Charter defence ends at border, top court rules
Canadians accused of crimes abroad aren't guaranteed same rights as at home
Janice Tibbetts
The Ottawa Citizen
Friday, June 08, 2007
Canadians accused of crimes abroad are not protected by the Charter of Rights and Freedoms when they're being investigated by Canadian or foreign police, the Supreme Court of Canada ruled yesterday.
"When individuals choose to engage in criminal activities that cross Canada's territorial limits, they can have no guarantee that they carry Charter rights with them out of the country," wrote Justice Louis LeBel.
The decision was a loss for Lawrence Richard Hape, a Canadian businessman from Newmarket, Ont., who was convicted in Canada of laundering the proceeds of drug money after an investigation of his trust company in the Turks and Caicos Islands in the late-1990s. Mr. Hape, who is in his mid-50s, was sentenced to 30-months imprisonment following his 2002 trial.
Mr. Hape unsuccessfully argued that the Supreme Court should overturn his conviction because the RCMP violated his Charter right to be free of unreasonable search and seizure when they conducted covert raids of his company, downloaded information from his computer system and seized more than 100 boxes of records.
The top court accepted the Crown's argument that the Charter doesn't apply because the Turks and Caicos police, not the RCMP, were in charge of the investigation on the islands.
"In a co-operative investigation, Canada cannot simply walk away when another country insists on following its own investigation and enforcement procedures rather than ours," Judge LeBel wrote.
He said it is necessary to maintain goodwill among countries "in an era characterized by transnational criminal activity and by the ease and speed with which people and goods now cross the border."
While the court's ruling in Mr. Hape's case was unanimous, the judges split into three camps over whether the Charter should ever apply outside Canada's borders.
Judge LeBel, writing for the five-judge majority, said the only exceptions to the general rule are when foreign countries flout accepted international norms and conventions, such as violating human rights or committing crimes against humanity.
"Deference to the foreign law ends where clear violations of international law and fundamental human rights begin."
Justice Ian Binnie, writing separate but concurring reasons, warned that the majority has prematurely boxed in the court with its declaration that the Charter is all but void for police investigations in foreign countries.
"Issues of more far-reaching importance will soon confront Canadian courts, especially in the context of the 'war on terror' and its progeny," Judge Binnie wrote. "We should, in my view, avoid premature pronouncements that restrict the application of the (Charter)."
Mr. Hape's lawyer, Alan Gold, was unavailable for comment.
The ruling, which upholds two earlier decisions in the Ontario courts, builds on four Supreme Court rulings during the 1990s on whether the Charter applies outside Canada, including two decisions that were rendered against Canadians who argued they were not given a proper warning about their right to a lawyer when they were questioned by American authorities.
In 1988, the Supreme Court also ruled that the RCMP could obtain the Swiss banking records of Karlheinz Schreiber, a German-Canadian businessman, without a judge's prior approval. In that case, the court found that the Charter didn't apply because the RCMP were only making the request, and it was Swiss authorities who were carrying it out.
In the fourth case, the Supreme Court ruled that the Charter did apply abroad and the judges ordered a new trial for an American being tried in Canada. The court found that Vancouver police officers had interrogated the man in the United States without advising him of his right to a lawyer.
The difference between that case and Mr. Hape's, the court decided, is that the interrogation was conducted by Canadian authorities rather than foreign ones, so there was no interference with another country's sovereignty.
