenship and Immigration),2 striking down portions of the IRPA’s security
certificate procedure, was a signal departure from previous caselaw upholding the
use of secret evidence and indefinite detention. Charkaoui ultimately maintained
the contingency of the Canadian Charter of Rights and Freedoms,3 re-drawing longstanding divisions along lines of alleged risk, allegiance and origin, despite the
emergence of tentative shifts in jurisprudential conceptions of state sovereignty and
extra-territoriality. Where previous national security cases involving constitutional
rights claims by non-citizens were predicated on a conceptualization of state
sovereignty as the right to exclude from territory (e.g. the oft-quoted maxim that
“[t]he most fundamental principle of immigration law is that non-citizens do not
have an unqualified right to enter or remain in the country”4), reading Charkaoui
in the context of four subsequent cases involving the role of Canadian state actors
abroad5 gives rise to the prospect of the Charter operating to delineate and maintain
1
2
3
4
5

SC 2001, c 27 s 77(1) ff [IRPA].
2007 SCC 9, [2007] 1 SCR 350 [Charkaoui].
Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
Chiarelli v Canada (Minister of Employment and Immigration), [1992] 1 SCR 711 at 733, 90 DLR (4th) 289
[Chiarelli cited to SCR].
These four cases involve the application of the Charter to the actions of the Canadian military in
Afghanistan (Amnesty International Canada v Canada (Chief of Defence Staff), 2008 FCA 401, [2009]
4 FCR 149 [Amnesty International Canada]); the RCMP’s participation in an extra-territorial investigation (R v Hape, 2007 SCC 26, [2007] 2 SCR 292 [Hape]); and two claims brought by a Canadian
citizen imprisoned in Guantanamo Bay (Canada (Justice) v Khadr, 2008 SCC 28, [2008] 2 SCR 125
[Khadr 2008]; Canada (Prime Minister) v Khadr, 2010 SCC 3, [2010] 1 SCR 44 [Khadr 2010]).

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the limits of state sovereignty within and beyond national borders. While the Charter
may accompany the extended reach of the Canadian state in some of its guises, it
provides only a minimal constraint on the actions of its agents, reinscribing rather
than challenging sovereignty. Accordingly, this article argues that the “sovereign
Charter” represents a key moment in the evolution of the Canadian state’s national
security, immigration and foreign policy strategies, serving to harden the boundaries
of the nation from within and without. By theorizing the doctrinal rules related to
the extra-territorial application of the Charter, this article concludes that rights, as
reflected in Charkaoui and subsequent caselaw, continue to offer only a limited mode
of resistance against sovereign power.
I take as a starting point Kunal Parker’s contention that the emancipatory
potential of rights cannot be divorced from the seemingly contradictory process
in which “the unmitigated ‘defence’ of territory against the incursion of aliens goes
along with—indeed, cannot be separated from—the unmitigated commitment
to protecting the fundamental constitutional rights of aliens as persons on the
territorial ‘inside.’”6 Parker further argues that “[l]eft-liberal discourses of the
nation … are thus fully aware that the universality of nation and law as they imagine
them—in other words, of nation as law or law as nation—can only be realized in
and by building walls around [that] space …”, such that rights become constitutive
of a national sense of self.7 It is within this context, I argue, that the framework of
the sovereign Charter emerged, particularly in relation to cases involving the rights
of non-citizens and “national security.” Beyond both immigration law’s historical
preoccupation with race and the contemporary focus on the “war on terror,” the
very notion of rights functions as a discursive and aspirational marker of sovereignty.
The focus of the remainder of this article is the trajectory of this jurisprudential
process as courts perpetuate and shift the content and strength of rights guarantees.
I begin with a brief historical overview of the key Charter decisions on
citizenship, national security and the Charter prior to Charkaoui (especially the
previous unsuccessful constitutional challenges to the security certificate process),
and then outline the Charkaoui decision. In the second part of this article, I discuss
four post-Charkaoui decisions that engage the Charter and questions of territory,
security and sovereignty. Finally, I develop three arguments about the dialectical
process by which changing notions of sovereignty both determine and are reflected
in the territorial reach of the Charter. I theorize this process as one in which rights
continue to constrain ways of challenging disciplinary power—understood as the
operation of broadly dispersed systems of control, regulation and management8—
at the same time as they minimally limit its reach.

6

7
8

Kunal Parker, “Ejecting an Inside: An Essay on the Politics of the Contemporary American Immigration State” in Peter Fitzpatrick & Patricia Tuitt, eds, Critical Beings: Law, Nation and the Global Subject
(Aldershot, UK: Ashgate, 2004) 181 at 182-83.
Ibid at 183 [emphasis in the original].
See Part IV, below, for more on this topic.

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A preliminary question regarding my engagement with the concept of
“sovereignty” remains: although the caselaw, as shown below, is replete with
references to and justifications for sovereignty, it is almost entirely bereft of
definitions, relying on a common-sense understanding of the term.9 Recent
scholarly literature on law and sovereignty, on the other hand, takes as its starting
point Carl Schmitt’s now apocryphal statement that “[s]overeign is he who decides
on the exception.”10 This concept of the “exception” took on increased (but hardly
new11) juridical salience after the events of September 11, 2001, particularly with
respect to questions of (anti-)terrorism, states of emergency and constitutional
politics.12 However, as Jeremy Webber explains, for Schmitt, “the emergency tends
to swallow up normality,”13 and his conceptualization of sovereignty and the role
of “the decision” was intended as a “general concept in the theory of the state, and
not merely … a construct applied to any emergency decree or state of siege.”14
In his later work, Schmitt thus outlined a conception of the nomos, a “constituting
power that bestows upon the laws their sovereign legitimacy,” the outcome of
the historical event by which law becomes legal.15 While I briefly engage with
Schmitt’s theoretical framework in part IV of this article, I am concerned far less

9

10

11
12
13

14
15

Perhaps the most considered discussion is found in Mitchell v MNR, 2001 SCC 33, [2001] 1 SCR 911
[Mitchell] at para 129: “Merged sovereignty’ asserts that First Nations were not wholly subordinated
to non-aboriginal sovereignty but over time became merger partners. The final Report of the Royal
Commission on Aboriginal Peoples, vol. 2 (Restructuring the Relationship (1996)), at 214, says that ‘Aboriginal
governments give the constitution [of Canada] its deepest and most resilient roots in the Canadian
soil.’ This updated concept of Crown sovereignty is of importance. Whereas historically the Crown
may have been portrayed as an entity across the seas with which aboriginal people could scarcely be
expected to identify, this was no longer the case in 1982 when the s. 35(1) reconciliation process was
established. The Constitution was patriated and all aspects of our sovereignty became firmly located
within our borders. If the principle of ‘merged sovereignty’ articulated by the Royal Commission on
Aboriginal Peoples is to have any true meaning, it must include at least the idea that aboriginal and
non-aboriginal Canadians together form a sovereign entity with a measure of common purpose and
united effort. It is this new entity, as inheritor of the historical attributes of sovereignty, with which
existing aboriginal and treaty rights must be reconciled” [emphasis in original]. See also Part IV,
below, for more on this topic.
Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, translated by George Schwab
(Chicago: University of Chicago Press, 2005) at 5 [footnotes omitted]. Although Schmitt’s legacy
as a legal and political theorist has been inextricably coloured by his membership in the Nazi Party
and role as a legal advocate for the Reich government during the last days of the Weimar Republic,
his work on sovereignty, legitimacy and the bases of state and popular power remain influential
and highly cited. See especially Susan Buck-Morss, “Sovereign Right and the Global Left” (2007) 19:4
Rethinking Marxism: A Journal of Economics, Culture & Society 432 at 438.
See Obiora Chinedu Okafor, “Newness, Imperialism, and International Legal Reform in Our Time:
A TWAIL Perspective” (2005) 43:1 & 2 Osgoode Hall LJ 171.
See e.g. Giorgio Agamben, State of Exception, translated by Kevin Attell (Chicago: University of Chicago Press, 2005). See Part IV(iii), below, for more on this topic.
Jeremy Webber, “National Sovereignty, Migration, and the Tenuous Hold of International Legality:
The Resurfacing (and Resubmersion?) of Carl Schmitt” in Oliver Schmidtke & Saime Ozcurumez, eds,
Of States, Rights, and Social Closure: Governing Migration and Citizenship (New York: Palgrave Macmillan,
2008) 61 at 66.
Webber, supra note 10 at 5.
Buck-Morss, supra note 10 at 438.

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with questions about the exception in constitutional politics than with the notion of
sovereignty as constructed by and through law. Rather than rely on a juridical ideal
in which sovereignty is usually understood as exclusive authority over territory
(with the corollary being that said territory be coterminous with that authority),
Saskia Sassen argues that “it is becoming evident that state sovereignty articulates
both its own and external conditions and norms.”16 She concludes that “[t]he politics
of contemporary sovereignties are far more complex than notions of mutually
exclusive territorialities can capture” and “[t]he question of territory as a parameter
for authority and rights has entered a new phase.”17 This article aims to articulate
the scope of that parameter, theorizing the processes by which sovereignty is used,
(re)made and abused by, and through, Charter jurisprudence.
II. CHARKAOUI AND ITS PREDECESSORS
A. Charter Jurisprudence Pre-Charkaoui
The Supreme Court’s decision in Singh v Minister of Employment and Immigration,18
three years after the inception of the Charter, set the trajectory of immigration and
refugee constitutional rights cases on something of an arc—an initial embrace of
inclusivity and limitations to sovereign prerogative, followed by a slow retreat toward
a lukewarm reception of international norms as the basis for narrow constitutional
protection. The Singh case was brought by seven refugee claimants denied refugee
status under the United Nations’ Convention Relating to the Status of Refugees19 without
the benefit of an oral hearing. The Supreme Court’s judgment granting rights under
section 7 of the Charter to “every human being who is physically present in Canada
and by virtue of such presence [is] amenable to Canadian law”20 appeared to provide a
foundation for future migration-related rights claims. Four years later, the Supreme
Court’s decision in Andrews v Law Society of British Columbia established citizenship as
an analogous ground of discrimination under section 15 of the Charter.21 Considered
in tandem, Singh and Andrews suggest that constitutional rights claims for migrants
and non-citizens emerged with a presumption of inclusion, a tentative reconciliation
of national sovereignty, territory and the policy demands of migration.
In the context of these and other fledgling Charter cases, the first Charter
challenge to the national security provisions of the 1976 Immigration Act22 was
16
17
18
19
20

21
22

Saskia Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton: Princeton
University Press, 2006) at 415.
Ibid at 415-16.
[1985] 1 SCR 177, 17 DLR (4th) 422, Wilson J [Singh cited to SCR].
28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) [Convention].
Singh, supra note 18 at 202. The minority decision, written by Justice Beetz, determined that refugee
claimants are entitled to a fair hearing pursuant to the Canadian Bill of Rights, SC 1960, c 44, reprinted
in RSC 1985, App III, s 2(e) (Singh, supra note 18 at 223).
[1989] 1 SCR 143, 56 DLR (4th) 1 [Andrews].
Immigration Act, SC 1976-77, c 52.

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launched.23 Although the security certificate process has evolved considerably over
time, the general framework has remained the same: immigration law allows the
federal government to issue a certificate with respect to the inadmissibility to Canada
of a named non-citizen (including permanent residents) “on grounds of security.”24
Under the version of the procedure challenged in Charkaoui, this “security certificate”
was referred to a single judge of the Federal Court of Canada for determination of its
“reasonableness,” a process that generally included in-camera hearings in the absence
of the named individual and his or her counsel, the use of undisclosed evidence
and information, relaxed evidentiary rules and, if the named person was not a
permanent resident, mandatory detention during the entire lengthy proceeding.
If the certificate was found to be “reasonable,” it lead to the automatic removal
of the named person from Canada, and this reasonableness determination could
not be appealed on its merits. Thus, the security certificate mechanism arguably
imported national security concerns not related to migration into immigration law.
Accordingly, constitutional challenges to this process showcase the boundaries of
the Charter, the role of rights in excluding the partially or contingently included
and the concomitant reinforcement of the juridical migration-security-territory
nexus as a quintessential exercise of sovereignty. In policing the borders of the
state from the inside, through the exercise of immigration rather than criminal law,
security certificates underscore that exclusion is a sovereign prerogative, if not duty.
Maintaining that policing power in the face of rights-based claims reveals much
about the (re)construction and maintenance of national sovereignty.
In Brito, the Federal Court of Appeal quickly disposed of Victor Brito’s
claim under sections 7 and 12 of the Charter on retroactivity grounds (the original
deportation order against him had been issued in early 1982, prior to the passage
of the Charter), but not before setting out one of the key conceptual bases for the
security-related Charter claims to follow. In the course of disallowing Brito’s claim
under the Canadian Bill of Rights, and relying on the decision of the Supreme Court
in Prata v Minister of Manpower & Immigration,25 Justice Marceau reiterated that
“[a]t common law no alien has any right to enter this country except by leave of the
Crown; and the Crown can refuse leave without giving any reason,” and therefore,
non-removal from Canada is a privilege rather than a right deserving of legal

23
24

25

Brito v Canada (Minister of Employment and Immigration), [1987] 1 FCR 80, 70 NR 102 (FCA) [Brito cited
to FCR].
IRPA, supra note 1, s 77(1). Beginning with the Immigration Act (supra note 22, ss 39-42), which first
initiated the division of non-citizens subject to removal on security grounds into two categories—
permanent residents and persons “other than a Canadian citizen”—various versions of the security
certificate procedure were enacted. The most important variation involved the changing role of the
Security Intelligence Review Committee (SIRC), which for a time heard security certificate reports
at oral hearings for permanent residents and was briefly given responsibility for hearing such reports
submitted in respect of all other non-citizens. See generally Ian Leigh, “Secret Proceedings in Canada”
(1996) 34:1 Osgoode Hall LJ 113.
Prata v Minister of Manpower and Immigration, [1976] 1 SCR 376 at 380, 3 NR 484 [Prata].

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protection.26 While the Court in Brito did not explicitly import this basis for its
Bill of Rights decision into its Charter analysis, and Justice MacGuigan suggested in
his concurring reasons that the right/privilege distinction was no longer significant
in light of the Supreme Court’s decision in Singh, the underlying common law
alien/citizen dichotomy would seamlessly transfer to subsequent Charter challenges
to deportation or removal on security grounds, as outlined below.
Chiarelli was the Supreme Court’s next major immigration law decision after
Singh. Joseph (Giuseppe) Chiarelli had arrived in Canada from Italy as a 15 year-old
landed immigrant in 1975. Almost 20 years later, having never become a Canadian
citizen, he was named in a security certificate alleging that there were reasonable
grounds to believe that he would engage in a pattern of organized criminal
activity, including extortion and drug-related activities. Chiarelli challenged the
constitutionality of the security certificate procedure, arguing that the process
infringed his rights under sections 7, 12 and 15 of the Charter. Writing for a
unanimous Supreme Court, Justice Sopinka concluded that as there was no breach
of fundamental justice, it was not necessary to address the question of whether
Chiarelli had been deprived of his right to life, liberty or security of the person:
[I]n determining the scope of principles of fundamental justice as
they apply to this case, the Court must look at the principles and
policies underlying immigration law. The most fundamental principle
of immigration law is that non-citizens do not have an unqualified right to
enter or remain in the country.27
As the security certificate procedure continued to evolve after Chiarelli,
challenges to its constitutionality continued apace. One of the standout decisions
was Al Yamani v Canada (Solicitor General), in which the Federal Court held that one
of the grounds of inadmissibility set out in the Immigration Act was contrary to the
Charter’s guarantee of freedom of association. A Palestinian born in Lebanon, Issam Al
Yamani, was considered stateless upon his arrival in Canada as a landed immigrant
in 1985. In 1992, he was named in a security certificate alleging inadmissibility
because there were reasonable grounds to believe that he was a member of “an
organization that is likely to engage” in proscribed acts of violence, on the basis
of his association with the Popular Front for the Liberation of Palestine.28 Federal
Court Justice MacKay found that this test for inadmissibility restricts freedom of
association because “[i]t is the association of persons as members of the organizations
described that leads to their classification for exclusion or deportation” rather than
“their individual records of participating in violent activities [or] a determination
26
27
28

Brito, supra note 23 at 94.
Ibid at 733 [emphasis added].
Al Yamani v Canada (Solicitor General), [1996] 1 FCR 174 at 221, 129 DLR (4th) 226 (FCTD) [Al Yamani
cited to FCR].

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that they are likely to participate in such activities.”29 In deciding that the breach
was not saved by section 1 of the Charter, Justice MacKay held:
I am not satisfied … that there is a rational connection between
protecting the lives and safety of persons in Canada and restricting
freedom of association of permanent residents who are merely
members of organizations, whatever their nature, that are likely
(susceptible) to commit acts of violence that would or might endanger
lives or safety of persons in Canada.”30
It is precisely this sort of nuanced contextualization, however, that was
lacking in the Supreme Court’s decisions in the Ahani and Suresh cases decided a few
months after the events of September 11, 2001.31 Manickavasagam Suresh had been
found to be a Convention refugee but had not yet been granted landed immigrant
status when he was named in a security certificate stating that he was a member
of an organization, the Liberation Tigers of Tamil Eelam, which was engaged in
“terrorist” activity. The certificate was upheld as reasonable by the Federal Court
in 1997 and Suresh was ordered deported following a hearing and the issuance
of a “danger opinion” by the Immigration Minister.32 He sought judicial review
of these decisions, arguing that his removal to Sri Lanka, where he was at risk
of torture, violated his rights under section 7 of the Charter. The Supreme Court
eventually determined that Suresh had made out a prima facie case of the possibility
of torture if he were returned to Sri Lanka, and he had not been provided with
sufficient procedural safeguards necessary to protect his section 7 interests:
[G]enerally to deport a refugee, where there are grounds to believe
that this would subject the refugee to a substantial risk of torture,
would unconstitutionally violate the Charter’s s. 7 guarantee of life,
liberty and security of the person. This said, we leave open the
possibility that in an exceptional case such deportation might
be justified either in the balancing approach under ss. 7 or 1 of
the Charter.33
Although Suresh was allowed to remain in Canada, the Supreme Court’s
rather equivocal decision on the issue of torture did not have the same result in
the companion Ahani decision. Mansour Ahani made a successful claim for refugee

29
30
31
32
33

Ibid at 222-23.
Ibid at 228 [emphasis in original].
Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 SCR 3 [Suresh]; Ahani v
Canada (Minister of Citizenship and Immigration), 2002 SCC 2, [2002] 1 SCR 72 [Ahani SCC]
Suresh, supra note 31 at paras 11-14.
Ibid at para 129 [emphasis added].

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status upon his arrival in Canada from Iran in 1991, but prior to becoming a landed
immigrant a security certificate was issued, alleging that he was inadmissible to
Canada on the basis of involvement in “terrorism” because of his association with
the Iranian Ministry of Intelligence and Security. While the designated judge’s
decision as to the reasonableness of the certificate was pending, Ahani brought an
action alleging that the security certificate procedure for non-permanent residents
violated his rights under sections 7, 9 and 10(c) of the Charter.34 Justice McGillis of
the Federal Court proceeded with a section 7 analysis premised on the principle that
the rights accorded to the him as a Convention refugee were limited rights, including
a qualified right to enter, to be landed and to not be removed unless he is a member
of an inadmissible class and is found to be a danger to the security of Canada.35
Justice McGillis concluded that the security certificate procedure did not violate
the principles of fundamental justice, noting that its constitutional validity “must
be analysed in the context of ‘the principles and policies underlying immigration
law’” and that the case was “purely and simply an immigration matter.”36 As a result,
the procedural due process rights asserted by Ahani were dismissed, as criminal
law standards of fundamental justice do not apply in the context of immigration
principles and policies.37 Following the defeat of this constitutional motion and
denial of subsequent appeals, the certificate naming Mansour Ahani was found to
be reasonable by a different Federal Court judge in 1998.38 A “danger opinion”
was subsequently issued under section 53 of the Immigration Act by the Minister of
Immigration, allowing Ahani’s deportation from Canada notwithstanding his status
as a Convention refugee.39 Ahani sought judicial review of the Minister’s decision
and also challenged the constitutionality of the removal scheme as one which
permits deportation to a country where there is a risk of torture or other inhumane
treatment, contrary to Canada’s international law obligations. Although pursued
through to the Supreme Court of Canada, and despite the opposite decision in the
companion Suresh decision based on nearly identical facts, this challenge was also
unsuccessful, clearing the way for Ahani’s removal to Iran.40

34
35
36
37
38
39

40

Ahani v Canada, [1995] 3 FCR 669, 100 FTR 261 (FCTD), aff’d (1996), 201 NR 233, 37 CRR (2d)
181 (FCA), leave to appeal to SCC refused, [1997] 1 SCR v.
Ibid at 687-88.
Ibid at 691.
Ibid at 694.
Ahani v Canada (1998), 146 FTR 223, 42 Imm LR (2d) 219 (FCTD).
Immigration Act, RSC 1985, c 29 (4th Supp), s 53 (1)(a). This section allowed for the removal of a Convention refugee “from Canada to a country where the person’s life or freedom would be threatened
for reasons of race, religion, nationality, membership in a particular social group or political opinion”
if the Minister was, inter alia, “of the opinion that the person constitutes a danger to the security
of Canada.” The corresponding provision in the current legislation is found in IRPA, supra note 1,
s 115(2). See John A Dent, “No Right of Appeal: Bill C-11, Criminality, and the Human Rights of
Permanent Residents Facing Deportation” (2002) 27 Queen’s LJ 749 for a discussion of the evolution
of this mechanism.
Ahani SCC, supra note 31.

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B. Charkaoui
In early 2007, the Supreme Court of Canada issued its long-awaited decision on the
constitutionality of the security certificate provisions of IRPA. The three claimants
before the Supreme Court, Adil Charkaoui, Hassan Almrei and Mohamed Harkat,
challenged the procedure under various sections of the Charter and appealed to
general principles underlying the rule of law. Charkaoui was a permanent resident
of Canada, while Almrei and Harkat had been found to be Convention refugees but
had not yet attained residence status. In a unanimous judgment delivered by the
Chief Justice, the Supreme Court held that the security certificate mechanism
violates section 7 of the Charter by permitting “inadmissibility based on secret
material without providing for an independent agent at the stage of judicial review
to better protect the named person’s interests” and that the arbitrary time limits on
provisions relating to the detention of foreign nationals violate sections 9 and 10(c)
of the Charter.41
At first glance, the Charkaoui decision appeared to signal a realization of the
emancipatory potential of the Charter. Contrary to previous instances where refugees,
permanent residents and other non-citizens had challenged the constitutionality of
security-related immigration measures on the basis of violations of fundamental
justice, denial of due process rights or inconsistency with international law norms,
the Charter claims brought by the three security certificate detainees in Charkaoui
were at least partially vindicated. As discussed above, the section 7 analyses in the
earlier line of cases were premised on a bare reading of Chiarelli, essentially hinging
the right to exclude non-citizens on an absolute and monolithic construction of
state sovereignty, demonstrating “the popular belief that excluding non-citizens is
the ultimate prerogative of sovereignty.”42 The seeds of this supposition are found
in Audrey Macklin’s assessment of the relative weight of the Charter rights of noncitizens faced with removal for reasons of national security. She notes,“[w]hile it is
technically true that most Charter rights apply to all persons physically in Canada,
in practice the courts have sharply circumscribed the nature and extent of those
rights for non-citizens faced with removal,” and “[c]ontrary to the exhortations of
media pundits and anti-immigrant crusaders, the Constitution has proved a fairly
thin cloak protecting non-citizens.”43 In other words, such jurisprudence reflects
what Parker describes as “an understanding of sovereignty as inhering in the state’s
control of immigration through the ‘defence’ of a territorial ‘inside’ against the
incursions of aliens.”44

41
42

43
44

Charkaoui, supra note 2 at para 3.
Audrey Macklin, “Borderline Security” in Ronald J Daniels, Patrick Macklem & Kent Roach, eds, The
Security of Freedom: Essays on Canada’s Anti-Terrorism Bill (Toronto: University of Toronto Press, 2001)
384 at 389.
Ibid at 394 [footnotes omitted].
Parker, supra note 6 at 181.

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In Charkaoui, the Supreme Court’s key section 7 reasoning seems to sidestep
such absolutes, concluding that “[w]hile the deportation of a non-citizen in the
immigration context may not in itself engage s. 7 of the Charter, some features
associated with deportation, such as detention in the course of the certificate process
or the prospect of deportation to torture, may do so.”45 Inching away from the
immigration law as destiny calculus, the Court stated, “[i]n determining whether s. 7
applies, [a court] must look at the interests at stake rather than the legal label attached
to the impugned legislation.”46 As in the Ahani and Suresh decisions, however,
and in light of the limited finding of unconstitutionality and the remedy ordered
(the Court suspended its declaration for one year from the date of judgment47),
the limited re-working of the Chiarelli framework in Charkaoui ought to be seen as
only a partial incursion into sovereign power. While the Court retreated somewhat
from non-citizenship as a presumptive limit on the scope of rights, it also implicitly
maintained previous historical and conceptual currents in the jurisprudence in
its approach to non-citizenship and exclusion (the juridical migration-securityterritory nexus) on which Charter cases in this area are predicated. In the cases
that have followed, this limited incursion has been further inscribed through the
selective extra-territorial deployment of Charter protections.
III. POST-CHARKAOUI
Four judgments rendered since the decision in Charkaoui shed further light on
this argument. The Supreme Court considered the issue of the extraterritorial
application of the Charter in a criminal law (search and seizure) context in R v Hape,
ruling on the claim made by a Canadian citizen whose off-shore office was the subject
of a warrantless search by RCMP officers working with local police. A five-judge
majority of the Court ruled that although the Charter generally has no application
extra-territorially, its application should be considered in light of Canada’s international law commitments, such that Canadian state agents should not participate
in actions that would cause Canada to be in violation of international law principles
of jurisdiction. The Court called this a jurisprudential concept “distinct from, but
integral to, the principle of state sovereignty” and arising from “sovereign equality
[between states] and the corollary duty of non-intervention.”48 The Court outlined
a two step approach to determining whether Charter guarantees apply to a foreign
investigation: first, determine whether the activity falls under section 32(1) (in
other words, whether the conduct of a Canadian state actor is implicated) and if yes,
and depending on the facts of the case, determine whether there is “an exception
to the principle of sovereignty that would justify the application of the Charter to
45
46
47
48

Charkaoui, supra note 2 at para 17 [emphasis in the original].
Ibid at para 18 [emphasis added].
Ibid at para 140.
Hape, supra note 5 at para 57.

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the extraterritorial activities of the state actor.”49 On the facts in Hape, the Court
found that although the RCMP officers involved were clearly government actors,
the searches and seizures took place in the Turks and Caicos under local authority,
with consent given only for the participation of Canadian officers but not for the
exercise of extraterritorial jurisdiction.50 As a result, the searches were not “matters
within the authority of Parliament” and the Charter did not apply.51 The latest in a
line of cases considering the question of extraterritorial application of the Charter to
evidence gathering abroad,52 the majority ruling in Hape is principally a restatement
of classic jurisprudential engagement with state sovereignty as evidenced in the
interplay between domestic law and the international realm. Yet a three-judge
minority decision would have grounded extra-territorial application of the Charter
in the involvement of the RCMP, belying the majority’s inflexible approach to
sovereign authority and consent as a controlling determinant of jurisdiction.53 Read
as a whole, Hape is a reminder that the application of doctrinal rules with respect
to the extra-territorial application of the Charter is a contested exercise, even in a
context where there is little to no engagement with the themes of national security,
terrorism and war to which the same doctrinal analysis is applied.
A year later, in 2008, the Supreme Court ruled for the first time on the
case of Omar Khadr, a Canadian citizen captured in Afghanistan by United States (US)
military forces in 2002 at the age of 15 and then imprisoned at Guantanamo Bay,
Cuba. Khadr was questioned by Canadian state agents in Guantanamo in 2003,
despite their knowledge of the fact that he had been subjected to sleep deprivation
(a form of torture designed to render him less resistant to interrogation), and
information obtained during those interviews was shared with the US authorities.
In a unanimous, unsigned ruling, the Supreme Court determined that section 7 of
the Charter applied to require the disclosure of this evidence to Khadr, on the basis
of a US Supreme Court decision finding that the procedures in place during the
interviews violated US law as well as international human rights treaties to which
Canada is party.54 Highlighting the exception set out in Hape, the Court noted that
the deference required by the principle of comity “ends where clear violations of
international law and fundamental human rights begin.”55 Given the unambiguous
ruling of the US Supreme Court and the factual circumstances underlying Khadr’s
interactions with Canadian investigators, “no question of deference to foreign law
arises. The Charter bound Canada to the extent that the conduct of Canadian officials involved it in a process that violated Canada’s international obligations.”56

49
50
51
52
53
54
55
56

Ibid at para 113.
Ibid at paras 115-17.
Ibid at para 118.
See ibid at para 71-82 for an overview of the reasons in these cases.
Ibid at paras 161-62.
Khadr 2008, supra note 5 at paras 3, 26.
Ibid at para 18, citing Hape, supra note 5 at para 52.
Khadr 2008, supra note 5 at para 26.

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In late 2008, the Federal Court of Appeal upheld a ruling in an application
for judicial review brought by Amnesty International and the British Columbia Civil
Liberties Association, holding that the Charter does not apply during the detention of
non-Canadian prisoners and prisoners of war by the Canadian Forces in Afghanistan
or their transfer to Afghan authorities.57 The ruling distinguished Khadr on the facts
of the two cases and found that no exception to comity and extraterritoriality
applied, but rather that international humanitarian law governed the situation.
Addressing the applicants’ argument that Hape set out just such an exception, Justice
Desjardins, writing for the Court, stated that while the Supreme Court had found
that “deference and comity end where clear violations of international law and
fundamental human rights begin,” this does not necessarily mean “the Charter then
applies as a consequence of these violations.”58 This reasoning is based on Justice
Desjardins’ finding that the Canadian Forces “are not an occupying force—they are
in Afghanistan at the request and with the consent of the governing authority.”59
Finally, in early 2010, the Supreme Court issued a second unanimous
decision in the Omar Khadr case, ruling that although the Canadian state had
“breached Mr. Khadr’s s. 7 rights in 2003 and 2004 through its participation in
the then-illegal military regime at Guantanamo Bay”60 (in other words, the matters
under consideration in the 2008 Khadr ruling), the remedy sought—an order
that Canada request Khadr’s repatriation—was not appropriate. Although “courts
are empowered to make orders ensuring that the government’s foreign affairs
prerogative is exercised in accordance with the constitution,”61 the Court concluded
that “the evidentiary uncertainties, the limitations of the Court’s institutional
competence, and the need to respect the prerogative powers of the executive,
lead us to conclude that the proper remedy is declaratory relief.”62 The Court’s
accommodation of executive prerogative stood in sharp contrast to the argument
by one of the Interveners, the Canadian Civil Liberties Association, that “Canadian
state officials’ ongoing decision not to request the respondent’s repatriation” triggered the application of the Charter in and of itself and that the appropriate remedy
for a resulting s. 7 breach would be to order such a request.63
IV. SOVEREIGNTY: THREE MEDITATIONS
Having traced the trajectory of case law under the Charter relating to non-citizenship,
security and jurisdiction, the remainder of this article proposes three theorizations

57
58
59
60
61
62
63

Amnesty International Canada, supra note 5.
Ibid at para 20.
Ibid at para 26.
Khadr 2010, supra note 5 at para 29, referring to the holding in Khadr 2008, supra note 5.
Khadr 2010, supra note 5 at para 37.
Ibid at para 46.
Khadr 2010, supra note 5 (Factum of the Intervener Canadian Civil Liberties Association at paras 3
and 21) [footnotes omitted].

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of the means by which constitutional rights reflect, construct and maintain state
sovereignty. Employing an interdisciplinary method aimed at excavating the historical, political and analytical underpinnings of constitutional law, these theoretical
excursions consider sovereignty in terms of territory, governance and collective
identity as reflected in Charter decision-making. Each of these analyses is concerned
with the impact of shifting notions and practices of sovereignty and evolving
techniques of power and statecraft on the emancipatory potential of rights. The
first analytic is about the simultaneous construction and reification of sovereignty
through and by Charter jurisprudence, as rights act to establish and re-establish
the sovereignty of the Canadian state, viewed historically and contemporaneously
through the lens of nation-building. The second theorization interrogates the relationship between international law and the Charter, and how their intertwined operation serves to minimize the already limited sovereign incursions of international
norms. The third, and most nascent, argument is about biopolitics and how Charter
jurisprudence is implicated in non-juridical modes of governmentality, as it acts
selectively on some bodies/subjects within and beyond the territory of the nationstate. These three analyses are necessarily overlapping, but each attempts to carve
out a distinct aspect of the interplay between constitutional rights, sovereignty and
territory, casting seemingly static legal doctrine and reasoning in a new light.
A. The State of Rights: Acts of Sovereignty and the Charter
In contrast to the taken-for-granted, yet seemingly fixed, understandings of sovereignty in the case law set out above, Charter decisions with respect to security,
territory and migration should also be understand as juridical “acts of sovereignty”
in their own right. This claim arises from Peter Nyers’ suggestion that “[w]hile state
sovereignty has been typically understood as either a legal principal or an achieved
state of being, ‘it’ must also be understood as a practice: historical, performative,
constantly in motion.”64 Seen in this light, the course of Charter jurisprudence is a
way of making and unmaking sovereignty, a constant re-drawing of borders beyond
and against territory through the selective application, receipt and recognition of
rights guarantees.65 Bringing to light this process does not just provide an alternative
explanation of the evolution of doctrinal rules, but reframes that evolution as a means
of theorizing the reinscription, (re)construction and reification of state sovereignty
through law. As described in the remainder of this section, the trajectory of Charter
decisions as “acts of sovereignty”—conceptually and doctrinally—is most visible
in relation to juridical elements of nation-building: citizenship and immigration,
national security and the borders of the nation-state.
64
65

Peter Nyers, “The accidental citizen: acts of sovereignty and (un) making citizenship” (2006) 35:1
Economy and Society 22 at 26 [in-text citation omitted].
For a cogent discussion of sovereignty, extraterritoriality and constitutional rights in the US context,
see James Thuo Gathii, “Torture, Extraterritoriality, Terrorism and International Law” (2003) 67
Albany Law Review 335.

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I rely here on sociologist Saskia Sassen’s analysis of the shifting salience of
the modern state in terms of sovereignty and exclusive territory in the context
of transnational economic frameworks, globalization and technological shifts.
She argues that “[i]t is in this sense that immigration is a strategic site to inquire
about the limits of the new order: it feeds the renationalizing of politics and the
notion of the importance of sovereign control over borders, yet it is embedded
in a larger dynamic of transnationalization of economic spaces and human rights
regimes.”66 In highlighting the complex way in which the state’s exclusive authority
over territory and borders has changed, Sassen’s interdisciplinary approach to the
political economy of globalization illuminates the broader import of the relationship
between the Charter and immigration law and policy. Constitutional law becomes
visible as one example of the way in which domestic courts negotiate contested
legal spaces, even as they themselves construct the juridical framework of national
sovereignty. The nationalizing role of constitutional rights is clearly visible in the
pre-Charkaoui security certificate case law, particularly in the reinscription of state
sovereignty through the persistent linkages drawn between national security and
non-citizenship—the current iteration of the historical narrative of immigration
law as nation-building. This modern expression of a state’s exclusionary prerogative
has its roots in what F. Pearl Eliadis describes as “ancient customs, traditional
perceptions of national self-interest and political manipulation of local resentment
of ‘foreigners,’ all of which have created fundamental legal distinctions between
nationals and non-nationals that go back hundreds of years.”67
More specifically, however, the roots of the Chiarelli sovereignty calculus
lie in pre-Charter decisions that laid the foundation for the status of the “alien” in
the common law of Canada. As discussed above, Chiarelli itself followed from the
decision of the Federal Court in Brito, in which non-removal from Canada was
posited as a discretionary privilege rather than a right deserving of legal protection.
That reasoning was based on the Supreme Court’s 1976 decision in Prata and the
English case R v Governor of Pentonville Prison, where Lord Denning MR summarized
the position of an alien at common law as follows:
At common law no alien has any right to enter this country except by
leave of the Crown; and the Crown can refuse leave without giving
any reason: [citation omitted]. If he comes by leave, the Crown can
impose such conditions as it thinks fit, as to his length of stay, or
otherwise. He has no right whatever to remain here. He is liable to
be sent home to his own country at any time if, in the opinion of the

66
67

Saskia Sassen, Losing Control?: Sovereignty in an Age of Globalization (New York: Columbia University
Press, 1996) at xvi [Sassen, Losing Control].
F Pearl Eliadis, “The Swing from Singh: The Narrowing Application of the Charter in Immigration
Law” (1995) 26 Immigration Law Reporter (2d) 130 at 136.

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Crown, his presence here is not conducive to the public good; and
for this purpose, the executive may arrest him and put him on board
a ship or aircraft bound for his own country [citation omitted].68
In turn, the lineage of these cases traces back to a 1906 Privy Council
case, Attorney General for Canada v Cain, in which the constitutionality of the 1897
Alien Labour Act69 was upheld on the basis that “[o]ne of the rights possessed by the
supreme power in every State is the right to refuse to permit an alien to enter
that State, to annex what conditions it pleases to the permission to enter it, and to
expel or deport from that State, at pleasure ….”70 Although Cain was decided under
the Alien Labour Act rather than the Immigration Act, and thus dealt with a purely
exclusionary statute of limited application, the Privy Council’s construction of
an inflexible and seemingly immutable role for the state in relation to “aliens” has
endured and expanded beyond the confines of one defunct statute. The result is,
as Edward Morgan argues, that “[t]he historical pattern of Canadian immigration
law … may be said to be one of movement in terms of process and stagnation in
terms of substance…. Thus, alienage simultaneously decreases in significance and
maintains its time honoured importance.”71 In Suresh and Ahani, the demarcation of
borders from the inside through the exclusion/excision of threat and risk is especially clear in the balancing test with respect to deportation to face torture. In this
calculus, constitutional rights serve to underscore the act of sovereignty inherent
in routine administrative determinations with respect to removal and detention.
These are key decisions that highlight “the essence of the state’s sovereignty, which
must be juristically defined correctly, not as the monopoly to coerce or to rule, but
as the monopoly to decide,”72 a role that the advent of the Charter has impacted but
not eliminated.
If Charkaoui suggested an emancipatory turn, given that the judgment did
implicate the most egregious of state actions in respect to the intersection of national
security and immigration law, it only minimally shifted the overall conceptual and
analytical framework for the Charter as it relates to, constructs and maintains state
sovereignty. Again positioning rights as a minimal intrusion on the state’s ability
to exclude from within, Charkaoui is not a disruption of the juridical migrationsecurity-territory sovereignty nexus, but a mere recalibration. Indeed, with the
subsequent case law we see the law redrawing boundaries even in cases where
immigration law is not at issue. This is perhaps clearest in the Khadr decisions, in
which the remedy of repatriation—of a Canadian citizen—was ultimately denied,

68
69
70
71
72

[1973] 2 All ER 741 at 747 (CA) [footnotes omitted].
1897 (UK) 60 & 61 Vict, c 11.
[1904-07] All ER Rep 582 at 584 [Cain].
Edward M Morgan, “Aliens and Process Rights: The Open and Shut Case of Legal Sovereignty” (198889) 7 Wis Int’l LJ 107 at 125.
Schmitt, supra note 10 at 13 [emphasis added].

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thereby extending the Charter’s long-standing approach to executive prerogative
and the contingent rights of non-citizens. By limiting oversight of the operation of
executive power justified on the basis of what amounts to “the interests of state” to
declaratory relief, the Khadr cases juridically enshrine foreign relations, diplomacy
and statecraft as “acts of sovereignty.” Despite the Supreme Court’s declaration that
his section 7 rights had been violated, Omar Khadr remains cast out from both
Canadian national territory and law, his very location the result of overlapping, yet
rigid and irreconcilable, national sovereignties and modes of power—excluded
from without through the same calculus that excludes from within. We witness, in
other words, an apparent expansion of the reach of Charter rights, but only in ways
consistent with sovereignty, never as an incursion.
A similar phenomenon is also visible in the Supreme Court’s interpretation
of the exception required to ground extra-territorial jurisdiction in Hape and
previous cases. The choice to find an exception is a quintessential act of sovereignty
domestically, but the Charter extends this particular act of sovereignty beyond the
borders of the Canadian state through diplomacy, as in the matter of Omar Khadr,
but also military force (Amnesty International).73 In facilitating acts of state through
law, constitutional rights jurisprudence contributes to “a … host of complex
practices and wilful performances” necessary for the constant reproduction of state
sovereignty.74 As a result, Charter jurisprudence commits acts of sovereignty at the
same time as it regulates or even catalyzes direct acts of sovereignty by the state.
However, Charkaoui and the cases that follow do more than underscore the
shifting nature of sovereignty in the aftermath of 9/11 and the dictates of globalization more broadly.75 Beyond its historical grounding in immigration law, the
roots of modern Charter jurisprudence also lie in the foundational narrative of the
Canadian nation-state, reflecting a discursive and analytical legacy emanating from
Canada’s colonial history, particularly the interaction of Indigenous and European
norms. The violence inherent in that founding act of sovereignty reveals what Nyers
calls the “profound and inescapable paradox” of such a moment: “the founding of
any sovereign order involves practices that are both violent and arbitrary.”76 It is
not only the foundational moment that reflects this violence, however, as acts of
sovereignty are continuously mediated through indigenous law, at once highlighting
and obfuscating the violence and paradox of the founding moment. The Supreme
Court recently considered the meaning and content of Canadian sovereignty, both
historically and currently, in the context of a symbolic border crossing by Grand

73

74
75
76

The Speaker’s ruling in the subsequent House of Commons debate with respect to the disclosure of
documents pertaining to the treatment of detainees in Afghanistan underscores the complex and fragmentary nature of territorially delineated sovereignty. See e.g. Adrian Wyld, “Afghan Records Denial
is Privilege Breach: Speaker”, CBC News (27 April 2010), online: CBC News <http://www.cbc.ca>.
Nyers, supra note 64 at 26.
See generally Sassen, Losing Control, supra note 66.
Nyers, supra note 64 at 26.

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Chief Michael Mitchell over a Canada-US boundary located in traditional Mohawk
Nation territory.77 He carried a large amount of goods, for both free distribution
and sale, but refused to pay customs duties, waiting until he was served with a
notice for unpaid duty to file a constitutional challenge to the imposition of such
fees. Ultimately, the Supreme Court denied Mitchell’s claim, arguing that he had
not established a constitutional right pursuant to section 35(1) of the Charter. In
a concurring judgment, however, Justice Binnie explored the sovereignty-related
issues raised by the case, particularly the traditional doctrine of “sovereign incompatibility” – the notion that the sovereignty of First Nations was incompatible with
the new European, and later Canadian, sovereignty.78 He concluded that, although
this pre-Charter view was once a justification for an almost complete obliteration of
Aboriginal interest in traditional lands, sovereign incompatibility ought now to be
seen as “a doctrine that must be applied with caution.”79 Nonetheless, Justice Binnie
held that “[c]ontrol over the mobility of persons and goods into one country is,
and always has been, a fundamental attribute of sovereignty,”80 and that therefore,
“the international trading/mobility right claimed by the respondent as a citizen
of the Haudenosaunee (Iroquois) Confederacy is incompatible with the historical
attributes of Canadian sovereignty.”81
Having regard to the degree of autonomy within Canadian sovereignty
available for some other Aboriginal practices, traditions and customs, however,
Justice Binnie’s analysis demonstrates that such a conclusion was not immediately
obvious. Read at its broadest, the decision recognized that the flip side of sovereign
incompatibility may be sovereign compatibility, with the suggested “cautionary” application of the former doctrine arising from both the paradox of sovereignty’s founding
moment and the Charter as a site of mediation between current sovereignties.
Perhaps not surprisingly, such elasticity was not recognized by the Supreme Court
in Mitchell, nor in subsequent cases, particularly those in which Aboriginal persons
charged with criminal offences have denied the jurisdiction of Canadian courts.
These challenges were dismissed due to the “certain reality of Canadian sovereignty”
established by legal principle and precedent.82 Nonetheless, this line of cases reflects
another historical antecedent of Charter decisions confronting current modes
of state sovereignty, while at the same time demonstrating a more self-reflexive
judicial act of sovereignty. As Stewart Motha argues in the context of Australian
debates with respect to Indigenous land rights, sovereignty must not be understood
as unitary or as “One,” suggesting that present-day legal struggles over Indigenous

77
78
79
80
81
82

Mitchell, supra note 9.
Ibid at para 150.
Ibid at para 151.
Ibid at para 160.
Ibid at para 163.
R v David (2000), 45 WCB (2d) 471 at para 15, 2000 CLB 1177 (Ont Sup Ct), cited in R v Francis
(2007), 85 OR (3d) 45 at para 7, [2007] 3 CNLR 294 (Ont Sup Ct).

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claims to sovereignty highlight sovereignty’s “supposition and alterability by law” as
much as they do its resilience.83
B. International Law, State Sovereignty and the Domestic Realm of the Charter
The current prevailing narrative of international law as a check on sovereignty is a
triumphalist account of the demise of the Westphalian order and the concomitant
rise of a universally empowering, if not liberating, language of human rights, in
which nation-states are no longer the only agents or subjects of international law.
This narrative is aptly summed up by Geoffrey Robertson’s contention that the
international human rights movement has been a “struggle against sovereignty.”84
In the Canadian context, debates regarding the actual veracity of this account are
epitomized by evaluations of the intersecting roles of international human rights
norms and constitutional guarantees in determinations of Convention refugee status.
Noting that “national policies with regard to the admission and exclusion of noncitizens are typically characterized as central aspects of state sovereignty,” Sharryn
Aiken maintains that attempts to overcome this prerogative in international law,
particularly in the 1951 Geneva Convention relating to the Status of Refugees85
and the 1948 Universal Declaration of Human Rights,86 were crucial developments
that signalled a shift in the character of traditional state sovereignty.87 Catherine
Dauvergne, however, argues that “[t]he extent to which refugee law can be understood as a constraint on national sovereignty is exaggerated by the fact that there
are no other international legal constraints in the migration law realm,” and that in
practice, “the Refugee Convention is a minimal constraint.”88 Reg Whitaker’s view,
on the other hand, is more mixed: “far from representing a limitation upon state
sovereignty, granting inclusion is actually a quintessential exercise of sovereignty
[citation omitted],”89 as can be seen through policies linking immigration levels to
labour market needs, admission requirements based on skills, education or language
ability and the ethnic heritage-based membership rules of certain states (e.g.,
Germany or Israel). Refugee admissions pursuant to the governing international
Convention, however, are not dependent on these or similar rules, and thus exist
outside of the sovereignty-as-exclusion model. Current redefinitions of refugees as

83
84
85
86
87
88
89

Stewart Motha, “The Sovereign Event in a Nation’s Law” (2002) 13 Law and Critique 311 at 311.
Geoffrey Robertson QC, Crimes Against Humanity: The Struggle for Global Justice, 3d ed (London, UK:
Penguin Books, 2006) at xxx.
1951 Convention Relating to the Status of Refugees, 31 January 1967, 189 UNTS 150, Can TS 1969 No 6
(entered into force 22 April 1954, accession by Canada 4 June 1969).
Universal Declaration of Human Rights, GA Res 217(III), UNGAOR, 3d Sess, Supp No 13, UN Doc
A/810, (1948) 71.
Sharryn J Aiken, “Of Gods and Monsters: National Security and Canadian Refugee Policy” (2001)
14:1 Revue québécoise de droit international 7 at 8.
Catherine Dauvergne, “Sovereignty, Migration and the Rule of Law in Global Times” (2004) 67:4
Mod L Rev 588 at 596.
Reg Whitaker, “Refugees: The Security Dimension” (1998) 2:3 Citizenship Studies 413 at 416.

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first and foremost security risks or threats are, according to Whitaker, “inspired by
the desire to reaffirm traditional national sovereignty,” but are actually “an important
part of a discourse that in practice facilitates the erosion of traditional sovereignty.”90
This is true in the sense that refugee policies are guided as much by transnational
political commitments as by internal legal practices, as was demonstrated by the
coordinated responses of Western countries to the flow of refugees from Eastern
Europe during the Cold War.These tensions are attenuated in pre-Charkaoui security
certificate case law, where international law norms governing asylum nonetheless left
Convention refugees subject to removal or exclusion, notwithstanding the Charter.
This underscores the implicit exercise of sovereignty underlying both the refugee
determination process and the balancing of constitutional rights against imperatives
of national security and migration generally, and their intersection specifically.
Charkaoui and the cases that followed have maintained this relationship
between Canada’s domestic law and policy and governing international norms,
keeping in place a limited incursion on sovereignty marked by current iterations of
the historical political considerations described by Whitaker. Tracing the shift from
fixed, discrete security concerns of the Cold War era to the nearly boundless terrain
of the “War on Terror” makes the resilience of the relationship especially evident.
More than a jurisprudential battle between domestic and international law, the interplay of international and constitutional rights guarantees reveals another aspect of
the construction and maintenance of that domestic legal context, suggesting in turn
a lens through which to glimpse the inherently political nature of that project. Just
as the Charter reflects courts engaged in “acts of sovereignty,” judicial engagement
with international law demonstrates a parallel process of nation-building, one inextricably linked to processes of globalization and the resulting shift in state sovereignty,
suggesting that the “retreat of the state”91 argument is something of a red herring.
As Sassen argues, the tension between state sovereignty and international human
rights is not a clear inside-outside binary given that the international human rights
regime must operate partly inside the national state.92 She goes on to show, “as is
the case with the new legal frameworks for global capital, it is this partial grounding
of a transnational regime in national institutions and practices (at least in countries
under the rule of law) that lends it a distinctive power and legitimacy.”93
In this sense, the role of international norms in shaping domestic constitutional rights claims and, by extension, state sovereignty, is only completely legible
as a process when viewed in the context of an unequal world order both created
and facilitated by international law.94 It is no coincidence that the vast majority of
90
91
92
93
94

Ibid at 414.
See Susan Strange, The Retreat of the State:The Diffusion of Power in the World Economy (Cambridge, UK:
Cambridge University Press, 1996). See also Sassen, supra note 66.
Ibid at 65.
Ibid at 61.
See e.g. Amy Bartholomew, ed, Empire’s Law: The American Imperial Project and the ‘War to Remake the
World’ (London, UK: Pluto Press, 2006).

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security certificate cases have as their background context refugee claims arising
from political struggles with global geopolitical significance (e.g., Sri Lanka (Suresh),
Iran (Ahani), Algeria (Charkaoui), Israel/Palestine (Al Yamani)) and that three of the
four cases that followed are focused on issues and events related to the occupation of
Afghanistan and the “War on Terror.” The crucial historical work of Antony Anghie
and other scholars associated with the Third World Approaches to International
Law movement has arguably revealed the colonial origins of international law,
highlighting the ways in which sovereignty arose from relations of conquest and
inequality: “the structure of sovereignty, the identity of sovereignty, no less than
the identity of an individual or a people, is formed by its history, its origins in and
engagement with the colonial encounter.”95 Such historicizing calls into question
the presumption of sovereign inequality in the international sphere96 and suggests
that the interplay between the Charter and international law norms continues to
operate through a hegemonic frame. For example, Khadr and Amnesty International
both trace the operation of the Charter in spheres bounded by Canada’s relationship
with the US,97 while Charkaoui and its predecessors reflect the faultlines of Canada’s
international commitments, allegiances and responsibilities more broadly. Finally, the
schism between civilizer and uncivilized reflected in international law’s history—
from its inception during the conquest of the Americas through to the Mandate
System98 and beyond—is discernible within the demarcations of race and ethnicity
underlying citizenship generally and security certificates particularly.99 Sherene
Razack identifies this as “race thinking,” arguing that the clash between the Charter
and national security “is underpinned by the idea that modern, enlightened, secular
peoples must protect themselves from pre-modern religious peoples whose loyalty
to tribe and community reigns over their commitment to the role of law.”100
Accordingly, constitutional rights consistently serve as a site of connection
between the domestic and global. Commenting on the Suresh decision, Obiora Okafor
and Pius Okoronkwo argue that the Supreme Court “viewed the Canadian legal order

95
96
97

98
99

100

Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge, UK: Cambridge University Press, 2005) at 312.
See e.g. Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order
(Cambridge, UK: Cambridge University Press, 2004).
See also the discussion with respect to Canada-US diplomatic relations in the context of the ‘war on
terror’ in the Report of the Events Relating to Maher Arar, especially Recommendation 22 calling on
the Canadian government to register a formal objection with the US government concerning their
treatment of Mr. Arar: Canada, Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of the Events Relating to Maher Arar: Analysis and Recommendations (Ottawa:
Minister of Public Works and Government Services, 2006) at 361.
See generally Balakrishnan Rajagopal, International Law from Below: Development, Social Movements, and
Third World Resistance (Cambridge, UK: Cambridge University Press, 2003).
With the exception of Ernst Zündel, a white German citizen, all of the men named in recent security
certificates have been Muslims, most of them from Arab countries, as have many of the targets of
earlier certificates. See Zündel v Canada, 2006 FCA 356, 358 NR 161.
Sherene H Razack , “‘Your Client has a Profile:’ Race and National Security in Canada After 9/11” in
Austin Sarat, ed, Studies in Law, Politics and Society (Bingley, UK: Emerald Group, 2007) vol 40, 3 at 8.

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as virtually shielded by the concept of state sovereignty from the direct governance
of international norms.”101 Absent from this calculus, they suggest, is an alternative
weaker conception of state sovereignty of the sort that Western governments
“have promoted for decades as the panacea for most of the human
rights and economic problems of the weaker Third World states,
one that allows much more room for the penetration of foreign and
international legal, economic, political, and social norms and power
into the domestic orders of states.”102
However, as outlined above, it is not just in the deportation to torture
context that the interplay of Charter rights and international law serves to sustain
the sovereign power of the Canadian state, even where state agents such as the
police and military operate extra-territorially. The limited role of international law
norms as an exception in Hape and subsequent cases signals the use of constitutional
law as a shield against the limited incursion on state sovereignty by international
law norms. In limiting both the reach of the Charter (in terms of subject/object and
territory) and the remedies it can offer (for example, not just refusing repatriation
for its own sake, but failing to prevent the torture that gave rise to the remedy of
disclosure, as in the Khadr matter), recent Canadian constitutional law maintains
the selective constraint international law has always placed on relatively powerful
and wealthy states.
C. Biopolitics and the Rights of the Abandoned
In a study of Australian policy on the detention of asylum seekers, Anne Orford
argues that “human rights law in its liberal manifestation offers limited means for
countering the administration of human life represented by biopolitics, and indeed
in some ways supports this mode of governmentality.”103 Orford invokes the
Foucaldian notion of “biopower,” a technique of power and control predicated on
the management of populations through the regulation of life and the human body:
birth, death, health and reproduction.104 Michel Foucault himself described biopower
as “what brought life and its mechanism into the realm of explicit calculations and
101

102
103

104

Obiora Chinedu Okafor & Pius Lekwuwa Okoronkwo, “Re-configuring Non-refoulement? The Suresh
Decision, ‘Security Relativism’, and the International Human Rights Imperative” (2003) 15:1 Int’l J
Refugee L 30 at 53-54.
Ibid at 54.
Anne Orford, “Biopolitics and the Tragic Subject of Human Rights” in Elizabeth Dauphinee & Cristina
Masters, eds, The Logics of Biopower and the War on Terror: Living, Dying, Surviving (New York: Palgrave
Macmillan, 2007) 205 at 206.
See generally Michel Foucault, “Society Must Be Defended:” Lectures at the Collège de France, ed by Mauro
Bertani et al, translated by David Macey (New York: Picador, 1997); Michel Foucault, The Birth of
Biopolitics: Lectures at the Collège de France, ed by Michel Senellart et al, translated by Graham Burchell
(New York: Picador, 2004).

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made knowledge-power an agent of transformation of human life.”105 In tracing the
genesis of “power over life,” Foucault highlighted the historical evolution of sovereign rule towards complex techniques of management and regulation of life rather
than the threat or control of death.106 Accordingly, Orford suggests, sovereign power
became preoccupied with control rather than domination, meaning that rights
guarantees took on a facilitative role, ameliorating the excesses incurred in the
management of human life, particularly in cases where core sovereign functions are
also at play: migration control, national security and the administration of (quasi-)
criminal justice. Yet human rights, in focusing only on the juridical or sovereign
form, obfuscate “the operation of power in its biopolitical form,” backgrounding
administrative, diplomatic and managerial channels of control, all of which are
deeply implicated in the facts of the cases outlined above.107 Rights represent the
legitimacy of the sovereign state, states Giorgio Agamben, never more crucially
than at the “hidden point of intersection between the juridico-institutional and biopolitical models of power” marked by the convergence of “techniques of individualization and totalizing procedures.”108 For Agamben, this moment crystallizes in
the state of emergency or exception, when law facilitates the legitimation of sovereign
power.109 But as Margaret Kohn explains, since sovereign power is fundamentally the
power to place people into the category of bare life—a life lived outside the politically or morally constituted community, while being at the same time constitutive
of the political order—“the law, in effect, both produces and legitimizes marginality
and exclusion.”110
This invocation of biopolitics makes legible the process by which Charter
rights serve to selectively exert power over persons located both within and beyond
the territory of the nation-state, producing a shifting terrain of sovereign power that
underscores how the “sovereignty of the nation-state is grounded on the inclusion
of the bodies of its subjects through the management and transformation of human
life.”111 Seen in this light, constitutional law, while posited as the protector of life,
actually facilitates the selective abandonment of life. As reflected in both pre- and
post-Charkaoui decision-making, rights claimants abandoned by the law of the
sovereign state are “included as subjects of law only by being excluded from the
community to which the law gives rise.”112 Orford argues that this “hidden point of
intersection” demonstrates that the only way that
105
106
107
108
109
110
111
112

Michel Foucault, The History of Sexuality, translated by Robert Hurley (New York: Pantheon, 1978)
vol 1 at 143.
Michel Foucault, Security,Territory, Population: Lectures at the Collège de France, ed by Michel Senellart et
al, translated by Graham Burchell (New York: Picador, 2007).
Orford, supra note 103 at 215.
Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford: Stanford University Press, 1998) at 6.
Ibid at 15.
Margaret Kohn, “Bare Life and the Limits of the Law”, Book Review of State of Exception by Giorgio
Agamben, (2006) 9:2 Theory & Event at para 10.
Orford, supra note 103 at 209. See also Agamben, supra note 101 at 126-35.
Orford, supra note 103 at 205-06.

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“the state can appear at the same time as the mighty sovereign and
as the manager, protector, and cultivator of life is if the population is
fragmented, so that some people within its jurisdiction or territory
are understood to be properly subject to the power to kill (or detain
or torture), and some are subject to its powers of normalization,
regularization, and cultivation of life.”113
Throughout the security certificate jurisprudence, this division takes place
almost invisibly, hidden in plain sight, the minimal rights protections imposed by the
Court in Charkaoui only serving to maintain the selective convergence of juridical
and biopolitical power. In Ahani, the abandonment is even more pronounced, as
a Convention refugee present in Canadian territory is nonetheless subsequently
excluded through administrative procedures, notwithstanding the Charter rights
also accorded to him. In clearing the way for a sovereign decision to deport Ahani to
Iran, the Supreme Court facilitated a mode of governance only fully comprehensible
as biopolitical. Post Charkaoui, the administration of life through the operation of
rights remains entangled within this frame, catalyzing the further legitimation of
sovereign power within and beyond national territory. In the Khadr judgments,
the abandonment of rights-claimants takes physical form–a biopolitical exercise of
sovereignty over a Canadian citizen beyond Canadian territory, where Guantanamo
Bay stands as the quintessential site of bare life. Finally, the Amnesty International
decision illuminates how the exercise of military command elides the simultaneous
operation of biopower, as clashing sovereignties arising from occupation enmesh
detainees in less, rather than more, law.
The evolution of sovereign power toward biopolitical governance has
thus seemingly increased the possible terrain—territorial and juridical—of
constitutional rights claims, while at the same time limiting their realization as
effective emancipatory tools. Reach, in other words, does not equal remedy. Viewed
in this light, this shift is another illustration of the complex relationship between
national sovereignty and human rights generally, further eroding the notion that
the latter are a serious threat to the former. As Balakrishnan Rajagopal has argued
in the context of the rise of international human rights as political instruments, the
myth that “human rights is an anti-state discourse” relies on an understanding of
sovereignty that does not account for non-juridical forms of power.114 Highlighting
biopolitical forms of power, governance and administration uncovers the interplay
of constitutional rights and sovereignty not as purely oppositional forces, but as
constitutive elements of the modern state.

113
114

Ibid at 222-23.
Rajagopal, supra note 98 at 189.

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V. CONCLUSIONS
In the midst of such enigmatic sovereignty, Anne Orford’s contention that “the
invocation of human rights constrains our capacity to think about and counter
the ways in which power circulates in this global politics and economy”115 must
serve as more a provocation than a nihilist act of abandonment. Indeed, the three
meditations in respect of sovereignty, the state and the boundaries of the Charter
set out above ought to be read in that emancipatory spirit, having been shaped
and inspired by campaigns against security certificates116 and in support of Omar
Khadr,117 as well as by other movements for social justice aiming to realize the
potential of human and constitutional rights guarantees. Nonetheless, inside the
courtrooms where security certificates are challenged and other rights claimed,
the operation of the Charter continues to redraw lines of exclusion and inclusion
within ever shifting borders of territory, power and authority. Understanding the
Charter as “sovereign” locates Charkaoui historically, analytically and politically,
revealing the extra-doctrinal framework informing the limitations of the judgment.
Just as importantly, the three modes of a sovereign Charter theorized above—
acts of sovereignty, international law and biopolitics—together demonstrate the
complex and often contradictory impact of globalization, internationalization and
supra-national governance on constitutional rights. Given this global context, the
historical antecedents that continue to constrain Charter decision-making and the
political imperative of constitutional rights claims, sovereignty must be recognized
as a site of engagement and contestation. For Agamben, this project would “clear
the way for a long-overdue renewal of categories in the service of a politics in which
bare life is no longer separated and excepted, either in the state order or in the
figure of human rights.”118 This article has aimed to make a modest contribution to
such renewal, sketching out the terrains of rights, territory and security as political
categories available for disruption, redefinition and emancipation.

115
116
117
118

Orford, supra note 103 at 206.
See e.g. Homes Not Bombs, Campaign to Stop Secret Trials in Canada, online: Homes Not Bombs
<http://www.homesnotbombs.ca>.
See e.g. University of Toronto Faculty of Law, Khadr Case Resources Page, online: University of Toronto
< http://library.law.utoronto.ca>.
Agamben, supra note 108 at 134.