La Charte et sa portée extraterritoriale.
2. Analysis
a) The Extraterritorial Application of the Charter
i. Overview
[33] The starting point for the application of the Charter is s. 32, which states:
- (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
[34] Section 32 defines the parameters of the application of the Charter extraterritorially. The Charter does not have extraterritorial application over the actions of foreign authorities: R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562 at para. 35 (McLachlin J., concurring reasons). However, evidence gathered by such authorities may still be subject to Charter scrutiny and will be excluded where this is necessary to preserve the fairness of the trial that is ultimately held in Canada: see generally Harrer; R. v. Terry, 1996 CanLII 199 (SCC), [1996] 2 S.C.R. 207; Schreiber v. Canada, 1998 CanLII 828 (SCC), [1998] 1 S.C.R. 841. The test is trial fairness and the standard is whether the admission of 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).
[35] The above cases concerned the actions of foreign authorities – not Canadian ones – acting in foreign territory. In Harrer and Terry, the Supreme Court contemplated the latter situation, and refused to foreclose the possibility of the application of the Charter to an investigation by Canadian authorities abroad (Harrer, at para. 11). This situation was considered by the Supreme Court in R. v. Cook, which held that the Charter applied to the actions of Canadian law enforcement officers, despite the fact that they were outside the territorial jurisdiction of Canada, so long as their actions did not have an objectionable extraterritorial effect.
[36] In R. v. Hape, 2007 SCC 26 (CanLII), [2007] 2. S.C.R. 292, the Supreme Court of Canada effectively overruled Cook: Peter Hogg, Constitutional Law of Canada, 5th ed. (Looseleaf) (Toronto: Carswell, 2007) at 37-38; Robert J. Currie, International & Transnational Criminal Law (Toronto: Irwin Law, 2010) at 531. Since Cook, Hape has been the jurisprudential centre of gravity for the law on extraterritorial application of the Charter. For this reason, I will set out the facts in more detail.
[37] The accused, Richard Hape, was prosecuted for money laundering, which he conducted out of the island state of Turks and Caicos. The RCMP began its investigation by contacting the Turks and Caicos police. One detective superintendent agreed to help, provided that the investigation would fall under his authority. The RCMP conducted a number of searches of Mr. Hape’s office on the islands, which were apparently authorized by a warrant, though none was adduced into evidence at trial. The RCMP also conducted perimeter searches without warrants, which would have been required under Canadian law, but were not required by Turks and Caicos law. Mr. Hape applied to have the evidence excluded on the basis that the searches violated his s. 8 rights.
[38] Justice LeBel, writing for himself and four others, dismissed the appeal. The four other justices would also have dismissed the appeal, but for different reasons.
[39] Justice LeBel articulated a sweeping review of international law principles and their application to the Canadian constitution. He concluded that the Charter could not apply to govern the actions of Canadian officials abroad. He reasoned as follows: principles of customary international law, general practices and rules that are accepted by states as law, are adopted by Canadian common law. The principles of sovereignty and non-intervention are cornerstones of international customary law. Section 32 of the Charter, which says that the Charter only applies to matters within the authority of Parliament and the provincial legislatures, must be read to comply with these principles of customary international law. Applying the Charter to a Canadian investigation in a foreign territory would do unacceptable violence to the principle of sovereignty, as well as the non-binding principle of the comity of nations. Applying the Charter to an investigation abroad would, by its very nature, constitute an objectionable extraterritorial application of Canadian enforcement jurisdiction. This enforcement jurisdiction is what was at issue for LeBel J., and is what made the prior jurisprudence questionable:
[85] 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.
[40] Justice LeBel conceded that if the only consequence of a Charter breach was the exclusion of evidence at the ultimate Canadian trial, there would be no infringement on a foreign state’s sovereignty (at para. 91). He opined, however, that because the Charter aims to prevent infringements before they occur, extraterritorial enforcement jurisdiction would always be at issue, thus infringing the sovereignty of the foreign state (at para. 84). In any event, the Harrer-Terry trial fairness analysis would apply to ensure minimum standards for evidence tendered at trial (at paras. 108-111).
[41] Finally, LeBel J. posited that while the Charter could not apply extraterritorially to limit investigations, “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” (at para. 101).
[42] LeBel J. summed up his approach at para. 113:
[113] 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.
[43] Put simply, the Hape principle is this: the Charter does not apply extraterritorially to Canadian authorities. This is subject to two exceptions. The first exception is state consent. If the foreign state consents to the application of the Canadian constitution, then s. 32 is not an issue and the Charter may apply. The Court did not define the meaning of consent. The second exception, described above, suggests that even without consent of the foreign state, violations of Canada’s international human rights obligations may justify a remedy under the Charter (at para. 101).
[44] Turning to the facts before him, LeBel J. found that the cooperation of the Turks and Caicos Islands police did not amount to consent to the exercise of Canadian enforcement jurisdiction, and therefore the application of the Canadian Charter, within its territory. At para. 106, he noted that consent was “neither demonstrated nor argued on the facts”, and he declined to consider when and how it might be established. Later, Lebel J. stated that “[i]t is not reasonable to suggest that Turks and Caicos consented to Canadian extraterritorial enforcement jurisdiction” (at para. 115), but he nonetheless undertook a factual analysis of the circumstances of the investigation at paras. 115-117. I shall return to this analysis below.
[45] Several courts, including the Supreme Court of Canada, have since considered Hape, though not on the issue of foreign consent (see for example Re Canadian Security Intelligence Services Act, 2008 FC 301 (CanLII)). There is a paucity of cases from provincial appellate and trial courts considering the Hape principle and the meaning of consent in the circumstances of an investigation carried out by Canadian authorities extraterritorially.
[46] One of the few cases to consider consent was Amnesty International Canada v. Canada (Canadian Forces), 2008 FC 336 (CanLII), affirmed 2008 FCA 401 (CanLII), leave to appeal dismissed, [2009] S.C.C.A. No. 63. In that case, Madam Justice Mactavish dealt with the application of Amnesty International and the British Columbia Civil Liberties Association for an order that the Charter applied to Canadian Forces operating in Afghanistan. Canadian Forces were handing over captured Taliban insurgents to Afghan authorities. There were allegations that the detainees were subject to abuse and even torture once in the hands of these authorities. There were two questions before the Court, which I paraphrase: (1) does the Charter apply during armed conflict in Afghanistan to the detention of non-Canadians by Canadian Forces or their transfer to Afghan authorities?; (2) if the answer to the first question is “no”, would the Charter apply if the applicants established that the detainees were subject to torture, such that Canada would be in breach of its international human rights obligations? In other words, the applicants sought to distinguish Hape and demonstrate consent on the one hand, and, if that failed, they sought to rely on the international human rights exception from Hape.
[47] Amnesty is an important case for the purposes of this case because it engages in one of the more extensive discussions of what is required for a sovereign state to consent to the application of another state’s constitutional law.
[48] Justice Mactavish engaged in a comprehensive analysis of the various bilateral and multilateral agreements between Afghanistan and Canada, and Afghanistan and the international community. The applicants argued that because Afghanistan had, pursuant to several agreements between the countries, ceded to Canada the power to detain and use deadly force on its citizens at will, Afghanistan had consented to the application of the Charter. Justice Mactavish rejected this argument. She found that while Afghanistan did cede some rights to foreign powers, it did not consent to the wholesale forfeiture of its sovereignty. She found that general agreements providing Afghanistan’s consent for Canadian Forces to operate in Afghanistan, and specific, technical agreements on assistance in the armed conflict, training, stabilization and law enforcement activities did not provide for the application of Canadian constitutional law, but instead provided for the application of the Afghan Constitution and international law. Also, the more specific agreements regarding detainees only provided for the application of the Geneva Convention. On this basis, she concluded that Afghanistan did not consent to the enforcement or application of the Canadian Charter over the conduct of Canadian Forces in Afghanistan in relation to the detainees.
[49] The Supreme Court of Canada has considered the international human rights exception to the Hape principle on two occasions and has accepted the availability of that exception: Canada (Justice) v. Khadr, 2008 SCC 28 (CanLII), [2008] 2 S.C.R. 125; Canada (Prime Minister) v. Khadr, 2010 SCC 3 (CanLII), [2010] 1 S.C.R. 44.
[50] In sum, the state of the law is this: the Charter does not apply to Canadian state actors engaging in official duties extraterritorially (Hape). This is subject to two exceptions: (1) consent of the foreign state to the application of Canadian law in its territory, though, as LeBel J. stated, “[i]n most cases, there will be no such exception and the Charter will not apply” (Hape at para. 113); (2) the participation of Canadian officials in activities that violate Canada’s international human rights obligations (Hape; Khadr 2008; Khadr 2010). Of course, any evidence tendered in a Canadian trial is always subject to Charter scrutiny to determine if its admission would render the trial unfair: Harrer; Terry.
ii. Consent
[51] I turn now to an analysis of the major issue in relation to this ground of appeal: whether there was evidence that Malaysia consented to the application of the Charter in its territory and whether the Charter applies in this case to the actions of Canadian officials abroad evoking the need for a voir dire. Accordingly, I will consider the nature and requirements of consent.
[52] LeBel J. considered the consent exception at para. 106, stating:
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.
[Emphasis added.]
[53] LeBel J. then went on to analyze, in some detail, the circumstances of the investigation of Mr. Hape in Turks and Caicos Islands at paras. 115-117:
[115] … 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.
[116] 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. …
Finally, warrants were sought in Turks and Caicos courts, and that country’s authorities prevented the seized documents from being removed to Canada.
[117] 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.
[54] In para. 106, LeBel J. leaves the question of the nature of sovereign, foreign consent to another day and another case. One guideline provided by Hape is that consent to the extraterritorial application of Canadian law will be “rare”, which implicitly accords with an assumption that something more than indications from on-the-ground officials can suffice for consent. However, LeBel J. does rely on the actions of the on-the-ground official to find that there was no consent.
[55] At paras. 115-117, LeBel J. turns to consider all the circumstances to see if Turks and Caicos consented to the application of the Charter. His analysis here suggests that non-consent to the exercise of Canadian enforcement jurisdiction and the application of the Charter may be determined by looking at all the circumstances of the interaction between Canadian and foreign officials.
[56] Justice LeBel justifies the legal conclusion in Hape on the principle of sovereignty. He then turns to consider whether there were any facts on which to conclude that the Turks and Caicos officers did not consent to the application of the Charter. He did not conclude that the officers had the authority to give consent to the exercise of Canadian enforcement jurisdiction within its territory, but he did conclude that they could give evidence of a lack of consent.
[57] In my opinion, Hape stands for the proposition that in order for the Charter to apply, the foreign state must consent. In order for a state to consent to the extraterritorial application of Canadian constitutional law, the expression of consent must be from a valid sovereign authority of that state.
[58] This position seems to have been assumed in post-Hape authorities, including the trial decision in this case and in Amnesty. Those cases assumed that evidence of consent of a foreign state requires an expression of sovereign authority, often in the form of a bilateral agreement. In Amnesty, for example, Mactavish J. closely examined the bilateral and multilateral treaties between Afghanistan and Canada to determine the issue of consent to the application of Canadian constitutional law. The trial judge in this case was clearly uncomfortable with the idea of “ground level” law enforcement officers consenting on behalf of the entire state; something along the lines of a “diplomatic accord” would suffice to demonstrate consent in his view. The position adopted in these cases is consistent with Hape. If I am correct that Hape stands for the proposition that the principle of sovereignty and non-interference preclude the extraterritorial application of the Charter, then only officials with the authority to bind the state in question, or an expression of that state’s sovereign will, can establish consent.
[59] Principles of customary international law also support this view. I start by reiterating the proposition that states are sovereign from within their territorial boundaries; no other state may exercise enforcement jurisdiction within those borders (Hape at para. 65, citing The Case of the S.S. “Lotus”(1927), P.C.I.J. Ser. A, No. 10).
[60] Under international law, however, states may consent to activities that would otherwise constitute violations of their sovereignty. The nature of consent between states has been considered by the International Law Commission (“ILC”) with respect to the doctrine of state responsibility, that is, whether and how a state is held responsible for a breach of an international obligation. The ILC’s scholars and jurists have set out codified, authoritative statements on the law of state responsibility in the articles on the Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83, UN GAOR, 56th Sess., UN Doc. A/RES/56/83 (2001) [“Articles of State Responsibility”]. These articles have been adopted by the UN General Assembly, used by the International Court of Justice and are generally considered a restatement of customary international law (John H. Currie, Public International Law, 2nd ed. (Toronto: Irwin Law, 2008) at 535-536).
[61] In international law, one of the major issues with a state’s consent is related to the establishment of true and valid consent, as well as the scope of that consent. Article 20 of the Articles on State Responsibility states: “Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent.”
[62] The ICL has also published commentaries on the Articles of State Responsibility: see Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts in “Report of the International Law Commission on the Work of its Fifty-Third Session”, UN GAOR, 56th Sess., Supplement No. 10 (A/56/10) [Commentaries]. The commentary to Article 20 provides a number of issues to consider in relation to consent (Commentaries, at page 73):
(4) In order to preclude wrongfulness, consent dispensing with the performance of an obligation in a particular case must be “valid”. Whether consent has been validly given is a matter addressed by international law rules outside the framework of State responsibility. Issues include whether the agent or person who gave the consent was authorized to do so on behalf of the State (and if not, whether the lack of that authority was known or ought to have been known to the acting State), or whether the consent was vitiated by coercion or some other factor. Indeed there may be a question whether the State could validly consent at all. The reference to a “valid consent” in article 20 highlights the need to consider these issues in certain cases.
(5) Whether a particular person or entity had the authority to grant consent in a given case is a separate question from whether the conduct of that person or entity was attributable to the State for the purposes of chapter II. For example, the issue has arisen whether consent expressed by a regional authority could legitimize the sending of foreign troops into the territory of a State, or whether such consent could only be given by the central Government, and such questions are not resolved by saying that the acts of the regional authority are attributable to the State under article 4. In other cases, the “legitimacy” of the Government which has given the consent has been questioned. Sometimes the validity of consent has been questioned because the consent was expressed in violation of relevant provisions of the State’s internal law. These questions depend on the rules of international law relating to the expression of the will of the State, as well as rules of internal law to which, in certain cases, international law refers.
(6) Who has authority to consent to a departure from a particular rule may depend on the rule. It is one thing to consent to a search of embassy premises, another to the establishment of a military base on the territory of a State. Different officials or agencies may have authority in different contexts, in accordance with the arrangements made by each State and general principles of actual and ostensible authority. But in any case, certain modalities need to be observed for consent to be considered valid. Consent must be freely given and clearly established. It must be actually expressed by the State rather than merely presumed on the basis that the State would have consented if it had been asked. Consent may be vitiated by error, fraud, corruption or coercion. In this respect, the principles concerning the validity of consent to treaties provide relevant guidance.
[Emphasis added. Footnotes omitted.]
[63] From the Commentaries, it is clear that law relating to treaties and treaty-making is relevant. Treaties need not be a formal, high-level exchange; they may be a simple exchange of diplomatic notes (J.H. Currie at 137). This engages, to some extent, the Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331, which represents international law on the subject. The Vienna Convention provides general rules as to which state actors may express the binding will of a state: see Articles 7 and 8.
[64] For our purposes, rather than delve into the principles related to the law of treaties, it is more useful to set out a general framework that can guide a court in determining whether consent to the application of Canadian constitutional law over a Canadian investigation was given. These requirements are informed by international law on treaties and state responsibility, and general principles relating to consent:
- The foreign official or entity purporting to give consent to the application of Canadian constitutional law must be an agent or “state organ” of the foreign state (Articles 4-6 of the Articles on State Responsibility);
- The foreign official or entity purporting to give consent must have apparent or actual authority to consent to the application of the Canadian Charterto an investigation by Canadian authorities in that foreign territory. Obviously, officials with “full powers” to make international treaties suffice (Articles 7 and 8 of the Vienna Convention), but in most cases, the issue will not be as clear. The Court must determine whether the official or entity at issue is able to agree to the Canadian investigation and the application of Canadian law. In other words, the question is whether this official or entity purporting to proffer consent has the apparent or actual authority to give a binding expression of the sovereign will of the state.
- Consent of the foreign state must be informed and freely given; error, coercion, fraud or corruption vitiate consent (Commentarieson Articles of State Responsibility);
- The consent must be in accordance with any domestic laws of the state purporting to give consent (see Amnesty); and
- The foreign state must specifically consent to the application of the Canadian Charter(see Amnesty).
[65] This is not an exhaustive list, but simply an overview. All of the circumstances of each case must be analyzed. However, the focus of the analysis should not only fall on whether there is evidence that foreign officials consented. While that is a factor to consider, the focus should also be on who those officials are and the nature of their authority within the foreign state and under international law. The consent analysis must be done with a view to determining the will of the sovereign foreign state. In short, the law of consent to the extraterritorial application of the Charter must be grounded in international law principles relating to sovereignty. In my view, this approach is consistent with the principles articulated in Hape, and accords with the subsequent jurisprudence in Amnesty.
[66] In many cases, consent will be demonstrated through a treaty or binding international law agreement. Mutual Legal Assistance Treaties (“MLAT”), like the Treaty Between the Government of Canada and the Government of the United States of America on Mutual Legal Assistance in Criminal Matters, Can. T.S. 1990 No. 19, are examples. These treaties allow a state to request its partner state to conduct an investigation within its own borders and then send that evidence to the requesting state. MLATs generally designate a “central authority” to deal with investigation requests. These treaties are usually explicit that the request and the consequent investigation are governed by the law of the requested state (R. Currie at 483).
[67] While a treaty or a binding international agreement that provides for consent to Canadian investigations and the application of Canadian constitutional law are obvious examples, the principle of sovereign consent can be established with evidence that an authorized official or entity in the foreign state validly consented to the extraterritorial investigation and the application of the Charter to that investigation. (For an example of a state’s consent to the application of Canadian law, albeit not the Charter, see the judgment of this Court, R. v. Dorsay, 2006 BCCA 117 (CanLII), though the facts are unique.)
