Does the Charter travel abroad?

• Author: Mitchell, Teresa
• Position: Today's Trial

Canadians living in Canada are protected by the provisions of the Canadian Charter of Rights and Freedoms. Indeed, Canadians count on the protections of the Charter, generally regarding it as a national treasure, and a source of considerable pride. However, a recent Supreme Court of Canada case suggests that the protections of the Charter may not be available to protect Canadians living abroad.

On June 7, 2007 the Supreme Court of Canada released its decision in the case of R. v. Hape. Lawrence Hape was a Canadian businessman who held an investment company in the Turks and Caicos Islands. The RCMP suspected him of running a money-laundering scheme, and asked permission of the Turks and Caicos authorities to conduct parts of their investigation on the islands. They received permission but were warned that a Detective Superintendent of the island's police force would be in charge and the RCMP would be under his authority. Over a one-year period, the RCMP investigated, searching Mr. Hape's office, always with the DS along. They amassed documentary evidence that the Crown wanted to use at a subsequent trial. Mr. Hape objected. He argued that the RCMP's actions violated his s. 8 Charter right not to be subject to unreasonable search and seizure and s. 32(1) which states that the Parliament of Canada and all the provincial legislatures are bound by the Charter. He submitted that the Charter applied to the actions of the RCMP officers in the course of their searches and seizures at his office, notwithstanding that those actions took place outside of Canada. The trial judge dismissed his argument, allowed the documents to be used as evidence, and convicted Mr. Hape of money-laundering. The Ontario Court of Appeal upheld his conviction, and so he appealed to the Supreme Court of Canada.

The Supreme Court ruled unanimously that Mr. Hape's appeal should be dismissed. The Court wrote, "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...