SCC in disagreement over whether to revisit the authority on Charter’s extraterritorial application

In a case where a man argued that Canadian investigators had breached his Charter rights in searching his U.S. home, a majority of the Supreme Court of Canada chose not to revisit the leading case on the Charter’s application outside of Canada.

In R. v. McGregor, military investigators had obtained a U.S. warrant to search the home of a member of the Canadian Armed Forces who was residing in Virginia and in the search, the investigators seized his electronic devices. This led to his arrest and convictions on several offences, and Corporal C.R. McGregor appealed up to the SCC, arguing the investigators violated his s. 8 Charter rights.

The SCC was unanimous in finding that military investigators did not breach McGregor’s Charter rights. But two of the eight Justices were in favour of taking another look at R. v. Hape, 2007 SCC 26, the governing authority on the extraterritorial application of the Charter.

But their colleagues were of the view that McGregor was not an appropriate case to decide whether to reaffirm, modify, or overrule Hape. According to the majority, while the parties debated Hape’s application, they did not ask for the precedent to be overruled. Rather, it had been the intervenors who asked for Hape to be revisited.

“[The decision] did not address the issue of the extraterritorial application of the Charter,” says Diana Mansour, counsel for McGregor. “We accept the Court's decision which leaves open the opportunity for another matter to address the legal issue of the extraterritorial application of the Charter in the Canadian military context.”

Section 32 of the Charter deals with its scope and application, and Hape is the authority “on the territorial reach and limits of the Charter under s. 32(1),” said Justice Suzanne Côté, who wrote the reasons for the majority.

Côté, and Justices Richard Wagner, Michael Moldaver, Nicholas Kasirer and Mahmud Jamal found that reconsidering the Hape framework should be left for another day, for three reasons. One, the parties did not raise the issue. Two, Hape’s re-assessment would make no difference in the appeal’s outcome. And three, the “academic criticism,” raised by the intervenors, “is not a sufficient reason not to apply the principles of stare decisis.”

But to Justices Andromache Karakatsanis and Sheilah Martin, the Charter’s extraterritorial application was “squarely before the Court.” They said the court should take the opportunity because the issue “arises infrequently, may easily escape judicial review, and has been subject to significant and sustained criticism by experts in international law.”

According to Karakatsanis and Martin, the majority in Hape found that s. 32 “contained no express territorial limit” but “concluded that the Charter generally could not be applied to the actions of Canadian officials conducted as part of an investigation occurring abroad.” This is the aspect of the ruling that international legal experts have criticized. Their concerns make “Hape’s framework for the extraterritorial application of the Charter ripe for reconsideration,” they said.

Justice Malcolm Rowe wrote his own set of reasons, agreeing entirely with the majority but taking issue with Karakatsanis’s and Martin’s approach to Hape and the scope of the views presented by the intervenors. To raise the issue of whether Hape should remain the authority on the issue was an “improper intervention.” It undercut the parties’ control of the litigation, undermined the leave to appeal process, and excluded those who would have intervened had they known that the issue would be addressed, he said.

Karakatsanis and Martin said the limits on intervenors were not exceeded in the case, and, in any event, the court has jurisdiction to decide the issues “in a manner other than that proposed by the parties.” Intervenors may not introduce new issues but are supposed to provide “a broader perspective” on those before the court, “by providing useful and different submissions.” In asking the court to revisit Hape, the intervenors were merely proposing a “different view of the core legal issue,” they said.

Natasha Thiessen is a lawyer for the Canadian Military Prosecution Service and acted for the Crown in the case. She says the SCC’s ruling shows that the CAF is capable of maintaining military discipline and effectively investigating and prosecuting crimes wherever the CAF operates, including crimes involving sexual violence.    

The SCC has recognized in previous cases that “the military justice system functions as a full partner with the civilian criminal justice system,” she says.

“This was a textbook case of successful international law enforcement cooperation which respected the rights of the accused and complied with Canada’s international legal obligations,” says Thiessen. “As noted by Justice Côté, ‘It is difficult to see how the investigators could have acted differently to attain their legitimate investigative objectives.’”

McGregor was a member of the Canadian Armed Forces (CAF) posted in the Canadian Embassy in Washington D.C., and living in Alexandria, Virginia. The Canadian Forces National Investigation Service (CFNIS) launched an investigation into McGregor, after a fellow CAF member found recording devices in her house and suspected he was responsible.

With the help of the Alexandria police, the CFNIS got a warrant, according to Virginia law, which allowed them to search his residence and objects found within, including electronic devices. The Canadian Embassy waived McGregor’s diplomatic immunity.

The CFNIS and Alexandria police executed the search warrant and found electronic devices indicating additional offences, including sexual assault. They seized the devices, brought them to Canada, and the Court Martial granted Canadian warrants for their analysis.

After McGregor was arrested, he argued before the Court Martial that the investigators had breached his rights under s. 8 of the Charter, the protection against unreasonable search and seizure, and argued the evidence should be excluded. But the military judge dismissed the motion, finding that the Charter did not apply outside of Canada. But had it applied, the search and seizure were Charter compliant, said the judge.

McGregor was convicted of voyeurism, possession of a device for surreptitious interception of private communications, sexual assault, and disgraceful conduct. He appealed, but the Court Martial Appeal Court affirmed the ruling.