Applying the Charter to State Actors Abroad: SCC Grants Leave in Corporal C.R. McGregor v Her Majesty the Queen
The Supreme Court of Canada (“SCC”) will refine its jurisprudence on extraterritorial applications of the Canadian Charter of Rights and Freedoms [the Charter] when it hears Corporal C.R. McGregor v Her Majesty the Queen (SCC 39543).
The bench is also expected to explore the s. 8 Charter right to be secure against unreasonable search or seizure as well as the s. 24(2) Charter right to exclude evidence obtained through a Charter violation. The case, which was granted leave to appeal to the SCC on October 14, 2021, will contemplate the application of the Charter outside of Canada when a criminally-accused member of the Canadian Armed Forces works abroad.
The SCC’s decision to grant leave to appeal will provide clarity on the extent to which the Charter is involved in the search and seizure of state actors’ property abroad. The ruling will also be a powerful opportunity to explore how Charter principles coexist with, overpower, or can be overruled by Canada’s international agreements as it relates to Canadian military personnel.
The upcoming ruling will be especially interesting to read in light of the SCC’s very recent decision, R v Reilly 2021 SCC 38 [Reilly], in which the bench similarly addressed s. 24(2) concerns as a result of s. 8 Charter violations. In Reilly, the SCC emphasized the importance of strictly applying Charter principles when considering the admission of evidence in criminal procedures. However, in the upcoming case, our highest court will have to weigh the importance of applying Charter values with the equally important principles of sovereign equality and respect for the legal authority of foreign jurisdictions.
Corporal (Cpl.) McGregor was stationed at the Canadian Embassy in Washington D.C. as a member of the Canadian Armed Forces and had a temporary residence in Virginia, United States. He held the title of a “diplomatic agent” which granted him “immunity of his person, property, and residence” (R v McGregor, 2020 CMAC 8, para 12 [McGregor]). Cpl. McGregor’s immunity came under threat in early 2017 when a female member of the Canadian Armed Forces discovered an audio recording device in her Virginia residence.
Upon an investigation that was conducted by the Canadian Forces National Investigation Service (“CFNIS”), the lead investigator found “reasonable and probable grounds” to suspect that Cpl. McGregor committed the offences of interference and voyeurism (McGregor, para 13). As such, a search of Cpl. McGregor’s residence was necessary. However, because his residence was in the United States, the lead investigator required local assistance in obtaining a search warrant. The Alexandria Police Force of Virginia agreed to assist with the investigation, but could not obtain a warrant due to Cpl. McGregor’s diplomatic immunity (McGregor, para 14). To remedy this, the Embassy of Canada waived the Corporal’s immunity of his residence per article 30 of the Vienna Convention on Diplomatic Relations, 18 April 1961, 500 UNTS 95, which allowed the Alexandria Police to obtain a warrant.
Members of both the CFNIS and the Alexandria Police searched Cpl. McGregor’s Virginia residence, which involved searching the accused’s electronic devices. They seized any electronics that could not be investigated on-site immediately due to time constraints (McGregor, para 16). In turn, the CFNIS arrested Cpl. McGregor in Washington, brought the seized electronic devices to Canada, and obtained Canadian warrants to further analyze the seized devices (McGregor, para 17).
The Court Martial Rules the Charter Does Not Apply on Foreign Soil
Cpl. McGregor brought a s. 24(2) Charter motion to exclude the evidence obtained from the search and seizure of his electronic devices (McGregor, para 18). He also submitted that his s. 8 Charter right to be free from unreasonable search and seizure had been violated (McGregor, para 18). The accused was ultimately unsuccessful on both challenges.
In the decision, the Military Judge concluded that the Charter did not apply to the search because the investigation occurred under Virginia law (McGregor, para 18). He cited R v Hape, 2007 SCC 26 [Hape] in which the Supreme Court held that, “Canada does not have authority over all matters respecting what the officer may or may not do in the foreign state. Where Canada’s authority is limited, so too is the application of the Charter” (Hape, para 104).
Even if the Charter was to apply, the judge held that Cpl. McGregor’s Charter rights were not violated. Not only was this because the search was under Virginia law, but also because the grounds relied upon to get a warrant in the United States would have been sufficient in Canada (McGregor, para 19). Furthermore, the search was “conducted reasonably” per authority in American law (McGregor, para 19). For good measure, the Military Judge also concluded that even if the accused’s s. 8 Charter rights were violated, the evidence should not be excluded because it was obtained in good faith and was “extremely important to the prosecution of serious allegations” (McGregor, para 20).
Using the evidence obtained from the search warrant, the Military Judge convicted Cpl. McGregor on two counts of voyeurism, possession of a device for unlawful interception, and sexual assault under the Criminal Code, RSC 1988, c C-46. He was also convicted of one count of disgraceful conduct under the National Defence Act, RSC 1985, c N-5 (McGregor, para 3). Cpl. McGregor was sentenced to 36 months of imprisonment and dismissed with disgrace from Her Majesty’s service (McGregor, para 21).
The Court Martial Appeal Court Upholds the Decision
On appeal, Cpl. McGregor contended that the Military Judge erred in failing to apply the Charter to the CFNIS investigators who searched and seized his Virginia residence (McGregor, para 25). He cited an international agreement under the North Atlantic Treaty Organization (NATO) to reinforce this claim. The Court Martial Appeal Court (“CMAC”) ultimately dismissed the appeal and maintained the accused’s convictions for the reasons set out below.
America Did Not Acquiesce to the Application of Canadian Law on its Territory
The CMAC referred to the Supreme Court’s decision in Hape to assess whether extraterritorial applications of the Charter applied to these facts. Hape provides that the Charter can apply to Canadian actors where the host nation consents to the application of Canadian law (McGregor, para 33).
The Court concluded that the United States never acquiesced to the application of Canadian law in Virginia. They noted that a local detective was assigned to the case and American police conducted their own procedures independently of Canadian investigators (McGregor, para 35). They also noted that once the items were seized from Cpl. McGregor’s residence, the lead Canadian investigator brought the items to the Alexandria Police Department to complete the “post-search inventory required to be filed with the Virginia Court” (McGregor, para 40). These reasons, among others, demonstrated that the United States did not consent to have Canadian law override its Virginian law. Rather, the issuance and execution of the search warrant in Virginia exercised American authority.
NATO Status of Forces Agreement Applies to Persons—Not Property
Both Canada and the United States are member states of the NATO Status of Forces Agreement (“SOFA”). The agreement outlines a framework of “exclusive, concurrent and primary jurisdiction, both criminal and disciplinary, that apply in instances of offences committed by members of the sending state’s forces in the territory of the host state” (McGregor, para 45). The CMAC referred to Article VII of the NATO SOFA to make an important distinction in its language.
Article VII provides that the sending state, Canada, “has the right to exercise all criminal and disciplinary jurisdiction over all persons (emphasis added) subject to Canada’s military law” (McGregor, para 46). Importantly, this article does not speak to a person’s real property. Therefore, this article does not waive American territorial sovereignty over an individual’s real property in the United States (McGregor, para 47). This finding, as well as Articles II and VI of the NATO SOFA, further reinforces the CMAC’s conclusion that the Charter did not have extraterritorial application in Virginia. The United States can investigate members of the Canadian Armed Forces or their property while on American soil (McGregor, para 47).
Considering Trial Fairness
While the CMAC agreed with the Military Judge’s conclusion, they took their analysis one step further to assess whether admitting the impugned evidence impacted Cpl. McGregor’s right to a fair trial. Per the Court:
“The mirroring of Charter rights in the consideration of trial fairness reinforces the values of consistency and predictability in the trials of members of the Canadian Armed Forces, regardless of where they may be stationed or where the offence took place” (McGregor, para 59).
In light of this observation and previous Supreme Court decisions, the CMAC stated that admissibility of evidence gathered in Canada or abroad must be measured by its “impact on trial fairness in situations of domestic trials of Canadian servicemen and women” (McGregor, para 60).
The CMAC relied on R v Grant, 2009 SCC 32 [Grant] to assess trial fairness. The Grant factors include “the seriousness of the conduct of the local investigators, the degree of deviation from Canadian norms and the Charter, the impact of the admission of evidence on the accused and the public interest in the trial of the offence” (McGregor, para 61). In weighing the Grant factors against the facts, the Court found that admitting the impugned evidence did not hinder Cpl. McGregor’s right to a fair trial. They found that the CFNIS agents acted in good faith during their investigation as they believed that they had the lawful authority to search the accused’s electronics (McGregor, para 68). The CMAC also found that the impact of the breach, if any, was minimal and “merely technical” because the Virginian search warrant had the same purpose as a Canadian one (McGregor, para 68). Finally, they concluded that the adjudication of the case on its merits was of high public interest given the severity of Cpl. McGregor’s offences.
On these findings, the CMAC chose not to interfere with the Military Judge’s conclusion. Only time will tell if our highest court is in agreement.