R. v. Hape (L.R.), (2007) 227 O.A.C. 191 (SCC)

JudgeMcLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
CourtSupreme Court (Canada)
Case DateOctober 12, 2006
JurisdictionCanada (Federal)
Citations(2007), 227 O.A.C. 191 (SCC);2007 SCC 26;280 DLR (4th) 385;160 CRR (2d) 1;EYB 2007-120452;363 NR 1;220 CCC (3d) 161;47 CR (6th) 96;[2007] ACS no 26;[2007] 2 SCR 292;JE 2007-1140;227 OAC 191;[2007] SCJ No 26 (QL);73 WCB (2d) 528

R. v. Hape (L.R.) (2007), 227 O.A.C. 191 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2007] O.A.C. TBEd. JN.019

Lawrence Richard Hape (appellant) v. Her Majesty The Queen (respondent) and Attorney General of Ontario (intervenor)

(31125; 2007 SCC 26; 2007 CSC 26)

Indexed As: R. v. Hape (L.R.)

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

June 7, 2007.

Summary:

The accused, an investment banker, was convicted on two counts of money laundering contrary to s. 9 of the Controlled Drugs and Substances Act. He was sentenced to 30 months' imprisonment. The Crown sought a forfeiture order of $3 million.

The Ontario Superior Court, in a decision reported at [2002] O.T.C. 983, made a forfeiture order of $48,992.75. The accused appealed his conviction and the sentence of imprisonment. The Crown appealed from the trial judge's refusal to make a forfeiture order of $3 million.

The Ontario Court of Appeal dismissed the appeals. The accused sought leave to appeal. Leave to appeal was granted on the issue of whether s. 8 of the Charter applied to searches and seizures conducted by RCMP officers outside of Canada.

The Supreme Court of Canada dismissed the appeal.

Civil Rights - Topic 1202

Security of the person - General - Protection of citizen by state - [See third Civil Rights - Topic 8306 ].

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - [See first Civil Rights - Topic 3157 ].

Civil Rights - Topic 1643

Property - Search and seizure - Extent of protection - [See third Civil Rights - Topic 8306 ].

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial - The accused, a Canadian businessman, was convicted of two counts of money laundering - At his trial, the Crown adduced documentary evidence that the police had gathered from the records of the accused's investment company while searching its premises in the Turks and Caicos Islands - The Supreme Court of Canada held, inter alia, that where no warrants were admitted into evidence, the court had to proceed on the basis that the searches were warrantless - However, the admission of the evidence would not violate the accused's right to a fair trial (Charter, ss. 7 and 11(d)) - The evidence was not conscriptive - The actions of the RCMP officers were not unreasonable or unfair, as they acted under the direction of a Turks and Caicos officer and had a genuine and reasonable belief that they were complying with Turks and Caicos law - They thought that search warrants had been obtained and that the investigation was lawful under Turks and Caicos law - They acted in good faith at all times - Their actions were not improper - The way in which the evidence was obtained in no way undermined its reliability - Moreover, since he had chosen to conduct business in Turks and Caicos, the accused's reasonable expectation should have been that Turks and Caicos law would apply to the investigation - Although no warrants were admitted at trial, there was no evidence that the searches and seizures were conducted in a manner inconsistent with the requirements of Turks and Caicos law, on which little evidence was presented - Foreign law had to be proved - There was no basis for concluding that the procedural requirements for a lawful search and seizure under Turks and Caicos law failed to meet basic standards commonly accepted by free and democratic societies - See paragraphs 119 to 121.

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial - [See sixth Civil Rights - Topic 8306 ].

Civil Rights - Topic 8306

Canadian Charter of Rights and Freedoms - General - Application of - Territorial limits - The Supreme Court of Canada held that "As the supreme law of Canada, the Charter is subject to the same jurisdictional limits as the country's other laws or rules. Simply put, Canadian law, whether statutory or constitutional, cannot be enforced in another state's territory without the other state's consent. This conclusion, which is consistent with the principles of international law, is also dictated by the words of the Charter itself. The Charter's territorial limitations are provided for in s. 32, which states that the Charter applies only to matters that are within the authority of Parliament or the provincial legislatures. In the absence of consent, Canada cannot exercise its enforcement jurisdiction over a matter situated outside Canadian territory." - See paragraph 69.

Civil Rights - Topic 8306

Canadian Charter of Rights and Freedoms - General - Application of - Territorial limits - The Supreme Court of Canada stated that "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." - See paragraph 85.

Civil Rights - Topic 8306

Canadian Charter of Rights and Freedoms - General - Application of - Territorial limits - The Supreme Court of Canada stated that "Searches and seizures, because of their coerciveness and intrusiveness, are by nature vastly different from police interrogations. The power to invade the private sphere of persons and property, and seize personal items and information, is paradigmatic of state sovereignty. These actions can be authorized only by the territorial state. From a theoretical standpoint, the Charter cannot be applied, because its application would necessarily entail an exercise of the enforcement jurisdiction that lies at the heart of territoriality. As a result of the principles of sovereign equality, non-intervention and comity, Canadian law and standards cannot apply to searches and seizures conducted in another state's territory." - See paragraph 87.

Civil Rights - Topic 8306

Canadian Charter of Rights and Freedoms - General - Application of - Territorial limits - The Supreme Court of Canada stated that s. 32(1) of the Charter put the burden of Charter compliance on Parliament, the government of Canada, the provincial legislatures and the provincial governments - While s. 32(1) defined to whom the Charter applied and not where it applied, s. 32(1) also defined in what circumstances the Charter applied to those actors - The fact that a state actor was involved was not in itself sufficient - The activity in question also had to fall within the "matters within the authority of" Parliament or the legislature of each province - A criminal investigation in the territory of another state could not be a matter within the authority of Parliament or the provincial legislatures, because they had no jurisdiction to authorize enforcement abroad - Criminal investigations, like political structures or judicial systems, were intrinsically linked to the organs of the state, and to its territorial integrity and internal affairs - Such matters were clearly within the authority of Parliament and the provincial legislatures when they were in Canadian territory; they were just as clearly outside the authority of those bodies when they were outside Canadian territory - See paragraph 94.

Civil Rights - Topic 8306

Canadian Charter of Rights and Freedoms - General - Application of - Territorial limits - The Supreme Court of Canada stated that "As a general rule, Canadian officers can participate in investigations abroad, but must do so under the laws of the foreign state. The permissive rule that allows Canadian officers to participate even when there is no obligation to do so derives from the principle of comity; the rule that foreign law governs derives from the principles of sovereign equality and non-intervention. But the principle of comity may give way where the participation of Canadian officers in investigative activities sanctioned by foreign law would place Canada in violation of its international obligations in respect of human rights. In such circumstances, the permissive rule might no longer apply and Canadian officers might be prohibited from participating. I would leave open the possibility that, in a future case, participation by Canadian officers in activities in another country that would violate Canada's international human rights obligations might justify a remedy under s. 24(1) of the Charter because of the impact of those activities on Charter rights in Canada." - See paragraph 101.

Civil Rights - Topic 8306

Canadian Charter of Rights and Freedoms - General - Application of - Territorial limits - The Supreme Court of Canada discussed the methodology for determining whether the Charter applied to a foreign investigation - See paragraphs 102 to 112 - The court summarized the methodology 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." - See paragraph 113.

Civil Rights - Topic 8306

Canadian Charter of Rights and Freedoms - General - Application of - Territorial limits - The accused, a Canadian businessman, was convicted of two counts of money laundering - At his trial, the Crown adduced documentary evidence that the police had gathered from the records of the accused's investment company while searching its premises in the Turks and Caicos Islands - The accused sought to have that evidence excluded under s. 24(2) of the Charter, on the basis that the Charter applied to the actions of the Canadian police officers who conducted the searches and seizures and that the evidence was obtained in violation of his right under s. 8 of the Charter to be secure against unreasonable search and seizure - The trial judge found, inter alia, that the Canadian police officers were operating under the authority of a Turks and Caicos officer - The Supreme Court of Canada affirmed the convictions - Since the search was carried out in Turks and Caicos, it was not a matter within the authority of Parliament - Without evidence of consent, that was enough to conclude that the Charter did not apply - It was not reasonable to suggest that Turks and Caicos consented to Canadian extraterritorial enforcement jurisdiction in this case - See paragraphs 114 to 118.

Civil Rights - Topic 8367

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - General - [See fifth Civil Rights - Topic 8306 ].

Conflict of Laws - Topic 8

General - Doctrine of comity - The Supreme Court of Canada stated that "Related to the principle of sovereign equality is the concept of comity of nations. Comity refers to informal acts performed and rules observed by states in their mutual relations out of, politeness, convenience and goodwill, rather than strict legal obligation ... When cited by the courts, comity is more a principle of interpretation than a rule of law, because it does not arise from formal obligations. Speaking in the private international law context in Morguard Investments Ltd. v. De Savoye ..., La Forest, J., defined comity as 'the deference and respect due by other states to the actions of a state legitimately taken within its territory'. In Re Foreign Legations, both Duff, C.J., and Hudson, J., referred in their reasons to The Parlement Belge (1880), 5 P.D. 197 (C.A.), in which Brett, L.J., commented ... that the principle of international comity 'induces every sovereign state to respect the independence and dignity of every other sovereign state'. Where our laws - statutory and constitutional - could have an impact on the sovereignty of other states, the principle of comity will bear on their interpretation." - See paragraphs 47 and 48.

Conflict of Laws - Topic 8

General - Doctrine of comity - The Supreme Court of Canada stated that "The nature and limitations of comity need to be clearly understood. International law is a positive legal order, whereas comity, which is of the nature of a principle of interpretation, is based on a desire for states to act courteously towards one another. Nonetheless, many rules of international law promote mutual respect and, conversely, courtesy among states requires that certain legal rules be followed. In this way, 'courtesy and international law lend reciprocal support to one another' ... The principle of comity reinforces sovereign equality and contributes to the functioning of the international legal system. Acts of comity are justified on the basis that they facilitate interstate relations and global cooperation; however, comity ceases to be appropriate where it would undermine peaceable interstate relations and the international order. The principle of comity does not offer a rationale for condoning another state’s breach of international law. Indeed, the need to uphold international law may trump the principle of comity." - See paragraphs 50 and 51.

Conflict of Laws - Topic 8

General - Doctrine of comity - The Supreme Court of Canada stated that "In an era characterized by transnational criminal activity and by the ease and speed with which people and goods now cross borders, the principle of comity encourages states to cooperate with one another in the investigation of transborder crimes even where no treaty legally compels them to do so. At the same time, states seeking assistance must approach such requests with comity and respect for sovereignty. Mutuality of legal assistance stands on these two pillars. Comity means that when one state looks to another for help in criminal matters, it must respect the way in which the other state chooses to provide the assistance within its borders. That deference ends where clear violations of international law and fundamental human rights begin. If no such violations are in issue, courts in Canada should interpret Canadian law, and approach assertions of foreign law, in a manner respectful of the spirit of international cooperation and the comity of nations." - See paragraph 52.

Conflict of Laws - Topic 8

General - Doctrine of comity - [See third and fifth Civil Rights - Topic 8306 ].

International Law - Topic 5

General - Incorporation into domestic law (incl. customary international law) - The Supreme Court of Canada stated that "the doctrine of adoption has never been rejected in Canada. Indeed, there is a long line of cases in which the Court has either formally accepted it or at least applied it. In my view, following the common law tradition, it appears that the doctrine of adoption operates in Canada such that prohibitive rules of customary international law should be incorporated into domestic law in the absence of conflicting legislation. The automatic incorporation of such rules is justified on the basis that international custom, as the law of nations, is also the law of Canada unless, in a valid exercise of its sovereignty, Canada declares that its law is to the contrary. Parliamentary sovereignty dictates that a legislature may violate international law, but that it must do so expressly. Absent an express derogation, the courts may look to prohibitive rules of customary international law to aid in the interpretation of Canadian law and the development of the common law." - See paragraph 32.

International Law - Topic 2001

Sovereignty - General - The Supreme Court of Canada stated that "Although all states are not in fact equal in all respects, equality is, as a matter of principle, an axiom of the modern international legal system. In order to preserve sovereignty and equality, the rights and powers of all states carry correlative duties, at the apex of which sits the principle of non-intervention. Each state’s exercise of sovereignty within its territory is dependent on the right to be free from intrusion by other states in its affairs and the duty of every other state to refrain from interference. This principle of non-intervention is inseparable from the concept of sovereign equality and from the right of each state to operate in its territory with no restrictions other than those existing under international law."- See paragraphs 45 and 46.

International Law - Topic 2001

Sovereignty - General - The Supreme Court of Canada stated that "Sovereign equality remains a cornerstone of the international legal system. Its foundational principles - including non-intervention and respect for the territorial sovereignty of foreign states - cannot be regarded as anything less than firmly established rules of customary international law, as the International Court of Justice held when it recognized non-intervention as a customary principle in the Case concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America) ... As the International Court of Justice noted on that occasion, the status of these principles as international customs is supported by both state practice and opinio juris, the two necessary elements of customary international law. Every principle of customary international law is binding on all states unless superseded by another custom or by a rule set out in an international treaty. As a result, the principles of non-intervention and territorial sovereignty may be adopted into the common law of Canada in the absence of conflicting legislation. These principles must also be drawn upon in determining the scope of extraterritorial application of the Charter." - See paragraph 46.

International Law - Topic 2001

Sovereignty - General - [See first and third Conflict of Laws - Topic 8 and second Statutes - Topic 526 ].

International Law - Topic 2251

Sovereignty - Incidents of - Jurisdiction - General - The Supreme Court of Canada discussed international law principles of jurisdiction - The court stated that prescriptive jurisdiction (also called legislative or substantive jurisdiction) was the power to make rules, issue commands or grant authorizations that were binding upon persons and entities; enforcement jurisdiction was the power to use coercive means to ensure that rules were followed, commands were executed or entitlements were upheld; and adjudicative jurisdiction was the power of a state's courts to resolve disputes or interpret the law through decisions that carried binding force - The court stated that it was a well-established principle that a state could not act to enforce its laws within the territory of another state absent either the consent of the other state or, in exceptional cases, some other basis under international law - This principle of consent was central to assertions of extraterritorial enforcement jurisdiction - See paragraphs 57 to 65.

International Law - Topic 2255

Sovereignty - Incidents of - Jurisdiction - Extraterritorial jurisdiction - The Supreme Court of Canada discussed international law principles of jurisdiction - The court stated that it was a well-established principle that a state could not act to enforce its laws within the territory of another state absent either the consent of the other state or, in exceptional cases, some other basis under international law - This principle of consent was central to assertions of extraterritorial enforcement jurisdiction - See paragraphs 57 to 65.

International Law - Topic 2255

Sovereignty - Incidents of - Jurisdiction - Extraterritorial jurisdiction - [See sixth Civil Rights - Topic 8306 ].

Statutes - Topic 526

Interpretation - General principles - Consistency with comity of nations or international law - [See first and third Conflict of Laws - Topic 8 ].

Statutes - Topic 526

Interpretation - General principles - Consistency with comity of nations or international law - The Supreme Court of Canada stated that "It is a well-established principle of statutory interpretation that legislation will be presumed to conform to international law. The presumption of conformity is based on the rule of judicial policy that, as a matter of law, courts will strive to avoid constructions of domestic law pursuant to which the state would be in violation of its international obligations, unless the wording of the statute clearly compels that result. ... the presumption has two aspects. First, the legislature is presumed to act in compliance with Canada’s obligations as a signatory of international treaties and as a member of the international community. In deciding between possible interpretations, courts will avoid a construction that would place Canada in breach of those obligations. The second aspect is that the legislature is presumed to comply with the values and principles of customary and conventional international law. Those values and principles form part of the context in which statutes are enacted, and courts will therefore prefer a construction that reflects them. The presumption is rebuttable, however. Parliamentary sovereignty requires courts to give effect to a statute that demonstrates an unequivocal legislative intent to default on an international obligation. ... The presumption applies equally to customary international law and treaty obligations." - See paragraphs 53 and 54.

Cases Noticed:

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, consd. [paras. 16, 139, 183].

R. v. Terry (R.S.), [1996] 2 S.C.R. 207; 197 N.R. 105; 76 B.C.A.C. 25; 125 W.A.C. 25, consd. [paras. 16, 131, 183].

R. v. Cook (D.R.), [1998] 2 S.C.R. 597; 230 N.R. 83; 112 B.C.A.C. 1; 182 W.A.C. 1, dist. [paras. 16, 123, 181].

Trendtex Trading Corp. v. Central Bank of Nigeria, [1977] 1 Q.B. 529 (C.A.), refd to. [para. 36].

Ship North v. R. (1906), 37 S.C.R. 385, refd to. [para. 37].

Reference Re Exemption of United States Forces from Proceedings in Canadian Criminal Courts, [1943] S.C.R. 483, refd to. [para. 37].

Powers to Levy Rates on Foreign Legations and High Commissioners' Residences, Reference Re, [1943] S.C.R. 208, refd to. [para. 37].

St. John (City) v. Fraser-Brace Overseas Corp., [1958] S.C.R. 263, refd to. [para. 37].

Bouzari et al. v. Islamic Republic of Iran (2004), 220 O.A.C. 1; 71 O.R.(3d) 675 (C.A.), leave to appeal refused [2005] 1 S.C.R. vi; 337 N.R. 190, refd to. [para. 37].

Mack et al. v. Canada (Attorney General) (2002), 165 O.A.C. 17; 60 O.R.(3d) 737 (C.A.), leave to appeal refused, [2003] 1 S.C.R. xiii; 319 N.R. 196, refd to. [para. 37].

Congo (République démocratique) v. Venne, [1971] S.C.R. 997, refd to. [para. 38].

Newfoundland Reference Re Continental Shelf (1984), [1984] 1 S.C.R. 86; 51 N.R. 362, refd to. [para. 38].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 38].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 38].

Customs Régime between Germany and Austria, Re (1931), P.C.I.J. Ser. A/B, No. 41, refd to. [para. 41].

Island of Palmas Case - see Netherlands v. United States.

Netherlands v. United States (1928), 2 R.I.A.A. 829, refd to. [para. 45].

Nicaragua v. United States of America, [1986] I.C.J. Rep. 14, refd to. [para. 46].

Morguard Investments Ltd. et al. v. De Savoye, [1990] 3 S.C.R. 1077; 122 N.R. 81, refd to. [para. 47].

Ship Parlement Belge, Re (1880), 5 P.D. 197 (C.A.), refd to. [para. 47].

Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; 129 N.R. 81, refd to. [para. 48].

United States of America et al. v. Dynar, [1997] 2 S.C.R. 462; 213 N.R. 321; 101 O.A.C. 321, refd to. [paras. 48, 173].

R. v. Zingre, Wuest and Reiser, [1981] 2 S.C.R. 392; 38 N.R. 272; 10 Man.R.(2d) 62, refd to. [para. 49].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 49].

R. v. Libman, [1985] 2 S.C.R. 178; 62 N.R. 161; 12 O.A.C. 33, refd to. [paras. 49, 161].

Abbasi v. Secretary of State for Foreign and Commonwealth Affairs, [2002] E.W.C.A. Civ. 1598 (C.A.), refd to. [para. 51].

Daniels v. White, [1968] S.C.R. 517, refd to. [para. 54].

Ordon Estate v. Grail, [1998] 3 S.C.R. 437; 232 N.R. 201; 115 O.A.C. 1, refd to. [para. 54].

Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269; 164 O.A.C. 354; 2002 SCC 62, consd. [paras. 54].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 55].

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1, refd to. [para. 55].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 55].

United States of America v. Burns and Rafay, [2001] 1 S.C.R. 283; 265 N.R. 212; 148 B.C.A.C. 1; 243 W.A.C. 1; 2001 SCC 7, refd to. [paras. 55, 173].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 55].

Ship Lotus, Re, [1927] P.C.I.J. Ser. A. No. 9, refd to. [para. 60].

United States of America v. Cotroni; United States of America v. El Zein, [1989] 1 S.C.R. 1469; 96 N.R. 321; 23 Q.A.C. 182, refd to. [para. 99].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81, refd to. [para. 108].

R. v. Godoy (V.), [1999] 1 S.C.R. 311; 235 N.R. 134; 117 O.A.C. 127, refd to. [para. 165].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 165].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, refd to. [para. 165].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 14 C.C.C.(3d) 97, refd to. [para. 166].

R. v. Evans (C.R.) et al., [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81, refd to. [para. 166].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208; 121 C.C.C.(3d) 97, refd to. [para. 166].

R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161, refd to. [para. 170].

Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841; 225 N.R. 297, refd to. [paras. 73, 138, 183].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 32(1) [para. 32].

Authors and Works Noticed:

Akehurst, Michael, Jurisdiction in International Law (1972-1973), 46 Brit. Y.B. Int'l L. 145, p. 215 [para. 50].

Bentley, Eric, Toward an International Fourth Amendment: Rethinking Searches and Seizures Abroad After Verdugo-Urquidez (1994), 27 Vand. J. Transnat'l L. 329, pp. 365 to 368 [para. 146]; 400 to 402 [para. 147].

Brownlie, Ian, Principles of Public International Law (6th Ed. 2003), pp. 41 [para. 36]; 297 [para. 58]; 299 [para. 59]; 303 [para. 61]; 306 [paras. 65, 145].

Canada, Royal Canadian Mounted Police, International Peacekeeping Branch Review, 2004-2005 (2006) (online: www.rcmp. grc.gc.ca/peace_operations/review2004-2005_e.pdf), generally [para. 184].

Canada, Royal Canadian Mounted Police, RCMP Fact Sheets, International Operations Branch (2005) (online: www.rcmp-grc.gc.ca/factsheets/fact_job_e.htm), generally [para. 184].

Cassese, Antonio, International Law (2nd Ed. 2005), pp. 48 [para. 40]; 49 [paras. 57, 58]; 52 [para. 44]; 59 [para. 43].

Côté, Pierre-André, Interpretation of Legislation in Canada (3rd Ed. 2000), pp. 367, 368 [para. 53].

Coughlan, Steve, et al., Global Research, Local Grasp: Constructing Extraterritorial Jurisdiction in the Age of Globalization (2007), 6 C.J.L.T. 29, pp. 31 [para. 62]; 32 [paras. 58, 145]; 57, fn. 58 [para. 151].

Currie, Robert J., Charter Without Borders? The Supreme Court of Canada Transnational Crime and Constitutional Rights and Freedoms (2004), 27 Dal. L.J. 235, p. 242 [para. 151].

Harvie, Robert A., and Foster, Hamar, Let the Yanks Do It? The Charter, The Criminal Law and Evidence on a Silver Platter (2001), 59 Advocate 71, pp. 74 [para. 154]; 75 [paras. 143, 149]; 76 [paras. 143, 149, 151].

Hogg, Peter W., Constitutional Law of Canada (1997 Looseleaf Ed.) (2006 Update, Release 1), vol. 2, pp. 34-13 to 34-15, 34-16 to 34-18 [para. 103].

Kindred, Hugh M., and Saunders, Phillip M., International Law Chiefly as Interpreted and Applied in Canada (7th Ed. 2006), p. 836 [para. 43].

Kittichaisaree, Kriangsak, International Criminal Law (2001), pp. 6, 56 [para. 43].

Macdonald, R. St.J., and Johnston, D.M., The Structures and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory (1983), pp. 436 [para. 42]; 454 [para. 44].

Mann, F.A., The Doctrine of International Jurisdiction Revisited After Twenty Years, in Reisman, W.M., Jurisdiction in International Law (1999), p. 154 [para. 64].

Oppenheim's International Law (9th Ed. 1996), vol. 1, pp. 50, 51 [para. 47]; 125 [para. 43]; 463 [para. 65].

Pechota, Vratislav, Equality: Political Justice in an Unequal World, in Macdonald, R. St.J., and Johnston, D.M., The Structures and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory (1983), p. 454 [para. 44].

Reisman, W.M., Jurisdiction in International Law (1999), p. 154 [para. 64].

Reydams, L., Universal Jurisdiction: International and Municipal Legal Perspectives (2003), p. 5 [para. 61].

Shakespeare, William, Hamlet, Act 1, Scene 5, lines 166, 167 [para. 184].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), p. 422 [para. 53].

Wildhaber, Luzius, Sovereignty and International Law, in Macdonald, R. St.J., and Johnston, D.M., The Structures and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory (1983), p. 436 [para. 42].

Counsel:

Alan D. Gold and Vanessa Arsenault, for the appellant;

John North and Robert W. Hubbard, for the respondent;

Michal Fairburn, for the intervenor.

Solicitors of Record:

Gold & Associate, Toronto, Ontario, for the appellant;

Attorney General of Canada, Toronto, Ontario, for the respondent;

Attorney General of Ontario, Toronto, Ontario, for the intervenor.

This appeal was heard on October 12, 2006, by McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada, who delivered the following opinions, in both official languages, on June 7, 2007:

LeBel, J. (McLachlin, C.J.C., Deschamps, Fish and Charron, JJ., concurring) - see paragraphs 1 to 122;

Bastarache, J. (Abella and Rothstein, JJ., concurring) - see paragraphs 123 to 180;

Binnie, J. - see paragraphs 181 to 192.

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388 practice notes
  • B010 v Canada (Citizenship and Immigration),
    • Canada
    • Supreme Court (Canada)
    • November 27, 2015
    ...Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; Zingre v. The Queen, [1981] 2 S.C.R. 392; ......
  • Kreishan c. Canada (Citoyenneté et Immigration),
    • Canada
    • Court of Appeal (Canada)
    • August 19, 2019
    ...of Citizenship and Immigration), 2002 FCA 89, [2002] 3 F.C. 537, leave to appeal to S.C.C. refused, [2002] 4 S.C.R. vii; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193; Schreiber v. Canada (A......
  • Vavilov c. Canada (Citoyenneté et Immigration),
    • Canada
    • Court of Appeal (Canada)
    • June 21, 2017
    ...[1998] 1 S.C.R. 27, (1998) 154 D.L.R. (4th) 193; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, (1990), 74 D.L.R. (4th) 449; Brossard (T......
  • R. v. Kanji (S.N.), (2008) 451 A.R. 365 (PC)
    • Canada
    • Provincial Court of Alberta (Canada)
    • July 24, 2008
    ...[para. 61]. R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1, refd to. [para. 61]. R. v. Hape (L.R.) (2007), 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, refd to. [para. R. v. Clayton (W.) et al. (2007), 364 N.R. 199; 227 O.A.C. 314; 2007 SCC 32, refd to. [par......
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228 cases
  • Kreishan c. Canada (Citoyenneté et Immigration),
    • Canada
    • Court of Appeal (Canada)
    • August 19, 2019
    ...of Citizenship and Immigration), 2002 FCA 89, [2002] 3 F.C. 537, leave to appeal to S.C.C. refused, [2002] 4 S.C.R. vii; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193; Schreiber v. Canada (A......
  • Vavilov c. Canada (Citoyenneté et Immigration),
    • Canada
    • Court of Appeal (Canada)
    • June 21, 2017
    ...[1998] 1 S.C.R. 27, (1998) 154 D.L.R. (4th) 193; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, (1990), 74 D.L.R. (4th) 449; Brossard (T......
  • R. v. Kanji (S.N.), (2008) 451 A.R. 365 (PC)
    • Canada
    • Provincial Court of Alberta (Canada)
    • July 24, 2008
    ...[para. 61]. R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1, refd to. [para. 61]. R. v. Hape (L.R.) (2007), 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, refd to. [para. R. v. Clayton (W.) et al. (2007), 364 N.R. 199; 227 O.A.C. 314; 2007 SCC 32, refd to. [par......
  • France (Republic) v. Diab, 2014 ONCA 374
    • Canada
    • Ontario Court of Appeal (Ontario)
    • May 15, 2014
    ...Growers' Association et al. v. Canadian Import Tribunal, [1990] 2 S.C.R. 1324; 114 N.R. 81, refd to. [para. 186]. R. v. Hape (L.R.), [2007] 2 S.C.R. 292; 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, refd to. [para. 186]. United States of America v. Anekwu, [2009] 3 S.C.R. 3; 393 N.R. 77; 275 B.......
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10 firm's commentaries
  • COURT OF APPEAL SUMMARIES (DECEMBER 25- December 29)
    • Canada
    • LexBlog Canada
    • December 30, 2023
    ...Safety and Emergency Preparedness), 2013 SCC 36, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, R. v. Hape, 2007 SCC 26, R. v. Appulonappa, 2015 SCC 59, Laporte v. United Steelworkers, Local 1998, 2019 ONSC 3705 (Div. Ct.), Payne v. Peel (Regional Municipality) Po......
  • Tort Liability At Home For Alleged Wrongs Abroad: The Common Law Goes Extraterritorial?
    • Canada
    • Mondaq Canada
    • December 2, 2014
    ...with jurisdiction rather than the merits of the claims, the claims are analyzed from the private international law perspective. 8 [2007] 2 SCR 292. 9 Parliament has recently enacted a limited analogue to the ATS, the Justice for Victims of Terrorism Act (S.C. 2012, c. 1, s. 2; in force on a......
  • Canadian Case Law Trending To Compel Production Of Data By Foreign Corporations To Canadian Law Enforcement
    • Canada
    • Mondaq Canada
    • May 18, 2023
    ...or control matters.9 International law and a "real and substantial connection": The Supreme Court of Canada decision of R v Hape, 2007 SCC 26 customary international law, and international comity all support the conclusion that a general production order could issue to compel a foreign corp......
  • A Primer On Diplomatic Immunity In Commercial Dealings
    • Canada
    • Mondaq Canada
    • September 11, 2018
    ...Vienna Convention on Consular Relations, which is outside the scope of this paper but which provides for consular immunity. R. v. Hape, 2007 SCC 26 at paras. 39, S.C. 1991, c. 41. Canadian Planning v. Libya, [2015] O.J. No. 3457 (S.C.J.). Construction Excedra Inc. v. Saudi Arabia, [2017] O.......
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148 books & journal articles
  • Table of Cases
    • Canada
    • Irwin Books Public International Law. Second Edition
    • June 16, 2008
    ...S.C.J. No. 23, 49 D.L.R. (4th) 161, 84 N.R. 1 ............................................... 245 R. v. Hape (2007), 280 D.L.R. (4th) 385, 363 N.R. 1, 2007 SCC 26 ........... 231, 353 R. v. Keegstra, [1990] 3 S.C.R. 697, 117 N.R. 1, [1990] S.C.J. No. 131 ............... 260 R. v. Keyn (The ......
  • Endnotes
    • Canada
    • Irwin Books False Security. The Radicalization of Canadian Anti-Terrorism
    • June 21, 2015
    ...of Extraterritorial Intelligence Collection” (24 June 2015), online: ssrn.com/abstract=2622606. 50 See, for example, R v Hape , 2007 SCC 26 at paras 53 and 68 [ Hape ]. 51 Ibid . 52 National Defence Act , RSC 1985, c N-5, s 273.64 [ NDA ]. 53 RCMP, “Questions and Answers: Bill C-51, Q32” (m......
  • International Criminal Cooperation
    • Canada
    • Irwin Books International & Transnational Criminal Law. Third Edition
    • June 25, 2020
    ...on Mutual Assistance in Criminal Matters,” online: UNODC www.unodc.org/pdf/model_treaty_extradition_revised_manual. pdf . 199 R v Hape , [2007] 2 SCR 292 at paras 64–65. INTERNATIONAL AND TR ANSNATIONAL CRIMINAL LAW 572 maximum assistance possible to its treaty partner — though typically th......
  • International law and human rights: the power and the pity.
    • Canada
    • McGill Law Journal Vol. 55 No. 4, November 2010
    • November 1, 2010
    ...(Canada (Justice) v. Khadr, 2008 SCC 28, [2008] 2 S.C.R. 125, 293 D.L.R. (4th) 629); extraterritorial search and seizure (R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, 280 D.L.R. (4th) 385 [Hape]); extraterritorial reach of domestic laws 'Society of Composers, Authors and Music Publishers o......
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