SCC declines to decide if Charter applies outside Canada; Justice Brown on ‘leave of absence’

By Cristin Schmitz

Last Updated: Thursday, February 23, 2023 @ 11:22 AM

Law360 Canada (February 17, 2023, 6:15 PM EST) -- The Supreme Court of Canada has ruled 8-0 that Canadian military police did not breach the Charter’s s. 8 ban of unreasonable search and seizure when they searched the home of a Canadian Armed Forces member in the United States — notably, however, the court left unresolved the key question which attracted interveners to the appeal, namely does the Charter even apply extraterritorially, i.e. beyond the two limits the top court expressed in its oft-criticized ruling in R. v. Hape, 2007 SCC 26?

Court watchers, and counsel on the appeal which generated three concurring opinions Feb. 17, told Law360 Canada the court’s judgment in R. v. McGregor came as a “surprise” to the extent that six of the eight judges declined to address whether the Charter applies extraterritorially, and also for the criticism Justice Malcolm Rowe directed at several interveners who had urged that the court revisit Hape and clarify its import: R. v. McGregor, 2023 SCC 4.

It was also a surprise that Justice Russell Brown, who sat on the appeal and who actively questioned counsel last May, did not participate in the McGregor judgment — sparking questions, including on Twitter, as to whether he is ill or otherwise unable to work. A review of the Supreme Court’s hearings indicates Justice Brown sat on appeals last month, but not on any appeals in February, including potential landmarks.

Justice Russell Brown

Justice Russell Brown

Law360 Canada posed detailed written questions to the Supreme Court of Canada as to why Justice Brown did not participate in the McGregor judgment nor hear appeals this month, as well as asking whether Justice Brown is ill, or absent from work for health or personal reasons.

The court’s executive legal officer, Stéphanie Bachand, responded by email that “Justice Brown has been on leave since February 1” of which Chief Justice Richard Wagner has notified federal Justice Minister David Lametti.

“The Chief Justice has also made all necessary arrangements for the Court to continue its work in Justice Brown’s absence, including hearing all appeals, rendering judgment on the appeals currently under reserve, and deciding applications for leave to appeal,” she explained. (The court may sit in panels of at least five judges.)

Bachand told Law360 Canada that there are 15 Supreme Court judgments under reserve in appeals Justice Brown heard.

She said the court could not provide further details about the nature of Justice Brown’s leave due to “confidentiality.” Asked why the court had not made the judge’s leave of absence public since Feb. 1, she said “there has been no statement by the court for this same reason. The chief justice notified the Minister of Justice without delay, in accordance with section 54(1.1) of the Judges Act.”

(Subsection 54(1) of that statute, titled Leave of absence, states that: “No judge of a superior court shall be granted leave of absence from his or her judicial duties for a period a) of six months or less, except with the approval of the chief justice of the superior court; or (b) of more than six months, except with the approval of the Governor in Council. Subsection 54(3), titled Absentee judge to report, states “whenever a judge of a superior court is absent from the judge’s judicial duties for a period of more than 30 days, the judge shall report the absence and the reasons for it to the Minister of Justice of Canada.”)

Law360’s questions to Lametti were not answered by press time.

Rob Currie, Dalhousie University

Rob Currie, Dalhousie University

Commenting on the McGregor ruling, Dalhousie University law professor Rob Currie, an international law expert and critic of Hape, expressed “great disappointment” because “the court had an opportunity to settle this issue that has been bedevilling Canadian law, literally since the 1990s, which is when the court first started looking at it, the issue being the extraterritorial application of the Charter.”

“It’s unfortunate that they didn’t take the opportunity, because, in my view, that issue was squarely before the court,” he said. “And one thing that should bother us is that the government [sends] Canadian officials abroad and Hape really didn’t give them much guidance. And now they still don’t have much guidance [on the Charter’s application]. They don’t have any more guidance than they had before.”

Currie said the question of the extraterritorial application of the Charter can come up in many contexts abroad, affecting diverse Canadian officials, including embassy staff, CSIS agents, police and the military.

In Currie’s view, Justice Rowe’s criticism of interveners for their submissions on Hape “was misplaced, and I don’t understand it. The interveners, as Justices Martin and Karakatsanis say in their concurring reasons, were clear about what they were going to do and the court granted leave [to intervene] to them. So ... I find Justice Rowe’s decision extremely surprising, particularly the tone of it and his suggestion that [some of] the interveners exceeded the permissible scope of intervention.”

(Interveners were the Canadian Constitution Foundation, the Ontario attorney general, the B.C. and Canadian Civil Liberties Associations and the David Asper Centre for Constitutional Rights.)

Gerald Chan of Toronto’s Stockwoods LLP, who with Alexandra Heine represented the David Asper Centre for Constitutional Rights, said “as Justices Karakatsanis and Martin point out in their concurring opinion, international law experts have roundly criticized Hape. But we will have to wait for another day for the court to decide whether some, or all of it, should continue to be the law.”

Chan predicted “that day is unlikely to come soon because this is an issue that usually evades judicial review. The Canadian government often acts abroad in ways that affect our rights without Canadians ever knowing about it. That’s why leading civil liberties groups sought and were granted leave to intervene to argue that Hape should be revisited and reconciled with the Supreme Court’s other case law in this area.”

The intervener British Columbia Civil Liberties Association said in a Feb. 21 statement it was “disappointed” by the majority’s decision not to “revisit its much-criticized decision in R. v. Hape ... [which] held that the Charter does not govern the activities of Canadian state officials when they act outside Canada, creating a significant gap in the Charter protections to which Canadians are entitled.”

“The BCCLA intervened in this case to impress upon the court that government officials should have to respect the Charter rights of citizens both inside and outside of the country,” the BCCLA said. “No international law rule prohibits an accused from invoking their Charter rights in a Canadian proceeding in respect of the actions of Canadian officials, even where those actions occurred abroad. The Hape decision, while sound in other respects, misinterpreted the requirements of international law on this point. The BCCLA urged the court to correct this error and bring our law into compliance with international practice.”

The association said that the majority’s refusal to rule on this point “leaves the law in confusion. On the one hand, Hape appears to remain good law. On the other hand, the majority did exactly what Hape prohibits — and what the BCCLA and other interveners urged it to do — namely, to scrutinize the conduct of Canadian officials for Charter compliance even when acting outside the country. The majority appears to invite litigants to challenge Hape again in some future case, when it could have solved the Hape problem now.”

Gib van Ert of Vancouver’s Olthuis van Ert, who with Dahlia Shuhaibar represented the BCCLA, added “so long as Hape is good law, Canadian officials will feel themselves free to violate Charter rights when acting outside the country. The BCCLA has consistently opposed that interpretation of the Charter — which finds no support in the text of the Charter, general Charter interpretive principles, or international law. Despite this outcome, the BCCLA will continue to insist that no government conduct — whether it takes place in this country or abroad — is beyond the reach of judicial review for Charter compliance.”

Capt. Diana Mansour of the Canadian Armed Forces Defence Counsel Services, who with Cmdr. Mark Letourneau represented the appellant, said “we accept the court’s decision which leaves open the opportunity for another matter to address the legal issue of the extraterritorial application of the Charter in the Canadian military context.”

Co-counsel for the respondent, Lt.-Col. Chavi Walsh, Lt.-Col. Natasha Thiessen and Maj. Patrice Germain of the Canadian Military Prosecution Service, said by email “this case demonstrates that the Canadian Armed Forces can maintain crucial military discipline by effectively investigating and prosecuting crimes, including those of sexual violence, anywhere the CAF operates.”

Lt.-Col. Chavi Walsh, left, Lt.-Col. Natasha Thiessen and Maj. Patrice Germain were co-counsel for the Canadian Military Prosecution Service

Lt.-Col. Chavi Walsh, left, Lt.-Col. Natasha Thiessen and Maj. Patrice Germain were co-counsel for the Canadian Military Prosecution Service

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

The McGregor case arose after now-retired Cpl. Colin McGregor was posted to the Canadian Defence Liaison Staff at Canada’s embassy in Washington, D.C., where the Canadian Forces National Investigation Service (CFNIS) concluded there were reasonable grounds to believe he had committed the offences of voyeurism and possession of a device to surreptitiously record private communications.

The CFNIS could not search his residence in Alexandria, Va., because it was not located on Canadian Armed Forces property. Consequently the Canadian Embassy was asked to — and did — waive his immunity under the Vienna Convention, enabling local American police to obtain a warrant from an American court authorizing a search and, under American law, search any electronic devices found there. The American police entered the residence and invited the CFNIS to conduct the search. Canadian officers seized electronic devices and searched some of them while in the residence. They discovered evidence of the suspected offences as well as others. The electronic devices were removed to Canada and searched further pursuant to Canadian warrants.

The court martial judge, affirmed on appeal by the Court Martial Appeal Court, dismissed the accused’s motion to exclude the evidence for breaching s. 8 of the Charter, convicting him of voyeurism, possession of a device for surreptitious interception of private communications, sexual assault and disgraceful conduct. McGregor C.R. (Corporal), v. R, 2019 CM 4015 and R. v. McGregor, 2020 CMAC 8.

After McGregor obtained leave to appeal from the Supreme Court of Canada, both the defence and prosecution relied on Hape to argue their respective positions, with the defence urging that the Charter applied to the CFNIS while the Crown contended it did not.

The Supreme Court unanimously dismissed McGregor’s appeal and affirmed his convictions.

Writing for six judges (including retired Justice Michael Moldaver for whom this was both the last appeal he heard, and the last judgment in which he will participate), Justice Suzanne Côté held it was unnecessary to deal with the issue of extraterritoriality, because she concluded the CFNIS did not violate the Charter. The CFNIS worked within the constraints of its authority in Virginia, and asked local authorities to obtain and execute a warrant under Virginia law. That warrant expressly authorized the search, seizure and analysis of McGregor’s electronic devices. The evidence of sexual assault was inadvertently discovered by investigators while triaging the devices at the scene of the search and its incriminating nature was immediately apparent. Although the warrant did not foresee such evidence, the digital files fell into plain view, Justice Côté held. Both requirements of the plain view doctrine were met: the investigators had a legitimate prior justification for the intrusion in the form of a warrant, and the incriminating evidence was in plain view in that it was immediately obvious and discovered inadvertently.

Moreover, the investigation service obtained Canadian warrants before searching the devices any further. For these reasons, Justice Côté said it was difficult to see how the investigators could have acted differently to attain their legitimate investigative objective

In their joint concurring opinion, Justice Andromache Karakatsanis and Sheilah Martin agreed with Justice Côté that the appeal should be dismissed. Even if the Charter did apply and assuming it did, they held the CFNIS did not infringe Charter s. 8 and the seized evidence was admissible (the pair adopted different reasoning on s. 8 than Justice Côté, arguing that the latter’s application of the plain view doctrine was not necessary in the circumstances).

However, Justices Karakatsanis and Martin went on to address the question of the extraterritoriality of the Charter, writing that the “extraterritorial application of the Charter is squarely before the Court and it is an issue that arises infrequently, may easily escape judicial review, and has been subject to significant and sustained criticism by experts in international law.”

“It was clearly the primary and threshold issue argued by the parties and multiple interveners, it was the reason leave to appeal was sought, and the Court received full submissions on both constitutional and international law,” they wrote. “Accordingly, it is appropriate to comment on the central question at issue: whether the Charter applies, pursuant to s. 32, to Canadian authorities’ investigative actions abroad in MacGregor’s circumstances.”

The pair concluded that a purposive reading of s. 32(1) “supports the conclusion that the Charter applies extraterritorially to the conduct of CFNIS officials while fulfilling their investigative duties in a foreign state and that a Canadian court may assess that conduct for Charter compliance.”

This conclusion was supported by the text and purpose of the Charter, they said. “Nothing in s. 32 imposes or suggests any territorial limitation. It expressly limits to whom and to what the Charter applies but not where the Charter applies,” they reasoned. “Section 32(1)’s silence as to the Charter’s territorial boundaries was a deliberate choice which must be respected. If s.32(1) were meant to distinguish between acts of state actors on Canadian soil or abroad, such a distinction could have easily been drawn expressly, as was done elsewhere in the Charter. The purpose of s. 32 was to constrain government action and to permit state action abroad that is not constrained by the Constitution would be inconsistent with Canada’s constitutional structure, which is premised on preventing arbitrary state conduct.”

Noting that Hape has received “significant and sustained criticism by experts in international law,” Justices Karakatsanis and Martin remarked that although the decision in Hape “remains important in many respects, these concerns leave Hape’s framework for the extraterritorial application of the Charter ripe for reconsideration. However, given the majority’s decision not to address it, the determination of whether Hape was wrongly decided should be left to another day.”

Justices Martin and Karakatsanis also said that although the court’s rules and guidance to the profession place certain limits upon what interveners may argue in an appeal, “those limits were not exceeded in this case. While interveners must not introduce new issues, the role of interveners is to provide their own view of the legal issues by providing useful and different submissions, thus bringing broader perspectives before the Court to help the Court fulfill its institutional role. Several interveners in this case did precisely that when they asked the Court to revisit Hape: they proposed a different view of the core legal issue of whether the Charter applied to the conduct of the CFNIS officers.”

In his concurring opinion, Justice Rowe agreed with “the entirety” of Justice Côté’s analysis, but disagreed with the approach to Hape taken by Justices Karakatsanis and Martin which he said “goes beyond the issues raised by the parties and seeks, effectively, to overturn Hape at the invitation of interveners.”

Justice Côté’s majority opinion agreed that “some interveners ask us to overturn Hape; in doing so, they go beyond their proper role. Doing what they are asking would mean deciding an issue that is not properly before us.”

Justice Rowe said the parties disputed whether the Charter applied in the case at bar but assumed Hape applied as a precedent. “No party challenged Hape. Rather, they sought to apply it, and its exceptions, to the facts of their dispute,” he said. “Both lower courts treated this case as an unremarkable application of the Hape framework. The issue of whether Hape should continue to govern was not before the lower courts, nor is it before the Court.”

“Raising the new issue of whether Hape should continue to govern is an improper intervention,” he admonished. “It undercuts the parties’ control of their litigation and runs contrary to their submissions. It undermines the leave to appeal process and excludes would‑be interveners. It invites the Court to reason in the abstract,” he said. “Whether Hape should continue to govern is not before the Court and to revisit Hape as precedent in this case exacerbates the harms created by improper interventions and undermines the limits that preclude the introduction of new issues.”

Photo of Justice Russell Brown by Andrew Balfour Photography

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