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

“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 over- seas 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.