The Charter’s Unstated Territorial Limits: R. v. Hape
It makes sense to begin any discussion on the applicability of the Charter with a consideration of s. 32(1), which reads:
“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 in each province.”
Based on the plain wording of this section, the Charter clearly applies to all levels of government, federal, provincial, territorial, municipal, as well as the agents of those governments. To the extent that these subsections refer to “matters within the authority” of the respective levels of government, it long seemed obvious that the intention must have been to avoid language that might be used to argue that the Charter somehow altered the division of powers found in the British North America Act of 1867 (now the Constitution Act, 1982). In other words, to avoid the possibility of one level of government attempting to justify its encroachment on the legislative sphere of another level of government based on a claim that it needed to act to uphold the Charter.
One would think that if the intention had been to restrict the Charter‘s application to government actors while they are physically operating “within Canada,” language suggesting such a territorial limitation would have been explicitly used. It was not. Nevertheless, this is exactly the language that the Supreme Court of Canada (“SCC”) reads into the Charter with its decision yesterday in R v Hape, 2007 SCC 26 [Hape].
In Hape, the appellant was a Canadian businessman who became the target of an Royal Canadian Mounted Police (“RCMP) money laundering investigation. On two separate occasions the appellant agreed to launder monies that an undercover officer represented as the proceeds of drug trafficking. The funds apparently moved through an investment company owned by the appellant, located in Turks and Caicos, before being deposited in a bank account set up by Canadian police in the Netherlands.
As part of its investigation the RCMP wanted to search the offices of the appellant’s company in Turks and Caicos. To do so, they first consulted the person responsible for all criminal investigations on the Islands, Detective Superintendent Lessemun. He agreed to facilitate the work of the RCMP in the Turks and Caicos, but made it clear that they would be working under his authority. Ultimately, Lessemun was the only police official in the Turks and Caicos that the RCMP ever dealt with during its investigation. According to the record, this was due to a concern expressed by the Detective Superintendent that all Turks and Caicos police officers could not be trusted.
Pursuant to this arrangement members of the RCMP visited the Turks and Caicos Islands in February 1998. On two separate occasions officers surreptitiously entered the appellant’s business premises to carry out reconnaissance. The officers examined the office’s locks and alarm systems from outside the building, recording what they observed using a video camera. Throughout this perimeter search, Detective Superintendent Lessemun was with the RCMP investigators, acting as a lookout.
This was followed by a third visit by the officers during normal business hours. Undercover RCMP officers entered the reception area of the appellant’s business offices to make observations of the interior locks and alarm system. The officers left after a brief conversation with a receptionist.
There was no warrant either in Canada or in the Turks and Caicos Islands authorizing any of these initial searches. And, to be clear, each of these “visits” would have constituted a “search” and required a warrant to be “reasonable” under s. 8 of the Charter if they had taken place in Canada. (See R v Kokesch,  3 SCR 3 (holding that a search around the perimeter of a residence constituted a “search” and engaged the requirements of s. 8); R v Evans,  1 SCR 8 (holding that approaching a residence and knocking on the door to collect evidence against the occupants exceeded the scope of the implied invitation to approach and knock, this was therefore an unlawful search that violated s. 8).
In acting without a warrant the RCMP officers testified that they relied on Detective Superintendent Lessemun’s advice regarding the legalities of their investigative activities in the Turks and Caicos Islands.
The RCMP officers returned to the Turks and Caicos Islands on a number of subsequent occasions. They ultimately seized thousands of documents from the appellant’s business premises, copies of which were tendered at the appellant’s Canadian trial. These subsequent searches appeared to be authorized by warrants issued in Turks and Caicos, but none of these warrants were ever produced or entered into evidence in the Canadian criminal proceedings.
The SCC’s Judgment
The appellant challenged the admissibility of these documents at his trial. He argued that this evidence had been obtained in a manner that violated his s. 8 Charter right to be secure against unreasonable search or seizure and that the evidence should be excluded under s. 24(2). This argument had been unsuccessful in the courts below.
For the majority Justice LeBel begins his judgment by acknowledging the point made above, that s. 32(1) does not contain an express territorial limitation. The clear implication would seem to be that the framers conceived of the Charter as a limit on the actions of Canadian governments and their agents without regard to where they might happen to be operating physically. In other words, when Canadian government actors go abroad they take the Charter with them.
Unfortunately, rather than leaving the matter there and deferring to Parliament to sketch out how to reconcile Canadian constitutional obligations with our international commitments, the majority concludes that it has the responsibility of sorting out the potential for conflict between our laws and those of our partners with whom we are collectively engaged in the battle against transnational crime. This is how Justice LeBel explains the need to read limits into s. 32(1) of the Charter:
“Section 32 does not expressly impose any territorial limits on the application of the Charter. By virtue of state sovereignty, it was open to the framers to establish the jurisdictional scope of the Charter. Had they done so, the courts of this country would have had to give effect to a clear expression of that scope. However, the framers chose to make no such statement. Consequently, as with the substantive provisions of the Charter, it falls upon the courts to interpret the jurisdictional reach and limits of the Charter. Where the question of application involves issues of extraterritoriality, and thereby necessarily implicates interstate relations, the tools that assist in the interpretation exercise include Canada’s obligations under international law and the principle of the comity of nations. As I will explain, the issue of applying the Charter to activities that take place abroad implicates the extraterritorial enforcement of Canadian law. The principles of state jurisdiction are carefully spelled out under international law and must guide the inquiry in this appeal.” (para 33)
There are two peculiar and important analytical moves apparent in this last paragraph. First, the rather odd assumption that because the framers did not include an express territorial limitation in s. 32(1) that it is the function of the courts to imply such a limit. What this ignores is the very real possibility that, as the plain language suggests, the framers expected that the Charter would not to be limited by location at all. Instead, they may have justifiably intended that the Charter would apply to Canadian government actors no matter where they might happen to be – period. The second puzzling aspect of the quoted paragraph is the assumption that the contours of these territorial limits can be mapped out by reference to the principles of international law. It is as if the SCC found a subparagraph buried within s. 1 of the Charter that reads: “the rights and freedoms guaranteed herein are also subject to those limitations that might be found in the principles of international law”.
This is not to suggest that international law principles are not helpful in interpreting Charter guarantees. The Charter was not framed in a vacuum. Its drafting was undoubtedly influenced by international rights instruments and the larger post-WWII rights movement. Nevertheless, there is a considerable difference between using international law to better understand the purpose behind ambiguous constitutional language and what the SCC did in Hape, which is use international law to read limitations into a constitutional provision that is clear and unambiguous on its face.
In its judgment the majority takes us on a whirlwind tour of the basics of international law relating to state sovereignty, comity, and those general principles placing limits on the extra-territorial application of Canadian law.
The majority in Hape expresses disapproval of its own prior judgment in R v Cook,  2 SCR 597 [Cook]. Cook had given us a test that attempted to strike a balance between the express wording of s. 32(1) and Canada’s concurrent obligations to respect those limits on its legal sovereignty occasioned by international law. Paragraph 48 of Cook instructed that:
“[T]he Charter applies on foreign territory in circumstances where the impugned act falls within the scope of s. 32(1) of the Charter on the jurisdictional basis of the nationality of the state law enforcement authorities engaged in governmental action, and where the application of Charter standards will not conflict with the concurrent territorial jurisdiction of the foreign state.”
Not right says the majority in Hape. This approach puts the focus in the wrong place. Why? Well, because
“…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.” (para 85)
If you are struggling to digest the logic of this passage, you are not alone. This case doesn’t raise any issue about “enforcing” the Charter in the Turks and Caicos Islands. The appellant’s trial was taking place in Canada. He was seeking the exclusion of evidence in Canadian proceedings. The bases for his claim was not anything done by foreign officials – it was the actions of the RCMP officers that was the subject of his complaint. How would requiring those officers to comply with the Charter undermine or even encroach on the sovereignty of Turks and Caicos?
The real concern of the majority only becomes clear in the next few paragraphs. Here we gain insight into what Justice LeBel and the majority clearly see as the problem in acceding to the appellant’s argument:
“[I]n Turks and Caicos, judicial authorization does not appear to be necessary for a perimeter search of private premises … Under Canadian law, in most circumstances a warrant would be required to conduct such a search. To comply with the Charter, the RCMP officers would have had to obtain a warrant that is unavailable under Turks and Caicos law. It would constitute blatant interference with Turks and Caicos sovereignty to require that country’s legal system to develop a procedure for issuing a warrant in the circumstances simply to comply with the dictates of the Charter.” (para 83)
It is this fear that ultimately bottoms the whole of the majority’s judgment. And, admittedly, if these are the choices with which we are confronted then I think it sensible to vote for limiting the Charter. Surely we cannot be running around all over the world demanding that other governments and their representatives comply with our Constitution. That sort of national arrogance tends to be reserved for superpowers, not Canada. But would this truly have been the implication of extending the application of Cook to the facts of the appellant’s case?
With respect, where the majority seems to go wrong is by constructing an all or nothing scenario. The choices set out by the majority are stark. The Charter either does not apply, or it applies fully and completely, thereby compelling foreign police officers to respect its limits. And, if those limits cannot be respected because of shortcomings in the law of that country, it would compel legislative action by that foreign government so as to ensure compliance with the Charter‘s minimum standards. Faced with these stark choices, the majority in Hape rather sensibly concludes that the Charter only applies most sparingly when Canadian police are operating abroad. For the majority,
“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.” (para 113)
What this analysis ignores is the availability of another option. Why couldn’t Parliament amend the Criminal Code, RSC 1985, c C-46, or the Mutual Legal Assistance in Criminal Matters Act, RSC 1985, c 30 (4th Supp) to allow Canadian police to apply for and obtain a Canadian warrant authorizing their extraterritorial investigative activities. A precondition for issuing such a warrant could be compliance with the law of the foreign state and the co-operation of local officials. Such a scheme could track minimum Charter requirements for a reasonable search and seizure. For example, a need for reasonable and probable grounds to believe an offence has been committed and that evidence will be found in the place to be searched.
Warrants issued under such a scheme would simply give Canadian police the constitutional license that they should require (because of s. 32(1)) before engaging in conduct abroad that would violate the Charter if it were undertaken here at home. Such a scheme of prior authorization would serve the purposes of s. 8, by preventing Canadian police from participating in foreign operations that don’t meet basic Charter requirements. At the same time, such a scheme would fully respect the sovereignty of other nations. Such a law would in no way dictate how a foreign police official must behave or mandate amendments to foreign laws. It would speak exclusively to what the Charter is concerned with, the actions of Canadian state actors, nothing more.
So, for example, if the police had the requisite reasonable and probable grounds to conduct a perimeter search at Mr. Hape’s businesses premises in the Turks and Caicos Islands, they could have applied for a Canadian warrant authorizing them to go to that country for that purpose, subject to compliance with the law’s of that jurisdiction and the cooperation of police officials there. Structured in this way, the Canadian police would be fully respecting the Charter, while Canadian law would in no way be interfering with the sovereignty of another country.
Unfortunately, the SCC in Hape creates a false dilemma that it then proceeds to solve by reading unstated limitations onto the Charter‘s plain and unambiguous text. Not the SCC’s finest hour, to be sure.