Thanks to Judge Wayne Gorman!

In R. v. Tran, 2013 BCCA 9, January 10, 2013, the British Columbia Court of Appeal considered the “application of the Charter beyond Canada’s borders.”

In Tran, the accused was convicted before a judge sitting alone of the offence of second degree murder. The murder took place in British Colombia, but a statement was obtained from the accused in Malaysia by the Royal Canadian Mounted Police. The accused argued that the statement should not have been admitted by the trial judge at his trial because it was obtained by the Canadian police in contravention of the Canadian Charter of Rights and Freedoms.  This contention required a consideration by the British Columbia Court of Appeal of the extraterritorial effect of the Charter.

The British Columbia Court of Appeal noted that the Supreme Court of Canada’s decision in R. v. Hape, [2007] 2 S.C.R. 292, is “the jurisprudential centre of gravity for the law on extraterritorial application of the Charter.” After referring to Hape in detail, the Court of Appeal stated that 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).

The British Columbia Court of Appeal noted that 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.”

The Court of Appeal considered the foreign consent issue and held, at paragraphs 57 and 58, that 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…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.”

At paragraph 64, the Court of Appeal set out a non-exhaustive list of factors which a trial judge should consider in determining if the requisite consent existed:

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 Charter to 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 (Commentaries on 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).

AN APPLICATION OF THESE PRINCIPLES TO THIS CASE

The British Columbia Court of Appeal concluded that the “evidence indicates that Malaysian authorities viewed their law relating to searches and seizures as operative, and not the Charter.”  The Court of Appeal concluded that the Charter did not apply to the Canadian police in Malaysia in this case (at paragraphs 73 to 75):

Herein lies the problem with the argument of the appellant. In my respectful opinion, it would not respect the sovereignty of Malaysia to conclude on the basis of the testimony of a RCMP officer that Malaysia consented to the application of the Charter. The evidence here is scant. Aside from the second-hand statements of Chief Inspector Singh, of whom no evidence with respect to his authority to grant consent was adduced, there is no evidence of any consent that would satisfy the Hape principle of sovereign non-interference. There is, furthermore, no evidence that Malaysian law enforcement entities or officials – for example, the Director of the Criminal Investigation Unit – consented. Nor is there evidence that that official was in a position to consent. In short, there is no evidence that the officials named by the appellant are in a position to express the sovereign will of the Malaysian state.

In my view, the trial judge was correct in his conclusion that the “evidence fell well short of establishing even a prima facie case that there was any agreement to apply Canadian law.” To engage the application of the Charter to the conduct of Canadian officials operating in a foreign state, an accused must tender evidence that a foreign official, possessed of the proper authority, consented to the application of the Charter.

In my view, the trial judge did not err in concluding that the Charter was inapplicable to the RCMP’s conduct in Malaysia. As such, he was correct to decline to hold a voir dire into whether the RCMP breached Mr. Tan’s Charter rights by failing to obtain a warrant before requesting Malaysian assistance to collect his fingerprints.