Tuesday, January 19, 2021

Extra-Territorial Application of the Canadian Charter of Rights and Freedoms

Amidst the turmoil and headline-grabbing events of the past three weeks, a significant judgment from the Court Martial Appeal Court of Canada (CMAC) may have gone un-noticed.  On the last day of 2020, the CMAC handed down its judgment in R v McGregor, 2020 CMAC 8.

This appeal dealt with the extra-territorial application of the Canadian Charter of Rights and Freedoms [Charter] in the context of a Code of Service Discipline investigation and prosecution of a member of the Canadian Forces (CF) who was posted to the United States.  In other words, it dealt with the extra-territorial application of the Charter where a Canadian was: (a) outside Canada because of duty, and not voluntarily; and, (b) subject to the extra-territorial application of the Code of Service Discipline.

The unanimous judgment of the Court held:

Section 8 of the Charter ("Everyone has the right to be secure against unreasonable search or seizure.") does not apply extra-territorially.  By virtue of principles of sovereign equality, non-intervention, and comity, the law of the sovereign state in which the search is conducted is the relevant law (in this case, the state of Virginia, in the United States).  This remains the state of Canadian law even where non-Canadian law enforcement actors clearly obtain judicial authorization for the search, and conduct the search, where the search is conducted to advance an investigation by Canadian law enforcement.  The extra-territorial application of the Code of Service Discipline does not alter this principle.  See also: R v Hape, 2007 SCC 26.

However, the authorization and conduct of the search remains relevant to trial fairness where the trial is conducted under Canadian law (in this case, a court martial under the Code of Service Discipline).  Thus, the Canadian court must apply section 7 ("Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.") and para 11(d) ("Any person charged with an offence has the right ...  to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal ...") of the Charter.  The extent to which the laws of the sovereign state mirror those of Canada (in this matter, in terms of search and seizure) will be relevant to the evaluation of the impact on trial fairness.  The requirements under the laws of the Virginia regarding search and seizure (specifically, prior judicial authorization based upon evidence that demonstrated reasonable and probable grounds) were markedly similar to the requirements of the laws of Canada.  The search and seizure were fair and did not adversely affect trial fairness.

There was an additional complexity in this matter, as the offender benefitted from diplomatic immunity afforded to him based upon his status as a “diplomatic agent” pursuant to article 31(1) of the Vienna Convention on Diplomatic Relations, 18 April 1961, 500 UNTS 95 (entered into force June 24, 1964).  However, Canada waived his immunity, in a manner limited in scope, to permit US law enforcement personnel to obtain a search warrant and to conduct a search of the offender's residence on American soil and his personal belongings therein. 

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