Law360 Canada (June 2, 2026, 1:27 PM EDT) --

John L. Hill

Parliament is considering Bill C-22. The legislation would require electronic service providers to retain certain user metadata for up to a year and to adapt their systems to facilitate easier access to data.

Canada and the United States have been negotiating a cross-border data-sharing agreement governed by the U.S. CLOUD Act. The Canadian Civil Liberties Association and data rights groups warn that expanding this lawful access regime would make Canada complicit in problematic U.S. investigations and would breach basic domestic privacy. What would be the position of our courts if U.S. data were able to flow across the border, even though it would have been subject to Charter scrutiny if obtained in Canada?

A recent decision of the British Columbia Court of Appeal sheds some light on this problem (R. v. Calabretti, 2026 BCCA 232).

Martino Calabretti appealed his convictions for drug trafficking and conspiracy, arguing that the evidence used against him was obtained through covert recordings made by a California undercover police officer (“Sgt. X”) and that its use violated his rights under ss. 8, 7 and 11(d) of the Canadian Charter of Rights and Freedoms.

Beginning in 2015, Sgt. X, a police officer posing as a cocaine supplier, secretly recorded conversations with the appellant as part of a California drug investigation. At the same time, the RCMP was conducting its own drug investigation in Canada.

In October 2016, RCMP officers met with Sgt. X, who agreed to cooperate. Sgt. X provided the RCMP with copies of his recordings and later introduced Calabretti to undercover RCMP officers. Information from the recordings enabled the RCMP to obtain a Canadian wiretap authorization, which led to Calabretti’s arrest and conviction.

Calabretti argued on appeal that Sgt. X became an RCMP agent, making his actions subject to the Charter. Further, the recordings may have violated California law, and their admission rendered the trial unfair, contrary to ss. 7 and 11(d). Calabretti also maintained that the RCMP’s receipt and retention of the recordings constituted a “seizure” that triggered reporting requirements under the Criminal Code, and that failure to comply violated s. 8.

In its analysis of the case, the appellate court examined three distinct questions.

The first issue was whether the Charter applied.

The court relied on the Supreme Court of Canada’s decision in R. v. Hape, 2007 SCC 26, which holds that the Charter does not apply to investigations conducted in foreign countries. However, the trial judge found that Sgt. X was not an RCMP agent; the Court of Appeal stated that it was unnecessary to decide that issue. Even if Sgt. X were considered an RCMP agent, the Charter would apply only if one of two exceptions applied: (a) the foreign state consented to the application of Canadian law; or (b) the foreign investigation clearly violated international law or fundamental human rights. Neither exception applied. At most, there was uncertainty about whether California law authorized the recordings. That uncertainty did not amount to a violation of international law or fundamental human rights.

The court’s second concern: Was the trial unfair?

Calabretti argued that Canadian law generally requires judicial authorization for police one-party-consent recordings and that admitting evidence obtained without such authorization would be unfair. The court rejected this argument. It held that evidence obtained abroad is excluded only if admitting it would be so unfair as to undermine the integrity of the Canadian justice system. The recordings in this case were voluntary conversations. They were not obtained through coercion, abuse or oppression, were not shown to be unreliable, and were not obtained through bad faith conduct by the RCMP.

The court concluded that admitting the evidence did not render the trial unfair under ss. 7 or 11(d).

The final concern: Did the RCMP violate s. 8?

Calabretti took the position that when the RCMP received the recordings from Sgt. X, they effectively “seized” them and were required to report the seizure under ss. 489.1 and 490 of the Criminal Code.

The court disagreed. It held that the recordings were obtained in the United States, so the Charter did not apply to their creation. The RCMP’s receipt of the recordings in Canada did not create a new Charter-protected privacy interest, and the Criminal Code reporting provisions apply to seized property, not to information voluntarily provided by foreign authorities in a cooperative investigation. Accordingly, s. 8 was not engaged.

The appeal was dismissed.

The court held that the Charter did not apply to Sgt. X’s recordings, whether or not he was acting as an RCMP agent; that the admission of evidence derived from those recordings did not render the trial unfair under ss. 7 or 11(d); and that the RCMP’s receipt and retention of the recordings did not constitute a Charter breach or trigger the reporting requirements of ss. 489.1 and 490 of the Criminal Code. As a result, each of Calabretti’s convictions was upheld.

Even though the reasoning in the judgment is legally sound, it should raise concerns that our Charter rights are being sacrificed in the name of what politicians claim is a greater good: ending the international trafficking of drugs. In my book Acts of Darkness, I try to show how the Ontario Regional Police Service was misled by information from U.S. surveillance of a Mexican cartel. As a result, two innocent men, Vito Buffone and Jeff Kompon, have been wrongly convicted and are serving life sentences.

Drug trafficking is certainly wrong. However, stifling the reach of our Charter freedoms may be worse.
 
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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