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Canada v. Khadr, [2008] 2 SCR 125

Facts:

CDN officials interviewed Khadr (CDN citizen) while detained in Guantanamo Bay. Khadr sought to rely on Charter for Crown disclosure in preparation for his defence.

Issue(s):

Does Hape or the human right exception apply?

Ratio:

R v. Hape is the proper approach to extraterritoriality. Because of comity, Charter doesn’t apply unless there has been a violation of international human rights or the domestic state gives direct consent.

Analysis:

*Comity cannot be used to justify Canadian participation in activities contrary to its international obligations
*US Supreme Court held that detainees were illegally denied access to habeas corpus (right to the body) and that prosecution procedures violated Geneva Convention
**Violation of international obligations means that Hape exception applies and Charter can be used


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