E. Extraterritorial Application

• Author: Robert J. Sharpe - Kent Roach
• Profession: Court of Appeal for Ontario - Faculty of Law, University of Toronto
• Pages: 107-110

Page 107

The Charter does not, as a general rule, apply to control the conduct of foreign officials acting outside Canada. Ordinarily, the laws of one state do not have extraterritorial effect nor do they interfere with the sovereignty of another state, and foreign states are not mentioned in

Page 108

section 32. In extradition matters, the Canadian courts have no authority to limit or control the manner in which criminal proceedings are conducted elsewhere.⁴²However, where it would "shock the conscience" of Canadians to send an accused person to face treatment that would amount to a violation of fundamental human rights, extradition may be refused on the grounds that the individual’s section 7 rights would be violated.⁴³In addition, where the requesting state relies upon evidence gathered in Canada, the accused person can challenge the admissibility of such evidence on Charter grounds in the Canadian extradition proceedings.⁴⁴A person facing charges in Canada cannot complain that foreign police gathered evidence in a way that would not be permitted under the Charter if the investigation had taken place in Canada.⁴⁵The situation is more complicated where Canadian government officials, such as police, exercise their authority extraterritorially. In R v Cook,⁴⁶the appellant, suspected in a murder that had taken place in Vancouver, was arrested in New Orleans by a US marshal pursuant to a Canadian extradition request. Two days after the arrest, two Canadian police officers interviewed the appellant in custody in New Orleans. The officers did not properly advise the appellant of his section 10(b) rights, and the appellant proceeded to make a statement to the officers. At trial, the appellant sought to have the statement excluded from the evidence and argued that it was taken in violation of his Charter rights. The Crown argued that the Charter did not apply to the officers’ actions in New Orleans. The Supreme Court of Canada held that the Charter applied to the officers while they were interviewing the appellant and excluded the evidence. The majority recognized that the extraterritorial application of the Charter could possibly infringe on the sovereignty of the United States, but found that this did not totally preclude the Charter from applying. They held that the Charter would apply outside of Canada only when two factors were met: (1) the impugned act fell within section 32(1) of the Charter and (2) the application of the Charter would not generate "an objectionable extraterritorial effect" by interfering with the sovereign authority of the foreign state.⁴⁷

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