R. v. Terry, [1996] 2 S.C.R. 207

Robert Scott Terry Appellant

v.

Her Majesty The Queen Respondent

and

The Attorney General of Canada Intervener

Indexed as: R. v. Terry

File No.: 24335.

1996: February 20; 1996: May 30.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for british columbia

Constitutional law ‑‑ Charter of Rights ‑‑ Applicability of Charter outside Canada's boundaries ‑‑ Evidence obtained abroad according to foreign local law ‑‑ Foreign law requiring less exacting procedural standard than Charter ‑‑ Whether failure of foreign police to comply with Canadian law rendering evidence so obtained inadmissible ‑‑ Canadian Charter of Rights and Freedoms, ss. 7, 11(d), 24(2).

Evidence ‑‑ Admissibility ‑‑ Poem and dream similar to facts ‑‑ Whether or not poem and evidence of dream admissible.

The accused, who had allegedly fatally stabbed a man, fled to the U.S. where he was arrested by U.S. police on an extradition warrant acting on information from Canadian police. The Canadian police requested the U.S. police to advise the accused of his U.S. rights. Although the U.S. police complied with all American legal requirements they did not comply with the requirement in the Canadian Charter of Rights and Freedoms that a person be advised forthwith upon detention of his or her right to counsel. The statement obtained by the U.S. police and the items that they seized were admitted at trial. The accused was convicted of second degree murder and the conviction was confirmed on appeal. At issue was whether the failure of police officers in another country to conform to the requirements of the Charter rendered the evidence so gathered inadmissible under s. 24(2) of the Charter in a trial in Canada. The admissibility of a dream that the accused had related to witnesses and of an undated poem in his handwriting was also questioned.

Held: The appeal should be dismissed.

The U.S. police gathering evidence in the U.S. for the Canadian police were not subject to the Charter. Section 24(2), which applies only if a breach of the Charter is established, accordingly did not apply. Finding the U.S. police subject to and in breach of Canada's Charter when they detained the fugitive under a U.S. warrant would run counter to the settled rule that a state is only competent to enforce its laws within its own territorial boundaries. Indeed, this general rule is particularly true of the legal procedures enacted to enforce it. Under bilateral mutual legal assistance treaties the actions requested of the assisting state are undertaken in accordance with its own laws. The practice of cooperation between police of different countries does not make the law of one country applicable in the other country.

Considerations of fairness do not demand a remedy under s. 24(2) of the Charter. Section 24(2) is not an independent source of Charter rights. The Court cannot extend the Charter's ambit, in the name of fairness, to include as a "constructive" breach conduct not governed by it. It is not unfair to treat evidence gathered abroad differently from evidence gathered in Canada. People should reasonably expect to be governed by the laws of the state in which they are found. Travellers abroad are nevertheless not without a remedy for abuse in the course of foreign evidence‑gathering. Provisions such as the s. 11(d) right to a fair trial and the s. 7 right not to be deprived of liberty except in accordance with the principles of fundamental justice may apply.

Foreign police gathering evidence for Canadian police should not, as a matter of policy, be required to conform to the Charter. Evidence gathering abroad occurred not because of any attempt to circumvent the Charter but because of the accused's decision to go abroad. High standards are to be encouraged by the Canadian police of the foreign police to avoid the possibility of the evidence being excluded or a stay being entered. Finally, any attempt to bind foreign police by Canadian law would be impossible to regulate.

It was not necessary to decide whether the U.S. police were acting as agents of the Canadian police.

The probative value of the poem on the ultimate issue was not great, given that its connection to the known events was tenuous, but its prejudicial effect was considerable. It was nevertheless admissible as a link in the chain of inferences tending to establish guilt. Evidence relating to accused's dream too was admissible as part of the narrative of the accused's conduct after the crime. It was never suggested that the jury should treat the dream as an admission of the accused's guilt. Concerns about this evidence were alleviated by the careful instruction the jury received.

Cases Cited

Referred to: The Schooner Exchange v. M'Faddon, 11 U.S. (7 Cranch) 116 (1812); The Case of the SS. "Lotus" (1927), P.C.I.J. Ser. A, No. 10; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; R. v. Finta, [1994] 1 S.C.R. 701; Libman v. The Queen, [1985] 2 S.C.R. 178; Tolofson v. Jensen, [1994] 3 S.C.R. 1022; R. v. Harrer, [1995] 3 S.C.R. 562; R. v. Filonov (1993), 82 C.C.C. (3d) 516; R. v. Shafie (1989), 47 C.C.C. (3d) 27; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. S. (R.J.), [1995] 1 S.C.R. 451.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 7, 10(b), 11(d), 24(1), (2).

Criminal Code, R.S.C., 1985, c. C‑46, ss. 6(2), 7(1), (2), (3.71) [ad. c. 30 (3rd Supp.), s. 1].

Mutual Legal Assistance in Criminal Matters Act, R.S.C., 1985, c. 30 (4th Supp.).

Treaty between the Government of Canada and the Government of the United States of America on Mutual Legal Assistance in Criminal Matters, Can. T.S. 1990 No. 19, Art. VII, s. 2.

Authors Cited

O'Connell, D. P. International Law, vol. 2, 2nd ed. London: Stevens & Sons, 1970.

Williams, Sharon A. and J.-G. Castel, Canadian Criminal Law: International and Transnational Aspects. Toronto: Butterworths, 1981.

APPEAL from a judgment of the British Columbia Court of Appeal (1994), [91 C.C.C. (3d) 209], 34 C.R. (4th) 77, 46 B.C.A.C. 185, 75 W.A.C. 185, dismissing an appeal against conviction by Low J. sitting with jury. Appeal dismissed.

Charles Lugosi and Russell Walter Cornett, for the appellant.

William F. Ehrcke and Oleh Kuzma, for the respondent.

S. David Frankel, Q.C., and Kimberly Prost, for the intervener.

The judgment of the Court was delivered by

I. McLachlin J. -- This case raises the issue of whether the failure of police officers in another country to conform to the requirements of the Canadian Charter of Rights and Freedoms renders the evidence thus gathered inadmissible in a trial in Canada.

II. The appellant Terry was charged with the first degree murder of James Meehan, whose stabbed body was found in a Prince George, British Columbia rooming house. After reporting to several friends that he had a dream in which he stabbed the deceased, Terry fled to a girlfriend's residence in Santa Rosa, California. When Terry's whereabouts became known to the RCMP officers in Prince George, they informally requested the assistance of the local police in apprehending the fugitive. Details of the crime were provided by fax, and detective Gorman of the Santa Rosa police undertook a brief external surveillance of the premises Terry was believed to occupy. Shortly thereafter a Canada-wide warrant was issued for Terry's arrest, and he was taken into custody by police officers at Santa Rosa, California, on August 24, 1990, pursuant to an arrest warrant issued by a U.S. District Court in connection with an official Canadian request for extradition.

III. When apprised by phone of Terry's arrest, sergeant Roberts, head of the General Investigation Section of the RCMP detachment in Prince George, asked that the Santa Rosa officers interview Terry and take down any statement he cared to make. Sergeant Roberts asked the suspect be advised of his American rights. The officers took Terry to an interview room and gave him a "Miranda warning" in the following terms:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer before you are questioned and to have him present with you while you're being questioned. If you cannot afford to hire a lawyer one will be appointed to represent you before questioning if you wish one. You can decide at any time to exercise these rights, not to answer any questions or make any statements. Okay do you understand each of the rights I've read to you?

Terry replied that he understood what he had been told and declined the services of a lawyer. He indicated he was willing to make a statement. The interview was tape-recorded and Terry was not abused in any fashion. He gave a statement denying the killing which, while largely exculpatory, contradicted the evidence of other witnesses who would testify that he had related the substance of a dream concerning the specific circumstances of the killing to them shortly after the event. In the statement, Terry also revealed that he had his knife in his gym bag at his girlfriend's apartment in Santa Rosa. The Santa Rosa police obtained a search warrant for the premises, and found and seized the knife. Canadian officers flew to California to interview the appellant personally on August 26, 1994 and he was extradited on August 28, 1994 after waiving a hearing.

IV. It is common ground that the California officers complied with all American legal requirements. They did not, however, comply with the requirement of the Charter that a person be advised forthwith upon detention of his or her right to counsel. The Miranda rule as applied in California requires only that the accused be advised of his or her right to counsel when confined in a custodial setting and prior to questioning.

V. At trial the Crown sought to tender the statement obtained by the Santa Rosa police and the items seized. Following a lengthy voir dire, Low J. held them to be admissible. In his view, the search was reasonable and the appellant's statement voluntary in the traditional sense. Low J. found, moreover, that the statement "was not the product of any act of unfairness or breach of any Charter rights, despite the fact that the accused was not given his Miranda rights until the interview began". The Crown also adduced evidence of an undated, unsigned poem in Terry's handwriting which had been found written on a pad of paper in his Prince George room during the execution of a valid search warrant on August 23, 1990. The poem read as follows:

Crazy thoughts pass through my head.

Now I have killed a life, it's dead.

I drained his blood with my

knife, how stupid am I to

take his life. He had done

nothing wrong but I took his

life and now he's gone. Why?

Why did I do it? How? How

could I? Shit.

VI. The jury convicted Terry of second degree murder. The Court of Appeal ((1994), [91 C.C.C. (3d) 209]) affirmed the conviction, ruling that the statement taken in the United States was admissible. Terry now appeals to this Court, questioning the admissibility of the statement taken by the California police, the dream he related to witnesses, and the poem in his handwriting.

Legislative Provisions

VII. The relevant sections of the Charter read as follows:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8. Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction 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 any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

The Admissibility of the Statement

VIII. The principal issue in this appeal concerns whether the failure of the California police to advise Terry of his right to counsel at the time of his arrest constitutes a violation of his s. 10(b) Charter rights rendering the statement subsequently obtained susceptible to exclusion under s. 24(2) at his trial in Canada.

IX. The appellant Terry argues that the tender of evidence at trial triggers the Charter regardless of "where, when, how, or why that evidence was obtained". Alternatively, he asserts that if evidence gathered abroad is not always to be treated as though it had been gathered in Canada, it should be so treated in this case because the California police were acting as the agents of the Canadian police.

X. The Attorney General of British Columbia responds by asserting that the Charter does not generally apply abroad. It follows, he argues, that the failure of foreign police to conform to it is not a Charter breach making s. 24(2) of the Charter applicable. In his view, the only Charter ground on which the evidence could be excluded is under s. 7, on the basis that its admission would be contrary to the principles of fundamental justice. The Attorney General also submits that the California police were not the agents of the Canadian police and hence no attributive Charter breach capable of invoking s. 24(2) occurred. The Attorney General of Canada supports these positions.

XI. Neither the appellant nor the respondent asserts that the admission of the evidence would render the trial unfair under ss. 7 and 11(d) of the Charter. Hence the main issue is whether there is a breach of the Charter, either direct or attributive, which brings s. 24(2) into play. If such a breach is found, the further issue arises of whether the evidence should be excluded under s. 24(2) of the Charter.

Analysis

XII. The question is whether the failure of the California police to advise Terry of his right to counsel immediately upon his arrest constitutes a violation of the Charter bringing s. 24(2) into play.

XIII. I consider first the appellant's broad assertion that all evidence tendered in Canada ought to be treated as though the Charter applies to it, regardless of where it was obtained, with the consequence that a failure of foreign police to observe the requirements of the Charter constitutes a violation sufficient to engage s. 24(2) of the Charter.

XIV. The main difficulty this argument encounters is that s. 24(2) of the Charter applies only if a breach of the Charter is established. In order to find a Charter breach, it is necessary to find that in detaining Terry under the authority of a U.S. warrant, the Santa Rosa police were subject to the Charter. Such a finding would run counter to the settled rule that a state is only competent to enforce its laws within its own territorial boundaries. As Marshall C.J. put it in The Schooner Exchange v. M'Faddon, 11 U.S. (7 Cranch) 116 (1812), at p. 136, "[t]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself."

XV. The principle that a state's law applies only within its boundaries is not absolute: The Case of the SS. "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 those provisions 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 crimes against humanity (s. 7(3.71)). A state may likewise formally consent to permit Canada and other states to enforce their laws within its territory for limited purposes. In such cases, the Charter may find limited application abroad. But these exceptions, none of which is asserted in the case at bar, do not negate the general rule that a state's laws apply only within its own territory.

XVI. This Court has repeatedly affirmed the territorial limitations imposed on Canadian law by the principles of state sovereignty and international comity. In Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, Charter protection of refugees was confined within the borders of Canada. Again, in R. v. Finta, [1994] 1 S.C.R. 701, at p. 806, Cory J. affirmed that s. 6(2) of the Code reflects the principle "that a state has exclusive sovereignty over all persons, citizens or aliens, and all property, real or personal, within its own territory". In Libman v. The Queen, [1985] 2 S.C.R. 178, at p. 183, the Court, per La Forest J., affirmed that "[t]he primary basis of criminal jurisdiction is territorial". And in the context of the law of torts, La Forest J. wrote in Tolofson v. Jensen, [1994] 3 S.C.R. 1022, at pp. 1050-51:

Ordinarily people expect their activities to be governed by the law of the place where they happen to be and expect that concomitant legal benefits and responsibilities will be defined accordingly. The government of that place is the only one with the power to deal with these activities. The same expectation is ordinarily shared by other states and by people outside the place where an activity occurs.

XVII. The general rule that a state's criminal law applies only within its territory is particularly true of the legal procedures enacted to enforce it; the exercise of an enforcement jurisdiction is "inherently territorial": D. P. O'Connell, International Law (2nd ed. 1970), vol. 2, at p. 603. As La Forest J. wrote in R. v. Harrer, [1995] 3 S.C.R. 562, at para. 15, "Canada cannot impose its procedural requirements in proceedings undertaken by other states in their own territories".

XVIII. The practice of cooperation between police of different countries does not make the law of one country applicable in the other country. Bilateral mutual legal assistance treaties negotiated under the authority of the Mutual Legal Assistance in Criminal Matters Act, R.S.C., 1985, c. 30 (4th Supp.), stipulate that the actions requested of the assisting state shall be undertaken in accordance with its own laws, not those of the requesting state: see, for example, the Treaty between the Government of Canada and the Government of the United States on Mutual Legal Assistance in Criminal Matters, Can. T.S. 1990 No. 19, Art. VII, s. 2. As Dilks J. noted in R. v. Filonov (1993), 82 C.C.C. (3d) 516 (Ont. Ct. (Gen. Div.)), at p. 520, "[t]he sovereign authority of Canada ends with the sending of the request" for assistance. Thus, if the Santa Rosa police in this case had been responding to a treaty request, they would not have been governed by the Charter.

XIX. Still less can the Charter govern the conduct of foreign police cooperating with Canadian police on an informal basis. The personal decision of a foreign officer or agency to assist the Canadian police cannot dilute the exclusivity of the foreign state's sovereignty within its territory, where its law alone governs the process of enforcement. The gathering of evidence by these foreign officers or agency is subject to the rules of that country and none other. Consequently, any cooperative investigation involving law enforcement agencies of Canada and the United States will be governed by the laws of the jurisdiction in which the activity is undertaken: see Williams and Castel, Canadian Criminal Law: International and Transnational Aspects (1981), at p. 320.

XX. It follows that the Charter did not apply to the California police when they detained the appellant. They were subject only to American law. Their conduct cannot amount to a breach of the Charter. No breach of the Charter being established, the statement cannot be ruled inadmissible under s. 24(2) of the Charter: R. v. Shafie (1989), 47 C.C.C. (3d) 27 (Ont. C.A.).

XXI. It remains to consider the appellant's arguments that considerations of fairness and policy demand a remedy under s. 24(2) of the Charter.

XXII. I turn first to the argument on fairness. The appellant argues that it is unfair and artificial to treat evidence gathered abroad any differently than evidence gathered in Canada. From the point of view of fairness, he asserts, it makes little difference to an accused whether the police conduct at issue occurred in this country or elsewhere. Evidence obtained in contravention of Canadian standards should be subject to exclusion under s. 24(2) whenever it is tendered at a Canadian trial, irrespective of where it was gathered.

XXIII. The first answer to this argument is that s. 24(2) is not an independent source of Charter rights; it is merely a remedy for their breach. The argument amounts to a plea that this Court should, in the name of fairness, treat conduct which is not governed by the Charter as a "constructive" breach of the rights it protects. In short, we are asked to rewrite the Charter. That, in my view, is something this Court cannot and should not do. The framers of the Charter must be taken to have been aware of the principle of international law which, as a general rule, precludes the application of domestic laws or procedural codes to a process of enforcement effected on foreign soil. It is not for this Court to so extend its ambit.

XXIV. The second answer to this argument is that it is not in fact unfair to treat evidence gathered abroad differently from evidence gathered on Canadian soil. People should reasonably expect to be governed by the laws of the state in which they currently abide, not those of the state in which they formerly resided or continue to maintain a principal residence: Harrer, supra, at para. 50; Tolofson, supra. The appellant's argument amounts to asserting that a Canadian traveller takes Canadian law with him or her, a proposition that is belied by the principle that within its territory, a state is exclusively competent to exercise an enforcement jurisdiction.

XXV. Nor does this leave the traveller abroad without a remedy for abuse in the course of foreign evidence-gathering. As this Court articulated in Harrer, supra, while s. 24(2) of the Charter may not be available in such a case, other provisions are. The Charter guarantees the accused a fair trial: s. 11(d). More generally, the Charter provides that the accused's liberty cannot be limited except in accordance with the principles of fundamental justice: s. 7. To admit evidence gathered in an abusive fashion may well violate the principles of fundamental justice. For example, the common law confessions rule was extended in accordance with the principles of fundamental justice under s. 7 of the Charter in R. v. Hebert, [1990] 2 S.C.R. 151. The principle against self-incrimination has similarly been held to be one of the principles of fundamental justice under s. 7: R. v. S. (R.J.), [1995] 1 S.C.R. 451, per Iacobucci J. The accused may use these and other principles of fundamental justice to obtain redress for abuses abroad in gathering evidence subsequently tendered against him or her.

XXVI. I come finally to the appellant's argument on policy. The appellant argues that unless foreign police are "obliged" to conform to the Charter, Canadian police will circumvent Charter guarantees by gathering evidence through foreign police bound by lower procedural standards. I cannot accept this submission. First, it is the decision of the suspect to go abroad that triggers the application of the foreign law. Thus the situation was not one that can be created or manipulated by the Canadian police in order to facilitate gathering evidence. Second, even if the Charter does not apply abroad, Canadian police have an incentive to encourage foreign police cooperating with them to observe high standards in order to avoid the possibility of having the evidence excluded or a stay entered on the ground that its use would violate the principles of fundamental justice or render the trial unfair. Finally, any attempt to bind foreign police by Canadian law would be impossible to regulate. Police are sworn to uphold the law of their own land, not someone else's. Moreover, the concurrence of two sets of legal obligations applicable to the same police force might well produce confusion. The foreign police may be initially investigating a suspect at the request of the RCMP, but if they have reason to believe he or she has committed an offence in their country as well, which country's procedural rules would they follow? How would a lawyer advise an accused about his or her rights? How could the accused make a sensible decision on what those rights are? The rules governing the gathering of evidence must be clear and simple, as well as fair. The general principle is that the law of the land in which one finds oneself governs the conduct of the enforcement process, supplemented, as fairness requires it, with the right to provide relief at trial. This affords the best chance of securing both clarity and fairness.

XXVII. I conclude that the appellant's contention that the conduct of the Santa Rosa police amounts to a Charter breach must fail. The officers were bound only by the laws of California. Even if one could somehow classify them as "agents" of the Canadian police, so long as they operated in California they would be governed by California law. In view of this conclusion, it is unnecessary to determine whether the police in California were acting as agents of the Canadian police.

The Admissibility of Evidence of the Dream and the Poem

XXVIII. The appellant contends that a poem seized from his bedroom referring to the taking of a life, entered without objection at trial, should not have been admitted. An admission against interest made by the accused is admissible as a recognized exception to the hearsay rule, provided that its probative value outweighs its prejudicial effect.

XXIX. The probative value of the poem on the ultimate issue is not great. As a form of artistic expression, a poem is not necessarily probative of the "truth" expressed therein; an author may have any number of motivations for expressing him- or herself in a given fashion, only one of which is to recite what he or she did. Moreover, this poem's connection with known events is tenuous. No names were mentioned. The poem is undated. No details of the "crime" described in the poem were provided other than a reference to the use of a "knife". At the same time, its prejudicial effect was considerable. The danger existed that the jury would accept the poem's oblique factual similarity with actual events to infer directly that the appellant was the author of both the poem and the events.

XXX. These concerns, however real, were alleviated by the careful instruction the jury received on the use of the poem. The trial judge charged the jury that it could conclude that the poem represented a "lament about the killing in question", but was not to use it in isolation as direct proof of the fact the appellant committed the act. It was admissible, he instructed, as a link in the chain of inferences tending to establish guilt; the strength of that link was for the jury to determine based on the cogency of the connecting inferences and the number and nature of alternative innocent inferences. Defence counsel specifically alerted the jury to the fact that the appellant was the author of numerous poems written prior to the killing, some of which conjured up scenes of violence. And there was nothing in the Crown's address that was capable of "inflaming the emotions of the jurors" to the point where they would overlook the fact that an inference equally consistent with innocence could be drawn from the poem. Accordingly, I conclude that admission of the poem was proper.

XXXI. The admissibility of the evidence about the appellant's dream was raised for the first time in this Court. In my view, the submission was without merit. The limited value of the dream was apparent. It figured only as part of the narrative of the appellant's conduct after the crime. While the dream was "unreal", its narration was an actual event to which witnesses could testify. It was never suggested that the jury should treat the dream as an admission of the appellant's guilt. As with the poem, different inferences could be drawn from the evidence of the dream. The trial judge made it clear that it was for the jury to decide what inference, if any, should be drawn in the context of all the evidence.

Disposition

XXXII. I would dismiss the appeal and affirm the conviction.

Appeal dismissed.

Solicitors for the appellant: Lugosi & Company, Prince George.

Solicitor for the respondent: The Attorney General of British Columbia, Prince George.

Solicitor for the intervener: The Attorney General of Canada, Ottawa.