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Introduction
It makes sense to begin any discussion on the applicability of the Charter with a consideration of s. 32(1), which reads:
"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 in each province."
Based on the plain wording of this section, the Charter clearly applies to all levels of government, federal, provincial, territorial, municipal, as well as the agents of those governments. To the extent that these subsections refer to "matters within the authority" of the respective levels of government, it long seemed obvious that the intention must have been to avoid language that might be used to argue that the Charter somehow altered the division of powers found in the British North America Act of 1867 (now the Constitution Act, 1982). In other words, to avoid the possibility of one level of government attempting to justify its encroachment on the legislative sphere of another level of government based on a claim that it needed to act to uphold the Charter.
One would think that if the intention had been to restrict the Charter's application to government actors while they are physically operating "within Canada," language suggesting such a territorial limitation would have been explicitly used. It was not. Nevertheless, this is exactly the language that the Supreme Court of Canada ("SCC") reads into the Charter with its decision yesterday in R v Hape, 2007 SCC 26 [Hape].
The Facts
In Hape, the appellant was a Canadian businessman who became the target of an Royal Canadian Mounted Police ("RCMP) money laundering investigation. On two separate occasions the appellant agreed to launder monies that an undercover officer represented as the proceeds of drug trafficking. The funds apparently moved through an investment company owned by the appellant, located in Turks and Caicos, before being deposited in a bank account set up by Canadian police in the Netherlands.
As part of its investigation the RCMP wanted to search the offices of the appellant's company in Turks and Caicos. To do so, they first consulted the person responsible for all criminal investigations on the Islands, Detective Superintendent Lessemun. He agreed to facilitate the work of the RCMP in the Turks and Caicos, but made it clear that they would be working under his authority. Ultimately, Lessemun was the only police official in the Turks and Caicos that the RCMP ever dealt with during its investigation. According to the record, this was due to a concern expressed by the Detective Superintendent that all Turks and Caicos police officers could not be trusted.
Pursuant to this arrangement members of the RCMP visited the Turks and Caicos Islands in February 1998. On two separate occasions officers surreptitiously entered the appellant's business premises to carry out reconnaissance. The officers examined the office's locks and alarm systems from outside the building, recording what they observed using a video camera. Throughout this perimeter search, Detective Superintendent Lessemun was with the RCMP investigators, acting as a lookout.
This was followed by a third visit by the officers during normal business hours. Undercover RCMP officers entered the reception area of the appellant's business offices to make observations of the interior locks and alarm system. The officers left after a brief conversation with a receptionist.
There was no warrant either in Canada or in the Turks and Caicos Islands authorizing any of these initial searches. And, to be clear, each of these "visits" would have constituted a "search" and required a warrant to be "reasonable" under s. 8 of the Charter if they had taken place in Canada. (See R v Kokesch, [1990] 3 SCR 3 (holding that a search around the perimeter of a residence constituted a "search" and engaged the requirements of s. 8); R v Evans, [1996] 1 SCR 8 (holding that approaching a residence and knocking on the door to collect evidence against the occupants exceeded the scope of the implied invitation to approach and knock, this was therefore an unlawful search that violated s. 8).
In acting without a warrant the RCMP officers testified that they relied on Detective Superintendent Lessemun's advice regarding the legalities of their investigative activities in the Turks and Caicos Islands.
The RCMP officers returned to the Turks and Caicos Islands on a number of subsequent occasions. They ultimately seized thousands of documents from the appellant's business premises, copies of which were tendered at the appellant's Canadian trial. These subsequent searches appeared to be authorized by warrants issued in Turks and Caicos, but none of these warrants were ever produced or entered into evidence in the Canadian criminal proceedings.
The SCC's Judgment
The appellant challenged the admissibility of these documents at his trial. He argued that this evidence had been obtained in a manner that violated his s. 8 Charter right to be secure against unreasonable search or seizure and that the evidence should be excluded under s. 24(2). This argument had been unsuccessful in the courts below.
For the majority Justice LeBel begins his judgment by acknowledging the point made above, that s. 32(1) does not contain an express territorial limitation. The clear implication would seem to be that the framers conceived of the Charter as a limit on the actions of Canadian governments and their agents without regard to where they might happen to be operating physically. In other words, when Canadian government actors go abroad they take the Charter with them.
Unfortunately, rather than leaving the matter there and deferring to Parliament to sketch out how to reconcile Canadian constitutional obligations with our international commitments, the majority concludes that it has the responsibility of sorting out the potential for conflict between our laws and those of our partners with whom we are collectively engaged in the battle against transnational crime. This is how Justice LeBel explains the need to read limits into s. 32(1) of 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." (para 33)
There are two peculiar and important analytical moves apparent in this last paragraph. First, the rather odd assumption that because the framers did not include an express territorial limitation in s. 32(1) that it is the function of the courts to imply such a limit. What this ignores is the very real possibility that, as the plain language suggests, the framers expected that the Charter would not to be limited by location at all. Instead, they may have justifiably intended that the Charter would apply to Canadian government actors no matter where they might happen to be - period. The second puzzling aspect of the quoted paragraph is the assumption that the contours of these territorial limits can be mapped out by reference to the principles of international law. It is as if the SCC found a subparagraph buried within s. 1 of the Charter that reads: "the rights and freedoms guaranteed herein are also subject to those limitations that might be found in the principles of international law".
This is not to suggest that international law principles are not helpful in interpreting Charter guarantees. The Charter was not framed in a vacuum. Its drafting was undoubtedly influenced by international rights instruments and the larger post-WWII rights movement. Nevertheless, there is a considerable difference between using international law to better understand the purpose behind ambiguous constitutional language and what the SCC did in Hape, which is use international law to read limitations into a constitutional provision that is clear and unambiguous on its face.
In its judgment the majority takes us on a whirlwind tour of the basics of international law relating to state sovereignty, comity, and those general principles placing limits on the extra-territorial application of Canadian law.
The majority in Hape expresses disapproval of its own prior judgment in R v Cook, [1998] 2 SCR 597 [Cook]. Cook had given us a test that attempted to strike a balance between the express wording of s. 32(1) and Canada's concurrent obligations to respect those limits on its legal sovereignty occasioned by international law. Paragraph 48 of Cook instructed that:
"[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."
Not right says the majority in Hape. This approach puts the focus in the wrong place. Why? Well, because
"...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." (para 85)
If you are struggling to digest the logic of this passage, you are not alone. This case doesn't raise any issue about "enforcing" the Charter in the Turks and Caicos Islands. The appellant's trial was taking place in Canada. He was seeking the exclusion of evidence in Canadian proceedings. The bases for his claim was not anything done by foreign officials - it was the actions of the RCMP officers that was the subject of his complaint. How would requiring those officers to comply with the Charter undermine or even encroach on the sovereignty of Turks and Caicos?
The real concern of the majority only becomes clear in the next few paragraphs. Here we gain insight into what Justice LeBel and the majority clearly see as the problem in acceding to the appellant's argument:
"[I]n Turks and Caicos, judicial authorization does not appear to be necessary for a perimeter search of private premises ... 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." (para 83)
It is this fear that ultimately bottoms the whole of the majority's judgment. And, admittedly, if these are the choices with which we are confronted then I think it sensible to vote for limiting the Charter. Surely we cannot be running around all over the world demanding that other governments and their representatives comply with our Constitution. That sort of national arrogance tends to be reserved for superpowers, not Canada. But would this truly have been the implication of extending the application of Cook to the facts of the appellant's case?
With respect, where the majority seems to go wrong is by constructing an all or nothing scenario. The choices set out by the majority are stark. The Charter either does not apply, or it applies fully and completely, thereby compelling foreign police officers to respect its limits. And, if those limits cannot be respected because of shortcomings in the law of that country, it would compel legislative action by that foreign government so as to ensure compliance with the Charter's minimum standards. Faced with these stark choices, the majority in Hape rather sensibly concludes that the Charter only applies most sparingly when Canadian police are operating abroad. For the majority,
"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." (para 113)
Another Option
What this analysis ignores is the availability of another option. Why couldn't Parliament amend the Criminal Code, RSC 1985, c C-46, or the Mutual Legal Assistance in Criminal Matters Act, RSC 1985, c 30 (4th Supp) to allow Canadian police to apply for and obtain a Canadian warrant authorizing their extraterritorial investigative activities. A precondition for issuing such a warrant could be compliance with the law of the foreign state and the co-operation of local officials. Such a scheme could track minimum Charter requirements for a reasonable search and seizure. For example, a need for reasonable and probable grounds to believe an offence has been committed and that evidence will be found in the place to be searched.
Warrants issued under such a scheme would simply give Canadian police the constitutional license that they should require (because of s. 32(1)) before engaging in conduct abroad that would violate the Charter if it were undertaken here at home. Such a scheme of prior authorization would serve the purposes of s. 8, by preventing Canadian police from participating in foreign operations that don't meet basic Charter requirements. At the same time, such a scheme would fully respect the sovereignty of other nations. Such a law would in no way dictate how a foreign police official must behave or mandate amendments to foreign laws. It would speak exclusively to what the Charter is concerned with, the actions of Canadian state actors, nothing more.
So, for example, if the police had the requisite reasonable and probable grounds to conduct a perimeter search at Mr. Hape's businesses premises in the Turks and Caicos Islands, they could have applied for a Canadian warrant authorizing them to go to that country for that purpose, subject to compliance with the law's of that jurisdiction and the cooperation of police officials there. Structured in this way, the Canadian police would be fully respecting the Charter, while Canadian law would in no way be interfering with the sovereignty of another country.
Unfortunately, the SCC in Hape creates a false dilemma that it then proceeds to solve by reading unstated limitations onto the Charter's plain and unambiguous text. Not the SCC's finest hour, to be sure.
8 Comments
Thanks for sending this along.
1. I'm not sure that it is unusual for a statute - or a constitution - to be assumed to apply only within the enacting legislature's territory without an explicit statement to that effect. I would have thought the opposite to be the case, i.e., that there is an expectation that an intention for extra-territorial effect would be explicit. Perhaps someone more knowledgeable than I am can comment on that?
2. On the merits, I have a bias, which is that people who move their assets and businesses offshore to avoid the burdens imposed by Canadian law probably ought not to enjoy its benefits. My co-author and I, Bob Harvie, expressed this in two comments on the Schreiber case some years ago (25 & 26 Manitoba Law Journal at 421 and 139, respectively) and did so again in our comment on Cook that one of the judgments in Hape mentions.
In this connection, it seems to me that, although the application to exclude evidence is made at a trial in Canada, the search nonetheless took place outside the country; so if s.8 of the Charter applies it is given extra-territorial effect. In other words, although the remedy is applied in Canada, what gives rise to the remedy is a violation of the s.8 right that took place outside Canada.
This is partly why Bob and I preferred the dissent in Cook, which proposed that the Charter generally should not have extra-territorial effect, but that ss. 7 and 11(d) could be invoked to exclude the evidence in especially nasty cases. In this way the Charter has no extra-territorial effect: the acts committed outside the country were legal according to that country's laws but it would nonetheless violate fundamental justice and the right to a fair trial to admit the evidence obtained at a trial in Canada.
So, for example, confessions extracted by Gitmo-like procedures can nonetheless be excluded without adopting a quasi-US attitude that our constitution is so wonderful that it ought to apply everywhere. (I exaggerate only slightly...)
The majority in Cook, on the other hand, held that a US citizen who commits a crime in Canada and then flees and is interrogated by Canadian officials in the US can claim Charter protection, whereas a Canadian citizen (see their decision in Terry) who commits a crime in Canada and is interrogated, at Canada's request, by police in the US cannot. Hence the title of our comment on the likely effect of Cook: just "Let the Yanks do it."
For this and other reasons, I am not as concerned that the Court has backed away from the expansive (and somewhat complicated) approach in Cook.
Anyway, thanks again for sending along Prof. Stribopoulos' thought-provoking analysis. I will now go and read Hape more carefully than I did before dashing this off!
Hamar Foster
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Hamar -
Thanks for the very thoughtful comment.
To be frank, I am not sure what the general assumption is with respect to the extra-territorial application of legislation more generally.
Take the Criminal Code, for example, section 6(2) expressly provides:
This is immediately followed by s. 7 of the Code which goes on to set out an number of specific exceptions to this general rule.
I guess if there was indeed such a rule then s. 6(2) would be unnecessary. The Code could simply set out the exceptions.
Assuming you are right on this, and you very well may be, I am not sure if it should automatically follow that the Constitution is subject to the same implied limitation.
The extra-territorial application of the Constitution is an issue that has been well litigated in the U.S. There, the courts have held that the constitution does not apply beyond U.S. borders (hence, the possibility of Gitmo). The thing is, with the benefit of the U.S. experience, our drafters should have known that this would be a live issue. Yet, they chose not to incorporate any language in s. 32 that would serve to limit the reach of the Charter.
Original intent to one side, let me make a purposive argument for extending the reach of the Charter.
I understand your point, and the point of the Court in Hape, that ss. 7 and 11(d) can still be used to exclude evidence acquired abroad where its admission would unfairly effect the fairness of a trial. Indeed, I think this is a sensible rule. Of course, it is a rule that would apply equally to evidence acquired by Canadian authorities abroad or foreign officials. Thankfully, this would prevent Canadian prosecutors from relying on evidence obtained by foreign officials through the use of unconscionable means. My concern with leaving things there is this - what about situations where Canadian officials are acting abroad in circumstances where no Canadian trial is ultimately planned?
Because of Hape there would be nothing unconstitutional about Canadian intelligence officials participating in activities abroad that most Canadians would find reprehensible, for example using coercive tactics in interrogating someone on foreign soil. If the goal of such activities is collecting intelligence then the prospect of not being able to use the fruits at a Canadian trial will have no real deterrent effect. In short, such encounters - involving Canadian government officials, will be for all intents and purposes extra-constitutional.
I think the American experience over the last six years aptly demonstrates why we should be deeply troubled by the fact that our Charter does not reach beyond our borders.
All good points. I'm still not convinced, though.
Sections 7 and 11 (d) seem to be more effective procedural tools for reviewing police behavior when they operate beyond Canada's borders than the Charter. As my US colleague Bob Harvie emailed me: "I sympathize with Professor Stribopoulos' desire to control police illegality but I am not convinced that applying the Charter beyond the border is the most efficient way of achieving this goal. If I read Hape correctly the trial judge admitted into evidence the documents seized by the RCMP in part because the documents were non-conscriptive and their reliability was not affected by the method by which they were obtained. It seems to me that under the above analysis even if the Supreme Court applied Charter beyond the border, the documents in this case would have been admitted under s. 24(2) thus effectively eliminating much deterrent value." And even if the evidence was such that it should have been excluded, do we really want to? See below.
As for the "Gitmo" phenomenon, it is true that the Courts in the United States have held that the Constitution does not apply beyond the border. However, Guantanamo Bay is United States territory, so it is not a case of Constitutional application beyond the border. They are doing this on American soil. Guantanamo is therefore an illustration of what can happen when governments, administrations and organizations fail to respect democratric and humanitarian values. These values may be a more effective deterrent against illegal police activity than Charters and Constitutions, esp. when extra-territorial actions are the issue.
As for situations where there is no trial, again, it is unclear to me how the Charter will help. It is true that it may provide a remedy in the form of some sort of constitutional tort. But if Canadian officials after Hape engage in reprehensible behaviour beyond our borders, doesn't whether anything will be done depend more on whether their actions become public knowledge than whether the Charter applies? And if such incidents are made public, domestic sanctions can be imposed upon misbehaving officials, including charging those engaging in torture under s. 269.1 of the Criminal Code - which does apply to actions committed outside Canada. What is frightening about Gitmo is that these things are going on in a jurisdiction that is subject to the US Constitution; yet they continue because the government, notwithstanding the US Bill of Rights, granted military commissions the right, apparently, to violate the Constitution. But now I am getting in over my head...
I agree that the US experience in the recent past ought to give us all pause. But to me the real issue is: why should we give Charter protection to persons who flee our laws and jurisdiction, or transfer their assets out of the country for this purpose? So long as our officials obey the laws of the country they are in, and do not engage in behaviour so reprehensible that a Canadian Court would exclude evidence obtained as a result of it under ss. 7 and 11(d) rather than 24(2) or that they would be subject to domestic discipline or prosecution for such behaviour, I think I am content.
As Bob and I said in 2001 in our comment on Cook:" If the [SCC thinks that the] panoply of constitutional protections in the US affords an adequate guarantee of fairness for the Harrers and Terrys of this world, why not the Cooks? And if Canadian or US police had beaten a confession out of Cook, or if he had unwisely fled to North Korea instead of to the US, why aren't ss. 7 and 11(d) sufficient to prevent unfairness at Cook's trial as well as at Harrer's and Terry's?" Or Hape's?
Thank you, James, for getting us thinking about these issues again...
Hamar Foster [and Bob Harvie]
For those who were left thinking that the question of whether R. v. Hape allows Canadian forces abroad to act without concern for the Charter of Rights was simply hyperbole, see the recent decision in Amnesty International Canada et. al. v. Chief of the Defence, 2008 FC 336.
Mactavish J. held that the Charter does not apply during the armed conflict in Afghanistan to the detention of non-Canadians by Canadian forces or their transfer to Afghan authorities to be dealt with by those authorities. The Charter also does not apply to restrain the conduct of Canadian forces in Afghanistan where the Canadian transfer of detainees would expose them to substantial risk of torture. In these circumstances, the detainees would only enjoy the rights conferred on them by the Afghan constitution, and by international law, including, and in particular, international humanitarian law (at para. 327).
According to Mactavish J., R. v. Hape holds that Canadian law, including the Charter of Rights, ordinarily can only be enforced in another state with the consent of the other state. Mactavish J. found (at para. 182) that while Afghanistan had consented to its citizens being detained by Canadian forces, it had not consented to the application or enforcement of Canadian law, including the Charter of Rights, to constrain the actions of the Canadian forces in relation to detainees held by the Canadian Forces on Afghan soil
Mactavish J. also rejected the alternative position, which has arguably been adopted in foreign jurisdictions, that the extraterritorial application of a country’s law can be found where that country has “effective military control of the person”. She held that such test for the applicantion of Canadian law is not appropriate in the context of a multinational military operation, such as in Afghanistan Moreover, it was her view that the use of such a “control based test” as a legal basis to found Charter jurisdiction was specifically rejected by the Supreme Court of Canada in R. v. Hape.
See http://cas-ncr-nter03.cas-satj.gc.ca/rss/T-324-07%20Decision.pdf
With respect to Marcus Pratt's note above: I assisted in the case he cites (Amnesty International Canada and BC Civil Liberties Association v. Chief of the Defence Staff and Minister of National Defence, 2008 FC 336). Thanks to Marcus for his spot-on assessment.
We have made a full set (well, almost full; I am late doing updates) of the pleadings freely available on line for scholars to study. Please see http://web.ncf.ca/fk624
Without commenting on the Federal Court decision per se, I wish to amplify a point that Marcus makes: that in other (mostly European) countries, the courts often do take jurisdiction and review the extraterritorial acts of the military on constitutional (or quasi-constitutional) human rights grounds. A full review of European or international law is beyond the scope of this little note, but the published scholarship is extensive. (See for example M. Gondek, "Extraterritorial Application of the European Convention on Human Rights: Territorial Focus in the Age of Globalization?" Netherlands Intl Law Rev 349; 2005).
However, there is one country which often resists judicial review over the military's extraterritorial actions. That country is, obviously, the United States, which has de facto or de jure severely limited -- and sometimes abrogated -- the reach of the U.S. Bill of Rights to detention facilities such as these:
* Guantanamo Bay, Cuba
* Bagram Airfield, Afghanistan
* CIA "black sites" in unknown locations
I mention those examples as cautionary history, without implying a perfect comparison exists between the US and Canada. The fact that Hape now has been used to oust the Charter in one situation involving detainees, as the US has done, is cause for scholarly investigation on several levels.
Prof. Amir Attaran
University of Ottawa
With regard to the status of Guantanamo Bay, although I find the argument specious, the view of the US government appears to be that although Guantanamo Bay is under US control, the Constitution does not apply because it is not sovereign US territory. In this respect it differs from the US proper as well as, e.g., US embassies.
The problem with requiring a warrant from Canada while apart of a team investigating crimes abroad is that it will often not be feasible. Granted, if Canada is running the investigation or has a lead role, as in Hape, then it will not be a problem.
However, many scenarios are possible where Canada may be offering expertise or a specialist to aid in a criminal investigation under the purview of another state. Is it reasonable to expect a warrant from a Canadian judge under these circumstances. Would the Canadian's have to stay behind if the team was going to move and Canada had not received the warrant yet. What if other countries depended on Canada for the expertise and prowess expected of a middle power and Canada could not produce? One could counter that a warrant is only necessary when it is going to be tried in Canadian court. But often, in a joint investigation, one may not know where it will be tried until the investigation runs its course.
Perhaps it is naive to expect cooperation between countries in such a way and either Canada will be in charge and need warrants, as suggested, or not at all. If true, all this reveals is a deficit in international cooperation when most criminal networks are increasingly transnational.
Sir,
The search of the offices in Turks and Caicos were subject to a search warrant. In fact I sworte the warrant out myself and later swore another one out to cover the further search. the warrant was executed in accordance with the laws and procedures in being at the time.
If a search is to be conducted in the TCI then that was the place where a search warrant needed to be in force. This search warrant was executed and suitably endorsed and held in the safe at the Supreme Court Turks and Caicos Islands. To say that we acted without a search warrant is untrue. I was not keeping watch but supervising the execution of the search warrant. I have been retired for 12 years and I have only just seen this site.
I would also like to say that the comments regarding the trustworthness of TCI Police is unfair and I never said that. I might have said that we should operate on a need to know basis and no one else needed to know. However the Attorney General and the Governor as well as the Commissioner and Deputy Commissioner was fully aware of the operation throughout.