R. v. Souvannarath, 2017 NSSC 107

SUPREME COURT OF Nova Scotia Citation: R. v. Souvannarath, 2017 NSSC 107 Date: 20170421 Docket: CRH No. 441654 Registry: Halifax Between: Her Majesty the Queen v. Lindsay Kanitha Souvannarath Library Heading Judge: The Honourable Justice Peter P. RosinskiHeard: April 11, 2017, in Halifax, Nova ScotiaWritten Decision: April 21, 2017Subject: The extraterritorial application of the Canadian Charter of Rights and Freedoms to actions of police inthe United States of AmericaSummary: Ms. Souvannarath was a citizen of the USA.

Through Facebook she and two Canadian residentsconspired to murder un-named members of the public in Halifax, Nova Scotia, Canada. To effect thatpurpose she flew to Nova Scotia. Upon arrival she was arrested, cautioned and chartered. She madeseveral utterances to police. In pretrial motions she argued that those utterances should be inadmissibleas a result of violations of her s. 10(

a) and (

b) Charter of Rights and a violation of s. 36 of the ViennaConvention on Consular Relations. Those utterances formed a substantial portion of the grounds for awarrant sought by the Geneva, Illinois, USA police in relation to the alleged conspiracy, to compelFacebook Inc. to provide its records of communications between the co-conspirators. A US judgeordered Facebook Inc. to comply. Ms.

S argues that the violations to her rights would make herutterances inadmissible in Canada, and therefore the derivative use thereof by police in the USAshould be prohibited on that basis specifically, or alternatively on the basis of R. v.

Harrer (SCC), [1995] 3 S.C.R. 562-that “to admit the evidence would be so grossly unfair as torepudiate the values underlying our trial system and condone procedures which are anathema to theCanadian conscience”.Issues: Can an accused being tried in Canada rely on the extraterritorial application of the Canadian Charter ofRights to permit a Canadian criminal court to assess the validity of a search warrant requested byCanadian police, and issued in Illinois, United States of America?Result: This court has no jurisdiction to assess the validity of the search warrant issued by the court in theUnited States, nor is the provision of the material seized thereunder to Canadian police, otherwiseinadmissible.

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THEDECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: R. v. Souvannarath, 2017 NSSC 107 Date: 20170421 Docket: CRH No. 441654 Registry: Halifax Between:

Her Majesty the Queen v. Lindsay Kanitha Souvannarath Judge: The Honourable Justice Peter P. RosinskiHeard: April 11, 2017, in Halifax, Nova ScotiaCounsel: Mark Heerema and Shauna MacDonald, for the Crown Luke Craggs for the Defence By the Court: Introduction [1] Ms. Souvannarath is to be tried before a jury on a charge that she did conspire with others between December 21, 2014 andFebruary 14, 2015 to murder unnamed members of the public in Halifax, Nova Scotia, Canada. [2] She is an American citizen who was living in the area of Chicago, Illinois, USA.

The conspiracy involved Internetcommunications, via Facebook, between her and her co-conspirators resident in Nova Scotia, Canada. [3] Halifax Regional Police (HRP) became aware of the conspiracy on or about February 12, 2015, and arrested Ms. Souvannarathupon her arrival from Chicago on February 13, 2015. She was in possession of a cell phone, laptop and a hard drive. The police wereaware that there had been Facebook communications between the alleged co-conspirators.

Consequently, HRP requested the assistanceof the Geneva Illinois police to draft a warrant compelling Facebook Inc., 151 University Avenue, Palo Alto, California 94301, USA, toproduce all requested records regarding Facebook user ID accounts believed to be associated with Ms. Souvannarath, Randy Shepherd,and James Gamble. [4] In the

Summary of Facts establishing Probable Cause, the only information relied upon by the Geneva Illinois police inseeking the warrant, was information provided to them by the HRP. [5] Ms.

Souvannarath has requested this court declare that it has jurisdiction to review the search warrant issued on February 25, 2015, by the Illinois Circuit Court for the 16th Judicial Circuit sitting at Kane County, USA. [6] The Crown argues in response that, as a matter of law, this court has no jurisdiction to review the search warrant. [7] Both parties agreed that the court could take notice of the American warrant materials and content of the Canadian warrantmaterials included as Tab A and Tab B attached to the defendant’s brief.

Of particular importance are the three different sets of Ms.Souvannarath’s utterances made to Detective Constable Robert Fox on February 13, 2015, after her arrest, which Ms. Souvannarathargues were obtained in violation of, protections afforded to her by s. 10(

a) and (

b) of the Canadian Charter of Rights and Freedoms, [1]and her rights under s. 36 of the 1963 Vienna Convention on Consular Relations. Position of the parties Ms. Souvannarath [8] In essence, she argues that a Canadian court must have jurisdiction to review an American warrant where information used byan American police agency in their affidavit to obtain that warrant emanated principally from a Canadian investigation, for an offencethat is being prosecuted in Canada. [9] She urges the court to examine this issue using the methodology suggested by the Supreme Court of Canada in R. v. Hape,2007 SCC 26 , [2007] 2 S.C.R. 292, at para. 113:

Summary of the Approach 113 The methodology for determining whether the Charter applies to a foreign investigation can be summarized as follows. The firststage is to determine whether the activity in question falls under s. 32(1) such that the Charter applies to it. At this stage, two questionsreflecting the two components of s. 32(1) must be asked. First, is the conduct at issue that of a Canadian state actor?

Second, if theanswer is yes, it may be necessary, depending on the facts of the case, to determine whether there is an exception to the principle ofsovereignty that would justify the application of the Charter to the extraterritorial activities of the state actor. In most cases, there will beno such exception and the Charter will not apply.

The inquiry would then move to the second stage, at which the court must determinewhether evidence obtained through the foreign investigation ought to be excluded at trial because its admission would render the trialunfair. [10] Therefore, she asks the court to find that: the conduct at issue is that of a Canadian state actor; and that the evidence obtainedthrough the foreign investigation ought to be excluded at trial, because: her utterances to Det. Cst. Fox in Canada were obtained inviolation of her s. 10(

a) and (

b) Charter rights, and would properly be excluded as inadmissible evidence for use in the Canadian warrant,and by extension in the US warrant; and if her utterances are excised from those warrants, the warrants would no longer containsufficient grounds for a court to have issued them; and alternatively because the admission of the US warrant authorized Facebook Inc.materials would render the trial intolerably unfair. [11] She posits that there must be some mechanism for this court, supervising the trial process in Canada, to ensure that herutterances made to Det. Cst.

Fox, if inadmissible against her according to Canadian law, and excised from the HRP search warrantauthorized February 13, 2015, should also be effectively excised from the American warrant issued February 25, 2015, which requiredFacebook Inc. to produce their records to the Geneva, Illinois police, which were then provided to HRP. Position of the Crown [12] The Crown suggests that for good reasons Ms. Souvannarath does not seriously rely upon s. 7 of the Charter Rights and thereasoning in R. v. Harrer, (SCC), [1995] 3 S.C.R. 562. [13] Ms.

Souvannarath has focused her argument on a breach of s. 8 of the Charter of Rights. [14] Generally, the Crown argues that our Charter does not apply to search warrants issued in a foreign state. This is so even wherethe information used by the foreign state emanated from a Canadian investigation, and is being used in a Canadian prosecution. [15] The Crown relies upon: R v Schreiber, (SCC), [1998] 1 S.C.R. 841; R. v. Hape, 2007 SCC 26 , [2007]2 S.C.R. 292; R. v. Filinov, (1993), (ON SC), 82 CCC (3d) 516 (Ont Gen. Div.); R. v.

Giles, 2015 BCSC 1744; R. v.Guilbride, 2003 BCPC 44, for the general proposition that when a criminal case is prosecuted in Canada, the Canadian Charter of Rightsand Freedoms does not apply beyond the borders of Canada, and especially so, when a defendant alleges a s. 8 Charter violationoccurring outside the borders of Canada. [16] The Crown concedes that at law, exceptionally a defendant may argue that in such situations their rights under ss. 7 and 11(d)Charter may be addressed in a Canadian court where there is a live issue as to whether “to admit the evidence would be so grossly unfairas to repudiate the values underlying our trial system and condone procedures which are anathema to the Canadian conscience” perHarrer, at para. 51.

However, the facts of this case do not rise to anywhere near that level, which level was described by the court inHarrer as including, for example, the use of “torture”. Why s. 8 of the Charter of Rights is not applicable to the search warrant issued February 25, 2015, in Illinois, USA [17] In Schreiber, the defence conceded that it did not allege a

section 8 Charter breach against Swiss authorities, but rather arguedthat the Canadian government’s letters of request sent to Swiss authorities seeking banking records to assist your investigation ofSchreiber’s believed criminal activities in Canada, should have been subject to prior judicial authorization, requiring “reasonablegrounds” akin to in a search warrant context. [18] As the court pointed out, [paras. 28-32]: …the request itself would not be subject to Charter scrutiny.

No prior judicial authorization would be obtained until the request had beenreceived, at which time the authorities would secure a warrant in order to undertake the search or seizure. In the event that the search orseizure was challenged, it would be the warrant, and actions taken pursuant to that warrant, which would be subjected to Charter review.The original investigator’s action in making the request to the authorities in another province would not be challengeable, because itis not an action which invades anyone’s right to be secure against unreasonable search and seizure.

This is the reason why no priorjudicial authorization is required before making the request and not, as Iaccobucci J. suggests, because the requesting authorities knowthat the search or seizure eventually will be subject to prior judicial authorization before it is executed. This reasoning is apposite to thepresent appeal. By itself, the letter of request does not engage

section 8 of the Charter. All of those actions which rely on statecompulsion in order to interfere with the respondent’s privacy interests are undertaken in Switzerland by Swiss authorities. Neither theactions of the Swiss authorities, nor the laws which authorize their actions, are subject to Charter scrutiny: R. v. Terry, (SCC), [1996] 2 S.C.R. 207 at p.217.… The Charter guarantees everyone the right to be secure against unreasonable search and seizureby inter alia, the Government of Canada. [my emphasis added] [19] The Crown notes that in both Schreiber (para. 33) and Terry, (SCC), [1996], 2 S.C.R. 207, at para. 18, the

Supreme Court of Canada endorsed the reasoning in R. v. Filinov, (1993), (ON SC), 82 CCC (3d) 516. [20] In Schreiber, speaking for the majority, Justice L’Heuruex-Dube stated: I find further support for this conclusion in the reasons of Dilks J in Filinov… On facts analogous to this case, Dilks J made two distinctfindings which inform the analysis of the applicability of s 8 of the Charter, and which are relevant to this appeal. First, … he held that‘the sovereign authority of Canada ends with the sending of the request’ for assistance.

Second… he found that: ‘… The United States’part of the process was a discrete procedure carried out by authorities who are in no way controlled by or answerable to any Canadianauthorities. The fact that the process was initiated by the latter did nothing to make their United States counterparts agents of theCanadian government.

Even if they could be so considered, their conduct would not be governed by the Charter unless the Charterexpressly said as much. [21] In Schreiber, the court seems to have left open a possibility for a defendant to argue that the issuance of a warrant in the UnitedStates to assist a criminal prosecution in Canada could possibly trigger “an action which invades anyone’s right to be secure againstunreasonable search and seizure”. [22] The majority opinion left open the possibility that if the police in the USA could be considered agents of the Canadiangovernment, by virtue of being “controlled by or answerable to any Canadian authorities” it is possible to thereby apply the Charter ofRights to the actions of such agents.

Nevertheless, the court went on to say “their conduct would not be governed by the Charter unlessthe Charter expressly said as much.” [23] As the Crown has pointed out, Canadian police forces can obtain evidence in foreign jurisdictions, as a result of informalcooperation (requests and responses) between police agencies, or on the basis of bilateral treaty provisions, as well as the Mutual LegalAssistance in Criminal Matters Act (MLAT).

However, at law, those processes need not be mutually exclusive scenarios, and in fact willnot transform the foreign police agencies into Canadian “agents”, except perhaps in extraordinary circumstances, which are not presenthere. [2] [24] Moreover, later in Hape, the court stated: [3] Extraterritoriality in Canadian Law 66 This Court recognized the foregoing principles in Terry. At para. 15, McLachlin J. wrote the following on behalf of the Court: The principle that a state's law applies only within its boundaries is not absolute: The Case of the S.S. "Lotus" (1927), P.C.I.J. Ser. A,No. 10, at p. 20.

States may invoke a jurisdiction to prescribe offences committed elsewhere to deal with special problems, such as thoseprovisions of the Criminal Code, R.S.C. 1985, c. C-46, pertaining to offences on aircraft (s. 7(1), (2)) and war crimes and other crimesagainst humanity (s. 7(3.71)). A state may likewise formally consent to permit Canada and other states to enforce their laws within itsterritory for limited purposes.

The Statute of Westminster, 1931 (U.K.), 22 Geo. 5, c. 4, s. 3, conferred on Canada the authority to make laws having extraterritorialoperation and Canada has enacted legislation with extraterritorial effects on several occasions. Some examples can be found in criminallegislation, including the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, which addresses crimes of universaljurisdiction. Section 6(1) of that statute provides that every person who commits genocide, a crime against humanity or a war crimeoutside Canada is guilty of an indictable offence.

Pursuant to s. 8, such a person may be prosecuted in Canada: (

a) if at the time of theoffence the person was a Canadian citizen or a citizen of a state engaged in armed conflict against Canada, or the victim was a Canadiancitizen or a citizen of a state allied with Canada in an armed conflict; or (

b) if, after the time of the offence was committed, the person ispresent in Canada. These provisions exemplify valid extraterritorial prescriptive jurisdiction, and any trial for such offences wouldconstitute a legitimate exercise of extraterritorial adjudicative jurisdiction. [page331] But, importantly, they do not authorize Canada toenforce the prohibitions in a foreign state's territory by arresting the offenders there.

Section 7 of the Criminal Code, R.S.C. 1985, c. C-46, contains a number of provisions that deem certain acts -- including attacks on internationally protected persons or U.N. personnel,torture or hostage taking -- to have been committed in Canada even though they took place in other countries. Although committedoutside Canada, such

an act will be deemed to have been committed in Canada if, inter alia, the person who committed it is a Canadiancitizen or normally resides in Canada, it was committed on an aircraft registered in Canada or it was committed against a Canadiancitizen. 67 On the other hand, it is recognized that there are limits to the extraterritorial application of Canadian law.

Section 6(2) of theCriminal Code provides: "Subject to this Act or any other Act of Parliament, no person shall be convicted or discharged under section730 of an offence committed outside Canada." As a general rule, then, Canadian criminal legislation is territorial unless specificallydeclared to be otherwise.

Further, as noted by McLachlin J. in Terry, at para. 18, bilateral treaties negotiated pursuant to the MutualLegal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.), provide that the actions requested of the assisting state aregoverned by that state's own laws, not by the laws of the requesting state. 68 Parliament has clear constitutional authority to pass legislation governing conduct by non-Canadians outside Canada.

Its ability topass extraterritorial legislation is informed by the binding customary principles of territorial sovereign equality and non-intervention, bythe comity of nations, and by the limits of international law to the extent that they are not incompatible with domestic law. By virtue ofparliamentary sovereignty, it is open to Parliament to enact legislation that is inconsistent with those principles, but in so doing it wouldviolate international law and offend the comity of nations.

However, in light [page332] of the foregoing discussion of the jurisdictionalprinciples of customary international law, the prohibition on interference with the sovereignty and domestic affairs of other states, and

this Court's jurisprudence, Canadian law can be enforced in another country only with the consent of the host state. 69 As the supreme law of Canada, the Charter is subject to the same jurisdictional limits as the country's other laws or rules. Simplyput, Canadian law, whether statutory or constitutional, cannot be enforced in another state's territory without the other state'sconsent.

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 theauthority of Parliament or the provincial legislatures. In the absence of consent, Canada cannot exercise its enforcement jurisdiction overa matter situated outside Canadian territory.

Since effect cannot be given to Canadian law in the circumstances, the matter fallsoutside the authority of Parliament and the provincial legislatures. … 94 Section 32(1) puts the burden of complying with the Charter on Parliament, the government of Canada, the provincial legislaturesand the provincial governments. While my colleague is correct in stating, at para. 161, that s. 32(1) defines to whom the Charterapplies and not where it applies, s. 32(1) does more than that. It also defines in what circumstances the Charter applies to thoseactors.

The fact that a state actor is involved is not in itself sufficient, as Bastarache J. suggests. The activity in question mustalso fall within the "matters within the authority of" Parliament or the legislature of each province. A criminal investigation inthe territory of another state cannot be a matter within the authority of Parliament or the provincial legislatures, because theyhave no jurisdiction to authorize enforcement abroad. Criminal investigations, like political structures or judicial systems, areintrinsically linked to the organs of the state, and to its territorial integrity and internal affairs.

Such matters are clearly withinthe authority of Parliament and the provincial legislatures when they are in Canadian territory; it is just as clear that they lieoutside the authority of those bodies when they are outside Canadian territory. [My emphasis added] [25] Though Hape is factually distinguishable from the case at bar, it did address the central issue in dispute here: the extraterritorialapplication of s. 8 of the Charter of Rights. [26] Beyond the rare circumstances where the reasoning in Harrer (ss. 7 and 11(

d) Charter) could apply to exclude the Facebookevidence, I acknowledge that there may seem to be a troubling inconsistency between my conclusion that I have no jurisdiction to reviewthe validity of the US search warrant, and the precise factual circumstances in this case, which are arguably distinguishable from Hapeand Schreiber, and suggest that the court should have the jurisdiction to review the validity of the US search warrant. Let me explain. [27] The Crown accepted that in assessing this question, in keeping with its Vukelich motion, I should take Ms.

Souvannarath’sargument at its highest. [28] The relevant sections of the Charter of Rights read: 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to suchreasonable limits prescribed by law as can be demonstrably justified in a free and democratic society; 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordancewith the principles of fundamental justice; 8. Everyone has the right to be secure against unreasonable search or seizure; 9.

Everyone has the right not to be arbitrarily detained or imprisoned; 10. Everyone has the right on arrest or detention; (

a) to be informed promptly of the reasons therefor; (

b) to retain and instruct counsel without delay and to be informed of that right; and (

c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competentjurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances;

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. 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 relatingto 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. [29] The present governing jurisprudence regarding s. 24 of the Charter includes the principles and reasoning contained in R. v.Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353; R. v. Harrison, 2009 SCC 34 , [2009] 2 S.C.R. 494.

[30] Earlier in the seminal case, Canada (Combines Investigation Act, Dir. of Investigations and Research) v. Southam Inc., (SCC), [1984] 2 SCR 145, Justice Dickson spoke of the importance of a purposive

interpretation and analysis of our Charterof Rights: As is clear from the arguments of the parties as well as from the judgment of Prowse J.A., the crux of this case is the meaning to begiven to the term "unreasonable" in the s. 8 guarantee of freedom from unreasonable search or seizure. The guarantee is vagueand open.

The American courts have had the advantage of a number of specific prerequisites articulated in the Fourth Amendment to theUnited States Constitution, as well as a history of colonial opposition to certain Crown investigatory practices from which to draw out thenature of the interests protected by that Amendment and the kinds of conduct it proscribes. There is none of this in s. 8. There is nospecificity in the

section beyond the bare guarantee of freedom from "unreasonable" search and seizure; nor is there any particularhistorical, political or philosophic context capable of providing an obvious gloss on the meaning of the guarantee. It is clear that the meaning of "unreasonable" cannot be determined by recourse to a dictionary, nor for that matter, by reference to therules of statutory construction. The task of expounding a constitution is crucially different from that of construing a statute. Astatute defined present rights and obligations. It is easily enacted and as easily repealed.

A constitution, by contrast. is drafted with aneye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, whenjoined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, itsprovisions cannot easily be repealed or amended. It must, therefore, bc capable of growth and development over time to meet new social,political and historical realities often unimagined by its framers.

The judiciary is the guardian of the constitution and must, ininterpreting its provisions, bear these considerations in mind.

Professor Paul Freund expressed this idea aptly when he admonished theAmerican courts "not to read the provisions of the Constitution like a last will and testament lest it become one" The need for a broad perspective in approaching constitutional documents is a familiar theme in Canadian constitutionaljurisprudence. … Such a broad, purposive analysis, which interprets specific provisions of a constitutional document in the light of its larger objects is alsoconsonant with the classical principles of American constitutional construction enunciated by Chief Justice Marshall in M'Culloch v.Maryland, 17 U.S. (4 Wheat.) 316 (1819).

It is, as well, the approach I intend to take in the present case. I begin with the obvious. The Canadian Charter of Rights and Freedoms is a purposive document. Its purpose is to guaranteeand to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constraingovernmental action inconsistent with those rights and freedoms; it is not in itself an authorization for governmental action.

In thepresent case this means, as Prowse J.A. pointed out, that in guaranteeing the right to be secure from unreasonable searches and seizures,s. 8 acts as a limitation on whatever powers of search and seizure the federal or provincial governments already and otherwisepossess. It does not in itself confer any powers, even of "reasonable" search and seizure, on these governments.

This leads, in my view, tothe further conclusion that an assessment of the constitutionality of a search and seizure, or of a statute authorizing a search or seizure,must focus on its "reasonable" or "unreasonable" impact or the subject of the search or the seizure, and not simply on its rationality infurthering some valid government objective. Since the proper approach to the

interpretation of the Charter of Rights and Freedoms is a purposive one, before it is possible toassess the reasonableness or unreasonableness of the impact of search or of a statute authorizing a search, it is first necessary to specifythe purpose underlying s. 8: in other words, to delineate the nature of the interests it is meant to protect. … In my view the interests protected by s. 8 are of a wider ambit than those enunciated in Entick v. Carrington.

Section 8 is anentrenched constitutional provision. It is not therefore vulnerable to encroachment by legislative enactments in the same way as commonlaw protections. There is, further, nothing in the language of the

section to restrict it to the protection of property or to associate it withthe law of trespass. It guarantees a broad and general right to be secure from unreasonable search and seizure. The Fourth Amendment of the United States Constitution, also guarantees a broad right. It provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not beviolated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place tobe searched, and the persons or things to be seized.

Construing this provision in Katz v. United States, 389 U.S. 347 (1967), Stewart J. delivering the majority opinion of the UnitedStates Supreme Court declared at p. 351 that "the Fourth Amendment protects people, not places". Justice Stewart rejected anynecessary connection between that Amendment and the notion of trespass. With respect, I believe this approach is equallyappropriate in construing the protections in s. 8 of the Charter of Rights and Freedoms. In Katz, Stewart J. discussed the notion of a right to privacy, which he described at p. 350 as "his right to be let alone by otherpeople".

Although Stewart J. was careful not to identify the Fourth Amendment exclusively with the protection of this right, nor to seethe Amendment as the only provision in the Bill of Rights relevant to its

interpretation, it is clear that this notion played a prominent rolein his construction of the nature and the limits of the American constitutional protection against unreasonable search and seizure. In theAlberta Court of Appeal, Prowse J.A. took a similar approach to s. 8, which he described as dealing "with one aspect of what has beenreferred to as the right of privacy, which is the right to be secure against encroachment upon the citizens' reasonable expectation ofprivacy in a free and democratic society".

Like the Supreme Court of the United States, I would be wary of foreclosing the possibility that the right to be secure againstunreasonable search and seizure might protect interests beyond the right of privacy, but for purposes of the present appeal I amsatisfied that its protections go at least that far. The guarantee of security from unreasonable search and seizure only protects a

reasonable expectation. This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from"unreasonable" search and seizure, or positively as an entitlement to a "reasonable" expectation of privacy, indicates that an assessmentmust be made as to whether in a particular situation the public's interest in being left alone by government must give way to thegovernment's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement.

The question that remains, and the one upon which the present appeal hinges, is how this assessment is to be made. When is it tobe made, by whom and on what basis? Here again, I think the proper approach is a purposive one. [my emphasis] [31] In Reference, re Motor Vehicle Act (British Columbia) s. 94(2), (SCC), [1985] 2 S.C.R. 486, Justice Lamerstated: 23 In the framework of a purposive analysis, designed to ascertain the purpose of the s. 7 guarantee and "the interests it was meant toprotect" (R. v.

Big M Drug Mart Ltd., supra), it is clear to me that the interests which are meant to be protected by the words "and theright not to be deprived thereof except in accordance with the principles of fundamental justice" of s. 7 are the life, liberty and security ofthe person.

The principles of fundamental justice, on the other hand, are not a protected interest, but rather a qualifier of theright not to be deprived of life, liberty and security of the person. … 27 Sections 8 to 14, in other words, address specific deprivations of the "right" to life, liberty and security of the person inbreach of the principles of fundamental justice, and as such, violations of s. 7. They are designed to protect, in a specific manner andsetting, the right to life, liberty and security of the person set forth in s. 7.

It would be incongruous to interpret s. 7 more narrowly thanthe rights in ss. 8 to 14. The alternative, which is to interpret all of ss. 8 to 14 in a "narrow and technical" manner for the sake ofcongruity, is out of the question (Law Society of Upper Canada v. Skapinker, supra, at p. 366). 28 Sections 8 to 14 are illustrative of deprivations of those rights to life, liberty and security of the person in breach of the principles offundamental justice.

For they, in effect, illustrate some of the parameters of the "right" to life, liberty and security of the person; they areexamples of instances in which the "right" to life, liberty and security of the person would be violated in a manner which is not inaccordance with the principles of fundamental justice.

To put matters in a different way, ss. 7 to 14 could have been fused into onesection, with inserted between the words of s. 7 and the rest of those sections the oft utilised provision in our statutes, "and,without limiting the generality of the foregoing (s. 7) the following shall be deemed to be in violation of a person's rights underthis section". 29 Thus, ss. 8 to 14 provide an invaluable key to the meaning of "principles of fundamental justice". Many have beendeveloped over time as presumptions of the common law, others have found expression in the international conventions onhuman rights.

All have been recognized as essential elements of a system for the administration of justice which is founded upona belief in "the dignity and worth of the human person" (preamble to the Canadian Bill of Rights, R.S.C. 1970, App. III) and on "therule of law" (preamble to the Canadian Charter of Rights and Freedoms). 30 It is this common thread which, in my view, must guide us in determining the scope and content of "principles of fundamentaljustice". In other words, the principles of fundamental justice are to be found in the basic tenets of our legal system.

They do notlie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system. Such an approach tothe

interpretation of "principles of fundamental justice" is consistent with the wording and structure of s. 7, the context of the section,i.e., ss. 8 to 14, and the character and larger objects of the Charter itself. It provides meaningful content for the s. 7 guarantee all thewhile avoiding adjudication of policy matters. [my emphasis added] [32] If I take Ms.

Souvannarath’s argument at its highest, I should presume that her s. 10 Charter rights were violated during thetime she made her utterances to Detective Constable Fox, and that in Canada an analysis pursuant to s. 24(2) would render thosestatements inadmissible at her trial. [33] According to the governing jurisprudence, derivative evidence (such as the Facebook Inc., fruits of the US search warrant)emanating from her utterances to Detective Constable Fox, should similarly be inadmissible at her trial- see R. v.

Grant, 2009 SCC 32, atparas. 116-128. [34] Her utterances were used by the police in Illinois, as a substantial portion of their grounds to satisfy the judge in question thatthey had “probable cause” that the records of the three co-conspirators maintained by Facebook Inc. should be produced to the Illinoispolice. [35] Although the grounds relied on by the Illinois police were in relation to both, the “Revised Statues of Canada: conspiracy tocommit murder, RSC s.465(1)(

a) Criminal Code of Canada” and “Statute: Conspiracy to Commit Murder, 720 ILCS 5/8-2”, whichappears to be a similar Illinois State offence reference, upon receipt of the Facebook Inc. materials, the Illinois police forwarded those toHRP. [36] Thus, the arguably derivative evidence, namely the Facebook Inc. materials, made their way back to the trial in Canada asadmissible evidence against Ms.

Souvannarath. [37] If the trial court in Canada finds on the one hand that the original evidence is inadmissible, can that evidence still lead toderivative evidence in the United States, which then finds its way back into the trial in Canada, as if the original evidence was notinadmissible, merely because the original evidence passed through the hands of the authorities (police and court) in the United States ofAmerica? Yes, it can.

[38] In spite of the concerns I have raised, I find myself bound by the reasoning of the Supreme Court of Canada in its variousdecisions, and most recently in Hape. That jurisprudence dictates that unless I conclude that the American police were “agents” of theCanadian government/a Canadian state actor, I cannot review the validity of the US warrant. The American police here were notanswerable to/or obligated to follow the instructions of HRP who informally requested their help. They were not “agents” of the“Canadian government”.

Though the Illinois police may have received inadmissible evidence from HRP, provided that the Harrerthreshold is not met, I must not consider that in my Charter analysis. [39] Among others which I considered, I refer specifically to the following statements by Lebel J speaking for the majority in Hape: As a result of the principles of sovereign equality, non-intervention and comity, Canadian law and standards cannot apply to searches andseizures conducted in another state’s territory.

It is also evident from a practical standpoint that the Charter cannot apply to searches andseizures in other countries. (paras. 87-88) A criminal investigation in the territory of another state cannot be a matter within the authority of Parliament or the provinciallegislatures, because they have no jurisdiction to authorize enforcement abroad. (para. 94) When individuals choose to engage in criminal activities that cross Canada’s territorial limits, they can have no guarantee that they carryCharter rights with them out of the country.

As this Court has noted in the past, individuals should expect to be governed by the laws ofthe state in which they find themselves and in which they conduct [the activities that form the basis of the evidence sought to beintroduced at a Canadian trial] (para. 99) The court must first turn to s. 32 [Charter] in order to determine whether the actors are agents of government and then determine whetherthe activities fall within the scope of the legislative authority of Parliament or the provincial legislatures… As a threshold question, itmust be asked whether there is a state actor in the sense of a government agent or official possessing statutory authority orexercising a public function… However, the inquiry does not end there.

It is clear that s. 32(1) applies to state actors “in respect ofall matters” within the authority of Parliament or the provincial legislatures.… Neither Parliament nor the provincial legislatures havethe power to authorize the enforcement of Canada’s laws over matters in the exclusive territorial jurisdiction of another state.Canada can no more dictate what procedures are followed in a criminal investigation abroad then it can impose a taxation scheme inanother state’s territory… Any attempt to dictate how [investigations of crimes linked with more than one country] are to beperformed in a foreign state’s territory without that state’s consent would infringe the principle of non-intervention.

And, asmentioned above, without enforcement, the Charter cannot apply” (paras 103-105). [my emphasis added] Why s. 7 of the Charter of Rights will not assist Ms. Souvannarath [40] Next, I will briefly turn to a consideration of Harrer and ss. 7 and 11(

d) of the Charter of Rights. Sections 7 and 11(

d) read: 7 – Everyone has the right to life, liberty and security of the person and the right not be deprived thereof except in accordance with theprinciples of fundamental justice. 11 – Any person charged with an offence has the right… (

d) to be presumed innocent until proven guilty according to law in a fair andpublic hearing by an independent and impartial tribunal. [41] Although the jurisprudence suggests that it will be very rare that someone in Ms. Souvannarath’s position will be able to make asuccessful s. 8 Charter argument, the reasoning of all three opinions in Harrer, confirm that there is a residual right under the Chartereven in such circumstances, by virtue of the mere fact that the trial is being conducted in Canada. [42] In Harrer, the issue was whether the failure of the United States police to comply with Canadian law made Ms.

Harrer’sstatement inadmissible in Canada. That issue raised two further questions: Whether the Charter applies outside Canada’s boundaries andwhether the principles of fundamental justice and the right to a fair trial permit exclusion of evidence obtained outside Canada. [43] Ms. Harrer, a Canadian, was apprehended in America as United States immigration agents and police wanted to question herabout her immigration status.

At some point, however, the police interview “shifted to Harrer’s alleged criminal participation in [herboyfriend’s] escape from custody in Canada [where he was awaiting extradition to the United States in regard to serious drug charges inthe United States].” [44] Thereafter, she was not given a second warning as would be required of Canadian police investigating a crime in Canada [R. v.Black, (SCC), [1989] 2 S.C.R. 138; R. v.

Evans, (SCC), [1991] 1 S.C.R. 869]. [45] The majority decision, which dismissed her appeal, was written by Justice La Forest who stated: 19 While no new warning was given when the interrogation moved to the more serious offence under Canadian law, I do not think thiswas unfair in the circumstances of this case. In general terms, I have some hesitation in accepting in the abstract that an enquiryconducted in the United States in accordance with the Miranda case is automatically unfair in situations that would in thiscountry require a second warning.

Our law may be more protective, but it does not necessarily follow that the rule developed inthat case is unfair. It would be surprising if it were. Miranda is, after all, a recent case that stands as a landmark decision for theprotection of the rights of a person arrested or detained that this Court has emulated. While this Court has required the further warningdescribed in fleshing out the protection accorded by s. 10(b), it by no means follows that the admission of evidence obtained under alesser standard in another country would make a trial automatically unfair.

Our more stringent rule, as I indicated before, exists for

systemic reasons and is not addressed to determining the fairness of a single situation taking place in another country. I would be inclinedto think that evidence obtained following a Miranda warning should ordinarily be admitted in evidence at a trial unless in the lightof other circumstances the court has reason to think the admission of the evidence would make the trial unfair. 20 There were no such circumstances here -- quite the opposite.

As I mentioned, not only was the Miranda warning given at theoutset of the questioning by the Immigration agents; it was also later recalled to the appellant when the police began their questioning.As well, before the relevant statements were made, the interrogating Marshal impressed upon the appellant the seriousness of hersituation and his knowledge that she was involved in the escape.

On a reading of the judge's findings, it is abundantly clear that theappellant (whom the trial judge, despite her age, described as a "cagey witness" and as "a streetwise and sophisticated young woman"intimately associated with a fugitive sought on charges of high level cocaine trafficking) knew full well that she was being questionedin relation to the very matter in respect of which it is argued a second warning should have been given.

Under thesecircumstances, I am at a loss to understand how these statements would, if admitted, result in the trial being unfair. 21 I should add that, had the circumstances been such that the admission of the evidence would lead to an unfair trial, I wouldhave had no difficulty rejecting the evidence by virtue of the Charter. I would not take this step under s. 24(2), which is addressed tothe rejection of evidence that has been wrongfully obtained.

Nor would I rely on s. 24(1), under which a judge of competent jurisdictionhas the power to grant such remedy to a person who has suffered a Charter breach as the court considers just and appropriate.

Rather, Iwould reject the evidence on the basis of the trial judge's duty, now constitutionalized by the enshrinement of a fair trial in the Charter, toexercise properly his or her judicial discretion to exclude evidence that would result in an unfair trial. [46] In concurring reasons Justices Major and McLachlan stated that “the Charter does not apply to non-Canadian authorities andcannot be so regarded by the courts”.

Regarding the suggestion that American officers were agents of Canadian officers and hencebound by the Charter, they found this to be a question of fact, and as they were dealing with an appeal as of right, which is limited toquestions of law alone, “the issue of agency is not properly before us and I offer no further comment on it.” [47] Importantly, however, they did agree that in some cases ss. 7 and 11(

d) of the Charter can provide relief: 42 In addition to the common law exclusionary power, the Charter guarantees the right to a fair trial (s. 11(d)) and provides newremedies for breaches of the legal rights accorded to an accused person. Evidence obtained in breach of the Charter may only beexcluded under s. 24(2): R. v. Therens, (SCC), [1985] 1 S.C.R. 613.

Evidence not obtained in breach of the Charterbut the admission of which may undermine the right to a fair trial may be excluded under s. 24(1), which provides for "suchremedy as the court considers appropriate and just in the circumstances" for Charter breaches. Section 24(1) applies toprospective breaches, although its wording refers to "infringe" and "deny" in the past tense: Operation Dismantle Inc. v. The Queen, (SCC), [1985] 1 S.C.R. 441.

It follows that s. 24(1) permits a court to exclude evidence which has not beenobtained in violation of the Charter, but which would render the trial unfair contrary to s. 11(

d) of the Charter. [my emphasis added] [48] While the argument was not presented directly to me, from my understanding of the factual matrix in the case at bar, therewould have been no air of reality to an argument that the provision by Canadian police of the information to the Geneva, Illinois, police(which became the basis for their search warrant of Facebook Inc. records), could be found to have met the threshold required by Harrer(at para. 51) per McLachlan: [4] To admit the evidence would be so grossly unfair as to repudiate the values underlying our trial system and condone procedures whichare anathema to the Canadian conscience.

Conclusion [49] This court has no jurisdiction to scrutinize the validity of the search warrant issued by the Circuit Court for the 16th JudicialCircuit in the Unites States, for compliance with the Canadian Charter of Rights and Freedoms. Rosinski, J.