Hape: An Example of Bad Facts Making Bad Law
The decision from the SCC in R. v. Hape, 2007 SCC 26 illustrates the dangers that lie in developing theory on a bad set of facts. The central feature of the case is that the police acted reasonably, and believed that they had warrants, in spite of the lack of documentary evidence on the point. The judicial sympathies in the case were accordingly on the side of the police and the defence made a serious miscalculation when it took a hard technical line on the warrants.
There is little to contest in the general position set out by the majority, which is significant because it gives the lower courts permission to apply the international law in a domestic forum. At para. 39, Justice LeBel writes:
In my view, following the common law tradition, it appears that the doctrine of adoption operates in Canada such that prohibitive rules of customary international law should be incorporated into domestic law in the absence of conflicting legislation. (para. 39)
The majority follows the same line in finding that the principle of comity will not excuse breaches of the international law of the person.
This is a forward-looking position. The majority hides its more progressive views, however, in a strong endorsement of state prerogatives. At para. 43, for example, LeBel J. states:
While sovereignty is not absolute, the only limits on state sovereignty are those to which the state consents or that flow from customary or conventional international law. Some such limits have arisen from recent developments in international humanitarian law, international human rights law and international criminal law relating, in particular, to crimes against humanity …
There is a certain amount of stealth here. The distinguishing feature of the Westphalian doctrine of sovereignty is that it is not subject to limits or constraints. The fact that these legal constraints exist is a major historical development.
The important thing is that the Supreme Court has recognized the new legal realities. The internal political sovereignty of the state—the sovereignty that the state exercises within its own borders–is now subject to the qualifications in the international law. The international and domestic systems of law are slowly merging and the decision in Hape endows the international law of the person with a decidedly constitutional effect. So far so good. The problem is that the Supreme Court seems to feel that this has somehow dispensed with the need for the Charter of Rights in the investigations conducted by Canadian police outside our borders.
The decision of the majority rests on a kind of logical fallacy that the English philosopher J.L. Austin identified in the 1950’s. Our legal and political discourse is full of false dichotomies that reduce complex situations into simple “either-or” propositions and force us to choose between false alternatives. Thus, at para. 97, the majority in Hape postulate that we can either allow the police to conduct investigations abroad, or require that they respect the Charter.
To prohibit Canadian officers from participating [in investigations abroad] would indeed ensure conformity with both international law and the Charter; however, it would also mean that the investigation could not be conducted. This is a serious concern.
The logical jump is so palpable that it is hard to read the passage without stopping short. What could possibly have led the court to such a precipitous conclusion?
There is no need to go into the details. The decision to place the conduct of Canadian police officers under the scrutiny of the Charter has nothing do with regulating foreign governments or their law enforcement regimes. The majority’s analysis is based on an extremely rigid reading of the Charter of Rights and steps back from the position that it explored in R. v. Cook,  2 S.C.R. 597. The judges on our highest court apparently believe that our police would not be able to conduct investigations outside the territorial limits of the country if they were subject to the scrutiny of the Charter. This is simply eccentric. There is no reason why the practical limits and added complexity of an extraterritorial investigation cannot be factored into an inquiry under s. 24(2) of the Charter.
James Stribopoulos has already expressed his frustration with this aspect of the decision. I would like to add three points. The first is that the majority failed to recognize that the difficulties with the warrants in the precise circumstances of the case did not raise any suspicions that the police had acted improperly. This was sufficient to deal with any Charter objections. It was a mistake to decide whether the Charter applies outside the country on a novel the set of facts. Even a modicum of foresight would suggest that the facts in future cases will dictate a different result.
The second point is that the Supreme Court did not discuss or apply the existing international law. The most obvious example here is the International Covenant on Civil and Political Rights. Although the Covenant does not address the subject of search and seizure as clearly as one might hope, the combined effect of article 2 and article 17 have to make one wonder whether Canada’s accession to the Covenant in 1976 is enough to give the Charter of Rights an extraterritorial effect. One has to wonder why the majority’s decision ignores these kinds of possibilities?
The truth is that our judges are all happy to restrict themselves to rhetorical statements on these kinds of issues. It is revealing that the decision in Hape only favours the rights of the person in the international context, where the law is weak in its protections. In the domestic arena, where the same rights are well-defined, and far more rigorously applied, the court denies them. This is the wrong way to read international instruments. The guarantees in international statutory law provide minimal protection for individuals in those states that do not have adequate safeguards in the area. They should not be read as a replacement for the full set of rights in a document like the Charter.
The third point concerns the principle that the entire body of law must be read as a coherent whole. The relevance of this principle comes from the fact that an offence is deemed to be committed in Canada, if some part of the offence was committed in Canada. It follows that there is a sense in which the criminal law of Canada goes with us when we leave the country. We have now discovered, in Hape, that this cannot be said for the supreme law of the country. The asymmetry that this introduces into the legal system is morally troubling. How can the courts legitimately bring the extraterritorial actions of an accused within the jurisdiction of our courts, and place the corresponding actions of the state outside it?
It was Juriansz J., the trial judge, who got the matter right in Hape, when he held that there was nothing to suggest that there was a significant breach of the Charter. The police officers acted reasonably in the circumstances of the case. This was apparently too simple for the SCC. Instead of confining itself to the facts of the case, and avoiding any rash decision, the court awarded the police a general constitutional exemption and suspended the rights of the person. In doing so, it freed the courts from one of their fundamental constitutional responsibilities, which is to oversee the conduct of the police. Who knows where this kind of ominous logic might take us?