PLBA 1500 – Charter of Rights and Freedoms September 15, 2022

Charter Discussion 2
By Alex Conant

Is this decision a proper application of the Charter?

It is this author’s analysis that the Charter was applied correctly in this decision.
When one replaces “torture” with “negligence” this scenario simplifies into a conventional civil
tort claim. Key questions arise: Did the Canadian Government owe a duty of care to Regent
Boily? If they did, was this duty of care breached? And if so, how should the damages be
determined?
Duty of Care
The Government of Canada delineated their s. 7 duty of care concerning risks of torture prior to
extradition in Suresh case.i Regent Boily was physically present in Canada was under the
purview of Charter protections as outlined in Singh ii
The Canadian Supreme Court made the following distinction. “All individuals physically present
in Canada will benefit from the protection of section 7.” This is a notable line to draw as it
encompasses both refugees and those convicted of crimes. According to the Supreme Court’s
criteria, a duty of care was in effect guaranteeing Regent Boily’s section 7 protections.
Breach of Duty of Care
On the eve of Regent Boily’s extradition, the government received alarming information that
reprisals were likely conflicting with assurances provided by Mexican diplomats. The
government of Canada disregarded their duty of care for Regent Boily through continuing
onward with his extradition to the same Mexican prison he had initially escaped from (Macnab,
2022).iii

Canada imposed this legal duty to intervene in these matters upon itself, through its Charter
protections and the non-refoulement clause of the Immigration and Refugee Protection Act,
which specifically prohibits deportations where a risk of torture is present. iv
Globally, Canada seems eager to project an image of a human rights champion but lacks the
consistent commitment and accountability.
Quantifying Damages
The central contention lies in determining the damages. What value can be placed on human
dignity? Is Regent Boily’s worth diminished because he is as a convicted criminal? A principle of
fundamental justice states “Where there’s a right, there’s a remedy; and without a remedy,
there’s no right.” Section 24(1) of the Charter of Rights and Freedoms echoes this sentiment
providing an avenue to seek remedies addressing government actions and decisions which
violate the Charter.v

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 PLBA 1500 – Charter of Rights and Freedoms September 15, 2022

Regent Boily’s legitimate prison sentence never included torture. His rights were violated and a
remedy is owed.vi Mr. Boily was tortured repeatedly by Mexican prison guards. These traumatic
events culminated in his failed suicide attempt. Now, 15 years later, he endures haunting
nightmares in which he relives the experience (Bureau, 2018).vii Born in 1944, Mr. Boily is set to
receive of this judgment at the age of 78, obtaining a remedy of $500,000 against a $6,000,000
claim.
This case thrusts our societal cognitive dissonance into the limelight. It demands a reevaluation
of our convictions about our government, its representatives, and the Canadian way of life. The
idea of our government prioritizing political gains over its citizens human rights is unsettling for
those who rely on it to uphold order. Ideally, this remedy will deter future violations as
government officials and agencies can expect that they will be held to account. Then again,
history has a strange way of repeating itself.

i
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at para. 44

ii
Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177 at para. 35

iii
Macnab, A. (2022). Canada breached Charter by extraditing man to Mexico despite risk of torture:
Federal Court. Canadian Lawyer. https://www.canadianlawyermag.com/practice-
areas/litigation/canada-breached-charter-by-extraditing-man-to-mexico-despite-risk-of-torture-federal-
court/369596

iv
Immigration and Refugee Protection Act, SC 2001, c 27, s 115, <https://canlii.ca/t/7vwq#sec115>,
retrieved on 2023-09-15
v
Government of Canada, Department of Justice, Electronic Communications. (2023, June 29).
Charterpedia - Section 24(1) – Remedies. https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-
ccdl/check/art241.html

vi
Boston Review. (2022, November 14). What’s a right without a remedy? - Boston Review.
https://www.bostonreview.net/articles/pamela-karlan-supreme-court-rights-legal-remedies/

vii
Bureau, B. (2018, March 27). Quebec man tortured in Mexican prison wants answers from federal
government. CBC. https://www.cbc.ca/news/canada/ottawa/mexico-prison-torture-canada-1.4593226