R. v. Hape

At issue in this appeal is whether the Canadian Charter of Rights and Freedoms applies to extraterritorial searches and seizures by Canadian police officers. The appellant, Lawrence Richard Hape, is a Canadian businessman. He was convicted of two counts of money laundering contrary to s. 9 of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 . At his trial, the Crown adduced documentary evidence that the police had gathered from the records of the appellant’s investment company while searching its premises in the Turks and Caicos Islands. The appellant sought to have that evidence excluded, pursuant to s. 24(2) of the Charter , on the basis that the Charter applies to the actions of the Canadian police officers who conducted the searches and seizures and that the evidence was obtained in violation of his right under s. 8 of the Charter to be secure against unreasonable search and seizure. For the reasons that follow, I would affirm the convictions and dismiss the appeal.

In the spring of 1996, the RCMP commenced an investigation of the appellant for suspected money laundering activities. Sergeant Nicholson, an undercover operative, contacted the appellant in October 1996 posing as someone interested in laundering proceeds of narcotics trafficking. On February 2, 1998, Sergeant Nicholson provided C$252,000 of “sting money” to the appellant on the understanding that the funds would be laundered through the appellant’s investment company, the British West Indies Trust Company (“BWIT”), located in the Turks and Caicos Islands, and transferred to an account in the Netherlands. Unbeknownst to the appellant, the RCMP had set up the account. Sergeant Nicholson gave the appellant a further US$80,000 on November 11, 1998, instructing him to send the funds to the same account in the Netherlands. The RCMP hoped to obtain documentation confirming the transfers and determine whether the BWIT was involved in other money laundering activities.

RCMP officers sought permission to conduct parts of their investigation in Turks and Caicos. Detective Superintendent Lessemun of the Turks and Caicos Police Force was in charge of criminal investigations on the Islands. In November 1997, he met with the two Canadian officers in charge of the RCMP’s investigation, Detective Sergeant Boyle and Corporal Flynn. He agreed to allow the RCMP to continue the investigation on Turks and Caicos territory, but warned the officers that he would be in charge and that the RCMP would be working under his authority. Because the appellant was well known on the Islands and Detective Superintendent Lessemun was concerned that he could not trust all Turks and Caicos police officers, the Canadian officers dealt exclusively with him while planning and preparing their operations.

The investigators planned a covert entry into the BWIT’s office for March 1998. RCMP technical experts assisted with the planning, which began in Canada using technical information provided by Detective Superintendent Lessemun. The experts traveled to the Turks and Caicos Islands in February 1998 to obtain information about the office’s door locks and burglar alarm systems.

Late in the nights of February 7 and 8, 1998, the RCMP officers and Detective Superintendent Lessemun surreptitiously entered the BWIT’s premises. The technical experts examined the office’s locks and alarm systems from outside the building. They recorded what they observed, using a video camera. Throughout this perimeter search, Detective Superintendent Lessemun was with the RCMP investigators as a lookout.

During the day on February 9, 1998, two RCMP technical experts entered the reception area of the BWIT’s office to observe what they could of the interior locks and alarm system. They entered the office under a ruse and spent a few minutes speaking with the receptionist.

There were no warrants authorizing the RCMP to enter the BWIT’s premises in February 1998. The RCMP investigators were aware of this, but they testified that they had relied on Detective Superintendent Lessemun’s expertise and advice regarding the legalities of investigations conducted on the Islands.

After the RCMP technical experts returned to Canada, they received further technical information from Detective Superintendent Lessemun to assist with the planning of the March 1998 covert entry. A briefing was held in the Bahamas on March 11, 1998, in preparation for the covert search. Present at the meeting were seven RCMP officers involved in the investigation and three American police officers. No Turks and Caicos officers were in attendance.

The investigators covertly entered the BWIT’s office twice on March 14, 1998, once in the early hours of the morning and once shortly before midnight. The RCMP technical experts opened the locked doors of the office to enable the investigators to enter it. Detective Superintendent Lessemun entered the office with what the RCMP officers understood to be a warrant. He then took up a position outside the building to provide security around the perimeter and stop any Turks and Caicos police officers who might come by from jeopardizing the operation. Inside the office, the RCMP investigators downloaded information contained in the company’s computer systems onto portable hard drives and electronically scanned documents from numerous client files, as well as company records and banking documents.

The RCMP officers testified at trial that they had understood separate warrants to be in place for each of the two covert entries of March 14, 1998. Officer Boyle said he saw a warrant for the first entry. Sergeant McDonagh, one of the technical experts, stated that after the first entry, but before the second, Detective Superintendent Lessemun had shown him a document that Sergeant McDonagh understood to be the warrant for the first entry. Sergeant McDonagh noted down the document’s terms. Both Officer Boyle and Sergeant McDonagh understood from Detective Superintendent Lessemun that a warrant had been obtained for the second entry, but neither had any notes on this point or remembered having seen it. No warrants were introduced into evidence at trial. The Crown sought to introduce copies of two Turks and Caicos warrants, one dated March 13 and the other March 14, 1998. The purported warrants, issued to Robert Conway Lessemun, authorized entry into the BWIT’s office to search for computer and office records linking Richard Hape to the laundering of proceeds of drug trafficking. The copies of the warrants had not been authenticated, and counsel for the appellant objected to their admission at trial.

RCMP officers returned to the Turks and Caicos Islands in February 1999. Beginning on February 16 and continuing over the next three days, six RCMP officers, along with Detective Superintendent Lessemun and three other Turks and Caicos police officers, entered the BWIT’s office and seized over one hundred banker’s boxes of records. Officer Boyle testified that he had read a document he understood to be a warrant authorizing the entry and seizure, and had passed it to the other officers to read. Again, no warrant was entered into evidence at trial.

When the search was complete, the RCMP officers began loading the seized records onto their airplane with the intention of bringing them back to Canada. Detective Superintendent Lessemun informed the officers that they could not remove the records from the Islands. The boxes were unloaded. At trial, there was some suggestion that a Turks and Caicos court order had prevented the officers from removing the evidence from the jurisdiction, but no such order was admitted as evidence.

The RCMP returned to the Turks and Caicos Islands in March and October 1999. In the presence of Turks and Caicos police officers, the RCMP officers scanned thousands of the seized documents in order to bring electronic copies of them back to Canada. Ultimately, a number of the documents seized during the search became exhibits at the appellant’s trial.

Money laundering charges were laid for the two transactions involving the funds Sergeant Nicholson had provided to the appellant. The appellant was also charged, along with a co-accused, Ross Beatty, with conspiring to launder funds. A lengthy and complex trial took place before Juriansz J. (as he then was) of the Ontario Superior Court of Justice, sitting without a jury. Before the trial started, the appellant brought a Charter application to exclude the documentary evidence obtained from the BWIT’s office on the basis of a violation of the s. 8 guarantee against unreasonable search and seizure. The application was denied and the documents were admitted into evidence.

(1) Ontario Superior Court of Justice

The appellant called evidence on the s. 8 application. The Crown, taking the position that the Charter does not apply to searches and seizures conducted outside Canada and that the appellant had not established that he had standing to bring the application, sought a ruling on these two issues in advance of its decision on introducing evidence. Juriansz J. ruled on this application on January 17, 2002 ([2002] O.J. No. 3714 (QL)).

The application judge considered three decisions of this Court on the extraterritorial application of the Charter : R. v. Harrer, [1995] 3 S.C.R. 562, R. v. Terry, [1996] 2 S.C.R. 207, and R. v. Cook, [1998] 2 S.C.R. 597. He noted that all those cases concerned the application of the s. 10(b) right to counsel and that the question of the potential extraterritorial application of s. 8 might raise different issues. Relying on the majority decision in Cook, the application judge held that his task was to determine whether applying the Charter to the activities of the RCMP officers in Turks and Caicos would “interfere with the sovereign authority of the foreign state and thereby generate an objectionable extra-territorial effect” (para. 20).

In his argument before the application judge, the appellant resisted the characterization of the RCMP’s actions in the instant case as part of a “co-operative investigation”, within the meaning of Terry, with Turks and Caicos authorities, because the searches and seizures were carried out by the RCMP officers with little or no involvement of the Turks and Caicos police. The application judge rejected the argument that a “co-operative investigation” must involve relatively equal contributions from the participants (para. 24).

Juriansz J. made several key findings of fact that were relevant to his Charter ruling. He noted that Detective Superintendent Lessemun, who was with the Canadian police at all times, had played a role in the investigation by acting as a lookout, providing information, and obtaining warrants. The Turks and Caicos contributed police authority. The RCMP was required to seek and receive permission from Turks and Caicos authorities to conduct the investigation in that jurisdiction. The RCMP officers were operating under the authority of Detective Superintendent Lessemun. The fact that they were not permitted to remove the seized physical records from Turks and Caicos was a significant factor in the application judge’s conclusion that they were subject to Turks and Caicos authority. The application judge found that all the RCMP’s actions on the Turks and Caicos Islands were part of a “co-operative investigation” (para. 26).

As the next step in his analysis, Juriansz J. considered whether the application of the Charter to the “co-operative investigation” would result in an objectionable extraterritorial effect. The application judge found that the propriety and legality of the entries into the BWIT’s office were governed by Turks and Caicos criminal law and procedure and the supervisory authority of the Turks and Caicos courts. In light of that fact, he concluded that there was a potential conflict between the concurrent exercise of jurisdiction by Canada on the basis of nationality and by Turks and Caicos on the basis of territoriality. Juriansz J. held, as a result, that the Charter did not apply. He therefore dismissed the application without discussing whether the appellant had standing to bring the Charter application or whether the searches and seizures were conducted in accordance with the requirements of s. 8.

The appellant had also applied under ss. 7 and 24(1) of the Charter for a stay of proceedings on the basis that the police conduct had contravened fundamental notions of justice and that the ensuing trial would undermine the integrity of the justice system. In the alternative, the appellant requested an order excluding from evidence 26 documents seized from the BWIT. In his ruling on this application dated January 18, 2002, Juriansz J. relied on the findings of fact he had made on the s. 8 application. He noted that the RCMP officers had believed there were warrants for the entries that took place in March 1998 and February 1999 and had believed their actions to be lawful under Turks and Caicos law. No evidence to the contrary had been called. The burden of proving that the operations of the Canadian officers had violated Turks and Caicos law rested on the appellant. In refusing to grant the stay, Juriansz J. gave the following explanation:

Considering that the applicant in this case has not established that the police conduct infringed a Charter right or was otherwise unlawful, and considering the police conduct as a whole, I have concluded that this is not one of those clearest of cases in which a stay ought to be granted.

Relying on Harrer and Terry, Juriansz J. stated that the overriding consideration was whether the admission of the evidence would result in an unfair trial. He reasoned that since the documents constituted real, non-conscriptive evidence, their reliability as evidence was not affected by the manner in which they were obtained. As the admission of the evidence would not therefore render the trial unfair, he refused to grant the exclusionary order.

On June 10, 2002, Juriansz J. found the appellant guilty beyond a reasonable doubt on both counts of money laundering ([2002] O.J. No. 5044 (QL)). The appellant was acquitted of the charge of conspiracy to launder funds.

(2) Ontario Court of Appeal

The appellant appealed his conviction to the Court of Appeal for Ontario on numerous grounds, one of which was that Juriansz J. had erred in his rulings on ss. 7 and 8 of the Charter . The appeal from the ruling on s. 7 was not pursued at the oral hearing before the Court of Appeal, and the issue of trial fairness is not before this Court. The appellant also contested his sentence of 30 months’ imprisonment. The Crown cross-appealed on the trial judge’s refusal to make a forfeiture order.

The Court of Appeal dismissed the appeal: (2005), 201 O.A.C. 126. It held that the trial judge had made a finding of fact that the investigation was under the control of the Turks and Caicos authorities and that his finding was supported by the evidence. Referring to the decisions in Terry and Cook, the court concluded that the trial judge had correctly applied the law to his findings of fact. The Crown’s cross-appeal was also dismissed. The appellant obtained leave to appeal from that judgment.

The sole issue in this appeal is whether s. 8 of the Charter applies to searches and seizures conducted by RCMP officers outside Canada. This issue requires the Court to consider the question of the extraterritorial application of the Charter . This in turn requires the Court to consider the more general question of the relationship between Canadian criminal and constitutional law, on the one hand, and public international law, on the other. In addition, although the issue is not before this Court, I feel that it will be helpful to comment on the use of ss. 7 and 11(d) of the Charter to exclude evidence gathered outside Canada.

(1) The Appellant

The appellant argues that the Charter applies to the actions of the RCMP officers in the course of their searches and seizures at the BWIT’s office, notwithstanding that those actions took place outside Canada. He submits that Canadian authorities are subject to the Charter even when operating outside the territorial boundaries of Canada and that it can be seen from the evidence in the case at bar that the searches and seizures were the product of and were integral to an investigation that was completely planned by the RCMP. In the appellant’s submission, Detective Superintendent Lessemun merely served as a host for the Canadian officials. He made no decisions, even if he provided ultimate control and legal authority. The actual searches and seizures were conducted by the RCMP, and they are the actions that are subject to Charter scrutiny. Given the almost non-existent role of the Turks and Caicos authorities, the application of the Charter does not in any way interfere with that state’s sovereign authority. The appellant argues that the courts below erred in concluding, on the basis of a finding that the RCMP’s actions constituted a “co-operative investigation”, that the Charter did not apply.

At the hearing, counsel for the appellant argued that, in Cook, this Court had specified two situations in which the application of the Charter would have an objectionable extraterritorial effect. The first would be if the Charter were applied to foreign officers, and the second would be if it were applied to foreign criminal proceedings. Aside from those two circumstances, extraterritorial application of the Charter would not, in the appellant’s opinion, interfere with the sovereign authority of a foreign state. If it were physically impracticable to comply with the Charter , then Canadian officials acting abroad could either request that foreign officials undertake the activities that are inconsistent with the Charter or carry out the activities themselves and try to establish that the evidence obtained should not be excluded under s. 24(2) of the Charter .

(2) The Crown

The Crown responds that the Charter does not apply because the searches and seizures in this case were conducted under the authority of the Turks and Caicos police. To impose Canada’s Charter standards on the actions of the RCMP officers while they were operating in Turks and Caicos would produce an objectionable extraterritorial effect. The trial judge made a factual finding that the investigation in Turks and Caicos was under the control of the Turks and Caicos police force. The appellant has not demonstrated that this finding resulted from a palpable and overriding error; he is asking this Court to reweigh the evidence and substitute its view for that of the trial judge.

In the Crown’s view, the fact that Canadian police officers participated in an international investigation does not, on its own, mean that the Charter is engaged. The Charter does not apply to conduct outside Canada unless the impugned action falls within the exception established in Cook, namely, where no conflict arises from the concurrent exercise of jurisdiction by Canada on the basis of nationality and by a foreign state on the basis of territoriality. The authority for all the RCMP’s actions in Turks and Caicos was derived from Turks and Caicos law. It is clear from the evidence that the RCMP exercised no control over the Turks and Caicos police. Further, the appellant has not established that the RCMP’s conduct violated Turks and Caicos law.

The Crown adds that it would be untenable to require that searches carried out in Turks and Caicos in accordance with the laws of that jurisdiction be consistent with the Charter or to subsequently scrutinize such searches for consistency with the Charter . In Cook, the Charter was applied on facts very different from those in the case at bar. In that case, it would have been easy for the Canadian police officers, in interviewing the accused, to comply with Charter standards in a way that did not interfere with the host state’s procedures. Here, to apply the Charter to the investigation in Turks and Caicos would of necessity compel compliance by the foreign authorities, thus impinging on their sovereign authority.

According to the Crown, to hold that s. 8 of the Charter does not apply to foreign searches is not to suggest that there are no controls over the actions of Canadian law enforcement officers involved in investigations in other countries. Where the admission of evidence would lead to an unfair trial, a court has the discretion to exclude evidence under s. 7 of the Charter .

(3) The Intervener

The Attorney General of Ontario intervened in this appeal. His submissions focused on the complexities and difficulties of applying s. 8 of the Charter to searches and seizures outside Canada. The intervener emphasized the need to consider the nature and scope of s. 8 rights in the host jurisdiction. He also drew the Court’s attention to the need for international co-operation in criminal investigations as a practical matter, and to the importance of not hampering such investigations unduly by imposing Canadian standards on foreign jurisdictions.

This case centres around the proper scope of application of the Charter , and in particular its territorial reach and limits. The analysis must begin with the wording of s. 32(1) of the Charter , which reads as follows:

32. (1) This Charter applies

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

Pursuant to s. 32(1) , the Charter serves to limit the legislative and executive powers of Canada and each of the provinces. The problem involved in establishing the Charter ’s scope has two aspects. First, s. 32(1) determines who is bound by the Charter : Parliament and the federal government, and the provincial legislatures and governments, bear the burden of complying with the requirements of the Charter . Second, s. 32(1) specifies what powers, functions or activities of those bodies and their agents are subject to the Charter : constitutional limitations are imposed “in respect of all matters within the authority of” Parliament or the provincial legislatures. Any action by the relevant body or its agents in relation to any matter within its legislative authority must be consistent with the Charter .

Section 32 does not expressly impose any territorial limits on the application of the Charter . By virtue of state sovereignty, it was open to the framers to establish the jurisdictional scope of the Charter . Had they done so, the courts of this country would have had to give effect to a clear expression of that scope. However, the framers chose to make no such statement. Consequently, as with the substantive provisions of the Charter , it falls upon the courts to interpret the jurisdictional reach and limits of the Charter . Where the question of application involves issues of extraterritoriality, and thereby necessarily implicates interstate relations, the tools that assist in the interpretation exercise include Canada’s obligations under international law and the principle of the comity of nations. As I will explain, the issue of applying the Charter to activities that take place abroad implicates the extraterritorial enforcement of Canadian law. The principles of state jurisdiction are carefully spelled out under international law and must guide the inquiry in this appeal.

In order to understand how international law assists in the interpretation of s. 32(1), it is necessary to consider the relationship between Canadian domestic law and international law, as well as the principles of international law pertaining to territorial sovereignty, non-intervention and extraterritorial assertions of jurisdiction.

(1) Relationship Between Customary International Law and the Common Law

As I will explain, certain fundamental rules of customary international law govern what actions a state may legitimately take outside its territory. Those rules are important interpretive aids for determining the jurisdictional scope of s. 32(1) of the Charter . The use of customary international law to assist in the interpretation of the Charter requires an examination of the Canadian approach to the domestic reception of international law.

The English tradition follows an adoptionist approach to the reception of customary international law. Prohibitive rules of international custom may be incorporated directly into domestic law through the common law, without the need for legislative action. According to the doctrine of adoption, the courts may adopt rules of customary international law as common law rules in order to base their decisions upon them, provided there is no valid legislation that clearly conflicts with the customary rule: I. Brownlie, Principles of Public International Law (6th ed. 2003), at p. 41. Although it has long been recognized in English common law, the doctrine received its strongest endorsement in the landmark case of Trendtex Trading Corp. v. Central Bank of Nigeria, [1977] 1 Q.B. 529 (C.A.). Lord Denning considered both the doctrine of adoption and the doctrine of transformation, according to which international law rules must be implemented by Parliament before they can be applied by domestic courts. In his opinion, the doctrine of adoption represents the correct approach in English law. Rules of international law are incorporated automatically, as they evolve, unless they conflict with legislation. He wrote, at p. 554:

It is certain that international law does change. I would use of international law the words which Galileo used of the earth: “But it does move.” International law does change: and the courts have applied the changes without the aid of any Act of Parliament. . . .

. . . Seeing that the rules of international law have changed — and do change — and that the courts have given effect to the changes without any Act of Parliament, it follows to my mind inexorably that the rules of international law, as existing from time to time, do form part of our English law. It follows, too, that a decision of this court — as to what was the ruling of international law 50 or 60 years ago — is not binding on this court today. International law knows no rule of stare decisis. If this court today is satisfied that the rule of international law on a subject has changed from what it was 50 or 60 years ago, it can give effect to that change — and apply the change in our English law — without waiting for the House of Lords to do it.

In Canada, this Court has implicitly or explicitly applied the doctrine of adoption in several cases. In The Ship “North” v. The King (1906), 37 S.C.R. 385, at p. 394, Davies J. wrote: “[T]he Admiralty Court when exercising its jurisdiction is bound to take notice of the law of nations . . . . The right of hot pursuit . . . being part of the law of nations was properly judicially taken notice of and acted upon by the learned judge in this prosecution.” In Reference as to Whether Members of the Military or Naval Forces of the United States of America are Exempt from Criminal Proceedings in Canadian Criminal Courts, [1943] S.C.R. 483, at p. 502, Kerwin J. stated that the exemptions from territorial jurisdiction based on sovereign immunity “are grounded on reason and are recognized by civilized countries as being rules of international law which will be followed in the absence of any domestic law to the contrary”. See also Reference as to Powers to Levy Rates on Foreign Legations and High Commissioners’ Residences, [1943] S.C.R. 208 (“Re Foreign Legations”). In Saint John (Municipality of) v. Fraser-Brace Overseas Corp., [1958] S.C.R. 263, Rand J. accepted the doctrine of adoption, applying international law principles to exempt foreign sovereigns and their property from municipal taxation in Canada. He wrote, at pp. 268-69:

If in 1767 Lord Mansfield, as in Heathfield v. Chilton [(1767), 4 Burr. 2015, 98 E.R. 50], could say, “The law of nations will be carried as far in England, as any where”, in this country, in the 20th century, in the presence of the United Nations and the multiplicity of impacts with which technical developments have entwined the entire globe, we cannot say any thing less.

The Court of Appeal for Ontario recently cited the doctrine of adoption in Bouzari v. Islamic Republic of Iran (2004), 71 O.R. (3d) 675, stating at para. 65 that “customary rules of international law are directly incorporated into Canadian domestic law unless explicitly ousted by contrary legislation” (leave to appeal refused, [2005] 1 S.C.R. vi). See also Mack v. Canada (Attorney General) (2002), 60 O.R. (3d) 737 (C.A.), at para. 32 (leave to appeal refused, [2003] 1 S.C.R. xiii).

In other decisions, however, the Court has not applied or discussed the doctrine of adoption of customary international law when it had the opportunity to do so: see, for example, Gouvernement de la République démocratique du Congo v. Venne, [1971] S.C.R. 997; Reference re Newfoundland Continental Shelf, [1984] 1 S.C.R. 86; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1.

Despite the Court’s silence in some recent cases, the doctrine of adoption has never been rejected in Canada. Indeed, there is a long line of cases in which the Court has either formally accepted it or at least applied it. In my view, following the common law tradition, it appears that the doctrine of adoption operates in Canada such that prohibitive rules of customary international law should be incorporated into domestic law in the absence of conflicting legislation. The automatic incorporation of such rules is justified on the basis that international custom, as the law of nations, is also the law of Canada unless, in a valid exercise of its sovereignty, Canada declares that its law is to the contrary. Parliamentary sovereignty dictates that a legislature may violate international law, but that it must do so expressly. Absent an express derogation, the courts may look to prohibitive rules of customary international law to aid in the interpretation of Canadian law and the development of the common law.

(2) Principle of Respect for Sovereignty of Foreign States as a Part of Customary International Law and of Canadian Common Law

One of the key customary principles of international law, and one that is central to the legitimacy of claims to extraterritorial jurisdiction, is respect for the sovereignty of foreign states. That respect is dictated by the maxim, lying at the heart of the international legal structure, that all states are sovereign and equal. Article 2(1) of the Charter of the United Nations, Can. T.S. 1945 No. 7, recognizes as one of that organization’s principles the “sovereign equality of all its Members”. The importance and centrality of the principle of sovereign equality was reaffirmed by the General Assembly in the 1970 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, GA Res. 2625 (XXV), 24 October 1970, which expanded the scope of application of the principle to include non-U.N. member states. A renowned international law jurist, Antonio Cassese, writes that of the various principles recognized in the U.N. Charter and the 1970 Declaration

this is unquestionably the only one on which there is unqualified agreement and which has the support of all groups of States, regardless of ideologies, political leanings, and circumstances. It is safe to conclude that sovereign equality constitutes the linchpin of the whole body of international legal standards, the fundamental premise on which all international relations rest.

See A. Cassese, International Law (2nd ed. 2005), at p. 48.

The principle of sovereign equality comprises two distinct but complementary concepts: sovereignty and equality. “Sovereignty” refers to the various powers, rights and duties that accompany statehood under international law. Jurisdiction — the power to exercise authority over persons, conduct and events — is one aspect of state sovereignty. Although the two are not coterminous, jurisdiction may be seen as the quintessential feature of sovereignty. Other powers and rights that fall under the umbrella of sovereignty include the power to use and dispose of the state’s territory, the right to state immunity from the jurisdiction of foreign courts and the right to diplomatic immunity. In his individual opinion in Customs Régime between Germany and Austria (1931), P.C.I.J. Ser. A/B, No. 41, at p. 57, Judge Anzilotti defined sovereignty as follows: “Independence . . . is really no more than the normal condition of States according to international law; it may also be described as sovereignty (suprema potestas), or external sovereignty, by which is meant that the State has over it no other authority than that of international law” (emphasis in original).

Sovereignty also has an internal dimension, which can be defined as “the power of each state freely and autonomously to determine its tasks, to organize itself and to exercise within its territory a ‘monopoly of legitimate physical coercion’”: L. Wildhaber, “Sovereignty and International Law”, in R. St.J. Macdonald and D. M. Johnston, eds., The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory (1983), 425, at p. 436.

While sovereignty is not absolute, the only limits on state sovereignty are those to which the state consents or that flow from customary or conventional international law. Some such limits have arisen from recent developments in international humanitarian law, international human rights law and international criminal law relating, in particular, to crimes against humanity (R. Jennings and A. Watts, eds., Oppenheim’s International Law (9th ed. 1996), vol. 1, at p. 125; K. Kittichaisaree, International Criminal Law (2001), at pp. 6 and 56; H. M. Kindred and P. M. Saunders, International Law, Chiefly as Interpreted and Applied in Canada (7th ed. 2006), at p. 836; Cassese, at p. 59). Nevertheless, despite the rise of competing values in international law, the sovereignty principle remains one of the organizing principles of the relationships between independent states.

Equality is a legal doctrine according to which all states are, in principle, equal members of the international community: Cassese, at p. 52. It is both a necessary consequence and a counterpart of the principle of sovereignty. If all states were not regarded as equal, economically and politically weaker states might be impeded from exercising their rights of sovereignty. One commentator suggests the following rationales for the affirmation of the equality of states in their mutual relations: “to forestall factual inequities from leading to injustice, to ensure that one state should not be disadvantaged in relation to another state, and to preclude the possibility of powerful states dictating their will to weaker nations” (V. Pechota, “Equality: Political Justice in an Unequal World”, in Macdonald and Johnston, 453, at p. 454). Although all states are not in fact equal in all respects, equality is, as a matter of principle, an axiom of the modern international legal system.

In order to preserve sovereignty and equality, the rights and powers of all states carry correlative duties, at the apex of which sits the principle of non-intervention. Each state’s exercise of sovereignty within its territory is dependent on the right to be free from intrusion by other states in its affairs and the duty of every other state to refrain from interference. This principle of non-intervention is inseparable from the concept of sovereign equality and from the right of each state to operate in its territory with no restrictions other than those existing under international law. (For a discussion of these principles, see the comments of Arbitrator Huber in the Island of Palmas Case (Netherlands v. United States) (1928), 2 R.I.A.A. 829, at pp. 838-39.)

Sovereign equality remains a cornerstone of the international legal system. Its foundational principles — including non-intervention and respect for the territorial sovereignty of foreign states — cannot be regarded as anything less than firmly established rules of customary international law, as the International Court of Justice held when it recognized non-intervention as a customary principle in the Case concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America), [1986] I.C.J. Rep. 14, at p. 106. As the International Court of Justice noted on that occasion, the status of these principles as international customs is supported by both state practice and opinio juris, the two necessary elements of customary international law. Every principle of customary international law is binding on all states unless superseded by another custom or by a rule set out in an international treaty. As a result, the principles of non-intervention and territorial sovereignty may be adopted into the common law of Canada in the absence of conflicting legislation. These principles must also be drawn upon in determining the scope of extraterritorial application of the Charter .

(3) Comity as an Interpretive Principle

Related to the principle of sovereign equality is the concept of comity of nations. Comity refers to informal acts performed and rules observed by states in their mutual relations out of politeness, convenience and goodwill, rather than strict legal obligation: Oppenheim’s International Law, at pp. 50-51. When cited by the courts, comity is more a principle of interpretation than a rule of law, because it does not arise from formal obligations. Speaking in the private international law context in Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, at p. 1095, La Forest J. defined comity as “the deference and respect due by other states to the actions of a state legitimately taken within its territory”. In Re Foreign Legations, both Duff C.J. and Hudson J. referred in their reasons to The Parlement Belge (1880), 5 P.D. 197 (C.A.), in which Brett L.J. commented, at pp. 214-15, that the principle of international comity “induces every sovereign state to respect the independence and dignity of every other sovereign state”.

Where our laws — statutory and constitutional — could have an impact on the sovereignty of other states, the principle of comity will bear on their interpretation. One example is in the area of extradition. As this Court noted in Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, at p. 844: “Extradition procedure, unlike the criminal procedure, is founded on the concepts of reciprocity, comity and respect for differences in other jurisdictions.” In United States of America v. Dynar, [1997] 2 S.C.R. 462, another extradition case, Cory and Iacobucci JJ., writing for the majority, stated, at para. 123:

There is no doubt that the Charter applies to extradition proceedings. Yet s. 32 of the Charter provides that it is applicable only to Canadian state actors. Pursuant to principles of international comity as well, the Charter generally cannot apply extraterritorially . . . .

In stating that the Charter cannot apply extraterritorially, Cory and Iacobucci JJ. were speaking specifically of applying it to foreign authorities.

In other contexts as well, this Court has noted the importance of comity as a tool in the interpretation of Canadian law in situations where it affects other sovereign states. In Zingre v. The Queen, [1981] 2 S.C.R. 392, Dickson J. (as he then was), writing for the Court, stated, at pp. 400-401:

As that great jurist, U.S. Chief Justice Marshall, observed in The Schooner Exchange v. M’Faddon & Others [(1812), 7 Cranch’s Reports 116], at pp. 136‑37, the jurisdiction of a nation within its own territory is necessarily exclusive and absolute, susceptible of no limitation not imposed by itself, but common interest impels sovereigns to mutual intercourse and an interchange of good offices with each other.

It is upon this comity of nations that international legal assistance rests.

Further, McLachlin J. (as she then was) noted in Terry, at para. 16, that this Court “has repeatedly affirmed the territorial limitations imposed on Canadian law by the principles of state sovereignty and international comity”. See also Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Libman v. The Queen, [1985] 2 S.C.R. 178, at p. 183.

The nature and limitations of comity need to be clearly understood. International law is a positive legal order, whereas comity, which is of the nature of a principle of interpretation, is based on a desire for states to act courteously towards one another. Nonetheless, many rules of international law promote mutual respect and, conversely, courtesy among states requires that certain legal rules be followed. In this way, “courtesy and international law lend reciprocal support to one another”: M. Akehurst, “Jurisdiction in International Law” (1972-1973), 46 Brit. Y.B. Int’l L. 145, at p. 215. The principle of comity reinforces sovereign equality and contributes to the functioning of the international legal system. Acts of comity are justified on the basis that they facilitate interstate relations and global co-operation; however, comity ceases to be appropriate where it would undermine peaceable interstate relations and the international order.

The principle of comity does not offer a rationale for condoning another state’s breach of international law. Indeed, the need to uphold international law may trump the principle of comity (see for example the English Court of Appeal’s decision in Abbasi v. Secretary of State for Foreign and Commonwealth Affairs, [2002] E.W.J. No. 4947 (QL), [2002] EWCA Civ. 1598, in respect of a British national captured by U.S. forces in Afghanistan who was transferred to Guantanamo Bay and detained for several months without access to a lawyer or a court).

In an era characterized by transnational criminal activity and by the ease and speed with which people and goods now cross borders, the principle of comity encourages states to co-operate with one another in the investigation of transborder crimes even where no treaty legally compels them to do so. At the same time, states seeking assistance must approach such requests with comity and respect for sovereignty. Mutuality of legal assistance stands on these two pillars. Comity means that when one state looks to another for help in criminal matters, it must respect the way in which the other state chooses to provide the assistance within its borders. That deference ends where clear violations of international law and fundamental human rights begin. If no such violations are in issue, courts in Canada should interpret Canadian law, and approach assertions of foreign law, in a manner respectful of the spirit of international co-operation and the comity of nations.

(4) Conformity With International Law as an Interpretive Principle of Domestic Law

One final general principle bears on the resolution of the legal issues in this appeal. It is a well-established principle of statutory interpretation that legislation will be presumed to conform to international law. The presumption of conformity is based on the rule of judicial policy that, as a matter of law, courts will strive to avoid constructions of domestic law pursuant to which the state would be in violation of its international obligations, unless the wording of the statute clearly compels that result. R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 422, explains that the presumption has two aspects. First, the legislature is presumed to act in compliance with Canada’s obligations as a signatory of international treaties and as a member of the international community. In deciding between possible interpretations, courts will avoid a construction that would place Canada in breach of those obligations. The second aspect is that the legislature is presumed to comply with the values and principles of customary and conventional international law. Those values and principles form part of the context in which statutes are enacted, and courts will therefore prefer a construction that reflects them. The presumption is rebuttable, however. Parliamentary sovereignty requires courts to give effect to a statute that demonstrates an unequivocal legislative intent to default on an international obligation. See also P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at pp. 367-68.

The presumption of conformity has been accepted and applied by this Court on numerous occasions. In Daniels v. White, [1968] S.C.R. 517, at p. 541, Pigeon J. stated:

[T]his is a case for the application of the rule of construction that Parliament is not presumed to legislate in breach of a treaty or in any manner inconsistent with the comity of nations and the established rules of international law. . . . [I]f a statute is unambiguous, its provisions must be followed even if they are contrary to international law . . . . [Emphasis added.]

See also Zingre, at pp. 409-10; Ordon Estate v. Grail, [1998] 3 S.C.R. 437, at para. 137; Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269, 2002 SCC 62, at para. 50. The presumption applies equally to customary international law and treaty obligations.

This Court has also looked to international law to assist it in interpreting the Charter . Whenever possible, it has sought to ensure consistency between its interpretation of the Charter , on the one hand, and Canada’s international obligations and the relevant principles of international law, on the other. For example, in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1056, Dickson C.J., writing for the majority, quoted the following passage from his dissenting reasons in Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, at p. 349:

The content of Canada’s international human rights obligations is, in my view, an important indicia of the meaning of the “full benefit of the Charter ’s protection”. I believe that the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.

Dickson C.J. then stated that Canada’s international obligations should also inform the interpretation of pressing and substantial objectives under s. 1 of the Charter . (See also Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 503; Suresh; United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, 2004 SCC 4.)

In interpreting the scope of application of the Charter , the courts should seek to ensure compliance with Canada’s binding obligations under international law where the express words are capable of supporting such a construction. In light of the foregoing principles — the direct application of international custom, territorial sovereignty and non-intervention as customary rules, and comity and the presumption of conformity as tools of construction — I will now turn to the point that is directly in issue in this appeal: the interpretation of s. 32 of the Charter and the application of the Charter to searches and seizures outside Canada.

(1) International Law Principles of Jurisdiction

In order to resolve the question of extraterritorial application of the Charter , the international law principles of jurisdiction and Parliament’s authority to make laws with extraterritorial effects must be examined. As has already been mentioned, jurisdiction is distinct from, but integral to, the principle of state sovereignty. The principles relating to jurisdiction arise from sovereign equality and the corollary duty of non-intervention. Broadly speaking, jurisdiction refers to a state’s power to exercise authority over individuals, conduct and events, and to discharge public functions that affect them: Cassese, at p. 49.

Jurisdiction takes various forms, and the distinctions between them are germane to the issue raised in this appeal. Prescriptive jurisdiction (also called legislative or substantive jurisdiction) is the power to make rules, issue commands or grant authorizations that are binding upon persons and entities. The legislature exercises prescriptive jurisdiction in enacting legislation. Enforcement jurisdiction is the power to use coercive means to ensure that rules are followed, commands are executed or entitlements are upheld. As stated by S. Coughlan et al. in “Global Reach, Local Grasp: Constructing Extraterritorial Jurisdiction in the Age of Globalization” (2007), 6 C.J.L.T. 29, at p. 32, “enforcement or executive jurisdiction refers to the state’s ability to act in such a manner as to give effect to its laws (including the ability of police or other government actors to investigate a matter, which might be referred to as investigative jurisdiction)” (emphasis in original). Adjudicative jurisdiction is the power of a state’s courts to resolve disputes or interpret the law through decisions that carry binding force. See Cassese, at p. 49; Brownlie, at p. 297.

International law — and in particular the overarching customary principle of sovereign equality — sets the limits of state jurisdiction, while domestic law determines how and to what extent a state will assert its jurisdiction within those limits. Under international law, states may assert jurisdiction in its various forms on several recognized grounds. The primary basis for jurisdiction is territoriality: Libman, at p. 183. It is as a result of its territorial sovereignty that a state has plenary authority to exercise prescriptive, enforcement and adjudicative jurisdiction over matters arising and people residing within its borders, and this authority is limited only by the dictates of customary and conventional international law. The principle of territoriality extends to two related bases for jurisdiction, the objective territorial principle and the subjective territorial principle. According to the objective territorial principle, a state may claim jurisdiction over a criminal act that commences or occurs outside the state if it is completed, or if a constituent element takes place, within the state, thus connecting the event to the territory of the state through a sufficiently strong link: Brownlie, at p. 299. See also Libman, at pp. 212-13. Subjective territoriality refers to the exercise of jurisdiction over an act that occurs or has begun within a state’s territory even though it has consequences in another state.

Territoriality is not the only legitimate basis for jurisdiction, however. In The Case of the S.S. “Lotus” (1927), P.C.I.J. Ser. A, No. 10, at p. 20, the Permanent Court of International Justice noted:

Though it is true that in all systems of law the principle of the territorial character of criminal law is fundamental, it is equally true that all or nearly all these systems of law extend their action to offences committed outside the territory of the State which adopts them, and they do so in ways which vary from State to State. The territoriality of criminal law, therefore, is not an absolute principle of international law and by no means coincides with territorial sovereignty.

Where a dispute is wholly contained within the territory of one state, jurisdiction is not an issue. However, disputes and events commonly have implications for more than one state, and competing claims for jurisdiction can arise on grounds other than territoriality, which are, of course, extraterritorial in nature. Of those bases for jurisdiction, the most common is the nationality principle. States may assert jurisdiction over acts occurring within the territory of a foreign state on the basis that their nationals are involved. For example, a state may seek to try and punish one of its nationals for a crime committed in another state. The nationality principle is not necessarily problematic as a justification for asserting prescriptive or adjudicative jurisdiction in order to attach domestic consequences to events that occurred abroad, but it does give rise to difficulties in respect of the extraterritorial exercise of enforcement jurisdiction. Under international law, a state may regulate and adjudicate regarding actions committed by its nationals in other countries, provided enforcement of the rules takes place when those nationals are within the state’s own borders. When a state’s nationals are physically located in the territory of another state, its authority over them is strictly limited. I will discuss this below.

There are other bases of extraterritorial jurisdiction that, although less widely recognized, are nonetheless cited from time to time as justifications for a state’s assertion of jurisdiction. One example is the principle of universal jurisdiction, pursuant to which jurisdiction may be asserted over acts committed, in other countries, by foreigners against other foreigners. Assertions of universal jurisdiction are not based on any link of territoriality or nationality between the crime or the perpetrator and the state: L. Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives (2003), at p. 5. For that reason, universal jurisdiction is confined to the most serious crimes and includes crimes under international law. Any state that obtains custody of accused persons may try and punish those who have committed crimes under international law: Brownlie, at p. 303.

The interplay between the various forms and bases of jurisdiction is central to the issue of whether an extraterritorial exercise of jurisdiction is permissible. At the outset, it must be borne in mind, first, that the exercise of jurisdiction by one state cannot infringe on the sovereignty of other states and, second, that states may have valid concurrent claims to jurisdiction. Even if a state can legally exercise extraterritorial jurisdiction, whether the exercise of such jurisdiction is proper and desirable is another question: Coughlan et al., at p. 31. Where two or more states have a legal claim to jurisdiction, comity dictates that a state ought to assume jurisdiction only if it has a real and substantial link to the event. As La Forest J. noted in Libman, at p. 213, what constitutes a “real and substantial link” justifying jurisdiction may be “coterminous with the requirements of international comity”.

In the classic example, Parliament might pass legislation making it a criminal offence for Canadian nationals to smoke in the streets of Paris, thereby exercising extraterritorial prescriptive jurisdiction on the basis of nationality. If France chooses to contest this, it may have a legitimate claim of interference with its territorial sovereignty, since Canada’s link to smoking on the Champs-Élysées is less real and substantial than that of France. France’s territorial jurisdiction collides with Canada’s concurrent claim of nationality jurisdiction. The mere presence of the prohibition in the Criminal Code of Canada might be relatively benign from France’s perspective. However, France’s outrage might be greater if Canadian courts tried a Canadian national in Canada for violating the prohibition while on vacation in Paris. It would be greater still if Canadian police officers marched into Paris and began arresting Canadian smokers or if Canadian judges established a court in Paris to try offenders.

This example demonstrates the nuances of extraterritorial jurisdiction. It is not uncommon for states to pass legislation with extraterritorial effects or, in other words, to exercise extraterritorial prescriptive jurisdiction. This is usually done only where a real and substantial link with the state is evident. Similarly, comity is not necessarily offended where a state’s courts assume jurisdiction over a dispute that occurred abroad (extraterritorial adjudicative jurisdiction), provided that the enforcement measures are carried out within the state’s own territory. The most contentious claims for jurisdiction are those involving extraterritorial enforcement of a state’s laws, even where they are being enforced only against the state’s own nationals, but in another country. The fact that a state has exercised extraterritorial prescriptive jurisdiction by enacting legislation in respect of a foreign event is necessary, but not in itself sufficient, to justify the state’s exercise of enforcement jurisdiction outside its borders: F. A. Mann, “The Doctrine of International Jurisdiction Revisited After Twenty Years”, in W. M. Reisman, ed., Jurisdiction in International Law (1999), 139, at p. 154.

The Permanent Court of International Justice stated in the Lotus case, at pp. 18-19, that jurisdiction “cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention”. See also Cook, at para. 131. According to the decision in the Lotus case, extraterritorial jurisdiction is governed by international law rather than being at the absolute discretion of individual states. While extraterritorial jurisdiction — prescriptive, enforcement or adjudicative — exists under international law, it is subject to strict limits under international law that are based on sovereign equality, non-intervention and the territoriality principle. According to the principle of non-intervention, states must refrain from exercising extraterritorial enforcement jurisdiction over matters in respect of which another state has, by virtue of territorial sovereignty, the authority to decide freely and autonomously (see the opinion of the International Court of Justice in the Case concerning Military and Paramilitary Activities In and Against Nicaragua, at p. 108). Consequently, it is a well-established principle that a state cannot act to enforce its laws within the territory of another state absent either the consent of the other state or, in exceptional cases, some other basis under international law. See Brownlie, at p. 306; Oppenheim’s International Law, at p. 463. This principle of consent is central to assertions of extraterritorial enforcement jurisdiction.

(2) Extraterritoriality in Canadian Law

This Court recognized the foregoing principles in Terry. At para. 15, McLachlin J. wrote the following on behalf of the Court:

The principle that a state’s law applies only within its boundaries is not absolute: The Case of the S.S. “Lotus” (1927), P.C.I.J. Ser. A, No. 10, at p. 20. States may invoke a jurisdiction to prescribe offences committed elsewhere to deal with special problems, such as those provisions of the Criminal Code , R.S.C. 1985, c. C-46 , pertaining to offences on aircraft (s. 7(1), (2)) and war crimes and other crimes against humanity (s. 7(3.71)). A state may likewise formally consent to permit Canada and other states to enforce their laws within its territory for limited purposes.

The Statute of Westminster, 1931 (U.K.), 22 Geo. 5, c. 4, s. 3, conferred on Canada the authority to make laws having extraterritorial operation and Canada has enacted legislation with extraterritorial effects on several occasions. Some examples can be found in criminal legislation, including the Crimes Against Humanity and War Crimes Act , S.C. 2000, c. 24 , which addresses crimes of universal jurisdiction. Section 6(1) of that statute provides that every person who commits genocide, a crime against humanity or a war crime outside Canada is guilty of an indictable offence. Pursuant to s. 8, such a person may be prosecuted in Canada: (a) if at the time of the offence the person was a Canadian citizen or a citizen of a state engaged in armed conflict against Canada, or the victim was a Canadian citizen or a citizen of a state allied with Canada in an armed conflict; or (b) if, after the time of the offence was committed, the person is present in Canada. These provisions exemplify valid extraterritorial prescriptive jurisdiction, and any trial for such offences would constitute a legitimate exercise of extraterritorial adjudicative jurisdiction. But, importantly, they do not authorize Canada to enforce the prohibitions in a foreign state’s territory by arresting the offenders there. Section 7 of the Criminal Code , R.S.C. 1985, c. C-46 , contains a number of provisions that deem certain acts — including attacks on internationally protected persons or U.N. personnel, torture or hostage taking — to have been committed in Canada even though they took place in other countries. Although committed outside Canada, such an act will be deemed to have been committed in Canada if, inter alia, the person who committed it is a Canadian citizen or normally resides in Canada, it was committed on an aircraft registered in Canada or it was committed against a Canadian citizen.

On the other hand, it is recognized that there are limits to the extraterritorial application of Canadian law. Section 6(2) of the Criminal Code provides: “Subject to this Act or any other Act of Parliament, no person shall be convicted or discharged under section 730 of an offence committed outside Canada.” As a general rule, then, Canadian criminal legislation is territorial unless specifically declared to be otherwise. Further, as noted by McLachlin J. in Terry, at para. 18, bilateral treaties negotiated pursuant to the Mutual Legal Assistance in Criminal Matters Act , R.S.C. 1985, c. 30 (4th Supp .), provide that the actions requested of the assisting state are governed by that state’s own laws, not by the laws of the requesting state.

Parliament has clear constitutional authority to pass legislation governing conduct by non-Canadians outside Canada. Its ability to pass extraterritorial legislation is informed by the binding customary principles of territorial sovereign equality and non-intervention, by the comity of nations, and by the limits of international law to the extent that they are not incompatible with domestic law. By virtue of parliamentary sovereignty, it is open to Parliament to enact legislation that is inconsistent with those principles, but in so doing it would violate international law and offend the comity of nations. However, in light of the foregoing discussion of the jurisdictional principles of customary international law, the prohibition on interference with the sovereignty and domestic affairs of other states, and this Court’s jurisprudence, Canadian law can be enforced in another country only with the consent of the host state.

As the supreme law of Canada, the Charter is subject to the same jurisdictional limits as the country’s other laws or rules. Simply put, Canadian law, whether statutory or constitutional, cannot be enforced in another state’s territory without the other state’s consent. This conclusion, which is consistent with the principles of international law, is also dictated by the words of the Charter itself. The Charter’s territorial limitations are provided for in s. 32, which states that the Charter applies only to matters that are within the authority of Parliament or the provincial legislatures. In the absence of consent, Canada cannot exercise its enforcement jurisdiction over a matter situated outside Canadian territory. Since effect cannot be given to Canadian law in the circumstances, the matter falls outside the authority of Parliament and the provincial legislatures.

In light of the context and interpretive assistance set out in the foregoing discussion, I will now turn to the specific issue raised in this appeal — the application of the Charter to investigations conducted by Canadian officers outside Canada.

(1) Review of the Supreme Court of Canada Jurisprudence: Harrer, Terry, Cook and Schreiber

This Court has already considered the question of extraterritorial application of the Charter to evidence gathering abroad in a series of cases, beginning with Harrer. The accused in Harrer was questioned by United States marshals about possible criminal involvement in her boyfriend’s escape from custody in Canada. The accused was tried in Canada on the basis of statements she had made to the marshals. During the interrogation, she had not been given a second right-to-counsel warning, which would have been required by the Charter but not by U.S. law. At trial, the Crown sought to introduce statements that the accused had made to the marshals. The trial judge excluded the statement made after the second warning ought to have been given and this Court held that she erred in doing so. La Forest J. noted that pursuant to s. 32(1) , the application of the Charter is confined to the governments of Canada, the provinces and the territories. The U.S. marshals were not acting on behalf of those bodies, and the Charter consequently had no direct application to the interrogation. He wrote, at para. 15:

[I]t is obvious that Canada cannot impose its procedural requirements in proceedings undertaken by other states in their own territories. And I see no reason why evidence obtained in other countries in a manner that does not conform to our procedures should be rejected if, in the particular context, its admission would not make the trial unfair. For us to insist that foreign authorities have followed our internal procedures in obtaining evidence as a condition of its admission in evidence in Canada would frustrate the necessary cooperation between the police and prosecutorial authorities among the various states of the world.

McLachlin J., in concurring reasons, agreed that pursuant to s. 32 , the Charter does not apply to foreign authorities. Both La Forest J. and McLachlin J. mentioned that evidence obtained abroad can be excluded from a trial in Canada if its admission would jeopardize trial fairness. I will return to this point.

The next case in the series was Terry, which also involved interrogation by U.S. authorities of an accused who was later tried in Canada. The accused was arrested in the U.S. on an extradition warrant. Canadian police asked the U.S. authorities to advise him of his American rights. Although the U.S. police gave the “Miranda warning” required under American law, the accused was not advised forthwith upon his detention of his right to counsel as required by the Charter . He made a statement to the U.S. police, and it was admitted at trial in Canada. The accused was convicted of second degree murder. McLachlin J., writing for the Court, found that the statement was admissible and upheld the conviction. She noted that despite the co-operation between Canadian and U.S. police, the latter could not be governed by the requirements of Canadian law. Charter standards cannot be imposed on U.S. authorities operating in their jurisdiction as that would undermine the principles of state sovereignty and international comity. In a passage that is particularly relevant to the facts of the case at bar, McLachlin J. wrote, at para. 19:

Still less can the Charter govern the conduct of foreign police cooperating with Canadian police on an informal basis. The personal decision of a foreign officer or agency to assist the Canadian police cannot dilute the exclusivity of the foreign state’s sovereignty within its territory, where its law alone governs the process of enforcement. The gathering of evidence by these foreign officers or agency is subject to the rules of that country and none other. Consequently, any cooperative investigation involving law enforcement agencies of Canada and the United States will be governed by the laws of the jurisdiction in which the activity is undertaken . . . .

McLachlin J. reaffirmed the position taken in Harrer that evidence gathered abroad may be excluded from a Canadian trial if it was gathered in a way that would undermine trial fairness as guaranteed by s. 11(d) of the Charter or that violates the principles of fundamental justice.

The issue of extraterritorial application of the Charter arose once more in Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841. Mr. Schreiber, a Canadian citizen, had an interest in Swiss bank accounts. The federal Department of Justice sent a request to Swiss authorities seeking assistance in a Canadian criminal investigation. Switzerland accepted the request and ordered the seizure of documents and records relating to Mr. Schreiber’s accounts. Prior to the request, no search warrant or other judicial authorization had been issued in Canada. The question before this Court was whether Canadian standards for the issuance of a search warrant had to be complied with before the request was made. The majority answered the question in the negative.

L’Heureux-Dubé J. wrote the majority decision. She concluded that the sending of a letter of request to a foreign state does not attract scrutiny under s. 8 of the Charter . Section 32 limits the application of the Charter to actions taken by Parliament, the government of Canada, a provincial legislature or a provincial government. As the sending of the letter of request was the only action authorized and undertaken by the government, it was the only one that could be assessed for Charter compliance. The sending of the letter did not engage s. 8 of the Charter , and “[a]ll of those actions which rely on state compulsion in order to interfere with the respondent’s privacy interests were undertaken in Switzerland by Swiss authorities. Neither the actions of the Swiss authorities, nor the laws which authorized their actions, are subject to Charter scrutiny” (para. 31).

Lamer C.J., in separate concurring reasons, found that the Charter applied to the actions of the Canadian officials who had prepared and sent the letter of request. He considered whether the searches and seizures carried out in Switzerland were consistent with s. 8 of the Charter but found that there had been no violation, because Mr. Schreiber had not had a reasonable expectation of privacy. He reasoned as follows, at paras. 22-23:

Of critical importance to this case is the fact that the records were located in Switzerland, and obtained in a manner consistent with Swiss law.

. . . a Canadian residing in a foreign country should expect his or her privacy to be governed by the laws of that country and, as such, a reasonable expectation of privacy will generally correspond to the degree of protection those laws provide. This, if anything, is more true for the person who decides to conduct financial affairs and keep records in a foreign state. It may be fairly assumed that such a person has made an informed choice about where to conduct business, and thereby to create corresponding records, particularly banking records.

Iacobucci J., in dissent, found that Mr. Schreiber had had a reasonable expectation of privacy regarding the accounts and stated, in respect of the actions of the Canadian authorities in requesting the search and seizure, that “s. 8 consequently applies in full force with all of its attendant guarantees and preventative measures” (para. 48).

This Court’s most recent decision on the issue of extraterritorial Charter application was Cook. The accused in that case was an American arrested in the U.S. by U.S. authorities on a warrant issued in connection with a Canadian extradition request. While he was detained in the U.S., Vancouver police officers interrogated the accused. He was not properly advised of his right to counsel as required by s. 10(b) of the Charter . At his trial in Canada, a statement he had made to the Canadian officers was admitted for the limited purpose of impeaching his credibility on cross-examination. A majority of this Court held that the Charter applied to the actions of the Canadian detectives and that there had been a violation of s. 10(b). The evidence should have been excluded under s. 24(2). A new trial was ordered.

Cory and Iacobucci JJ. wrote the majority decision. They noted that the circumstances in which the Charter may apply to actions taken outside Canada will be rare. At para. 25, they suggested the following two factors to assist in identifying those circumstances: “(1) the impugned act falls within s. 32(1) of the Charter ; and (2) the application of the Charter to the actions of the Canadian detectives in the United States does not . . . interfere with the sovereign authority of the foreign state and thereby generate an objectionable extraterritorial effect”. On the facts of the case, they found no interference with the sovereign authority of the U.S.

The majority considered jurisdiction under international law. Cory and Iacobucci JJ. noted, at para. 26, that sovereign equality “generally prohibits extraterritorial application of domestic law since, in most instances, the exercise of jurisdiction beyond a state’s territorial limits would constitute an interference under international law with the exclusive territorial jurisdiction of another state”. However, the nationality of the person subject to the domestic law may also be invoked as a valid basis for jurisdiction, and nationality jurisdiction may operate concurrently with the territorial jurisdiction of the foreign state. The majority affirmed that the Charter cannot apply to the actions of foreign authorities but distinguished the facts of the case before them from those in Harrer and Terry on the basis that the interrogation had been conducted by Canadian officers rather than by foreign authorities. Since the officers who questioned the accused were Canadian nationals, s. 32(1) extended the application of the Charter to their actions abroad pursuant to the nationality principle, provided there was no interference with the sovereign authority of the U.S. The majority concluded as follows, at para. 48: “[T]he Charter applies on foreign territory in circumstances where the impugned act falls within the scope of s. 32(1) of the Charter on the jurisdictional basis of the nationality of the state law enforcement authorities engaged in governmental action, and where the application of Charter standards will not conflict with the concurrent territorial jurisdiction of the foreign state.” The majority took care to confine its holding to the facts before it, expressly acknowledging at para. 54 that the case might be different where “Canadian authorities participate, on foreign territory, in an investigative action undertaken by foreign authorities in accordance with foreign procedures”.

Bastarache J. wrote concurring reasons in which he reached the same result by means of a different analysis. To begin, he found that the wording of s. 32(1) applies to the actions of Canadian police officers, since the police are constituted as part of the government and act under statutory authority. That statutory authority to exercise coercion will come into conflict with the jurisdiction of a foreign state when Canadian officers travel into the territory of that state; however, s. 32(1) continues to apply to the Canadian officers regardless of whether they exercise governmental powers of coercion. At para. 126, Bastarache J. stated that where an investigation abroad involves co-operation between Canadian officials and foreign officials, “the key issue . . . is determining who was in control of the specific feature of the investigation which is alleged to constitute the Charter breach”. If the foreign authority was in control of the circumstances leading to the Charter breach in obtaining the evidence, the activities in question are not subject to the Charter . If the Canadian authorities were primarily responsible for the breach, the Charter will apply to them and to the evidence. Bastarache J. considered principles of jurisdiction under international law, including territoriality, the objective territorial principle and the importance of a real and substantial link where competing claims of jurisdiction are made. He determined that, in the circumstances of that case, there was a real and substantial connection between the criminal prosecution in Canada and the investigation outside Canada in which Canadian officers had taken part. He then discussed whether the application of the Charter would interfere with the jurisdictional integrity of the foreign state. At para. 143, he reasoned as follows:

[T]he nature of the rights contained in the relevant sections of the Charter are not mandatory, but rather conditional upon the occurrence of specified investigatory activities. Thus, if there is a rule of investigation in the foreign jurisdiction that directly contradicts a Charter provision, there is still no conflict. The reason for this is that the Charter does not impose any obligation to investigate; it simply requires that if an investigation is made by the officer, it must be conducted in accordance with certain conditions. It follows from this, moreover, that the application of the Charter to the Canadian official has no impact on the foreign legal system. At worst, the Canadian official may be obliged to cease taking a directing or primary role in the investigation in order to comply with the Charter .

L’Heureux-Dubé J. dissented in Cook, and McLachlin J. concurred in her reasons. According to L’Heureux-Dubé J.’s approach, before considering whether a case involves state action that may have infringed a Charter right, it must be asked whether the person claiming the Charter right in fact holds that right. If the claimant does hold a Charter right, the inquiry then moves to the question of state action. After reviewing the decisions in Harrer, Terry and Schreiber, L’Heureux-Dubé J. identified two fundamental principles relating to the extraterritorial application of the Charter . First, the action allegedly in breach of the Charter must have been carried out by one of the state actors identified in s. 32(1) . Second, even an action by one of those state actors will fall outside the scope of the Charter if it is performed in co-operation with foreign officials on foreign soil. The key question to ask in order to determine whether the investigation is co-operative is whether Canadian officials have legal authority in the place where the actions occurred. Where the conduct of state actors falls under the authority of a foreign government, s. 32 does not apply, since it is confined to matters “within the authority” of Parliament or a provincial legislature. At paras. 93-94, L’Heureux-Dubé J. wrote the following:

In my opinion, the Charter does not apply to any investigation where Canadian officials no longer have the legal attributes of “government”; this occurs whenever an investigation takes place under the sovereignty of another government.

When Canadian officials work under the sovereignty of a foreign legal system, the investigation is necessarily cooperative. Foreign officials who permit Canadians to work with them, or to work on soil that is under their government’s legal authority, are bound to follow that country’s laws, and work within the procedural requirements of that system. So are the Canadian officials who work with them.

The dissent concluded that the Charter did not apply to the interrogation, and, consequently, that the statement was properly admitted at trial.

(2) Concerns in Respect of the Jurisprudence

The jurisprudence on the issue of extraterritorial application of the Charter as it stands after Cook is subject to a number of difficulties and criticisms, both practical and theoretical. The essence of the majority’s holding in Cook is that the Charter will apply to acts of Canadian law enforcement authorities engaged in governmental action where the application of Charter standards will not conflict with the concurrent territorial jurisdiction of the foreign state. When that holding is applied to facts such as those in the present case, problems arise. For one, the majority in Cook failed to distinguish prescriptive from enforcement jurisdiction. Second, practical and theoretical difficulties arise when its approach is applied to different facts (such as a search and seizure). Third, it failed to give due consideration to the wording of s. 32(1).

Beginning with the first of these criticisms, the majority in Cook disregarded the important distinction between the powers of prescription and enforcement. It also failed to discuss the principle that Canadian law cannot be enforced in another state’s territory without the other state’s consent, regardless of the extent or degree of difference between the laws of Canada and the foreign state, or of whether there is any conflict at all. Criminal investigations in foreign countries by definition implicate foreign law and procedures. The choice of legal system inherently lies within the authority of each state as an exercise of its territorial sovereignty. Were Charter standards to be applied in another state’s territory without its consent, there would by that very fact always be interference with the other state’s sovereignty. Cook is also inconsistent with this Court’s approval of the principle of consent in Terry.

The Cook approach therefore puts the focus in the wrong place, as it involves looking for a conflict between concurrent jurisdictional claims, whereas the question should instead be viewed as one of extraterritorial enforcement of Canadian law. The issue in these cases is the applicability of the Charter to the activities of Canadian officers conducting investigations abroad. The powers of prescription and enforcement are both necessary to application of the Charter . The Charter is prescriptive in that it sets out what the state and its agents may and may not do in exercising the state’s powers. Prescription is not in issue in the case at bar, but even so, the Charter cannot be applied if compliance with its legal requirements cannot be enforced. Enforcement of compliance with the Charter means that when state agents act, they must do so in accordance with the requirements of the Charter so as to give effect to Canadian law as it applies to the exercise of the state power at issue. However, as has already been discussed, Canadian law cannot be enforced in another state’s territory without that state’s consent. Since extraterritorial enforcement is not possible, and enforcement is necessary for the Charter to apply, extraterritorial application of the Charter is impossible.

As for the second criticism, the circumstances of the instant case exemplify the theoretical and practical difficulties arising out of an attempt to apply Charter standards outside Canada in fact situations other than the one in Cook. In Turks and Caicos, judicial authorization does not appear to be necessary for a perimeter search of private premises, such as the one that took place on the nights of February 7 and 8, 1998. Under Canadian law, in most circumstances a warrant would be required to conduct such a search. To comply with the Charter , the RCMP officers would have had to obtain a warrant that is unavailable under Turks and Caicos law. It would constitute blatant interference with Turks and Caicos sovereignty to require that country’s legal system to develop a procedure for issuing a warrant in the circumstances simply to comply with the dictates of the Charter .

The theoretical and practical impediments to extraterritorial application of the Charter can thus be seen more clearly where the s. 8 guarantee against unreasonable search and seizure is in issue than where the issue relates, as in the cases discussed above, to the right to counsel. Searches and seizures, because of their coerciveness and intrusiveness, are by nature vastly different from police interrogations. The power to invade the private sphere of persons and property, and seize personal items and information, is paradigmatic of state sovereignty. These actions can be authorized only by the territorial state. From a theoretical standpoint, the Charter cannot be applied, because its application would necessarily entail an exercise of the enforcement jurisdiction that lies at the heart of territoriality. As a result of the principles of sovereign equality, non-intervention and comity, Canadian law and standards cannot apply to searches and seizures conducted in another state’s territory.

It is also evident from a practical standpoint that the Charter cannot apply to searches and seizures in other countries. How exactly would Charter standards operate in such circumstances? Lamer C.J. suggested in Schreiber that it would be sufficient for Charter purposes for those conducting a search and seizure to comply with the domestic law of the foreign state, since an individual’s reasonable expectation of privacy would be commensurate to the degree of protection provided by the law of the country in which she or he is located. If the only requirement were that the Canadian officers and their foreign counterparts comply with the foreign law, it is unclear what purpose would be served by applying the Charter , as it would carry no added protection in respect of a search and seizure. Moreover, in some cases, compliance with the foreign law would be directly contrary to the express wording of the Charter provisions guaranteeing the rights in question.

Conversely, it is in practice impossible to apply the full force of the Charter to searches and seizures in foreign territory. One example of this, as I mentioned earlier, is where the Charter would require a warrant but the foreign law provides no procedure for obtaining or issuing such a warrant. The judicial authorities of a foreign state cannot be required under Canadian law to invent ad hoc procedures for the purposes of a co-operative investigation. Should that be a reason for prohibiting a search and seizure from taking place even though it is authorized by the law of the jurisdiction where it would occur? Further, it would be unrealistic, in a co-operative investigation, to require the various officers involved to follow different procedural and legal requirements. Searches and seizures require careful and detailed planning; where the investigation is a joint effort, it is bound to be unsuccessful if the participants are following two different sets of rules. This would be the result if the Charter applied to the Canadian officers only, and it clearly cannot apply to the foreign authorities: Harrer and Terry.

It is no more helpful to suggest that some third option other than the law of the host state or the full application of Charter standards might govern foreign investigations. Where would the standards to be applied come from? How would Canadian officials know what is required of them at the outset of an investigation? The only reasonable approach is to apply the law of the state in which the activities occur, subject to the Charter ’s fair trial safeguards and to the limits on comity that may prevent Canadian officers from participating in activities that, though authorized by the laws of another state, would cause Canada to be in violation of its international obligations in respect of human rights.

One possible response to the problem of enforcement outside Canada is that ex post facto scrutiny of the investigation by a Canadian court in a Canadian trial that might result in the exclusion of evidence gathered in breach of the Charter would not interfere with the sovereignty of the foreign state, since this would merely constitute an exercise of extraterritorial adjudicative jurisdiction. However, while it is true that foreign sovereignty is not engaged by a criminal process in Canada that excludes evidence by scrutinizing the manner in which it was obtained for compliance with the Charter , the purpose of the Charter is not simply to serve as a basis for an ex post facto review of government action. The Charter’s primary role is to limit the exercise of government and legislative authority in advance, so that breaches are stopped before they occur. Canadian officers need to know what they are required to do as the investigation unfolds, so as to ensure that the evidence gathered will be admitted at trial. When a trial judge is considering a possible breach of the Charter by state actors, the ability of the state actors to comply with their Charter obligations must be relevant. The fact that the Charter could not be complied with during the investigation because the relevant state action was being carried out in a foreign jurisdiction strongly intimates that the Charter does not apply in the circumstances. In any event, if the concern is really about the ex post facto review of investigations, that function is performed by ss. 7 and 11(d) of the Charter , pursuant to which evidence may be excluded to preserve trial fairness. The inquiry under those provisions relates to the court’s responsibility to control its own process and is fundamentally different from asking at trial whether the Canadian officer’s conduct amounted to the violation of a particular Charter right.

The importance of considering the possibility of compliance with the Charter in advance is highlighted by the legal problems attendant upon the conduct of an interrogation abroad. Certain provisions setting out Charter rights require no more than that the accused be advised of something, such as the reasons for his or her arrest or detention (under s. 10(a)). Other Charter rights provisions in the investigation context require more. For example, s. 10(b) guarantees to everyone the right on arrest or detention to be informed of the right to retain and instruct counsel without delay; however, it also includes the right to retain and instruct counsel without delay. Consequently, while imposing an obligation on Canadian officers conducting an interrogation abroad to inform the accused of a right would not significantly interfere with the territorial sovereignty of the foreign state, interference would occur if the accused were to claim that right. At that point, Canadian officers would no longer be able to comply with their Charter obligations independently. As L’Heureux-Dubé J. wrote in Cook, at para. 94: “In an investigation that takes place under foreign sovereignty, it is the foreign government that has legal authority over the mechanics of the investigation.” For Charter rights to be effective, it must be possible to assert them.

Finally, the third criticism of the current jurisprudence is that proper regard has not been given to the wording of s. 32(1) of the Charter . In setting out the two factors that were central to the conclusion that the Charter applied, the majority in Cook noted first that “the impugned act falls within s. 32(1) of the Charter ” (para. 25). In doing so, it made the error of assuming precisely what had to be decided. The purpose of the inquiry into the application of the Charter to investigations in other countries is to determine whether the act in fact falls under s. 32(1) . The words of s. 32(1) — interpreted with reference to binding principles of customary international law — must ultimately guide the inquiry. In my view, there is little logic in an approach that first determines that the activity falls under s. 32(1) and then questions at a second stage whether the Charter nonetheless ought not to apply because of some “objectionable extraterritorial effect”. Rather, the extraterritorial implications of applying the Charter are, in my view, central to the question whether the activity in question falls under s. 32(1) in the first place. The inquiry begins and ends with s. 32(1) of the Charter .

Section 32(1) puts the burden of complying with the Charter on Parliament, the government of Canada, the provincial legislatures and the provincial governments. While my colleague is correct in stating, at para. 161, that s. 32(1) defines to whom the Charter applies and not where it applies, s. 32(1) does more than that. It also defines in what circumstances the Charter applies to those actors. The fact that a state actor is involved is not in itself sufficient, as Bastarache J. suggests. The activity in question must also fall within the “matters within the authority of” Parliament or the legislature of each province. A criminal investigation in the territory of another state cannot be a matter within the authority of Parliament or the provincial legislatures, because they have no jurisdiction to authorize enforcement abroad. Criminal investigations, like political structures or judicial systems, are intrinsically linked to the organs of the state, and to its territorial integrity and internal affairs. Such matters are clearly within the authority of Parliament and the provincial legislatures when they are in Canadian territory; it is just as clear that they lie outside the authority of those bodies when they are outside Canadian territory.

My colleague, Binnie J., recognizes that there are practical and theoretical difficulties with the application of the approach followed in Cook (para. 183). Nonetheless, in his view that approach should be preserved because of possible issues that may eventually end up before this Court in respect of international law and of its relationship with Canadian law. He refers to matters such as the “war on terror”, the deployment of Canadian police officers in states with troubled histories and the Maher Arar inquiry. With respect, I do not think such matters belong to the issue put before our Court in this appeal, nor form part of the record in this case. We cannot always know what new issues might arise before the courts in the future, but we can trust that the law will grow and evolve as necessary and when necessary in response. But until those new issues are presented in live cases we ought not to abdicate our duty to rethink and refine today the law when confronted by jurisprudence that has demonstrated practical and theoretical weaknesses.

(3) The Globalization of Criminal Activities and the Need for International Co-Operation

The principles of international law and comity that I have discussed demonstrate why Charter standards cannot be applied to an investigation in another country involving Canadian officers so as to require that the investigation conform to Canadian law. At the same time, there is no impediment to extraterritorial adjudicative jurisdiction pursuant to which evidence gathered abroad may be excluded from a Canadian trial, as this jurisdiction simply attaches domestic consequences to foreign events. The question flowing from those two propositions is whether the Charter can restrain Canadian officers from participating in a foreign investigation that does not meet Charter standards.

When it applies, the Charter imposes limits on the state’s coercive power. It requires that state power be exercised only in accordance with certain restrictions. As a corollary, where those restrictions cannot be observed, the Charter prohibits the state from exercising its coercive power. Since the Charter does not authorize state action, but simply operates as a limit on such action, could it not be said that the Charter “applies” to extraterritorial investigations by prohibiting Canadian officers from participating in investigations abroad that do not conform to Canadian law? International law provides only part of the answer to this question. To prohibit Canadian officers from participating would indeed ensure conformity with both international law and the Charter ; however, it would also mean that the investigation could not be conducted. This is a serious concern. The complete answer therefore lies both in international law and in the need to address the challenges of investigating and prosecuting transborder criminal activity.

Transnational crime is a growing problem in the modern world, as people, property and funds move fluidly across national borders. Some of the most costly, exploitative or dangerous crimes are committed on a worldwide scale, unconfined by state boundaries. The investigation and policing of such criminal activities requires co-operation between states. In a co-operative investigation, Canada cannot simply walk away when another country insists on following its own investigation and enforcement procedures rather than ours. That would fall short not only of Canada’s commitment to other states and the international community to provide assistance in combatting transnational crime, but also of Canada’s obligation to Canadians to ensure that crimes having a connection with Canada are investigated and prosecuted. As McLachlin J. wrote in Harrer, at para. 55:

It is not reasonable to expect [police forces abroad] to comply with details of Canadian law. To insist on conformity to Canadian law would be to insist on external application of the Charter in preference to the local law. It would render prosecution of offences with international aspects difficult if not impossible. And it would undermine the ethic of reciprocity which underlies international efforts to control trans-border crime: Argentina v. Mellino, [1987] 1 S.C.R. 536, at p. 551, per La Forest J. We live in an era when people, goods and information pass from country to country with great rapidity. Law enforcement authorities, if they are to do their job, must apprehend people and intercept goods and communications wherever they may be found. Often they find themselves working with officers in foreign jurisdictions; often they are merely the recipients of information gathered independently elsewhere. . . . We need to accommodate the reality that different countries apply different rules to evidence gathering, rules which must be respected in some measure if we are to retain the ability to prosecute those whose crime and travel take them beyond our borders.

When individuals choose to engage in criminal activities that cross Canada’s territorial limits, they can have no guarantee that they carry Charter rights with them out of the country. As this Court has noted in the past, individuals should expect to be governed by the laws of the state in which they find themselves and in which they conduct financial affairs — it is the individual’s decision to go to or operate in another country that triggers the application of the foreign law: Terry, at paras. 24 and 26; Schreiber, at para. 23. Co-operation between states is imperative if transnational crimes are not to be committed with impunity because they fall through jurisdictional cracks along national borders. In United States of America v. Cotroni, [1989] 1 S.C.R. 1469, in the context of drug trafficking, La Forest J. stated the following, at p. 1485:

The only respect paid by the international criminal community to national boundaries is when these can serve as a means to frustrate the efforts of law enforcement and judicial authorities. The trafficking in drugs, with which we are here concerned, is an international enterprise and requires effective tools of international cooperation for its investigation, prosecution and suppression.

In order to foster such co-operation, and in the spirit of comity, Canada cannot either insist that the Charter be applied in other countries or refuse to participate. When Canadian authorities are guests of another state whose assistance they seek in a criminal investigation, the rules of that state govern.

It is clear that a balance must be struck “to achieve a just accommodation between the interests of the individual and those of the state in providing a fair and workable system of justice”: Harrer, at para. 14. Individual rights cannot be completely disregarded in the interests of transborder co-operation. Sections 7 and 11(d) provide that everyone tried in Canada enjoys the same rights to a fair trial and not to be deprived of life, liberty or security of the person except in accordance with the principles of fundamental justice. Where the Crown seeks at trial to adduce evidence gathered abroad, the Charter provisions governing trial processes in Canada ensure that the appropriate balance is struck and that due consideration is shown for the rights of an accused being investigated abroad.

Moreover, there is an argument that comity cannot be invoked to allow Canadian authorities to participate in activities that violate Canada’s international obligations. As a general rule, Canadian officers can participate in investigations abroad, but must do so under the laws of the foreign state. The permissive rule that allows Canadian officers to participate even when there is no obligation to do so derives from the principle of comity; the rule that foreign law governs derives from the principles of sovereign equality and non-intervention. But the principle of comity may give way where the participation of Canadian officers in investigative activities sanctioned by foreign law would place Canada in violation of its international obligations in respect of human rights. In such circumstances, the permissive rule might no longer apply and Canadian officers might be prohibited from participating. I would leave open the possibility that, in a future case, participation by Canadian officers in activities in another country that would violate Canada’s international human rights obligations might justify a remedy under s. 24(1) of the Charter because of the impact of those activities on Charter rights in Canada.

(4) A Balancing Methodology

In light of the foregoing considerations, several issues arise with respect to the question of the application of the Charter to investigations. It will be necessary to consider each of them carefully in order to develop a principled approach to determining whether the Charter applies and avoid the uncertainties that now plague the question.

The court must first turn to s. 32 in order to determine whether the actors are agents of government and then determine whether the activities fall within the scope of the legislative authority of Parliament or the provincial legislatures. It must begin by considering the wording of s. 32(1) of the Charter , bearing in mind that provision’s two distinct components. As a threshold question, it must be asked whether there is a state actor in the sense of a government agent or official possessing statutory authority or exercising a public function (see P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 2, at pp. 34-13 to 34-15 and 34-16 to 34-18). Police officers are clearly government actors to whom, prima facie, the Charter would apply: “By its terms, s. 32(1) dictates that the Charter applies to the Canadian police by virtue of their identity as part of the Canadian government” (Cook, at para. 124). However, the inquiry does not end there. It is clear that s. 32(1) applies to state actors “in respect of all matters” within the authority of Parliament or the provincial legislatures. The second part of the s. 32(1) inquiry is essential in such cases.

Although, on the basis of nationality, Canada has some jurisdiction over Canadian agents acting abroad, that jurisdiction is subject to the caveat that the matter must be within the authority of Parliament or the provincial legislatures. Consequently, Canada’s jurisdiction is circumscribed by the territorial jurisdiction of the state in which its agents are operating. For example, Canadian consular officials operating abroad have some immunity from local laws on the basis of nationality jurisdiction, but that does not mean they have the power to abide by Canadian laws and only Canadian laws when in the host state. Bastarache J. correctly noted in Cook that a Canadian police officer is not stripped of his or her status as such on crossing the border into the U.S., but the officer’s authority to exercise state powers is necessarily curtailed. Canada does not have authority over all matters respecting what the officer may or may not do in the foreign state. Where Canada’s authority is limited, so too is the application of the Charter .

Neither Parliament nor the provincial legislatures have the power to authorize the enforcement of Canada’s laws over matters in the exclusive territorial jurisdiction of another state. Canada can no more dictate what procedures are followed in a criminal investigation abroad than it can impose a taxation scheme in another state’s territory. Criminal investigations implicate enforcement jurisdiction, which, pursuant to the principles of international law discussed above, cannot be exercised in another country absent the consent of the foreign state or the application of another rule of international law under which it can so be exercised. While concurrent jurisdiction over prosecutions of crimes linked with more than one country is recognized under international law, the same is not true of investigations, which are governed by and carried out pursuant to territorial jurisdiction as a matter inherent in state sovereignty. Any attempt to dictate how those activities are to be performed in a foreign state’s territory without that state’s consent would infringe the principle of non-intervention. And, as mentioned above, without enforcement, the Charter cannot apply.

In some cases, the evidence may establish that the foreign state consented to the exercise of Canadian enforcement jurisdiction within its territory. The Charter can apply to the activities of Canadian officers in foreign investigations where the host state consents. In such a case, the investigation would be a matter within the authority of Parliament and would fall within the scope of s. 32(1) . Consent clearly is neither demonstrated nor argued on the facts of the instant appeal, so it is unnecessary to consider when and how it might be established. Suffice it to say that cases in which consent to the application of Canadian law in a foreign investigation is demonstrated may be rare.

If the court is not satisfied that the foreign state consented to the enforcement of Canadian law in its territory, it must turn to the final stage of the inquiry and consider how to ensure the fairness of a trial held in Canada. What is in issue at this stage is no longer whether the actions of state agents outside Canada were consistent with the Charter , but whether they affect the fairness of a trial inside Canada.

Any individual tried in Canada for an offence under Canadian law has, pursuant to s. 11(d) and to centuries of common law, the right to a fair trial. In addition, everyone has the right to liberty and the right not to be deprived thereof except in accordance with the principles of fundamental justice (s. 7). This Court has in fact held that the right to a fair trial is a principle of fundamental justice: R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 603. If evidence is gathered in a way that fails to meet certain minimum standards, its admission at trial in Canada may — regardless of where it was gathered — amount to a violation of either or both of those sections of the Charter . Judges have the discretion to exclude evidence that would result in an unfair trial. That discretion, long established at common law, has attained constitutional status by being entrenched in s. 11(d) of the Charter . However, it does not automatically follow that a trial will be unfair or that the principles of fundamental justice will be infringed if evidence obtained in circumstances that do not meet Charter standards is admitted: Harrer, at para. 14.

The circumstances in which the evidence was gathered must be considered in their entirety to determine whether admission of the evidence would render a Canadian trial unfair. The way in which the evidence was obtained may make it unreliable, as would be true of conscriptive evidence, for example. The evidence may have been gathered through means, such as torture, that are contrary to fundamental Charter values. Such abusive conduct would taint the fairness of any trial in which the evidence was admitted: Harrer, at para. 46. La Forest J. offered the following additional guidance in Harrer, at paras. 16-18:

The fact that the evidence was obtained in another country in accordance with the law of that country may be a factor in assessing fairness. Its legality at the place in question will necessarily affect all participants, including the police and the individual accused. More specifically, conformity with the law of a country with a legal system similar to our own has even more weight, for we know that a number of different balances between conflicting principles can be fair . . . .

But the foreign law is not governing in trials in this country. For example, it may happen that the evidence was obtained in a manner that conformed with the law of the country where it was obtained, but which a court in this country would find in the circumstances of the case would result in unfairness if admitted at trial. On the other hand, the procedural requirements for obtaining evidence imposed in one country may be more onerous than ours. Or they may simply have rules that are different from ours but are not unfair. Or again we may not find in the particular circumstances that the manner in which the evidence was obtained was sufficiently objectionable as to require its rejection. In coming to a decision, the court is bound to consider the whole context.

At the end of the day, a court is left with a principled but fact‑driven decision.

La Forest J. and McLachlin J. both found that admission of the evidence would not render the trial unfair in the circumstances of that case. McLachlin J. noted in particular that the relevant circumstances included the expectations of the accused in the place where the evidence was taken, and that the police conduct was neither unfair nor abusive. She made the following comment, at para. 49: “The unfairness arises in large part from the accused’s expectation that the police in Canada will comply with Canadian law. Where the [evidence] is [gathered] abroad, the expectation is otherwise.”

Individuals can reasonably expect that certain basic standards will be adhered to in all free and democratic societies; where those standards are deviated from in gathering evidence, a Canadian trial that relies on that evidence may be unfair. In such instances, “[i]t may be that . . . notwithstanding the suspect’s submission to the law of the foreign jurisdiction, to admit the evidence would be so grossly unfair as to repudiate the values underlying our trial system and condone procedures which are anathema to the Canadian conscience” (Harrer, at para. 51). Whether the evidence was obtained in compliance with or in violation of the law of the foreign state may also be relevant. However, where commonly accepted laws are complied with, no unfairness results from variances in particular procedural requirements or from the fact that another country chooses to do things in a somewhat different way than Canada. Further, the failure to comply with a particular rule in a given case does not necessarily amount to an injustice. As La Forest J. noted in Harrer, at para. 15, “we must be mindful that a constitutional rule may be adopted to ensure that our system of obtaining evidence is so devised as to ensure that a guaranteed right is respected as a matter of course”. The rule is directed not at the individual case alone, but rather at systemic fairness — a concern that does not arise in foreign investigations under foreign systems. Instead, the concern is to preserve the fundamental values of the Canadian trial process.

Despite the fact that the right to a fair trial is available only at the domestic level, after the investigation, it does provide an incentive for Canadian police officers to encourage foreign police to maintain high standards in the course of a co-operative investigation so as to avoid having the evidence excluded or a stay entered: Terry, at para. 26. In a similar vein, L’Heureux-Dubé J. commented in Cook, at para. 103, that to the extent that it is possible to do so in the circumstances, Canadian police should strive to conduct investigations outside Canada in accordance with the letter and spirit of the Charter , even when its guarantees do not apply directly.

The methodology for determining whether the Charter applies to a foreign investigation can be summarized as follows. The first stage is to determine whether the activity in question falls under s. 32(1) such that the Charter applies to it. At this stage, two questions reflecting the two components of s. 32(1) must be asked. First, is the conduct at issue that of a Canadian state actor? Second, if the answer is yes, it may be necessary, depending on the facts of the case, to determine whether there is an exception to the principle of sovereignty that would justify the application of the Charter to the extraterritorial activities of the state actor. In most cases, there will be no such exception and the Charter will not apply. The inquiry would then move to the second stage, at which the court must determine whether evidence obtained through the foreign investigation ought to be excluded at trial because its admission would render the trial unfair.

I will now apply the foregoing methodology to the facts of the instant case.

At the first stage, there is no question in the case at bar that the RCMP officers involved in the searches and seizures are state actors for the purposes of s. 32(1). However, since the search was carried out in Turks and Caicos, it is not a matter within the authority of Parliament. Without evidence of consent, that is enough to conclude that the Charter does not apply. It is not reasonable to suggest that Turks and Caicos consented to Canadian extraterritorial enforcement jurisdiction in the instant case. Nonetheless, I will say a few words on the factual circumstances of the investigation.

The trial judge made several significant findings of fact, and the appellant has not attempted to argue that they were based on a palpable and overriding error. Those findings are that:

· Detective Superintendent Lessemun “agreed to allow the RCMP to continue its investigation on the Islands, but was adamant he was going to be in charge, and that the RCMP would be working under his authority” (para. 4);

· “the RCMP officers were, and understood that they were, operating under the authority of Detective Superintendent Lessemun” (para. 25);

· the RCMP officers “were subject to Turks & Caicos authority” (para. 25);

· “the Canadian police, in this case, were operating under and subject to the authority of Detective Superintendent Lessemun” (para. 29); and

· “the propriety and legality of the entries into the private premises in the Turks & Caicos Islands . . . are subject to Turks & Caicos criminal law and procedures and the superintending scrutiny of the Turks & Caicos courts” (para. 29).

As those findings demonstrate, Turks and Caicos clearly and consistently asserted its territorial jurisdiction in the conduct of the investigation within its borders. It controlled the investigation at all times, repeatedly making it known to the RCMP officers that, at each step, the activities were being carried out pursuant to Turks and Caicos authority alone. As found by the trial judge, the RCMP officers were well aware that, when operating in Turks and Caicos, they were working under the authority and direction of Detective Superintendent Lessemun. Although much of the planning took place in Canada, and Canada contributed much of the human and technological resources, Turks and Caicos law and procedure applied to all the searches: it applied to the perimeter searches in February 1998, to the covert entries in March 1998, and to the overt entries in February 1999. In his trial testimony, Officer Boyle explained this as follows:

I – I don’t think there would have been any way, and certainly we would – I wasn’t of the – I wasn’t of the opinion that we would make [Detective Superintendent Lessemun] answerable to us in any way. We were – we were at his – it was at his discretion as to what we were allowed to do on that island. We were asking for his assistance as a Turks and Caicos police officer.

. . .

. . . I had no authority. None of our officers, myself or the RCMP officers, had any authority to conduct any investigations or searches on the island.

Finally, warrants were sought in Turks and Caicos courts, and that country’s authorities prevented the seized documents from being removed to Canada.

The appellant took issue in this appeal with the trial judge’s finding that the RCMP and Turks and Caicos officers were engaged in a “co-operative investigation”. There is no magic in the words “co-operative investigation”, because the issue relates not to who participated in the investigation but to the fact that it occurred on foreign soil and that consent was not given for the exercise of extraterritorial jurisdiction by Canada. When investigations are carried out within another country’s borders, that country’s law will apply. A co-operative effort involving police from different countries “does not make the law of one country applicable in the other country”: Terry, at para. 18.

In short, although Canadian state actors were involved, the searches and seizures took place in Turks and Caicos and so were not matters within the authority of Parliament. The Charter does not apply.

The final recourse available to the appellant would be to demonstrate that the trial judge erred in admitting the evidence because doing so rendered the trial unfair. The trial judge determined that to admit the evidence would not result in an unfair trial and that it need not therefore be excluded, and the appellant did not argue trial fairness in this appeal. Nonetheless, I will consider this issue briefly.

There was some discussion at trial about the existence of warrants authorizing the March 14, 1998 entries. No warrants were admitted into evidence, and I must proceed on the basis that the searches were warrantless. However, considering all the circumstances, I cannot conclude that the admission of the documents obtained through the searches rendered the trial unfair. The evidence at issue consists of documents obtained from the BWIT’s office. As Juriansz J. found in his ruling on the application to exclude, it is not conscriptive evidence. The actions of the RCMP officers were not unreasonable or unfair, as they were acting under Detective Superintendent Lessemun’s direction and had a genuine and reasonable belief that they were complying with Turks and Caicos law. They thought that search warrants had been obtained and that the investigation was lawful under Turks and Caicos law. The RCMP officers acted in good faith at all times. Their actions were not improper. The way in which the evidence was obtained in no way undermines its reliability. Moreover, since he had chosen to conduct business in Turks and Caicos, the appellant’s reasonable expectation should have been that Turks and Caicos law would apply to the investigation. Although no warrants were admitted at trial, I can find no evidence that the searches and seizures were conducted in a manner inconsistent with the requirements of Turks and Caicos law. Little evidence was presented on Turks and Caicos law. Foreign law must be proved. I see no basis for concluding that the procedural requirements for a lawful search and seizure under Turks and Caicos law fail to meet basic standards commonly accepted by free and democratic societies.

I do not think the circumstances demonstrate that this is a case where admission of the evidence would violate the appellant’s right to a fair trial.

For the foregoing reasons, I would dismiss the appeal and affirm the convictions.

The reasons of Bastarache, Abella and Rothstein were delivered by

Bastarache J. — This appeal is concerned with only one situation, investigatory actions undertaken by Canadian law enforcement officials in the Turks and Caicos Islands. It is argued that this Court’s decision in R. v. Cook, [1998] 2 S.C.R. 597, left unclear whether the Canadian Charter of Rights and Freedoms will apply in such a case and that some clarification of the issue is required.

I have read the reasons of LeBel J. and believe we agree on many points. We agree that Canadian officers must respect fundamental human rights when investigating abroad. We also see the need for Canadian officers to participate effectively in the fight against transnational crime and recognize that this will often require Canadian officials to follow foreign laws and procedures. We both recognize that, on one hand, comity demands respect for a foreign state’s choice of criminal procedure, while on the other hand, there is the possibility that some foreign procedures may violate fundamental human rights. In essence, we both see the need to strike a balance between effective participation by Canadian officers in fighting transnational crime and the protection of fundamental human rights.

Where we disagree is on the Charter ’s role in this process. My colleague sees international law as the proper vehicle for achieving this balance. I prefer to continue to rely on the Charter , as this Court attempted to do in Cook, though I recognize there are problems with the position of the majority in that case that must be dealt with. Constitutions operate to define the sphere of legitimate governmental action; the Charter imposes restraints on all conduct of Canadian government officials with respect to fundamental human rights. It is a flexible document, amenable to contextual interpretation and permitting reasonable justifications of limitations to fundamental rights. I am of the view that it can apply to Canadian officers operating in another country without jeopardizing the need for comity.

I would resolve this case by ruling that the Charter did apply to the search and seizures conducted by the RCMP in the Turks and Caicos Islands. I would however dismiss the appeal by finding that Hape has not established a breach of s. 8 of the Charter .

I generally agree with the summary of facts and judicial history of the case as set out by my colleague. However, I find it useful for the analysis that is to follow to set out the trial judge’s ruling on the Charter and s. 8 in greater detail.

The trial judge resolved Hape’s Charter motion by reference to Cook. He first noted that the majority found the Charter did apply to the actions of Canadian law enforcement in foreign territory and then cited an excerpt from my concurring reasons as imposing a qualification based on the extent of control an officer exercises over the investigation ([2002] O.J. No. 3714 (QL)).

He then stated that both the majority and concurring reasons require more than just s. 32 compliance, citing the majority's statement that the Charter will not apply where it “interfere[s] with the sovereign authority of the foreign state and thereby generate[s] an objectionable extra‑territorial effect” (para. 20).

The trial judge went on to discuss alternative language used by the majority to express this requirement, specifically that “Charter standards could ‘not conflict with the concurrent territorial jurisdiction of the foreign state’” (para. 21). He then quoted all of para. 54 of Cook where he found that the majority again stressed this limitation.

The trial judge then pointed out the majority's emphasis on the words “co‑operative investigation” in para. 54, quoting Justice McLachlin’s (as she then was) observation in R. v. Terry, [1996] 2 S.C.R. 207, that “any co‑operative investigation involving law enforcement agencies of Canada and the United States will be governed by the laws of the jurisdiction in which the activity is undertaken”.

Following this, the trial judge rejected the defence’s argument that a “co‑operative investigation” is one where the participants make relatively equal contributions. He found that the term did not connote the extent of participation of the parties except that they “wor[k] together to the same end” (para. 24).

He then proceeded to find that the RCMP officers in question were involved in a “co‑operative investigation”:

In any event, Detective Superintendent Lessemun was with the Canadian police at all times and did play a role in what they did by acting as a look‑out, by providing information, and, the Canadian police believed, by obtaining warrants. While the Canadians may have made a larger contribution of officers, expertise and equipment, the Turks & Caicos contributed police authority in the jurisdiction. The RCMP sought and was granted permission from the Turks & Caicos authorities to conduct investigation on the Island. I accept Officer Boyle’s testimony that the RCMP officers were, and understood that they were, operating under the authority of Detective Superintendent Lessemun. The fact that the RCMP could not remove the seized records from the Island, as they had planned, makes apparent that they were subject to Turks & Caicos authority.

I find that all the actions of the RCMP on the Turks and Caicos Islands were part of a “co-operative investigation.” [paras. 25-26]

Following this conclusion, the trial judge determined that it was for him to determine whether the application of the Charter to this “co‑operative investigation” would result in an objectionable extraterritorial effect. He concluded that it would:

Cory J. and Iacobucci J., in the majority judgment in Cook, indicated, at paragraphs 15 and 54, that there is an objectionable extra‑territorial effect when Canadian criminal law standards are imposed on foreign officials and procedures. In Cook, the words which the Canadian police spoke to the accused were at their complete discretion. The conversation between the Canadian police and Cook, while it took place in a U.S. jail, was not subject to American law and procedure. In that conversation, the Canadian police could have instructed the accused about his right to counsel in accordance with Canadian standards without implicating American criminal law or procedures.

This is a different case, because the Canadian police, in this case, were operating under and subject to the authority of Detective Superintendent Lessemun. Moreover, the propriety and legality of the entries into the private premises in the Turks & Caicos Islands, whether pursuant to warrants or not, are subject to Turks & Caicos criminal law and procedures and the superintending scrutiny of the Turks & Caicos courts. [paras. 28-29]

On this basis, the trial judge held that the Charter did not apply.

The Court of Appeal essentially endorsed the trial judge’s ruling on s. 8, finding that he considered the binding authorities (Terry and Cook) and correctly concluded on the basis of these authorities that the Charter did not apply ((2005), 201 O.A.C. 126).

The appellant’s argument is that the conduct of the Canadian police falls within the factual confines of Cook. He further argues that the courts below erred in not applying the Charter on the basis that the RCMP officer’s actions were part of a “co‑operative investigation”. He submits that the passage in Terry that employs this term only emphasizes that the Charter will not apply to foreign authorities, not that the Charter cannot apply to Canadian authorities. The appellant asks that the conviction be quashed as a result of a violation of s. 8 (though I note that he submits no argument on the alleged s. 8 breach or s. 24(2)).

The respondent takes the position that the trial judge correctly applied a “co-operation” test to determine the application of the Charter , and that the appellant is really only challenging his factual finding that the RCMP officers were co-operating with and under the control of Turks and Caicos officials. It argues that the decision of the trial judge is entitled to deference absent a palpable and overriding error and notes that no such error has been demonstrated. The respondent further argues that applying the Charter in this case would result in imposing the Charter to the laws and procedures of a foreign country, which Cook determined would constitute an interference with the sovereign authority of that country.

The intervener, Attorney General of Ontario, argues that co-operation per se precludes the application of the Charter in this case and supports the rulings of the courts below. The intervener does, however, make an alternative argument assuming Charter application. It argues that before determining whether Charter compliance will constitute an “objectionable extraterritorial effect”, it is first necessary to determine the nature and scope of the s. 8 Charter right in the location and jurisdiction searched. Essentially, the intervener cautions this Court against endorsing an approach that would permit wholesale application of s. 8 to the activities of Canadian officials investigating abroad. It argues that protection consistent with the law of the foreign country is merited here and that this can be realized by adopting the approach of Lamer C.J. in Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841, or by relying on comments made by this Court in previous judgments that provide that the scope of s. 8 is determined by a contextual approach. The intervener also emphasizes that a wholesale approach to applying s. 8 abroad would hamper international co-operation in fighting transnational crime.

It is clear from this Court’s jurisprudence (notably Cook, but also comments made by La Forest J. in R. v. Harrer, [1995] 3 S.C.R. 562, at paras. 11 and 12, and by Lamer C.J. in Schreiber, at para. 16) that the Charter ’s reach does not end at the “water’s edge”. It is less clear, however, when and how the Charter applies abroad.

At para. 25 of Cook, the majority set out two factors it identified as critical to its conclusion that the Charter applied to the activities of the Canadian police in that case on the basis of nationality: (1) the impugned act falls within s. 32(1) of the Charter ; and (2) the application of the Charter does not interfere with the sovereign authority of the foreign state and thereby generate an objectionable extraterritorial effect. These two factors have since been seen by many as the test for the application of the Charter abroad.

Applying this test to the facts in Cook, the majority held that s. 10(b) of the Charter applied to the conduct of two Vancouver police officers in the United States. As to the first stage, the Court found that the officers involved were Canadians and thus the impugned act (failure to provide a proper counsel warning) fell within the scope of s. 32(1) . I would similarly find that the first branch of the test in Cook applies to the RCMP officers’ actions in this case.

What remains unclear about the majority’s decision in Cook is when the second branch of its test has been met. In my view, the majority decision in Cook does not provide a definitive answer. Rather, several possible approaches to the question, “When is there an interference with the sovereign authority of foreign state?” appear possible on the basis of Cook. I review each of these below.

(1) “Co-Operation”

The reference to Justice McLachlin’s comments in Terry and the emphasis placed on “co‑operation” at para. 54 of Cook suggest that co‑operation is tantamount to interference with foreign jurisdiction if it involves the application of Canadian laws or procedures and that the determinative test for Charter application is therefore whether there is “co-operation” between Canadian and foreign officials or not. This also suggests that there was no co‑operation in Cook. However, in my view, there clearly had to have been “co‑operation”, at least in the form of consent, between the U.S. and the Canadian law enforcement officers in order for the interrogation to take place. (See R. A. Harvie and H. Foster, “Let the Yanks Do It? The Charter, The Criminal Law and Evidence on a ‘Silver Platter’” (2001), 59 Advocate 71, at pp. 75-76.)

The majority in Cook suggests, at para. 54, by citing the comments of McLachlin J. in Terry, that once there is any co‑operation, the door to the application of the Charter closes entirely. In the present appeal, the trial judge did not dispose of the Charter issue by simply finding that there was co‑operation between the RCMP and Turks and Caicos police. He went on to find that applying the Charter to this particular “co‑operative investigation” would result in imposing Canadian standards on foreign authorities, and therefore constitute an interference with foreign jurisdiction. This Court must now decide whether Cook actually created a test based on “co‑operation” to determine Charter application.

In my opinion, using “co‑operative investigation” language to determine whether there is an objectionable extraterritorial effect of Canadian law is not helpful. The first problem with this approach relates to the fact that co‑operation with foreign officials in the context of Canadian investigations abroad will be inevitable in most, if not all cases. All Canadian officers investigating in a foreign territory, in order to fulfill their mandate, will have to co-operate with foreign officials and comply with foreign law. This principle of international law is stated in I. Brownlie, Principles of Public International Law (6th ed. 2003), at p. 306:

The governing principle is that a state cannot take measures on the territory of another state by way of enforcement of national laws without the consent of the latter. Persons may not be arrested, a summons may not be served, police or tax investigations may not be mounted, orders for production of documents may not be executed, on the territory of another state, except under the terms of a treaty or other consent given.

It is repeated in S. Coughlan et al., “Global Reach, Local Grasp: Constructing Extraterritorial Jurisdiction in the Age of Globalization” (2007), 6 C.J.L.T. 29, at p. 32: “[S]tate officials such as police cannot exercise their executive powers on the territory of another state without that state’s permission”.

As well, in a paper on the extraterritorial application of the Fourth Amendment outside the United States, E. Bentley, writes:

[S]earches and seizures in foreign states are of necessity a cooperative endeavor, with United States agents routinely cast in the supporting role. In the “typical case,” of which Verdugo provides an example, “the foreign officials are the ones who decide the scope and reasonableness of any proposed search,” and United States agents “must comply with the demands of their hosts.” The reasons for this are both legal and practical.

It is a settled principle of international law that law enforcement operations are exclusively entrusted to each state within its own jurisdiction, and that when one state sends police to another state to conduct a search, it may conduct the search only with the permission, and conforming to the laws, of the host state. . . .

It is not only international law, but practical realities as well, that prevent the United States from conducting unilateral law enforcement operations in foreign states. United States law enforcement agents operating in a foreign state must try to accomplish their objectives while stripped of most of the powers of search and arrest that they wield in the United States. To accomplish anything, they generally must engage the cooperation of local authorities at one level or another. In attempting to do so, they face additional hurdles, in the form of alien legal and political systems, divergent law enforcement cultures, and diplomatic frictions.

As a result, United States extraterritorial law enforcement now takes place within an elaborate framework of international cooperation, at all levels of formality.

(“Toward an International Fourth Amendment: Rethinking Searches and Seizures Abroad After Verdugo-Urquidez” (1994), 27 Vand. J. Transnat’l L. 329, at pp. 365-66 and 368)

Adopting a “co‑operation” approach as the limit to Charter application will result in very few situations where the Charter can apply. This can be seen in the American experience. Bentley describes, at pp. 400‑402, how the U.S. “joint venture standard” used to determine constitutional protection abroad (which operates somewhat like a co‑operation test in that it seeks to identify sufficient participation of U.S. officials in foreign investigation to activate Fourth Amendment protection) has failed to be applied in a coherent fashion by U.S. courts and has resulted in little constitutional protection:

To date, as noted above, courts have found United States participation in foreign searches sufficient to trigger the Fourth Amendment in only a handful of cases. Among the activities which have been held not to rise to the requisite level of participation are: requesting, but not participating in, a foreign search, or otherwise “triggering the interest” of foreign authorities who subsequently conduct a search and pass the evidence on to United States authorities; passing on tips which prompt foreign police to initiate an investigation; passing on information requested by foreign governments; joining foreign police in a foreign‑initiated search; participating in foreign wiretaps, as long as United States agents do not “initiate, supervise, control or direct” them; using information from an illegal foreign wiretap to support a United States search warrant; and even, in a few cases, triggering and then participating in a foreign search.

If these decisions embody a coherent standard on joint participation, it is difficult to perceive. While most courts have followed the test set out in Stonehill v. United States — that “Federal agents so substantially participated in the raids so as to convert them into joint ventures” — or language essentially to that effect; they have failed to articulate what this test entails in any coherent fashion, instead applying the test in an ad hoc, apparently result‑oriented manner to the facts of the case at hand. . . . Whatever factors courts have focused on, the result has been the same: courts have found insufficient United States participation in all but the most indisputable circumstances. If one had to judge by the few cases in which joint participation has been found, one would have to conclude that the Fourth Amendment does not apply abroad unless United States officials both initiate the search and then continue to participate actively as it unfolds.

This near‑elimination of Fourth Amendment liability cannot have been intended by the Supreme Court when it formulated the doctrine on which the joint venture standard was based. [Emphasis deleted.]

A second problem with the “co‑operation” approach, at least in my view, is the fact that co‑operation as such which occurs between Canadian officials and foreign authorities tells us nothing about whether impermissible extraterritorial effects will occur. An objectionable territorial effect does not necessarily result from the mere fact of co‑operation. On this basis, I think Justice McLachlin’s comments in Terry are better characterized as a recognition of a state of affairs rather than a prescription of when there will be objectionable extraterritorial effects.

(2) The “Factors” Approach to Determining When There Is Interference With the Sovereign Authority of a Foreign State

At para. 50, the majority in Cook enumerates a number of factual elements that demonstrate why there is no interference with U.S. territorial jurisdiction on the facts in that case. These are: (1) the arrest and interrogation were initiated by a Canadian extradition request; (2) the offence was committed exclusively in Canada and was to be prosecuted in Canada; (3) the U.S. authorities did not become involved in the investigation; and (4) the interrogation was conducted solely by Canadian police officers. Harvie and Foster, at pp. 75-76, suggest that this is in fact the test advanced by the majority and criticize it as “a difficult and complex analysis”, not straightforward enough, and difficult for lower courts to apply.

I have difficulty seeing how these factors establish a “test”. Rather, this approach is based on a determination that seems as vague as “We will know what an interference is when we see one”. Nevertheless, this is the type of “test” the appellant seems to suggest Cook stands for by arguing that his situation falls within the factual confines of Cook. There is clearly a need to define a more principled articulation of the rule governing the application of the Charter abroad.

(3) Who Initiates the Investigation as Determinative of When There Is Interference With the Sovereign Authority of a Foreign State

It has been suggested that the principle that can be distilled from the factors raised by the majority in Cook is that the Charter will apply when the Canadian investigation abroad occurs absent an independent foreign investigation (see Harvie and Foster, at p. 76). R. J. Currie, in “Charter Without Borders? The Supreme Court of Canada, Transnational Crime and Constitutional Rights and Freedoms” (2004), 27 Dal. L.J. 235, at p. 242, states that the majority of the Court in Cook permitted Charter application to the interrogation in that case because “even though it occurred on U.S. territory, [it] did not interfere with American sovereignty since it was directed at the activities of Canadian officers acting within the context of a Canadian investigation, aimed at the ultimate result of a criminal trial in Canada”. Coughlan et al., at p. 57, footnote 58, identifies the basis for applying the Charter in Cook as follows: “The application of the Charter in this kind of case appears to turn on whether the Canadian police are conducting their own investigative activities with the consent of the foreign authorities to do so, or whether they are engaged in policing activities under the direction of the foreign police authority.”

The statement in Cook, at para. 54, that “It may well be a different case where, for example, Canadian authorities participate, on foreign territory, in an investigative action undertaken by foreign authorities in accordance with foreign procedures” supports this view (emphasis added). “Undertaken” can be seen to refer to an investigation initiated by foreign authorities. Therefore, as long as the investigation is initiated by Canadians and the evidence is sought to be used in Canada, compliance with the test in Cook will be achieved. The facts of this case do tend to support the view that this was indeed an investigation initiated by Canadians and that the role played by Turks and Caicos authorities was merely one of facilitating the RCMP’s investigation.

I see no principled basis why the Charter would not apply to Canadian officials who are actively involved in an investigation just because they did not initiate the investigation.

(4) Foreign “Control” Over the Investigation as the Limit on the Extraterritorial Application of the Charter

The approach I suggested in my concurring reasons in Cook offered a solution to the indeterminacy presented by the majority’s “factors” or “co-operation” approaches. It would appear that the trial judge in this case interpreted my reasons to call for such a “control” test and found this test to be easily reconcilable with the majority reasons in Cook. This view of the “control” test has been summarized as follows: “On the one hand, no Charter breach occurs if the evidence is obtained by the host officers or under their supervision. On the other hand, the Charter does apply if the Canadian authorities are primarily responsible for obtaining the evidence” (Harvie and Foster, at p. 74). A “control” test would thus be seen as a precision on the “co-operation” test discussed above, but this overlooks the fact that in most foreign investigations foreign officers will be in “control” since Canadian officials must operate in the foreign territory under their consent and guidance, usually relying on their procedures.

(5) Imposing Canadian Standards as Determinative of When There Is an Interference With the Sovereign Authority of a Foreign State

The majority reasons in Cook also suggest that the Charter will not apply where Canadian criminal law standards are imposed on foreign officials or where they would supplant foreign procedures (para. 54). I believe that this is what the trial judge in the case at bar concluded in his analysis. Above any other determination, in my view, his analysis emphasized the fact that the RCMP officers were subject to Turks and Caicos authority. This can be seen at para. 30, where, analysing the s. 8 arguments of the defence, he notes a tacit recognition by the defence of “the inescapable conclusion that foreign criminal law and procedures are engaged”.

Adopting this approach will no doubt help resolve the issue where Canadian officers act independently; they will have to satisfy their normal Charter obligations. The test rests on two assumptions: (1) that whenever the Charter does apply, Canadian standards are applied wholesale; and (2) that some investigations occurring in a foreign state will be regulated by Canadian law. When the Canadian officers can meet their Charter obligation independently (and not by consent, as argued by LeBel J.), as was the case in Cook, there will be no interference. But when the assistance or authorization of foreign authorities is required, fulfilling Canadian standards for some Charter rights will always result in an interference if they are, as said earlier, applied wholesale, as if the investigation was being held in Canada. For example, meeting Canadian s. 8 standards abroad will then mean imposing warrant requirements and standards on Turks and Caicos and requiring a certain conduct of Turks and Caicos officials. This generates objectionable extraterritorial effects.

But this approach produces inconsistent application of the Charter ’s protection of legal rights because some rights, such as s. 10(b), could apply, as in Cook, but s. 8 and maybe s. 9 never will. This sort of “patchwork” approach to the Charter seems quite unprincipled. I recognize that the majority in Cook having said that the Charter would only apply in “rare circumstances” (see para. 25) supports the opposite inference; but I prefer the contrary view of Lamer C.J. in Schreiber, at para. 16, that “[Canadian ] officials are clearly subject to Canadian law, including the Charter , within Canada, and in most cases, outside it” (cited in Cook, at para. 46).

It thus appears that the various approaches to determining when there is an interference with the sovereign authority of a foreign state presented by this Court’s decision in Cook are problematic. One solution is to revert to the dissenting position of L’Heureux-Dubé J. in Cook and cut off the Charter ’s reach at the “water’s edge” on the basis that comity requires it. But there is an alternative to this displacement of the Charter .

Section 32(1) provides as follows:

32. (1) This Charter applies

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

These terms do not extend the application of the Charter to the actions of foreign officials. But they do not imply that the Charter cannot apply to Canadian police officials acting abroad. There can be no suggestion, therefore, that the Charter creates any legal consequences whatsoever for a foreign agent or for the application of foreign law.

I would disagree with LeBel J. that if one cannot enforce Canadian law outside Canada the matter falls outside the authority of Parliament and the provincial legislatures under s. 32(1) (para. 69). I think s. 32(1) includes all actions of Canadian police officers precisely because s. 32 does not distinguish between actions taken on Canadian soil and actions taken abroad. It would also be unprincipled, in my view, to draw a distinction the moment a Canadian police officer’s foot touches foreign soil. As I noted in Cook, at para. 120: “the status of a police officer as an officer of the state is not altered by crossing a jurisdictional border, even if he or she is deprived of all the coercive powers conferred by the home state. . . . From the perspective of the home legal system, . . . police officers are still representatives of their home government.” The fact that Canadian law is not enforced in a foreign country does not mean that it cannot apply to a Canadian government official. I would note in particular that some Canadian laws apply on the basis of nationality wherever the crime is committed: see s. 7(4.1) of the Criminal Code , R.S.C. 1985, c. C-46 , on sex crimes committed outside Canada and ss. 7(3.7) to 7(3.75) on crimes against humanity.

I do not think a restrictive interpretation of the words “matters that are within the authority of Parliament or the provincial legislatures”, adopted at para. 69 of my colleague’s reasons, is warranted in discussing the obligations of Canadian police officers operating in another country. I am uncomfortable with such a “reading down” of s. 32(1) of the Charter . Section 32(1) of the Charter defines who acts, not where they act. In the instant case, the matter is a Canadian criminal investigation involving Canadian police acting abroad, which clearly makes it a matter within the authority of Parliament or the provincial legislatures. It appears strange to me that my colleague could see an investigation as falling under s. 32(1) of the Charter in one case (in Canada) and not the other (outside Canada). If the investigative activities of Canadian police officers abroad do not fall under “matters that are within the authority of Parliament or the provincial legislatures”, then the officers would have no jurisdiction whatsoever to be conducting investigations abroad. Clearly, they do, as found in Libman v. The Queen, [1985] 2 S.C.R. 178.

The second thing that must be recognized is that the application of the Charter as such to the actions of Canadian officials does not automatically result in an interference with the sovereign authority of foreign states. In Cook, where I had adopted the “control” test, I found that there was no interference or “conflict” with sovereign authority when Canadian officials are subject to the Charter because the Charter does not mandate specific conduct, but rather imposes certain limits on the conduct of government officials:

[T]he nature of the rights contained in the relevant sections of the Charter are not mandatory, but rather conditional upon the occurrence of specified investigatory activities. Thus, if there is a rule of investigation in the foreign jurisdiction that directly contradicts a Charter provision, there is still no conflict. The reason for this is that the Charter does not impose any obligation to investigate; it simply requires that if an investigation is made by the officer, it must be conducted in accordance with certain conditions. It follows from this, moreover, that the application of the Charter to the Canadian official has no impact on the foreign legal system.

. . .

As is clear from the discussion above, there is no question of a “conflict” between foreign procedures and Canadian procedures. If the compulsory foreign procedure adopted falls below the standard required by the Charter , then the Canadian officials may not take a directing or primary role in the part of the investigation involving those techniques. In essence, they may not exercise, even when invited to do so by the foreign authority, the powers purportedly conferred on them by the foreign investigatory procedures. This is no more complex than the obligation imposed by the Charter within Canada. [Emphasis added; paras. 143 and 150.]

By putting the onus squarely on Canadian authorities to not exercise control if the investigatory action is not Charter compliant, we never have to ask whether the application of the Charter results in an interference with sovereign authority of a foreign state. If the “control” test is not adopted, as prescribed by Cook, we must consider in what circumstances there will be interference in cases where Canadian officers simply co-operate with foreign authorities.

At para. 97 of his reasons, LeBel J. concedes that international law does not prohibit Canada from imposing restraints on its own conduct and that of its officials. He admits that it is the policy consideration of Canadian participation in the fight against transnational crime that ultimately informs his conclusion:

Since the Charter does not authorize state action, but simply operates as a limit on such action, could it not be said that the Charter “applies” to extraterritorial investigations by prohibiting Canadian officers from participating in investigations abroad that do not conform to Canadian law? International law provides only part of the answer to this question. To prohibit Canadian officers from participating would indeed ensure conformity with both international law and the Charter ; however, it would also mean that the investigation could not be conducted. This is a serious concern. The complete answer therefore lies both in international law and in the need to address the challenges of investigating and prosecuting transborder criminal activity.

I do not question the importance of this policy consideration and the need for Canada to participate in the fight against transnational crime. However, I fail to see how the Charter prevents us from taking into account this important societal need while holding Canadian officers to their obligation to respect fundamental Canadian values. Let me then examine more closely what Charter compliance demands of Canadian officials. For present purposes I will limit my examination to the Legal Rights set out in ss. 7 -14 of the Charter .

The Legal Rights provisions of the Charter are very different from the provisions one can find in the Criminal Code , although there are provisions of the Criminal Code that prohibit specific conduct by Canadian officials based on the recognition of fundamental human rights. Take, for example, s. 269.1(1) which makes “[e]very official, or every person acting at the instigation of or with the consent or acquiescence of an official, who inflicts torture on any other person” liable of an indictable offence.

The Legal Rights provisions of the Charter are also very different from the provisions in the Criminal Code , or other statutes, that stipulate specific criminal procedures that must be followed in a given case. For example, the Criminal Code specifies the circumstances in which search or arrest warrants are necessary (see for example ss. 487 to 489 and 495(2) of the Criminal Code), as well as those when they are not (see for example ss. 117.02(1), (2), 199(2), 254(2) to (4), 462 and 495(1)). Police also have powers to search and detain without a warrant in certain circumstances at common law under the Waterfield test (R. v. Godoy, [1999] 1 S.C.R. 311, R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52, and Dedman v. The Queen, [1985] 2 S.C.R. 2).

The Legal Rights provisions of the Charter neither mandate nor prohibit specific conduct by Canadian officials. Rather they lay down a number of fundamental principles — framed as general propositions regarding the treatment of individuals — that are used to scrutinize the legitimacy of the specific criminal procedures and conduct of Canadian officials. The principles embodied within these provisions are broadly worded and from these courts draw out further guiding principles. Consider s. 8 of the Charter , which puts forth the principle that “[e]veryone has the right to be secure against unreasonable search or seizure.” This general principle has engendered a number of further principles determining what constitutes a “reasonable” search. This Court has stated in previous cases that: (1) the purpose behind s. 8 is to protect the privacy of individuals from unjustified state intrusion (Hunter v. Southam Inc., [1984] 2 S.C.R. 145); (2) this interest in privacy is, however, limited to a “reasonable expectation of privacy” (R. v. Evans, [1996] 1 S.C.R. 8); (3) wherever feasible, prior authorization must be obtained in order for a search and seizure to be reasonable (Hunter); (4) prior authorization must be given by someone who is neutral and impartial and who is capable of acting judicially (Hunter); (5) the person granting the authorization must be satisfied by objective evidence on oath that there are reasonable and probable grounds for believing that an offence has been committed and that a search of the place for which the warrant is sought will find evidence related to that offence (Hunter); (6) a search is reasonable if it is authorized by law, if the law itself is reasonable and if the manner of the search is reasonable (R. v. Caslake, [1998] 1 S.C.R. 51).

It is the role of courts to interpret the general principles set out in the provisions of the Charter , draw out further principles, and apply these to the facts of a given case. That exercise is an ongoing process which has produced, up to now, a body of rules applicable within the Canadian legal system. The specific application of these principles to factual circumstances and the rules they create, however, should not be confused with the more abstract principles for which the Charter stands.

For example s. 10(b), in the context of officers operating in Canada, has been interpreted to require that officers tell individuals upon detention, without delay, of their right to counsel and to provide reasonable access to counsel if the right is exercised. In the context of officers operating in a foreign country, unless it is a situation like that in Cook where the officers were acting independently, the officer will have to rely on the foreign authorities and their procedures. When the foreign officials are detaining and interrogating the individual, and where there is Canadian participation, the participating Canadian officer is not required to give a s. 10(b) warning; detention and interrogation are governed by the local laws. Nor is the Canadian officer required to provide “a crash course” to foreign officials on how to give the accused his s. 10(b) warning on the Canadian government’s behalf. The Charter is not meant to be applied as if it were merely a code of criminal procedure.

In my view, adhering to fundamental principles that emanate from the Charter would simply require the Canadian officers to inform themselves of the rights and protections that exist under foreign law when dealing with the individual’s legal rights on detention, and compare them to those guaranteed under the Charter in order to determine if they are consistent with fundamental human rights norms. It is not the case that the protections have to be identical. When the foreign procedure differs from the plain language of s. 10(b) (the right to retain and instruct counsel is not provided without delay upon arrest or detention for example), there will be a prima facie breach of this provision. However, differences resulting from different legal regimes and different approaches adopted in other democratic societies will usually be justified given the international context, the need to fight transnational crime and the need to respect the sovereign authority of other states, coupled with the fact that it is impossible for Canadian officials to follow their own procedures in those circumstances. Flexibility in this case is permitted by s. 1 of the Charter . Trivial and technical differences will easily be discarded, more substantial differences between the protections that would be available in Canada and those available in the foreign state will require more in order to be justified.

Consider a further example that is closer to the facts at hand. In R. v. Kokesch, [1990] 3 S.C.R. 3, while investigating an illegal marijuana growing operation in British Columbia, police conducted a perimeter search of a dwelling, acting without reasonable grounds to justify a warrantless search under s. 10(1)(a) of the Narcotic Control Act., R.S.C. 1970, c. N-1. The search not being authorized by statute, the Court found that the police had no common law power to conduct the perimeter search because the common law rights of property holders to be free of police intrusion can be restricted only by clear statutory language. The search was therefore deemed illegal, and hence in violation of s. 8 of the Charter . But the case does not stand for the general rule that the Charter always prohibits warrantless perimeter searches. The case also does not mean that Canadian officers conducting such a search under the laws of a foreign state would have to obtain a warrant issued in Canada to be executed, for example, in the Turks and Caicos (this would be contrary to norms of international law, as earlier stated), or require Turks and Caicos officials to obtain an authorization that is not required under local law.

Under s. 8 Charter principles, a warrantless perimeter search may be Charter compliant if authorized by law. On the facts of this case, we know that a warrantless perimeter occurred and that such searches are permitted under Turks and Caicos law. Charter principles also require that a search permitted by law must be reasonable. The reasonableness test to be applied here is one that has regard to comity and the determination that the foreign law is not inconsistent with fundamental human rights. The ultimate question becomes, in reality: Was it reasonable for Canadian officers to participate in the search authorized by Turks and Caicos law?

I believe the Charter is flexible enough to permit a reasonable margin of appreciation for different procedures. Even between free and democratic societies, investigative procedures can vary and it is necessary, in order to foster continued co-operation between nations in the fight against transnational crime, to respect certain differences. As was noted by McLachlin J. in Harrer, at para. 55:

We live in an era when people, goods and information pass from country to country with great rapidity. Law enforcement authorities, if they are to do their job, must apprehend people and intercept goods and communications wherever they may be found. Often they find themselves working with officers in foreign jurisdictions; often they are merely the recipients of information gathered independently elsewhere. The result is evidence gathered by rules which may differ from Canadian rules. We need to accommodate the reality that different countries apply different rules to evidence gathering, rules which must be respected in some measure if we are to retain the ability to prosecute those whose crime and travel take them beyond our borders. To insist on exact compliance with Canadian rules would be to insist universally on Canadian standards of procedures which, in the real world, may seldom be attained — an insistence which would make prosecution of many offences difficult, if not impossible.

The Charter permits the incorporation of legitimate justifications, sometimes within the right itself, as with s. 8, or pursuant to ss. 1 and 24(2). Both my colleague and I are prepared to accept that the need for Canadian officers to fight transnational crime, abide by foreign procedures and respect the sovereign authority of foreign states justifies Canada’s participation in investigation procedures that are not identical to Canada’s, to a point. For LeBel J., this point seems to be when Canadian authorities violate their international law obligations (para. 101). It may be that this proposition sounds appealing in theory, but I have difficulty in seeing how, in practice, Canadian officials will know when this point has been reached. Is the expectation that Canadian officers become knowledgeable in international customary law — an area of law whose content is uncertain and disputed? Practically speaking, I believe it is preferable to frame the fundamental rights obligations of Canadian officials working abroad in a context that officers are already expected to be familiar with — their obligations under the Charter . LeBel J.’s proposal of applying international law standards to the actions of Canadian officials working abroad introduces another new set of standards to the mix, which my colleague himself appears to recognize is difficult, at para. 90:

It is no more helpful to suggest that some third option other than the law of the host state or the full application of Charter standards might govern foreign investigations. Where would the standards to be applied come from? How would Canadian officials know what is required of them at the outset of an investigation?

The approach I am advocating is in my view far more practical. It is also consistent with this Court’s approach in extradition and deportation cases: see for instance United States of America v. Dynar, [1997] 2 S.C.R. 462, and United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7. What I advocate is that Canadian officers assess the fundamental human rights protection offered by the foreign procedures against the principles guaranteed by the Charter ; they may consider Charter compliance for guidance. Minor differences in protection can be justified on the basis for the need for Canadian officials to participate in fighting transnational crime, and comity. Substantial differences require greater justifications, but there will still be a favourable presumption for laws and procedures of democratic countries.

To summarize, in any challenge to the conduct of Canadian officials investigating abroad, the onus will be on the claimant to demonstrate that the difference between fundamental human rights protection given by the local law and that afforded under the Charter is inconsistent with basic Canadian values; the onus will then shift to the government to justify its involvement in the activity. In many cases, differences between protections guaranteed by Charter principles and the protections offered by foreign procedures will simply be justified by the need for Canada to be involved in fighting transnational crime and the need to respect the sovereign authority of foreign states. On account of this, courts are permitted to apply a rebuttable presumption of Charter compliance where the Canadian officials were acting pursuant to valid foreign laws and procedures. Unless it is shown that those laws or procedures are substantially inconsistent with the fundamental principles emanating from the Charter , they will not give rise to the breach of a Charter right. In my view, this is the most principled and practical way to strike an appropriate balance between effective participation by Canadian officers in fighting transnational crime and respect for fundamental human rights.

It can be argued that applying the Charter abroad in this fashion, at the end of the day, essentially achieves the same result as applying the Charter “ex post facto”; under that approach, the Charter never applies abroad, but evidence at a Canadian trial could be excluded on the basis of ss. 7 and 11(d) of the Charter . The first problem I see with that approach is that it can only address situations where a s. 24(2) remedy may be sought (i.e., the exclusion of evidence), and not situations where s. 24(1) remedies may be sought. Though no such case has yet come before the Court, it is possible that at some future date an applicant may seek a declaration or some other remedy resulting from a Charter violation by Canadian officials acting abroad. It would be premature, in my view, to preclude this from occurring, without such a case being properly before the Court. The second problem with the ss. 7 and 11(d) approach is that it curtails the use of the fundamental principles set out under the other provisions of the Charter . From an analytical standpoint, it is preferable to use the principles emanating from s. 8 of the Charter to assess whether evidence gathered from a search and seizure ought to be excluded from a trial in Canada than to refer to principles developed under s. 7 to deal with the same issue.

The main question here is to determine what are the Charter obligations of Canadian officers investigating in another country. In my view, Cook at least established that Canadian authorities must abide by standards set for actions taken in Canada when they act independently, i.e., where the foreign state takes absolutely no part in the action and does not subject the action to its laws. Where the host state takes part in the action by subjecting Canadian authorities to its laws, the Charter still applies to Canadian officers but there will be no Charter violation where the Canadian officers abide by the laws of the host state, subject to the exception discussed above. I believe this is the outcome contemplated in Harrer and Terry. This is also consistent with the approach taken by Lamer C.J. in Schreiber, who found a person’s expectation of privacy to be commensurate with legal protections provided in the host country; his approach was based on a contextual application of the Charter and also showed some deference to the laws of the foreign country where the search took place.

I cannot agree with LeBel J. that the Charter is inapplicable or cannot be complied with outside Canadian territory. If s. 8 of the Charter was inapplicable to a s. 32(1) matter, as LeBel J. argues, I fail to see why he would apply s. 7 of the Charter as a control mechanism ex post facto (see para. 91) to the same matter, i.e. a Canadian investigation. There is, in my view, no meaningful distinction between ex post facto and ex ante application of the Charter to Canadian officials.

The Charter applies extraterritorially, but the obligations it creates in the circumstances will depend on the nature of the right at risk, the nature of the action of the police, the involvement of foreign authorities and the application of foreign laws. In the context of actions taken outside Canada, the search had to be conducted in conformity with the local laws. There is obviously consent to the participation of Canadian officers in all cases where they operate in another country. Thus, in my view, consent is not a useful criterion to determine Charter application. The main question is rather whether the foreign law applies. Cook was a rare instance where it did not. But even where the foreign law applies, there are potential Charter protections. As LeBel J. recognizes himself at para. 109, flagrant breaches of fundamental human rights, such as torture, would not be accepted even if authorized by local laws.

On the facts of this case, it is clear that the Canadian authorities were operating under the authority of Detective Superintendent Lessemun, that the local laws applied to the investigation and that there was no evidence that the local laws had been breached or did not meet fundamental human rights standards. Hape led no evidence to suggest there were any differences between the fundamental human rights protections available under Turks and Caicos search and seizure laws and what the protections the Charter guarantees under Canadian law that would raise serious concerns. The seizure of documents was thus reasonable in the context and the evidence should not be excluded.

I would dismiss the appeal and affirm the convictions.

The following are the reasons delivered by

Binnie J. — This appeal raises relatively straightforward issues arising out of a money laundering investigation. It should be dismissed. As my colleagues note, the searches and seizures of the appellant’s bank records in the Turks and Caicos Islands were carried out under the authority of the local police in conformity with local powers of search and seizure. No prejudice to the appellant’s right to a fair trial in Canada has been demonstrated. The appellant, having chosen to do his banking in the Turks and Caicos Islands, can be taken to have accepted the degree of privacy which the law of that jurisdiction affords. The record demonstrates that superimposing the Canadian law of search and seizure on top of that of the Turks and Caicos Islands would be unworkable. The appeal fails because the appellant cannot bring his case within the requirements adopted by the majority of this Court in R. v. Cook, [1998] 2 S.C.R. 597, at para. 25, namely that:

. . . (1) the impugned act falls within s. 32(1) of the Charter ; and (2) the application of the Charter to the actions of the Canadian [police in the Turks and Caicos Islands do] not, in this particular case, interfere with the sovereign authority of the foreign state and thereby generate an objectionable extraterritorial effect. [Emphasis added.]

My colleague LeBel J. holds, in essence, that any extraterritorial effect is objectionable (para. 85). This effectively overrules Cook and would further limit the potential extraterritorial application of the Canadian Charter of Rights and Freedoms . With respect, I do not believe that this case, or the narrowly focussed argument of the very experienced counsel for the appellant (a 12-page factum of which three pages were devoted to legal argument citing only four authorities) affords a proper springboard for such sweeping conclusions.

While the application of Cook is not without practical and theoretical difficulties, as my colleagues Bastarache and LeBel JJ. show, there is sufficient flexibility in the notion of objectionable extraterritorial effect for such difficulties to be resolved over time in circumstances more challenging than those of the routine police investigations at issue here and in the four cases cited by the appellant, namely, R. v. Harrer, [1995] 3 S.C.R. 562; R. v. Terry, [1996] 2 S.C.R. 207; Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841, and Cook itself. Routine Canadian police investigations in the United States (Harrer, Terry and Cook), Switzerland (Schreiber) and in the Turks and Caicos Islands (this case) are of course significant, but issues of more far-reaching importance will soon confront Canadian courts, especially in the context of the “war on terror” and its progeny. We should, in my view, avoid premature pronouncements that restrict the application of the Charter to Canadian officials operating abroad in relation to Canadian citizens.

In the 12 years since Harrer, serious questions of the utmost importance have arisen respecting the extent to which, if at all, a constitutional bill of rights follows the flag when state security and police authorities operate outside their home territory. In the United States, the issues are being debated in the context of “special renditions” of suspects by non-military U.S. authorities to and between foreign countries and the rights of individuals held in camps said to be operated under the control of non-military U.S. personnel outside the United States (quite apart from military installations such as Guantanamo Bay). It has been widely contended in that country that different standards apply to civilian as distinguished from military personnel and to citizens as distinguished from non-citizens. Canadian police and security officials have also been active recently in foreign “hot spots” as diverse as Haiti, Iraq and Afghanistan. In fact, since 1989, the RCMP has managed the deployment of over 2,000 Canadian police officers in at least 12 countries with troubled histories including Kosovo, East Timor, Guinea, Sierra Leone, Bosnia and Herzegovina, Ethiopia, Haiti, Jordan, Iraq, the Democratic Republic of Congo, Côte d’Ivoire and Afghanistan (Royal Canadian Mounted Police, RCMP International Peacekeeping Branch Review, 2004/2005 (2006)). In addition, RCMP “International Operations Branch” Officers work in 25 locations around the world (Royal Canadian Mounted Police, RCMP Fact Sheet — International Operations Branch (2005)) in circumstances that could give rise to Charter challenges. Recently, claims have been launched in Canadian courts by human rights activists (including Amnesty International Canada and British Columbia Civil Liberties Association) against the federal government asking the courts to extend Charter protections (as well as international human rights and humanitarian law) to individuals detained by the Canadian Forces operating in Afghanistan. It is not known to what extent Canadian citizens were among the detainees in question, although there is some evidence that there are Canadians among the Taliban. The allegation against the Minister of National Defence and the Attorney General of Canada (both civilian authorities) is that detainees were given into the custody of the security personnel of the government of Afghanistan without adequate safeguards (see Federal Court File Number T-324-07). We have no idea if there is any merit in any of these claims, but at some point we are likely to be called upon to address them. The Maher Arar Inquiry disclosed serious issues about Canadian police conduct in relation to the extraterritorial apprehension of a Canadian citizen in the United States which led to his incarceration and torture in Syria. The work of Canadian security personnel other than the RCMP may give rise to other issues, some of which may relate to the extraterritorial treatment of Canadian citizens. I mention these matters simply to illustrate the sort of issues that may eventually wind up before us and on which we can expect to hear extensive and scholarly argument in relation to the extraterritorial application of the Charter . Traditionally, common law courts have declined to make far-reaching pronouncements before being required by the facts before them to do so, heeding the cautionary words of the poet:

There are more things in heaven and earth, Horatio, Than are dreamt of in your philosophy.

(Hamlet, Act I, Scene v, 11. 166-67)

Justice LeBel places great emphasis on the remedial potential of s. 24(2) of the Charter under which evidence may, in certain circumstances, be excluded from a Canadian trial, but the allegations now coming before our courts may not result in a trial in Canada. Indeed even the right to an ordinary trial may become an issue here as it has in the United States. Such serious Charter issues should be resolved only after full argument and debate in this Court, which we did not receive (and had no reason to expect) in this case.

My colleague LeBel J. draws a number of very broad propositions from his analysis of certain aspects of international law and takes a more attenuated view of s. 32(1) of the Charter than was adopted by the majority in Cook. LeBel J. concludes that:

Since extraterritorial enforcement [of Canadian law] is not possible, and enforcement is necessary for the Charter to apply, extraterritorial application of the Charter is impossible. [Emphasis added; para. 85.]

I accept, of course, that enforcement is a central issue, but at this stage I would not treat difficulties in that regard as conclusive. My colleague adds at para. 100 that “[i]ndividual rights cannot be completely disregarded in the interests of transborder co-operation” (emphasis added). In an effort to fill the gap created by his rejection of Charter applicability, LeBel J. would substitute Canada’s “international human rights obligations”, as a source of limitation on state power. The content of such obligations is weaker and their scope is more debatable than Charter guarantees. Specifically, LeBel J. writes, at para. 101, that relief may be available “where the participation of Canadian officers in investigative activities sanctioned by foreign law would place Canada in violation of its international obligations in respect of human rights”. The proposal is that international human rights obligations should become the applicable “extraterritorial” standard in substitution for Charter guarantees even as between the Canadian government and Canadian citizens.

This is not the case, in my respectful view, for the Court to determine whether Canadian citizens harmed by the extraterritorial conduct of Canadian authorities should be denied Charter relief (except if faced with a criminal trial in Canada) and be left to arguments about Canada’s international law obligations. The Crown and the intervener, the Attorney General of Ontario, sought no such limitation. Neither the parties nor the intervener asked that Cook be revisited, much less overruled. Counsel were not at all dismissive of the relevance of the Charter in holding to account “extraterritorial” conduct of Canadian officials in relation to Canadian citizens, accepting (in my view correctly) that in Charter terms the denial of “objectionable extraterritorial effect” is a very different thing from the denial of any extraterritorial effect.

So too my colleague LeBel J. writes, at para. 101:

I would leave open the possibility that, in a future case, participation by Canadian officers in activities in another country that would violate Canada’s international human rights obligations might justify a remedy under s. 24(1) of the Charter because of the impact of those activities on Charter rights in Canada.

However, the scope of this possible exception is unclear, given the fact that the conduct at issue would necessarily be outside Canada and, according to my colleague, ought not to be judged by the Charter standards because “extraterritorial application of the Charter is impossible” (para. 85).

I would therefore resolve this appeal on the basis of Harrer, Terry, Schreiber and Cook. I would retain for the present Cook’s “objectionable extraterritorial effect” principle while leaving the door open to future developments in assessing the extraterritorial application of the Charter . Our grasp of the potential ramifications of different approaches would be sharpened by the challenging fact situations and fresh perspectives presented in cases now working their way through the system. Constitutional pronouncements of such far-reaching implications as are laid down by my colleague (“extraterritorial application of the Charter is impossible”) were not even on the radar screen of the parties and intervener to this appeal, all of whom were represented by able and experienced counsel. The Court should decline to resolve such important questions before they are ripe for decision.

Since writing the above, my colleague LeBel J. has joined issue with this lone protest with the following comment:

We cannot always know what new issues might arise before the courts in the future, but we can trust that the law will grow and evolve as necessary and when necessary in response. [para. 95]

The law of the Constitution can only “grow and evolve” if the Court leaves it the flexibility to do so. It is precisely because of the uncertainty about future developments, some of which are now in the litigation pipeline, that I believe the Court should not in this case substitute rigidity for flexibility and, prematurely (and unnecessarily), foreclose Charter options that are now open to it under the flexible principles enunciated in Cook.

I would dismiss the appeal and affirm the convictions.