Corporal C.R. McGregor Appellant v. His Majesty The King, 2023 SCC 4

SUPREME COURT OF CANADA Citation: R. v. McGregor, 2023 SCC 4 Appeal Heard: May 19, 2022 Judgment Rendered: February 17, 2023 Docket: 39543 Between: Corporal C.R. McGregor Appellant and His Majesty The King Respondent - and - Attorney General of Ontario, Canadian Constitution Foundation, British Columbia Civil Liberties Association, Canadian Civil Liberties Association and David Asper Centre for Constitutional Rights Interveners Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, * Rowe, Martin, Kasirer and Jamal JJ.

Reasons for Judgment: (paras. 1 to 45) Côté J. (Wagner C.J. and Moldaver, Kasirer and Jamal JJ. concurring) Joint Concurring Reasons: (paras. 46 to 95) Karakatsanis and Martin JJ. Concurring Reasons: (paras. 96 to 115) Rowe J. Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports .

* Brown J. did not participate in the final disposition of the judgment. Corporal C.R. McGregor Appellant v. His Majesty The King Respondent and Attorney General of Ontario, Canadian Constitution Foundation, British Columbia Civil Liberties Association, Canadian Civil Liberties Association and David Asper Centre for Constitutional Rights Interveners Indexed as: R. v. McGregor 2023 SCC 4 File No.: 39543. 2022: May 19; 2023: February 17.

Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown * , Rowe, Martin, Kasirer and Jamal JJ. on appeal from the court martial appeal court of canada Constitutional law — Charter of Rights — Search and seizure — Canadian military investigators investigating criminal activity by member of Canadian Armed Forces posted abroad — Foreign police force assisting military investigators by obtaining warrant from local magistrate authorizing search of member’s residence abroad and electronic devices found therein — Military investigators and foreign police executing warrant and searching member’s electronic devices — Military judge ruling that evidence obtained during search admissible at trial and member convicted of several offences — Whether search infringed member’s right to be free from unreasonable search and seizure — Canadian Charter of Rights and Freedoms, s. 8 .

M was a member of the Canadian Armed Forces (“CAF”) posted to the Canadian Embassy in Washington, D.C. and residing in Alexandria, Virginia. By virtue of his position, he held diplomatic immunity. Following the discovery by another member of the CAF posted in Washington of two audio recording devices in her residence, the Canadian Forces National Investigation Service (“CFNIS”) investigated the matter and concluded that there were reasonable grounds to believe M had committed the offences of voyeurism and possession of a device for surreptitious interception of private communications.

CFNIS sought the assistance of the Alexandria police for the purpose of obtaining a warrant under Virginia law. The Canadian Embassy waived M’s immunity with respect to his residence and property and the Alexandria police obtained a warrant to search his residence and objects found therein, including electronic devices, and to analyze the seized items. When CFNIS and Alexandria police executed the search warrant, forensic investigators scanned the contents of some electronic devices found in M’s residence to determine which items to seize.

They discovered evidence relating to unforeseen offences, including a sexual assault. The investigators seized the devices, removed them to Canada, and obtained Canadian warrants from the Court Martial for further analysis of their contents. M was arrested. He brought a motion in the Court Martial, arguing that the search and seizure of his electronic devices contravened s. 8 of the Charter , and seeking exclusion of the evidence.

The military judge dismissed the motion, holding that the Charter did not apply extraterritorially, and that, in any event, the search and seizure were consistent with Charter standards. He subsequently convicted M of voyeurism, possession of a device for surreptitious interception of private communications, sexual assault, and disgraceful conduct. The Court Martial Appeal Court affirmed the military judge’s decision. It agreed that the Charter did not apply, and held that the evidence did not affect trial fairness at common law.

It further concluded that even if the Charter applied, the search did not infringe M’s s. 8 rights.

Held : The appeal should be dismissed. Per Wagner C.J. and Moldaver, Côté , Kasirer and Jamal JJ.: CFNIS did not infringe M’s rights under s. 8 of the Charter . There is no need to consider the extraterritorial applicability of the Charter . A search is reasonable within the meaning of s. 8 of the Charter if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable. Digital searches involve unique and heightened privacy interests in personal data.

A presumptive requirement of specific, prior authorization applies to digital searches of electronic devices that store personal data. In the instant case, authorization to gain entry into and search M’s residence and property could be granted only by a local magistrate under t he law of Virginia. CFNIS communicated with local authorities and availed itself of the only legal mechanism open to it: it first obtained a waiver of the inviolability of M’s private residence and property from the Canadian Embassy, and the Alexandria police then obtained a search warrant from a local magistrate.

The Virginia warrant meets the requirement for specific, prior authorization for digital searches, and it expressly authorized the search and analysis of the electronic devices found in M’s residence. There were grounds to search the electronic devices as they could reasonably be expected to contain evidence of the voyeurism offence. The search of M’s devices was authorized by law. Furthermore, the search was reasonable pursuant to Charter standards. It was not more intrusive than necessary.

The warrant did not encompass the investigation of sexual assault offences, but the unforeseen evidence was discovered in the process of triaging electronic devices at the scene, as was expressly authorized by the warrant. Seizing the incriminating devices and obtaining Canadian warrants before further analyzing their contents was consistent with s. 8 of the Charter . The plain view doctrine applies to the files disclosing evidence of sexual assault.

This doctrine requires that the police officers must have a legitimate prior justification for intrusion into the place where the seizure occurred and that the evidence must be in plain view in that it is immediately obvious and discovered inadvertently. Both requirements are satisfied in the present case. The investigators had a legitimate justification for their inspection of the files containing evidence of sexual assault. The files were discovered while looking for the types of files specifically sought and authorized.

In addition, the files were in plain view, given their inadvertent discovery and immediately apparent unlawfulness. Devices containing these files were set aside for seizure and further analysis back in Canada and there was no need to closely examine the files to ascertain their incriminating nature. The application of the plain view doctrine is necessary because the police had no other basis to justify seizing the sexual assault evidence. The scope of application of the Charter is delineated in s. 32(1) . The Court’s decision in R. v.

Hape , 2007 SCC 26 , [2007] 2 S.C.R. 292, is the governing authority on the territorial reach and limits of the Charter under s. 32(1) . The interveners invited the Court to decide whether Hape should be reaffirmed, modified, or overruled, and drew on academic criticism of the Hape framework . This is not an appropriate case in which to reconsider the extraterritorial application of the Charter . First, the parties simply debate Hape ’s application to the facts at hand. The Court should not overrule a precedent without having been asked to do so by a party.

Second, reconsidering Hape would make no difference to the outcome of the appeal. Third, academic criticism is not a sufficient reason not to apply the principles of stare decisis . Therefore, it is preferable to leave for another day any reconsideration of the Hape framework. Per Karakatsanis and Martin JJ.: There is agreement that the appeal should be dismissed. CFNIS did not infringe s. 8 of the Charter and the evidence is admissible.

The extraterritorial application of the Charter is squarely before the Court and it is an issue that arises infrequently, may easily escape judicial review, and has been subject to significant and sustained criticism by experts in international law. It was clearly the primary and threshold issue argued by the parties and multiple interveners, it was the reason leave to appeal was sought, and the Court received full submissions on both constitutional and international law.

Accordingly, it is appropriate to comment on the central question at issue: whether the Charter applies, pursuant to s. 32 , to Canadian authorities’ investigative actions abroad in M’s circumstances. A purposive reading of s. 32(1) of the Charter supports the conclusion that the Charter applies extraterritorially to the conduct of CFNIS officials while fulfilling their investigative duties in a foreign state and that a Canadian court may assess that conduct for Charter compliance. It is well-established that the

interpretation of the Charter should be purposive, generous, and aimed at securing for individuals the full benefit of the Charter ’s protections. The Charter ’s text and purpose support extraterritorial application. Nothing in s. 32 imposes or suggests any territorial limitation. It expressly limits to whom and to what the Charter applies but not where the Charter applies. Limiting the Charter ’s scope to all matters within the authority of Parliament and the legislatures does not implicitly impose a territorial limit.

Those words merely reference the division of powers in ss. 91 and 92 of the Constitution Act, 1867 . Section 32(1) ’s silence as to the Charter ’s territorial boundaries was a deliberate choice which must be respected. If s. 32(1) were meant to distinguish between acts of state actors on Canadian soil or abroad, such a distinction could have easily been drawn expressly, as was done elsewhere in the Charter .

The purpose of s. 32 was to constrain government action and to permit state action abroad that is not constrained by the Constitution would be inconsistent with Canada’s constitutional structure, which is premised on preventing arbitrary state conduct. The majority in Hape likewise concluded that s. 32 contained no express territorial limit, but, looking to prohibitive rules of customary international law, concluded that the Charter generally could not be applied to the actions of Canadian officials conducted as part of an investigation occurring abroad.

This aspect of Hape has been the subject of significant and sustained criticism by experts in international law. Three main flaws in Hape have been identified:

(1) Hape applied improper interpretive principles, including jurisdictional principles of international law and a principle of statutory

interpretation, to its

interpretation of s. 32(1);

(2) Hape mischaracterized the extraterritorial application of the Charter as an unlawful exercise of enforcement jurisdiction; and

(3) Hape ’s three exceptions are inadequate. These are significant concerns. They go to the core of the Court’s jurisprudence on the extraterritorial application of the Charter , to the practical implications of its application, and to the ensuing lack of consistency and predictability of this area of the law. Though the decision in Hape remains important in many respects, these concerns leave Hape ’s framework for the extraterritorial application of the Charter ripe for reconsideration. However, given the majority’s decision not to address it, the determination of whether Hape was wrongly decided should be left to another day.

The Court’s rules and guidance to the profession place certain limits upon what interveners may argue but those limits werenot exceeded in this case. Moreover, any limitation on the role of interveners in no way limits the jurisdiction of the Court to decideissues in a manner other than that proposed by the parties. The role of the Court, as an apex court, is oriented to the development of thejurisprudence by dealing with questions of public importance, and much of the Court’s work necessarily goes beyond what is essentialfor the disposition of the particular case.

While interveners must not introduce new issues, the role of interveners is to provide their ownview of the legal issues by providing useful and different submissions, thus bringing broader perspectives before the Court to help theCourt fulfill its institutional role. Several interveners in this case did precisely that when they asked the Court to revisit Hape: theyproposed a different view of the core legal issue of whether the Charter applied to the conduct of the CFNIS officers.

Assuming that, pursuant to s. 32(1), the Charter applied to the conduct of the officers during their investigation, M’s s. 8rights were not infringed. A search is reasonable if it is authorized by law, if the law is reasonable, and if the search is conductedreasonably; in addition, specific prior authorization is required to search computers. Those requirements are met in the instant case. Thewarrant issued by a Virginia magistrate specifically authorized the search of computers and electronic devices and M’s diplomaticimmunity was waived.

The law that authorized the search was reasonable in light of Charter standards and the search was conductedreasonably, as the warrant expressly authorized the process of triaging the electronic devices at the scene. Applying the plain view doctrine is not necessary in the present case. This doctrine permits seizure without a warrant but Mdid not dispute seizure; rather, he argued that the search breached s. 8. The investigators did not intentionally search for files beyond thescope of what the warrant authorized.

When they discovered that the devices contained evidence of other offences, they set those devicesaside for seizure and further analysis after obtaining a Canadian warrant and they continued their search for evidence of voyeurism, aspermitted by the warrant. Discovering evidence of an unrelated offence did not require them to entirely cease their search as to what thewarrant authorized them to search for.

The Court need not and should not decide in this case the complex question of when a particularfile on a device is seized, as opposed to when the device itself is seized; neither M nor any of the interveners made any submissions onthis issue. Moreover, the assumption that the sexual assault files were seized when they were initially seen by police is highlyquestionable.

For the purposes of the instant case, it is sufficient that the initial triage and seizure of the laptop containing the sexualassault evidence was justified by the Virginia warrant and the subsequent search and seizure of its files was justified by the Canadianwarrant. The investigators’ conduct did not exceed the bounds of prior judicial authorization and the plain view doctrine need not berelied upon. Per Rowe J.: There is agreement with the entirety of Côté J.’s analysis.

There is disagreement, however, with Karakatsanisand Martin JJ.’s approach to Hape, which goes beyond the issues raised by the parties and seeks, effectively, to overturn Hape at theinvitation of interveners. The parties disputed whether the Charter applies in the instant case, assuming the application of Hape asprecedent. No party challenged Hape. Rather, they sought to apply it, and its exceptions, to the facts of their dispute. Both lower courtstreated this case as an unremarkable application of the Hape framework.

The issue of whether Hape should continue to govern was notbefore the lower courts, nor is it before the Court. The purpose of an intervention is to present the Court with submissions which are useful and different based on theintervener’s experience and expertise. Interveners provide additional perspectives on the legal issues raised by the parties and on thebroader implications of the Court’s decision. Interveners can often make important contributions. In order to do so, interveners mustoperate within recognized limits.

These constraints reflect a sound understanding of the interveners’ place within the litigation and of therole of the Court. The parties control their case and decide which issues to raise. Interveners should not take a position on the outcome ofthe appeal; they must not raise new issues or widen or add to the points in issue; and they must not adduce further evidence or otherwisesupplement the record without leave. Interveners who stray beyond their proper role cause prejudice to the parties by usurping control of the litigation.

Thepotential for inaccuracy increases where interveners invite the Court to reason in the abstract without the benefit of lower court decisionsor a full evidentiary record. Improper interventions undermine the leave to appeal process, which is based on careful consideration of theexisting record and the issues raised by the parties. Finally, when interveners expand the issues, would-be interveners who decided not tointervene are deprived of the opportunity to present their perspectives to the Court. Raising the new issue of whether Hape should continue to govern is an improper intervention.

It undercuts the parties’control of their litigation and runs contrary to their submissions. It undermines the leave to appeal process and excludes would-beinterveners. It invites the Court to reason in the abstract. Whether Hape should continue to govern is not before the Court and to revisitHape as precedent in this case exacerbates the harms created by improper interventions and undermines the limits that preclude theintroduction of new issues. Cases Cited By Côté J. Referred to: R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; Canada (Justice) v.

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West, Leah. “Canada Stands Alone: A Comparative Analysis of the Extraterritorial Reach of State Human Rights Obligations” ( U.B.C. L. Rev. , forthcoming). West, Leah. “‘Within or Outside Canada’: The Charter’s Application to the Extraterritorial Activities of the Canadian Security Intelligence Service” (2023), 73 U.T.L.J. 1. APPEAL from a judgment of the Court Martial Appeal Court of Canada (Bell C.J. and Rennie and Pardu JJ.A.), 2020 CMAC 8 , 8 C.M.A.R. 481, [2020] C.M.A.J. No. 8 (QL), 2020 CarswellNat 5694 (WL), affirming a decision of Pelletier M.J., 2019 CM 4015 , 2019 CarswellNat 9931 (WL). Appeal dismissed.

Diana Mansour and Mark Létourneau , for the appellant. Patrice Germain , Natasha A. Thiessen and Chavi Walsh , for the respondent. Gavin MacDonald and Stephanie A. Lewis , for the intervener the Attorney General of Ontario. Jesse Hartery and Akshay Aurora , for the intervener the Canadian Constitution Foundation. Gib van Ert and Dahlia Shuhaibar , for the intervener the British Columbia Civil Liberties Association. Leah West and Solomon Friedman , for the intervener the Canadian Civil Liberties Association. Gerald Chan and Alexandra Heine , for the intervener the David Asper Centre for Constitutional Rights.

The judgment of Wagner C.J. and Moldaver, Côté, Kasirer and Jamal JJ. was delivered by Côté J. — I. Overview [ 1 ] This appeal arises from a criminal investigation conducted by the Canadian Forces National Investigation Service (“CFNIS”) in the Commonwealth of Virginia in the United States. The subject of the investigation, Cpl. McGregor, argues that the search and seizure of his electronic devices contravened s. 8 of the Canadian Charter of Rights and Freedoms , and he seeks to exclude the evidence obtained from them. [ 2 ] In the Court Martial, Cpl.

McGregor brought a motion to exclude the impugned evidence under s. 24(2) of the Charter . He was unsuccessful. The military judge convicted him on counts of voyeurism, possession of a device for surreptitious interception of private communications, sexual assault, and disgraceful conduct. That decision was affirmed by the Court Martial Appeal Court. [ 3 ] In this appeal, the Court is invited to examine the extraterritorial application of the Charter pursuant to s. 32(1) of the Charter . Both parties rely on this Court’s decision in R. v.

Hape , 2007 SCC 26 , [2007] 2 S.C.R. 292, which is the governing authority on the territorial reach and limits of the Charter . Cpl. McGregor takes the position that the Charter applied to the actions of the CFNIS, whereas the Crown argues that Hape dictates the opposite outcome. For their part, the interveners have focused their submissions on whether the Hape framework should be reaffirmed, modified, or overruled. [ 4 ] In the final analysis, I find it unnecessary to deal with the issue of extraterritoriality to dispose of this appeal. This is so because the CFNIS did not violate the Charter .

Working within the constraints of its authority in Virginia, the CFNIS sought the cooperation of local authorities to obtain and execute a warrant under Virginia law. The warrant which issued authorized the search, seizure, and analysis of Cpl. McGregor’s electronic devices expressly. The evidence of sexual assault was discovered inadvertently by the investigators in the process of triaging the devices at the scene of the search; its incriminating nature was immediately apparent.

Although the warrant did not contemplate such evidence, the digital files in issue fell squarely within the purview of the plain view doctrine. Furthermore, the CFNIS obtained Canadian warrants before conducting an in-depth analysis of these devices. It is difficult to see how the CFNIS investigators could have acted differently to attain their legitimate investigative objectives. I conclude that they did not infringe Cpl. McGregor’s rights under s. 8 of the Charter . [ 5 ] This is not the right case for any reconsideration of the Hape framework.

In light of my conclusion that the actions of the CFNIS conformed to the Charter , reconsidering Hape would make no difference to the outcome of this appeal. Furthermore, the parties have not asked this Court to reconsider Hape , but rather, as noted above, have based their submissions on how it should apply to the facts of this case. Therefore, I do not decide below whether the Charter applies in this case; instead, I show that even if it were to apply, I would still dismiss the appeal. II. Background [ 6 ] Between August 2015 and March 2017, Cpl.

McGregor was a non-commissioned member of the regular Canadian Armed Forces posted to the Canadian Defence Liaison Staff at the Canadian Embassy in Washington, D.C. By virtue of his position in the United States, Cpl. McGregor held diplomatic agent status with immunity in respect of his person, property, and residence pursuant to the Vienna Convention on Diplomatic Relations , Can. T.S. 1966 No. 29. [ 7 ] In 2017, another member of the Canadian Armed Forces posted in Washington, D.C., discovered two audio recording devices in her residence. She believed that Cpl.

McGregor had placed them there, and she reported the discovery to her chain of command. Upon investigating the matter, the CFNIS concluded that there were reasonable grounds to believe Cpl. McGregor had committed the offences of voyeurism and possession of a device for surreptitious interception of private communications.

[ 8 ] The Commanding Officer could not issue a warrant under s. 273.3 of the National Defence Act , R.S.C. 1985, c. N-5 , to authorize the search of Cpl. McGregor’s residence, as it was not located on the property of the Canadian Armed Forces. M.CPl. Patridge, the lead CFNIS investigator, sought the assistance of the Alexandria Police Department for the purpose of obtaining a warrant under Virginia law authorizing the search of Cpl. McGregor’s residence in Alexandria. [ 9 ] The Alexandria Police Department advised the CFNIS that it could not apply for a warrant due to Cpl.

McGregor’s diplomatic immunity under the Vienna Convention . This led to the issuance of a diplomatic note to the American Department of State, in which the Canadian Embassy acknowledged that the “CFNIS is cooperating with local authorities in Virginia and would like to seek a search warrant to enter Corporal McGregor’s staff quarters in the company of local police to obtain evidence for the purposes of their investigation” (A.R., vol. I, at p. 128). In the note, the Embassy waived Cpl. McGregor’s immunity with respect to his “private residence, as well as his papers, correspondence and property”, pursuant to

Article 30 of the Vienna Convention , but it expressly retained his “personal inviolability and immunity from arrest or detention” (p. 128). [ 10 ] With the waiver of diplomatic immunity in hand, the Alexandria Police Department obtained a warrant from a local magistrate under the law of Virginia. The warrant authorized the search of Cpl. McGregor’s residence in Alexandria as well as objects found therein — including electronic devices. The warrant further authorized the analysis of seized items. [ 11 ] On February 16, 2017, three CFNIS members and the Alexandria Police Department executed the search warrant.

The Alexandria Police Department breached the door, secured the premises, and invited the CFNIS officers to conduct the search. The latter took control of the search. Two forensic investigators, one from the CFNIS and one from the Alexandria Police Department, triaged most of the electronic devices found in the residence, scanning their contents to determine which items to seize. [ 12 ] In the triage process, the investigators discovered evidence relating to unforeseen offences — namely sexual assault and what they believed to be child pornography. [1] CFNIS’s forensic investigator, Lieut.

Rioux, saw a video file depicting Cpl. McGregor filming himself while sexually touching a woman who appeared to be lying unconscious on a floor. [ 13 ] The investigators did not triage all of Cpl. McGregor’s devices in executing the search due to the time constraints set out in the warrant. The Alexandria Police Department seized the devices containing incriminating evidence as well as those that were not triaged at the scene. The items seized at Cpl.

McGregor’s residence included three fake smoke alarm cameras, two remote controls for these cameras, two personal audio recorders, an oval camera alarm clock, a small square camera alarm clock with a remote, laptops, storage devices, and compact discs. [ 14 ] The Alexandria Police Department made a return before the Virginia magistrate to account for the seized devices, although the CFNIS had them in its custody at all times. Following these events, the CFNIS removed the devices to Canada and obtained Canadian warrants from the Court Martial for further analysis of their contents.

A CFNIS investigator arrested Cpl. McGregor in Washington, D.C., and informed him of his right to counsel under s. 10(

b) of the Charter . III. Judicial History [ 15 ] At first instance, the military judge held that the Charter did not apply extraterritorially. He concluded that the search and seizure were in any event consistent with Charter standards, and he noted that the evidence of sexual assault fell within the plain view doctrine. The military judge therefore admitted the evidence relating to the offence of sexual assault ( 2018 CM 4023 ). He subsequently convicted Cpl.

McGregor of two counts of voyeurism, one count of possession of a device for surreptitious interception of private communications, one count of sexual assault, and one count of disgraceful conduct ( 2019 CM 4015 ). [ 16 ] In a unanimous opinion, the Court Martial Appeal Court affirmed the military judge’s decision. It agreed with his conclusion that the Charter did not apply, and it held that the evidence did not affect trial fairness at common law. Furthermore, the Court Martial Appeal Court concluded that even if the Charter applied, the result would be the same because the search did not infringe Cpl.

McGregor’s s. 8 rights ( 2020 CMAC 8 , 8 C.M.A.R. 481). IV. Issues [ 17 ] This appeal raises two main issues: (

i) Did the Charter apply extraterritorially to the CFNIS investigators in the search of Cpl. McGregor’s residence in Alexandria, Virginia? (ii) Did the CFNIS investigators infringe Cpl. McGregor’s Charter rights and, if so, should the resulting evidence be excluded? V. Analysis A. Extraterritorial Application of the Charter [ 18 ] The starting point of the analysis is the text of the Constitution. The scope of application of the Charter is delineated in s. 32(1): 32

(1) 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 of each province. This Court’s decision in Hape is the governing authority on the territorial reach and limits of the Charter under s. 32(1). Under the Hapeframework, the Charter generally cannot apply to Canadian authorities involved in an investigation conducted abroad. This general ruleis qualified by two exceptions: (1) consent by the foreign state to the application of Canadian law (para. 106); and

(2) Canadianparticipation in a process that violates Canada’s international law obligations (paras. 51-52 and 101; see also Canada (Justice) v. Khadr,2008 SCC 28, [2008] 2 S.C.R. 125, at paras. 18-19). [19] Unlike ordinary Canadian citizens, members of the Canadian Armed Forces bear the burden of the extraterritorialapplication of Canadian criminal law (National Defence Act, ss. 67 and 163.5). Moreover, the Agreement between the Parties to theNorth Atlantic Treaty regarding the Status of their Forces, Can.

T.S. 1953 No. 13 — to which Canada and the United States aresignatories — governs the legal status under international law of military forces deployed for official purposes. The Agreement providesthat the sending state can exercise criminal and disciplinary jurisdiction over its military forces. However, the Agreement does not conferjurisdiction on the sending state to execute searches of residences located outside of military camps or establishments. [20] Cpl. McGregor contends that the Charter applied extraterritorially to the search and seizure of his electronic devicesby Canadian military authorities.

He emphasizes that he was a member of the Canadian Armed Forces required to be on foreign soil andthat he was the target of a Canadian-led investigation pursuant to the National Defence Act and the Criminal Code, R.S.C. 1985, c. C-46.In Cpl. McGregor’s view, when the National Defence Act applies extraterritorially, so too should the Charter as a matter of principle. Tobe clear, at the hearing before our Court, Cpl.

McGregor confirmed that he is asking the Court to apply the Charter only to the actions ofthe Canadian authorities in executing the search. [21] As a preliminary matter, the parties agree that the issue of extraterritoriality should be resolved on the basis of theexisting jurisprudence on s. 32(1) of the Charter. The interveners, however, invite our Court to decide whether Hape should bereaffirmed, modified, or overruled.

Many of their submissions draw on an extensive body of academic criticism in which the Hape framework is challenged on various constitutional and international law grounds.[2] [22] To be sure, this Court has taken notice of scholarly writings in reconsidering the soundness of its own precedents (seeCanada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 39 and 209; Nishi v. RascalTrucking Ltd., 2013 SCC 33, [2013] 2 S.C.R. 438, at para. 28; Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489, at para. 29; Ontario(Attorney General) v.

Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, at paras. 86-88, 146-48 and 235-46; R. v. Robinson, (SCC), [1996] 1 S.C.R. 683, at para. 39; Tolofson v. Jensen, (SCC), [1994] 3 S.C.R. 1022, at p. 1042; R. v. B. (K.G.), (SCC), [1993] 1 S.C.R. 740, at pp. 765-71; London Drugs Ltd. v. Kuehne & Nagel International Ltd., (SCC), [1992] 3 S.C.R. 299, at pp. 421-23; R. v. Bernard, (SCC), [1988] 2 S.C.R. 833, at pp. 865-68).

This is not to say,of course, that the judiciary is bound to adopt the prevailing approach proffered in the scholarship or that academic criticism is asufficient reason not to apply the principles of stare decisis (see Fraser, at para. 86; R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, atparas. 28-29; Friesen v. Canada, (SCC), [1995] 3 S.C.R. 103, at paras. 56 and 58; B. (K.G.), at pp. 774-77). It is helpfulto recall what I wrote with my colleagues Brown and Rowe JJ. in R. v.

Kirkpatrick, 2022 SCC 33, at para. 248: criticism per se is not a reason to overrule one of our own judgments, but it may help a party make the case for overruling it on appropriate grounds.[3] [23] I do not believe that this is an appropriate case in which to reconsider the extraterritorial application of the Charter.The parties do not contend that the Hape framework should be revisited; they simply debate its application to the facts at hand. As a rule,which the Court should depart from only in rare and exceptional circumstances, we should not overrule a precedent without having beenasked to do so by a party.

In this instance, only some interveners ask us to overturn Hape; in doing so, they go beyond their proper role.Doing what they are asking would mean deciding an issue that is not properly before us. Furthermore, as mentioned above, theextraterritorial application of the Charter has no bearing on the disposition of the present appeal. Indeed, the actions of the CFNISconformed to the Charter, as the s. 8 analysis below makes clear. Simply put, I would dismiss the appeal even if I were to acceptCpl.

McGregor’s argument that the Charter applies extraterritorially in the present context. [24] It is thus preferable to leave for another day any reconsideration of the Hape framework. A restrained approach isamply supported by our jurisprudence. As Sopinka J. emphasized in Phillips v. Nova Scotia (Commission of Inquiry into the WestrayMine Tragedy), (SCC), [1995] 2 S.C.R. 97, “This Court has said on numerous occasions that it should not decide issuesof law that are not necessary to a resolution of an appeal. This is particularly true with respect to constitutional issues” (para. 6; see alsoR. v.

Yusuf, 2021 SCC 2, at paras. 3-5; Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1S.C.R. 401, at para. 86; Law Society of Upper Canada v. Skapinker, (SCC), [1984] 1 S.C.R. 357, at pp. 381-82; TheQueen in Right of Manitoba v. Air Canada, (SCC), [1980] 2 S.C.R. 303, at p. 320; Attorney General (Que.) v. Cumming, (SCC), [1978] 2 S.C.R. 605, at pp. 610-11; Winner v. S.M.T. (Eastern) Ltd., (SCC), [1951] S.C.R. 887,at p. 901, per Rinfret C.J., rev’d in part (UK JCPC), [1954] A.C. 541 (P.C.); John Deere Plow Co. v.

Wharton, (UK JCPC), [1915] A.C. 330 (P.C.), at p. 339; Citizens Insurance Co. of Canada v. Parsons (1881), 7 App. Cas. 96 (P.C.),at p. 109; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, (SCC), [1997] 3S.C.R. 3, at paras. 301-2, per La Forest J., dissenting). There are no “exceptional circumstances” (Cumming, at p. 611) that warrantdeparting from this general rule in the present appeal. Therefore, I decline the interveners’ invitation to reconsider the proper approach tothe extraterritorial application of the Charter.

I would add that, as my colleagues Brown and Rowe JJ. noted in R. v. Sharma, 2022 SCC39, at para. 75, it is inappropriate for interveners to supplement the evidentiary record at the appellate level. In the s. 8 analysis whichfollows, I show that even if the Charter were to apply to the actions of the CFNIS, the appeal should still be dismissed. B.

Section 8 Analysis [25] Cpl. McGregor argues that the search of his electronic devices violated his rights under s. 8 of the Charter, eitherbecause it was unauthorized by law or because it was conducted in an unreasonable manner. For the reasons outlined below, I reject botharguments and conclude that the conduct of the CFNIS investigators was consistent with the requirements of the Charter.

(1) Digital Searches: General Principles

[26]

Section 8 of the Charter guarantees “the right to be secure against unreasonable search or seizure”. A search isreasonable within the meaning of s. 8 “if it is authorized by law, if the law itself is reasonable and if the manner in which the search wascarried out is reasonable” (R. v. Collins, (SCC), [1987] 1 S.C.R. 265, at p. 278; see also R. v. Caslake, (SCC), [1998] 1 S.C.R. 51, at para. 10; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 21; R. v. Vu, 2013 SCC 60, [2013] 3S.C.R. 657, at paras. 21-23; Wakeling v. United States of America, 2014 SCC 72, [2014] 3 S.C.R. 549, at para. 41; R. v.

Fearon, 2014SCC 77, [2014] 3 S.C.R. 621, at para. 12; Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3S.C.R. 250, at para. 48; R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518, at para. 36; R. v. Tim, 2022 SCC 12, at para. 46). This Court hasestablished a presumption that “a search requires prior authorization, usually in the form of a warrant, from a neutral arbiter” (R. v.M. (M.R.), (SCC), [1998] 3 S.C.R. 393, at para. 44, referring to Hunter v. Southam Inc., (SCC), [1984]2 S.C.R. 145, at pp. 160-62; see also Vu, at para. 22; R. v.

Grant, (SCC), [1993] 3 S.C.R. 223, at pp. 238-39). [27] In recent years, courts have grappled with the challenges posed by technological innovations in developing the law ofsearch and seizure. This Court’s jurisprudence on digital searches has consistently highlighted the “unique and heightened privacyinterests in personal computer data” (R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, at para. 35; see also Fearon, at paras. 74, 132 and197; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 50; Vu, at paras. 40-41 and 47; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R.34, at para. 47; R. v.

Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 105-6). [28] In Vu, the Court recognized that the “particular nature of computers” (para. 39) warrants specific constraints under s. 8of the Charter on both the authorization and the reasonable performance of digital searches.

In unanimous reasons written byCromwell J., the Court established a presumptive “requirement of specific, prior authorization” applicable to digital searches, assummarized at para. 3: In practical terms, the requirement of specific, prior authorization means that if police intend to search computers found within a placewith respect to which they seek a warrant, they must satisfy the authorizing justice that they have reasonable grounds to believe that anycomputers they discover will contain the things they are looking for.

If, in the course of a warranted search, police come across acomputer that may contain material for which they are authorized to search but the warrant does not give them specific, priorauthorization to search computers, they may seize the device but must obtain further authorization before it is searched. This requirement, I add, extends to other electronic devices that have a “memory capacity akin to a computer” (para. 38).

This broadcategory includes, for example, devices that store personal data, such as cellphones (Fearon, at para. 52). [29] The fact that a search of an electronic device is expressly authorized by warrant does not mean that any file containedtherein may be analyzed — even where no search protocol has been imposed. Cromwell J. stressed in Vu that police officers are “bound,in their search, to adhere to the rule that the manner of the search must be reasonable” (para. 61).

Consequently, they cannot “scour thedevices indiscriminately” (para. 61) but must limit their search to the types of files that are “reasonably necessary to achieve [thewarrant’s] objectives” (para. 22). Should “the officers realiz[e] that there was in fact no reason to search a particular program or file onthe device, the law of search and seizure would require them not to do so” (para. 61; see also Fearon, at paras. 57 and 78; Reeves, atpara. 35).

(2) Authorization of the Search [30] In the circumstances of the present case, prior authorization to gain entry into Cpl. McGregor’s residence could begranted only by a local magistrate under the law of the Commonwealth of Virginia. Neither the Criminal Code nor the National DefenceAct provides for the issuance of warrants authorizing the search of private residences located abroad. [31] Given the limited reach of Canadian law, the CFNIS communicated with local authorities and availed itself of the onlylegal mechanism open to it.

The CFNIS first obtained the following diplomatic note from the Canadian Embassy: . . . the Embassy has to [sic] honour to waive the inviolability of Corporal McGregor’s private residence, as well as his papers,correspondence and property under

article 30 of the Vienna Convention on Diplomatic Relations, for the exclusive purpose of executinga search warrant obtained for the purposes of the CFNIS investigation. Similarly, the Embassy has the honour to waive CorporalMcGregor’s immunity from the civil and criminal jurisdiction of the United States of America to the limited extent necessary to allowthe court of jurisdiction to issue the warrant required for this exclusive purpose. The Embassy expressly retains any other applicableimmunities, including his personal inviolability and his immunity from arrest or detention. [Emphasis added.] (A.R., vol.

I, at p. 128) At the request of the CFNIS, the Alexandria Police Department then obtained a search warrant issued by a Virginia magistrate. I notethat the Virginia warrant meets the requirement of “specific, prior authorization” for digital searches established in Vu. It expresslyauthorized not only the search of Cpl. McGregor’s residence but also the search and analysis of the electronic devices found therein: You are hereby commanded in the name of the Commonwealth to forthwith search the following place, person or thing either in day ornight . . . for the following property, objects and/or persons:

Camera, video recorder, other electronic audio/photo/video recording devices, computer, cell phone, other internet access devices,internet services devices, external electronic storage devices, and analysis of the seized items. Photographing of the premise and/orseized items. [Emphasis added.] (R.R., at p. 2) [32] Nevertheless, Cpl. McGregor asserts that the CFNIS’s participation in the search was not authorized by law.

His firstargument in this regard is that the search did not comply with s. 8 of the Charter because Vu requires a separate warrant to authorize thesearch of electronic devices, that is, a warrant apart from the one authorizing the search of the residence itself. However, the CourtMartial Appeal Court was correct to hold that the substance of Vu is directed not at the form the search warrant takes but rather at therequirement of having independent grounds to search the electronic devices (Vu, at para. 48).

There were such grounds in this case, asthe devices could reasonably be expected to contain evidence of the voyeurism offence. [33] Cpl. McGregor’s main argument regarding authorization is that the search fell outside the scope of the waiver ofdiplomatic immunity granted by Canada under the Vienna Convention. This is so, in his view, because the waiver of diplomaticimmunity did not contemplate the search and seizure of his electronic devices, as it referred only to his residence in Alexandria, Virginia. [34] I would not give effect to this argument.

Accepting that the authority to conduct the search of the devices depended onthe Vienna Convention, I find that on any reasonable

interpretation of the Canadian Embassy’s diplomatic note, the waiver encompassedthe search of both Cpl. McGregor’s private residence and his electronic devices. The express reference to “Corporal McGregor’s . . .property” in the diplomatic note plainly contradicts his submission that “[t]he waiver was limited to [his] residence . . . . It did not targetthe contents of electronic devices” (A.F., at para. 187). Cpl. McGregor’s argument that the search of his devices was unauthorized by lawthus fails.

(3) Reasonableness of the Search [35] Cpl. McGregor further contends that the search was unreasonable pursuant to Charter standards in that it was moreintrusive than necessary. He argues that the investigators unjustifiably expanded the search of the electronic devices to offences of sexualassault and (what they believed to be) child pornography, whereas the warrant contemplated only the offences of breaking and entering,mischief, interception, harassment, and voyeurism.

In his view, once the investigators discovered this unanticipated evidence, theCharter required them to stop the search, seize the electronic devices, and obtain a subsequent warrant permitting the analysis of thefiles in question. [36] I cannot accept this argument. It is uncontroversial that the Virginia warrant did not encompass the investigation ofsexual assault offences. But the discovery of unforeseen evidence does not invalidate the authorization to conduct a search for thepurposes outlined in the original warrant. This principle is an old one, and it renders Cpl.

McGregor’s argument meritless, at least asregards the evidence sought (see, for instance, Canadian Pacific Wine Co. v. Tuley, (UK JCPC), [1921] 2 A.C. 417(P.C.), at pp. 424-25). Here, the investigators discovered the impugned evidence when they were in the process of triagingCpl. McGregor’s electronic devices at the scene of the search, as was expressly authorized by warrant. The investigators set aside theincriminating devices for seizure and further analysis. Indeed, the CFNIS obtained Canadian warrants before further analyzing theircontents.

In my view, this investigative process was consistent with s. 8 of the Charter. [37] Nor does the admission of the unanticipated evidence found in the triage process infringe Cpl. McGregor’s s. 8 rights.Key to my reasoning is the application of the plain view doctrine to the files disclosing evidence of sexual assault. This common lawdoctrine defeats the presumption that seizures must be judicially authorized.

Our Court’s jurisprudence teaches that two requirementsmust be satisfied for the plain view doctrine to apply: (1) the police officers must have a legitimate “prior justification for the intrusioninto the place where the ‘plain view’ seizure occurred” (R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 37); and (2) theincriminating evidence must be in plain view in that it is “immediately obvious” and “discovered inadvertently” by the police (R. v. Law,2002 SCC 10, [2002] 1 S.C.R. 227, at para. 27; see also Buhay, at para. 37).

Concerns have been expressed about the plain view doctrinein relation to electronic seizures (e.g., L. Jørgensen, “In Plain View?: R v Jones and the Challenge of Protecting Privacy Rights in an Eraof Computer Search” (2013), 46 U.B.C. L. Rev. 791). In light of the way this case was argued, I feel it is unnecessary to express a settledopinion on the limits of the doctrine. However, I am satisfied that it does apply in some form to electronic devices (R. v. Jones, 2011ONCA 632, 107 O.R. (3d) 241).

In the case at bar, there can be no doubt that the doctrine applies. [38] A warrant usually provides a legitimate prior justification for the intrusion, thereby satisfying the first requirement ofthe plain view doctrine. This is not the case, however, where police officers carry out a search unreasonably. In the context of digitalsearches, the prior justification extends only to the types of files that are “reasonably necessary” for the proper execution of such a search(Vu, at para. 22).

In other words, there must be a reasonable nexus between the files examined and the purposes of the warrant for asearch to satisfy the first requirement of the plain view doctrine. [39] Even where police officers are initially justified in examining a digital file, the unanticipated evidence containedtherein is not necessarily in plain view. This Court’s reasoning in Law offers a useful illustration of the second requirement of the plainview doctrine. In that case, a police officer conducted a cursory examination of the documents in question and found “nothing faciallywrong with [them]” (para. 27).

The officer failed to “detec[t] anything incriminating through the unaided use of his senses”, as theincriminating nature of the evidence “came to light only after he examined, translated and photocopied several documents” (para. 27; seealso Buhay, at para. 37; R. v. Gill, 2019 BCCA 260, at para. 59 ). Consequently, this Court rejected the argument that thedocuments were in plain view, since they “were neither discovered inadvertently nor immediately evident” (Law, at para. 10). [40] Applying the foregoing principles, I conclude that both requirements of the plain view doctrine are satisfied in thepresent case.

The application of the plain view doctrine to digital searches may undoubtedly give rise to intricate issues, but this is a

straightforward case. The military judge correctly determined that the plain view doctrine applies to the evidence of sexual assault storedin Cpl. McGregor’s devices. [41] First, the investigators had a legitimate justification for their inspection of the files containing evidence of sexualassault at the scene of the search. As mentioned above, the Virginia warrant meets the Vu requirement of specific, prior authorizationapplicable to digital searches.

Moreover, the military judge found that “[t]he discovery of files relating to a potential sexual assault . . .occurred while looking for the types of files specifically sought and authorized” (voir dire decision, at para. 25 ). Theinvestigators “demonstrat[ed] care to limit the impact of the search through screening and conduct of a targeted search that involved aminimum of personal information” (para. 27).

In these circumstances, the initial search leading to the discovery of the files in issuesatisfies the requirement of prior justification. [42] Second, the digital files disclosing evidence of sexual assault were in plain view, given their inadvertent discoveryand immediately apparent unlawfulness. The investigators came upon these files in the triage process, which was designed to quicklyidentify evidence of interception and voyeurism.

The military judge rejected “the submissions to the effect that the investigatorscontinued to look into files they had no authority to look at under the terms of the warrant” (para. 25). He further noted that “any devicethat was assessed to contain potential child pornography and sexual assault files [was] set aside for seizure and further analysis back inCanada” (para. 25). Moreover, there was no need to closely examine the files to ascertain their incriminating nature — in contrast to thedocuments in Law, which were not facially unlawful.

I thus conclude that the impugned evidence was in plain view and that its seizureduring the triage process did not violate s. 8, either as part of a search carried out unreasonably or as an unreasonable seizure. [43] With respect for the contrary view of my colleagues Karakatsanis and Martin JJ., I believe that the application of theplain view doctrine is necessary in this case. I do not see on what basis the police could justify seizing either the devices containing, orthe actual data constituting, the sexual assault evidence without resort to this doctrine.

I agree that the devices were searched pursuant tothe Virginia warrant, but that warrant did not authorize the seizure of evidence of sexual assault. After all, it had been issued to search forand seize evidence of voyeurism. A warrant in and of itself is not authority to search for or seize anything which might afford evidenceof any offence whatsoever; the plain view doctrine and/or s. 489 of the Criminal Code could authorize such seizures, but only if theirrequirements are met.

Therefore, to be clear, I disagree with my colleagues Karakatsanis and Martin JJ., and I see no need to discussfurther their reasons on this issue. [44] In sum, the CFNIS demonstrably observed the requirements of the Charter. The investigators discovered theincriminating evidence in the execution of a digital search expressly authorized by a valid warrant. The evidence of sexual assault,although not contemplated in the original warrant, fell squarely within the purview of the plain view doctrine.

The CFNIS seized theevidence in accordance with that doctrine and subsequently obtained Canadian warrants before conducting an in-depth analysis of thefiles in issue. Even on Cpl. McGregor’s view of the law, it is difficult to see how the CFNIS could have more fully complied with theCharter. In light of my conclusion that the investigative process was consistent with s. 8 of the Charter, it is unnecessary to addressCpl. McGregor’s argument that the evidence should be excluded under s. 24(2). VI. Conclusion [45] For these reasons, I would dismiss the appeal and affirm Cpl. McGregor’s convictions.

The following are the reasons delivered by Karakatsanis and Martin JJ. — I. Overview [46] In this case a member of the Canadian Armed Forces facing trial in a Canadian court seeks to invoke the protectionsof the Canadian Charter of Rights and Freedoms against actions taken by Canadian officials abroad. Corporal McGregor asks to excludethe contents of certain electronic devices seized from his home by Canadian and American officials in the State of Virginia.

He arguesthat s. 8 of the Charter applies and his Charter rights were breached because under Canadian law a further warrant was required tosearch his devices. [47] While we agree that the appeal should be dismissed, we also comment on the central question directly at issue in thisappeal: does the Charter apply, pursuant to s. 32, to Canadian authorities’ investigative actions abroad in these circumstances?

This wasclearly the primary and threshold issue argued by the parties and multiple interveners, it was the reason leave to appeal was sought, andwe received full submissions on both constitutional and international law.

The extraterritorial application of the Charter is squarelybefore the Court and it is an issue that arises infrequently, may easily escape judicial review, and has been subject to significant andsustained criticism by experts in international law. [48] While the extraterritoriality of the Charter may arise in many different types of situations, we comment only on theparticular question before us: that is, whether the Charter applies for those people subject to Canadian criminal law for acts committedabroad — whether by virtue of military service or otherwise — and for Canadian officials whose investigations of offences transcendCanada’s borders. [49] We begin by interpreting s. 32(1) of the Charter and conclude that the required purposive reading supports theconclusion that the Charter applies extraterritorially to the conduct of Canadian Forces National Investigation Service (“CFNIS”)officials while fulfilling their investigative duties in a foreign state and that a Canadian court may assess that conduct for Charter-compliance.

This was also the reading of s. 32 endorsed by the majority in R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292. However,they were further of the view that international law principles of jurisdiction required a more restrictive reading of s. 32. We say that thisrestrictive reading is ripe for reconsideration as Hape departed from and overruled previous authority without full argument oninternational law principles. Further, according to scholars in the field, Hape misapplied certain key principles of international law in

reaching the conclusions it did. While we agree as a matter of error correction that the result is the same whether or not the Charterapplies, the application of the Charter to Canadian officials investigating Canadians abroad is a pressing issue squarely raised in thisappeal. While there are significant questions about the correctness of Hape’s conclusion that the Charter does not apply to suchinvestigative action, given the majority’s conclusion, we leave the determination of whether Hape was wrongly decided to another day. II.

Interpretation of Section 32(1) of the Charter [50] It is well established that the

interpretation of the Charter should be purposive, generous, and aimed at securing forindividuals the full benefit of the Charter’s protections (R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295, atp. 344; Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, at p. 156). Under this approach, the Charter’s text andpurpose support extraterritorial application and the conclusion that the Charter applies to Canadian authorities conducting investigationsabroad. [51] Nothing in the text of s. 32 imposes or even suggests any territorial limitation.

It expressly limits to whom the Charterapplies: the federal and provincial governments and legislatures. Section 32(1) also expressly limits to what the Charter applies: “. . . allmatters within the authority . . .” of Parliament and the legislatures. Importantly, s. 32(1) imposes no express limitation on where theCharter applies (Hape, at para. 161, per Bastarache J.). [52] Nor can it be said that s. 32(1)’s limitation of the Charter’s scope to “all matters within the authority” of Parliamentand the legislatures implicitly imposes a territorial limit on the Charter’s reach.

According to Wilson J. (with whom Dickson C.J. agreedon this point) in Operation Dismantle Inc. v. The Queen, (SCC), [1985] 1 S.C.R. 441, this phrase in s. 32(1)(a), “like thecorresponding words ‘within the authority of the legislature of each province’ . . ., [was] merely a reference to the division of powers inss. 91 and 92 of the Constitution Act, 1867” (pp. 455 and 463-64). It simply describes “the subject-matters in relation to which theParliament of Canada may legislate or the government of Canada may take executive action” (p. 464).

In the context of s. 32(1),therefore, those words do not imply or impose any territorial limitation to or on the Charter. To read them in that manner would not onlybe inconsistent with precedent (see C. Sethi, “Does the Charter Follow the Flag? Revisiting Constitutional Extraterritoriality after R vHape” (2011), 20 Dal. J. Leg. Stud. 102, at p. 113; R. J. Currie and J.

Rikhof, International & Transnational Criminal Law (3rd ed.2020), at pp. 633-34), but would also fail to acknowledge that Canada has the constitutional authority to make laws with extraterritorialapplication (Statute of Westminster, 1931 (U.K.), 22 Geo. 5, c. 4, s. 3; Reference re Offshore Mineral Rights of British Columbia, (SCC), [1967] S.C.R. 792, at p. 816; Hape, at paras. 66 and 68; see also

Interpretation Act, R.S.C. 1985, c. I-21, s. 8(3)). [53] If s. 32(1) were meant to distinguish between acts of state actors on Canadian soil or abroad, such a distinction couldhave easily been drawn expressly, as was done elsewhere in provisions like ss. 3, 6 and 23 of the Charter, which draw distinctions basedon citizenship (A. Attaran, “Have Charter, Will Travel? Extraterritoriality in Constitutional Law and Canadian Exceptionalism” (2008),87 Can. Bar Rev. 515, at p. 523; see also L. West, “Canada Stands Alone: A Comparative Analysis of the Extraterritorial Reach of StateHuman Rights Obligations” (U.B.C. L.

Rev., forthcoming), at pp. 8-10). Taking into account what is not in s. 32(1)’s text, but iselsewhere in the Charter, confirms that no territorial limitation was intended. Section 32(1)’s silence as to the Charter’sterritorial boundaries when other sections are based on citizenship or are specifically confined to Canada was not an omission or theresult of happenstance. It was instead a deliberate choice to not limit the Charter’s territorial reach which must be respected. [54] The purpose of s. 32 was to constrain state action within the newly established constitutional democracy.

As thisCourt has acknowledged, the words of s. 32(1) “give a strong message that the Charter is confined to government action. . . . [T]heCharter is essentially an instrument for checking the powers of government over the individual” (McKinney v. University of Guelph, (SCC), [1990] 3 S.C.R. 229, at p. 261). To permit state action abroad that is not constrained by the Constitution wouldbe inconsistent with our constitutional structure, which is premised on preventing arbitrary state conduct (Reference re Secession ofQuebec, (SCC), [1998] 2 S.C.R. 217, at para. 70).

The sole claim of government, including the executive, to exerciselawful authority “rests in the powers allocated to them under the Constitution, and can come from no other source” (para. 72).Accordingly, there can be no lawful state action without corresponding constitutional limitations — no matter where the conduct takesplace. As one commentator put it, “[t]he executive cannot act outside the Constitution and still act within the rule of law. When it isinvited to play on the international scene, it must come as it is: as a constitutional government — not an arbitrary one.

It has no license toact arbitrarily away from home” (M. Webb, “The Constitutional Question of Our Time: Extraterritorial Application of the Charter andthe Afghan Detainees Case” (2011), 28 N.J.C.L. 235, at p. 256). [55] Thus, a purposive

interpretation of s. 32(1) leads to the conclusion that the provision draws no distinction betweendomestic and extraterritorial application. Rather, it sends a strong message that the Charter is an instrument for checking the powers ofthe government over the individual and preventing state action that is inconsistent with the rights and freedoms it enshrines (McKinney,at p. 261; see also Hape, at para. 91). As a result, based on such an

interpretation of s. 32(1), the Charter would apply to constrainCanadian authorities conducting investigations, whether that conduct takes place inside or outside Canada. III. The Hape Decision [56] In Hape, LeBel J., for the majority, also began with the text of s. 32(1) of the Charter and likewise concluded that itcontained no express territorial limit (paras. 32 and 94). However, in that case, the majority of the Court held the Charter did not apply tothe Royal Canadian Mounted Police’s search and seizure of banking documents in Turks and Caicos Islands (paras. 2-14). The majorityoverturned R. v.

Cook, (SCC), [1998] 2 S.C.R. 597, and set out a new two-stage framework for determining whether aremedy is available for extraterritorial Canadian state conduct alleged to have violated the Charter. At the first stage, the court mustdetermine if the activity in question falls under s. 32(1) by asking: (1) whether the conduct at issue is that of a Canadian state actor; and(2) if so, whether, on the facts, there is an exception to the principle of sovereignty that would justify applying the Charter to the stateactor’s extraterritorial activities.

If there is no exception and the Charter does not apply, then at the second stage the court must ask ifthe evidence should be excluded from the trial because its admission would render the trial unfair (para. 113). [57] LeBel J. chose to look to prohibitive rules of customary international law to aid in the

interpretation of s. 32 of theCharter (paras. 35-39). Customary international law is composed of norms that meet the two requirements of state practice and opinio

juris: states must actually follow the norm and must view it as legally binding (para. 46). The majority in Hape looked to the principle ofsovereign equality, which rests upon respect for territorial sovereignty and is “inseparable” from the principle of non-intervention, andwhich provides that all states are sovereign and equal (paras. 40 and 45-46). The majority relied on the doctrine of adoption to concludethat the principles of non-intervention and territorial sovereignty should be relied on to interpret the Charter’s scope. They also appliedthe presumption of conformity, a principle of statutory

interpretation that legislation will be presumed to conform with international law,unless its wording compels otherwise (paras. 39, 46 and 53).

They held that in interpreting the Charter’s scope, the Court should seek toensure compliance with Canada’s binding obligations under international law where the Charter’s express words are capable ofsupporting that construction. [58] The majority found that the comity of nations — defined as “the deference and respect due by other states to theactions of a state legitimately taken within its territory” — was another interpretive principle that aids in interpreting the Charter’sextraterritorial reach (paras. 32-33, 47, 50 and 53-56, quoting Morguard Investments Ltd. v.

De Savoye, (SCC), [1990] 3S.C.R. 1077, at p. 1095). LeBel J. observed that comity encourages states to cooperate with each other to investigate transnational crimeand, where one state assists another, to respect how assistance is given within a state’s territory.

However, he made clear that comity“does not offer a rationale for condoning another state’s breach of international law” and that comity’s deference “ends where clearviolations of international law and fundamental human rights begin” (paras. 51-52). [59] Having set out these additional interpretive principles, the majority reviewed and applied jurisdictional principles ofinternational law. LeBel J. observed there are three forms of jurisdiction: prescriptive, enforcement, and adjudicative.

Prescriptivejurisdiction “is the power to make rules, issue commands or grant authorizations that are binding upon persons and entities” (para. 58).Enforcement jurisdiction “is the power to use coercive means to ensure that rules are followed, commands are executed or entitlementsare upheld” (ibid.). Finally, adjudicative jurisdiction “is the power of a state’s courts to resolve disputes or interpret the law throughdecisions that carry binding force” (ibid.).

He also summarized several bases upon which a state may exercise its jurisdiction, includingthe territoriality, nationality, and universality principles (paras. 59-61). [60] The majority proceeded to discuss principles pertaining to extraterritorial jurisdiction in the Canadian context. Theystated that “it is a well-established principle that a state cannot act to enforce its laws within the territory of another state absent either theconsent of the other state or, in exceptional cases, some other basis under international law” (para. 65).

Observing that, pursuant to theStatute of Westminster, 1931, Canada has the authority to make laws having extraterritorial operation (para. 66), they noted thatParliament’s ability to pass extraterritorial legislation is also informed by the above-mentioned interpretive principles.

They concludedthat while Parliament can enact legislation inconsistent with these interpretive principles, any Canadian law can only be enforced abroadwith the consent of other states (paras. 67-68). [61] With these principles in mind, the majority turned to a review of this Court’s prior jurisprudence and explained whyCook, the Court’s previous decision allowing extraterritorial application of the Charter to the actions of Canadian police abroad, ought tobe revisited. In Cook, the Court had determined that the Charter applied to

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