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Charter’s protections limited abroad

|Written By Jennifer McPhee

Search and seizure protections in the Charter of Rights and Freedoms do not generally apply to investigations conducted by Canadian police officers outside of Canada, ruled the Supreme Court of Canada.

The exceptional circumstances in which the Charter will apply extraterritorially still have to be worked out in subsequent cases, says Alan Gold.

R. v. Hape will mean that investigations of Canadians for suspected criminal activity that occur outside Canadian borders will, in most cases, be governed by the laws of that country.

However, individual rights cannot be completely disregarded in the interests of trans-border co-operation, wrote Justice Louis LeBel on behalf of the majority, which also included Chief Justice Beverley McLachlin, justices Marie Deschamps, Morris Fish, and Louise Charron.

“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 due consideration is shown for the rights of an accused being investigated abroad,” wrote LeBel.

“Moreover, in an era characterized by transnational criminal activity, the principle of comity cannot be invoked to allow Canadian authorities to participate in investigative activities sanctioned by foreign law that would place Canada in violation of its international obligations in respect of human rights.

“Deference to the foreign law ends where clear violations of international law and fundamental human rights begin.”

In 1996, the RCMP began investigating Canadian businessman Lawrence Hape for suspected money laundering activities. On two separate occasions, an undercover RCMP agent gave Hape “sting money,” which totaled $332,000, with the understanding that the money would be laundered through Hape’s investment company in the Turks and Caicos Islands, and transferred to a bank account in the Netherlands.

Police hoped to get their hands on documents that confirmed the transfers and find out whether Hape was involved in other money laundering activities.

A superintendent with the Turks and Caicos Island Police Force gave the Canadian officers permission to continue their investigation on the islands, but only if they worked under his authority. The RCMP officers conducted several covert searches of Hape’s investment company on the islands. They surreptitiously entered his business, downloaded information from his computers onto portable hard drives, and scanned information, which the Crown adduced at trial.

The officers testified that there were no warrants authorizing the perimeter searches of Hape’s office, but said they relied on the local superintendent’s expertise and advice about the legalities of the investigations. No warrants were produced at trial, but the officers said they were shown documents, which they thought were warrants authorizing the covert entries into the investment company.

The trial judge dismissed Hape’s application to exclude the documentary evidence, and convicted Hape on two counts of money laundering. The Ontario Court of Appeal and the Supreme Court unanimously upheld the convictions.

In his reasons, LeBel outlined a methodology for determining whether the Charter applies to foreign investigations. If the conduct at issue is conducted by a Canadian state actor, it may be necessary, depending on the facts, to determine whether there is an exception to the principle of sovereignty that justifies the application of the Charter to the extraterritorial activities of the state actor.

“In most cases, there will be no exception and the charter will not apply,” he wrote. “The inquiry would then move to the second stage, at which the court must determine whether the evidence obtained through the foreign investigation ought to be excluded at trial because its admission would render the trial unfair.”

In this case, the circumstances did not demonstrate that the admission of evidence violated Hape’s right to a fair trial, he said.

“There is 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,” he wrote.

The majority judgment makes it clear that the search and seizure protections will generally not apply outside of Canada, but it’s still not entirely clear in what limited exceptional circumstances the Charter will still apply, said Alan Gold, Hape’s lawyer.

“The case will require a fair amount of working out in subsequent cases,” he said.

Justice Michel Bastarache, in separate concurring reasons on behalf of justices Rosalie Abella and Marshall Rothstein, wrote that 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.”

The onus falls on the claimant to demonstrate that the fundamental human rights protection of the local law and the protection under the Charter are inconsistent with basic Canadian values, he said. And then, it is up to government to justify its involvement in the activity.

In many cases, the differences will be justified based on Canada’s need to be involved in fighting transnational crime, and to respect the sovereign authority of foreign states, he wrote.

“On account of this, courts are permitted to apply a rebuttable presumption of Charter compliance where the Canadian officials were acting pursuant to a valid foreign law and procedures,” he wrote.

“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 a breach of a Charter right.”

He said the Charter applied to the RCMP’s search and seizures in this case, but the differences between the fundamental human rights protections under Turks and Caicos search and seizure laws and the Charter protections under Canadian law do not raise serious concerns and were reasonable in this context.

In his own reasons, Justice Ian Binnie wrote that the appeal must fail because the case did not meet the requirements of the Supreme Court’s 1998 ruling in R. v. Cook.

Binnie added that, “premature pronouncements that restrict the application of the Charter to Canadian officials operating abroad in relation to Canadian citizens should be avoided.”

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