minicounsel

R. v. Cook, 1998 CanLII 802 (SCC), [1998] 2 SCR 597

Deltonia R. Cook Appellant

Her Majesty The Queen Respondent

and

The Attorney General of Canada Intervener

Indexed as: R. v. Cook

File No.: 25852.

1998: June 17; 1998: October 1.

Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.

on appeal from the court of appeal for british columbia

Constitutional law ‑‑ Charter of Rights ‑‑ Extraterritorial application ‑‑ Canadian police officers interviewing suspect in the United States on suspicion of a murder committed in Canada ‑‑ Charter right to counsel (s. 10(b)) allegedly infringed ‑‑ Whether the Charter applies to the taking of the accused’s statement in the United States by Canadian police for a criminal prosecution to take place in Canada ‑‑ If so, whether the Charter was breached ‑‑ If a breach occurred, whether the statement should be excluded under s. 24(2) ‑‑ Canadian Charter of Rights and Freedoms, ss. 7, 10(b), 24(2), 32(1).

Evidence ‑‑ Admissibility ‑‑ Canadian police officers interviewing suspect in the United States on suspicion of a murder committed in Canada ‑‑ Charter right to counsel (s. 10(b)) allegedly infringed ‑‑ Statement’s admission sought to impeach credibility ‑‑ Whether or not statement made at interview should be admitted.

The accused was arrested in the United States by U.S. authorities pursuant to a warrant issued in connection with a Canadian extradition request following a murder committed in Canada. The accused was read his Miranda rights upon arrest and said he understood those rights. When taken before a United States Magistrate, the accused indicated that he wanted a lawyer appointed for him, but he did not see or contact a lawyer prior to his interrogation by the Canadian detectives.

The Canadian detectives who interviewed the accused did not ask the U.S. authorities if the accused had requested a lawyer and, indeed, informed the accused of his right to a lawyer in a confusing and defective manner subsequent to asking the accused a series of background questions. The accused gave a statement in which he denied having committed the murder. At trial, the Crown sought a ruling which would have permitted it to use this statement to impeach the accused’s credibility. On a voir dire, the defence alleged that the statement was obtained in breach of s. 10(b) of the Canadian Charter of Rights and Freedoms and sought its exclusion under s. 24(2). The trial judge found that the statement was admissible, notwithstanding the Charter breach, for the limited purpose of impeaching the accused’s credibility in cross‑examination. The accused was convicted and his appeal to the Court of Appeal was dismissed. At issue is: (1) whether the Charter applies to the taking of the accused’s statement by Canadian police in the United States in connection with their investigation of an offence committed in Canada for a criminal prosecution to take place in Canada; (2) if so, whether the Charter was breached in the circumstances; and, (3) if the Charter was breached, whether the statement should be excluded under s. 24(2) of the Charter.

Held (L’Heureux‑Dubé and McLachlin JJ. dissenting): The appeal should be allowed.

Per Lamer C.J. and Cory, Iacobucci, Major and Binnie JJ.: The Charter applies to the actions of the Canadian detectives in interviewing the accused in the United States and its application here does not interfere with the sovereign authority of the U.S.

Application of the Charter abroad cannot be determined merely by reference to s. 32(1). Notwithstanding the general prohibition in international law against the extraterritorial application of domestic laws, the Charter can in certain limited and rare circumstances apply beyond Canada’s territorial boundaries. Although territory is clearly a critical element in determining the scope of a state’s jurisdiction under international law, some circumstances exist where the reach of domestic law may not be determined solely by reference to territory. In these circumstances, the application of the Charter to Canadian law enforcement authorities can be founded on other jurisdictional principles that will not result in an objectionable interference with the exercise of a foreign state’s jurisdiction.

International law permits states to evoke the nationality of the person subject to the domestic law as a valid basis of jurisdictional authority. Jurisdictional competence on the basis of territoriality and nationality is an incident of sovereign equality and independence. The terms “nationality” and “citizenship” are not synonymous. Nationality is much broader and refers to a person who may not possess full political and civil rights of citizenship but nevertheless has a right of protection of the state and in return owes allegiance to it. To require that Canadian law enforcement authorities comply with Charter standards abroad may not, depending on the circumstances, interfere with the foreign state’s sovereign authority and integrity. However, an objectionable extraterritorial effect would result if the Charter were applied to foreign officers, even where the foreign officers can be described as the agents of Canadian authorities.

The Charter is not absolutely restricted in its application to Canadian territory. It applies on foreign territory in circumstances where the impugned act falls within the scope of s. 32(1) of the Charter on the jurisdictional basis of the nationality of the state law enforcement authorities engaged in governmental action and where the application of Charter standards will not conflict with the concurrent territorial jurisdiction of the foreign state.

The Charter applies to the actions of the Canadian detectives in the United States. First, since the interrogation was conducted by Canadian detectives in accordance with their powers of investigation which are derived from Canadian law, the impugned action falls within the purview of s. 32(1). Second, applying the Charter to the Canadian detectives’ actions in these circumstances does not result in an interference with the territorial jurisdiction of the foreign state. It is reasonable both to expect the Canadian officers to comply with Charter standards and to permit the accused, who is being made to adhere to Canadian criminal law and procedure, to claim Canadian constitutional rights relating to the interrogation conducted by the Canadian officers abroad.

The application of the Charter here will not ultimately confer Charter rights on every person in the world who is in some respect implicated in the exercise of Canadian governmental authority abroad. The holding here marks an exception to the general rule in public international law of territorial limits upon a state’s exercise of jurisdiction, and arises on the basis of the very particular facts. The situation is far different from the myriad of circumstances in which persons outside Canada are trying to claim the benefits of the Charter simpliciter.

The breach was very serious if not flagrant. The advice as to the right to counsel omitted pertinent information and in this way was defective. More importantly, it was confusing and misleading to the extent that it deprived the accused of the opportunity to make a decision whether to obtain legal advice. For police to lie or mislead individuals with regard to their Charter rights is fundamentally unfair and demeaning of those Charter rights. To countenance it would bring the administration of justice into disrepute. As well, the breach occurred when the accused was in custody and therefore particularly vulnerable.

Three groups of factors are to be considered in determining whether the admission of evidence would bring the administration of justice into disrepute: the effect of admission of the evidence on the fairness of the trial, the seriousness of the breach and the effect of exclusion of the evidence on the repute of the administration of justice. The question in all cases is whether the admission of the evidence could bring the administration of justice into disrepute, in the eyes of a reasonable person, dispassionate and fully apprised of the circumstances.

The nature of the evidence and of the violation are relevant to the determination of whether the admission of the evidence would render the trial unfair. The initial step is to classify the type of evidence in question, first as conscriptive or non‑conscriptive. Subject to rare exceptions, conscriptive evidence must be excluded. While the impugned statement contained denials of guilt, and therefore could be said not to be “self‑incriminating”, the content of the statement does not change its characterization for purposes of this analysis. Here, the accused’s statement made to the Canadian officers should be classified as conscriptive. There were no special circumstances here to justify the statement’s admission.

The distinction between incriminating and exculpatory statements is not a factor that should influence the s. 24(2) analysis. Similarly the fact that the Crown seeks to use the evidence only in cross‑examination of the accused should not have persuaded the trial judge to decide in favour of admitting the evidence. The evidence should be excluded under s. 24(2).

Per Gonthier and Bastarache JJ.: There is no conflict between an interpretation of s. 32(1) which favours the application of the Charter to the activities of Canadian officials conducting an investigation abroad and international law principles of territorial jurisdiction.

Section 32(1) defines the application of the Charter according to who acts, not where they act. It applies the Charter to those persons exercising legislative authority or to those who are part of the executive government ‑‑ to governmental action, which may arise either because of the nature of the powers exercised, or because the actor is actually a part of the government. On its face, no mention is made of a territorial limitation. Section 32(1) therefore applies to officers of the Canadian state who are abroad, independent of whether they exercise governmental powers of coercion or not. That person’s movement into another jurisdiction does not alter his or her status or the application of the Charter to him or her. The fact that the officer may not be authorized to exercise any legislative power because of his or her presence in a foreign jurisdiction is immaterial.

Section 32(1) dictates that the Charter may not be applied to any matter within the authority of a foreign government, or to foreign personnel (unless they are somehow concurrently part of the Canadian government or subject to Canadian legislative authority). The key issue in cases of cooperation between Canadian officials and foreign officials exercising their statutory powers is determining who was in control of the specific feature of the investigation which is alleged to constitute the Charter breach. This inquiry involves weighing the relative roles of the Canadian officials and of the foreign officials. When a Canadian officer is invited by the foreign official to exercise some power during an investigation, whether s. 32(1) is engaged will depend on the extent to which the exercise of the power is supervised by the foreign official. If, in weighing these factors, it is found that the foreign authority was responsible for the specific circumstances leading to the Charter breach, then those activities are not subject to the Charter, notwithstanding the participation of the Canadian officials in the cooperative investigation. In cases in which a defendant seeks to invoke s. 24(2) to exclude evidence from a trial being conducted in Canada, the focus of the analysis must be on the relative roles of the Canadian and foreign officials in obtaining the specific evidence which the defendant seeks to exclude. If the Canadian officials were primarily responsible for obtaining the evidence in a manner which violated the Charter, then the Charter will apply to them and to the evidence obtained by them. In this case, the Canadian police officers exercised virtually total control over the questioning procedure.

At international law, territoriality in respect of the jurisdiction to enforce is very different from territoriality as it might constrain the prescription of juridical consequences within the domestic legal system. Modern territoriality doctrine recognizes that it is permissible to assert criminal jurisdiction over acts taking place in another state if they are connected to other acts that take place in the forum state which are in furtherance of criminal behaviour, or if the acts in the other state have some pernicious consequence within the forum. It is sufficient that there be a “real and substantial link” between an offence and this country. The courts of Canada can take cognizance of the decisions of other countries through the principles of autrefois acquit and autrefois convict.

Whether there is an extraterritorial application of law depends to a large extent on whether there is a conflict between the two legal systems engaged. The objective territorial principle will give way to an impermissible extraterritoriality on the basis of two factors: first, a conflict between the application of the two legal systems; and second, where there is a conflict, the application by a state of its laws without any, or with a lesser, real and substantial connection to the events in question. International law requires that concurrent claims to jurisdiction, especially with respect to the criminal law, be carefully circumscribed to ensure that a state purporting to assume jurisdiction over events occurring abroad has a significant connection, or in the case of conflict with another jurisdiction, the most significant connection to the events in question.

The nature of the Charter guarantees, in particular those contained in ss. 7‑14, must be assessed to determine whether there is a possibility of conflict with a foreign legal system. The legal rights contained in the Charter qualify and condition the exercise of powers by government officials and ensure that if the government chooses to conduct an investigation, it must observe certain rules.

There is a real and substantial connection between the investigation taking place abroad and the Charter simply by virtue of the fact that Canadian officials are involved. This connection cannot be equated with nationality. Indeed, the application of the nationality principle to Canadian police officers abroad was irrelevant.

Three factors are relevant to determining whether the application of the Charter interferes with the jurisdictional integrity of the host state, and whether that state has a more real and substantial connection to the events, so as to displace the presumed jurisdiction of Canadian law. First, the terms of s. 32(1) do not extend the application of the Charter to the actions of foreign officials, or to the exercise of powers authorized by a foreign legal authority. Second, the nature of the rights contained in the relevant sections of the Charter are not mandatory, but rather conditional upon the occurrence of specified investigatory activities. Third, the nature of the juridical consequences prescribed by the legal system of the forum do not raise any problems of extraterritoriality.

Evidence obtained as a result of a Charter breach is not automatically excluded at the trial of a defendant. Section 24(2) ensures that circumstances in the foreign country may be taken into account in determining whether the evidence should be admitted notwithstanding the breach of the Charter.

Per L’Heureux‑Dubé and McLachlin JJ. (dissenting): A person invoking a Charter right must first show that he or she held that right. Determining whether someone is granted a right by the Charter involves an analysis of the language of the provision at issue and of the purposes of the rights guarantees in the Canadian constitution. Neither party put forward argument on the question of whether the accused was a rights holder at the time his rights were allegedly violated, so the appeal was not decided on that basis.

Previous jurisprudence has established two fundamental principles regarding the extraterritorial application of the Charter. First, the action alleged to have violated the Charter must have been carried out by one of the governmental actors enumerated in s. 32. Second, if there is cooperation between Canadian and foreign officials on foreign soil, that action will not trigger Charter application even if the action is attributable to a government listed in s. 32.

Whether an investigation is cooperative depends on whether Canadian officials have legal authority in the place where the actions alleged to have infringed the Charter took place. Section 32 of the Charter mandates that it applies to matters that fall “under the authority” of Parliament or a provincial legislature. An investigation on soil under foreign sovereignty takes place under the authority of the foreign state, so s. 32 is not triggered. The Charter does not apply to any investigation where Canadian officials no longer hold the legal attributes of government. This occurs whenever an investigation takes place under foreign sovereignty.

The accused did not benefit from the protections of s. 10(b) because the Canadian police were acting under U.S. legal sovereignty. They had to cooperate with Americans and work under American law in order to carry out their investigations. Their actions were not independent of the U.S. legal system, nor were the Canadian state’s legal powers implicated. The circumstances of this case show the myriad of ways in which cooperation was necessary here, and is necessary whenever Canadian officials work under the sovereignty of another government.

The Charter guarantees of a fair trial (s. 11(d)) and of respect for the principles of fundamental justice (s. 7) may apply to exclude the admission of evidence at a trial, whether or not a Charter right applied to the gathering of that evidence. Evidence will be excluded when its admission would lead to an unfair trial. However, the fact that the evidence was obtained in a manner that would have violated one of the sections of the Charter is not determinative. All relevant circumstances must be taken into account. An important factor in this analysis is whether it was Canadian or foreign police who were responsible for the alleged unfairness. Canadian police should ensure, to the extent possible, that the letter and spirit of the Charter’s protections are accorded, and their actions will be examined more strictly than those of foreign officials who work within a legal system that has different procedures from our own.

Here, the conduct of the Canadian detectives was not so serious that admission of the evidence would violate the accused’s right to a fair trial, taking into account all the circumstances and society’s interest in finding out the truth. The accused was aware of his right to counsel from the time of his arrest, and understood this right. His statement was voluntary, since he knew he did not have to talk to the Canadian officers. The Canadians told him of his right to counsel, though not in the clearest way possible, and offered to put him in touch with a legal aid lawyer. The delay in giving the information is relatively unimportant for the purpose of determining the admissibility of these statements, since they were made after the information about the right to counsel was given, and only background information was discussed before this point.

The evidence was admitted for the limited purpose of impeaching the accused’s credibility on cross‑examination. In many cases, the use of the statements at the trial is of no significance in the analysis under either s. 7 or s. 24(2). However, in this case, where the credibility of other witnesses was also impugned with prior inconsistent statements, the jury would have been given a misleading impression about the credibility of the accused, compared to that of other witnesses, had the evidence not be admitted. This contributes to the finding that s. 7 was not violated.

The trial judge properly instructed the jury on the limited use that could be made of the accused’s statements.

Cases Cited

By Cory and Iacobucci JJ.

Considered: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265; R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562; R. v. Terry, 1996 CanLII 199 (SCC), [1996] 2 S.C.R. 207; R. v. Calder, 1996 CanLII 232 (SCC), [1996] 1 S.C.R. 660; Schreiber v. Canada (Attorney General), 1998 CanLII 828 (SCC), [1998] 1 S.C.R. 841; R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607; referred to: R. v. Kuldip, 1990 CanLII 64 (SCC), [1990] 3 S.C.R. 618; The Case of the S.S. “Lotus” (1927), P.C.I.J., Ser. A, No. 10; Canada v. Schmidt, 1987 CanLII 48 (SCC), [1987] 1 S.C.R. 500; Argentina v. Mellino, 1987 CanLII 49 (SCC), [1987] 1 S.C.R. 536; United States v. Allard, 1987 CanLII 50 (SCC), [1987] 1 S.C.R. 564; R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173; R. v. Pozniak, 1994 CanLII 66 (SCC), [1994] 3 S.C.R. 310; R. v. Duguay, 1989 CanLII 110 (SCC), [1989] 1 S.C.R. 93; R. v. Whitford (1997), 1997 ABCA 85, 115 C.C.C. (3d) 52.

By Bastarache J.

Considered: The Case of the S.S. “Lotus” (1927), P.C.I.J. Ser. A, No. 10; Libman v. The Queen, 1985 CanLII 51 (SCC), [1985] 2 S.C.R. 178; referred to: Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145; Reference Re Power of Municipal Council to Dismiss a Chief Constable (1957), 1957 CanLII 110 (ON CA), 7 D.L.R. (2d) 222; Attorney‑General for New South Wales v. Perpetual Trustee Co., [1955] A.C. 457; Lavigne v. OPSEU, 1991 CanLII 68 (SCC), [1991] 2 S.C.R. 211; Douglas/Kwantlen Faculty Assn. v. Douglas College, 1990 CanLII 63 (SCC), [1990] 3 S.C.R. 570; Daniels v. White and The Queen, 1968 CanLII 67 (SCC), [1968] S.C.R. 517; Zingre v. The Queen, 1981 CanLII 32 (SCC), [1981] 2 S.C.R. 392; National Corn Growers Assn. v. Canada (Import Tribunal), 1990 CanLII 49 (SCC), [1990] 2 S.C.R. 1324; R. v. Treacy, [1971] A.C. 537; Chung Chi Cheung v. The King, 1938 CanLII 468 (UK JCPC), [1939] A.C. 160; Canada (Human Rights Commission) v. Canadian Liberty Net, 1998 CanLII 818 (SCC), [1998] 1 S.C.R. 626; U.S. v. Aluminum Co. of America, 148 F.2d 416 (1945); U.S. v. Watchmakers of Switzerland Information Center, Inc., 133 F.Supp. 40 (1955); 134 F.Supp. 710 (1955); Nottebohm Case (second phase), Judgment of April 6th, 1955, I.C.J. Reports 1955, p. 4; Shamlou v. Canada (Minister of Citizenship and Immigration) (1995), 1995 CanLII 19407 (FC), 103 F.T.R. 241; Kanesharan v. Canada (Minister of Citizenship and Immigration) (1996), 1996 CanLII 22053 (FC), 120 F.T.R. 67; Law Society of Upper Canada v. Skapinker, 1984 CanLII 3 (SCC), [1984] 1 S.C.R. 357; R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295; Schreiber v. Canada (Attorney General), 1998 CanLII 828 (SCC), [1998] 1 S.C.R. 841.

By L’Heureux‑Dubé J. (dissenting)

R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562; R. v. Terry, 1996 CanLII 199 (SCC), [1996] 2 S.C.R. 207; Schreiber v. Canada (Attorney General), 1998 CanLII 828 (SCC), [1998] 1 S.C.R. 841; McKinney v. University of Guelph, 1990 CanLII 60 (SCC), [1990] 3 S.C.R. 229; R. v. Calder, 1996 CanLII 232 (SCC), [1996] 1 S.C.R. 660; R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 2, 3, 6, 7, 8, 9, 10, 10(b), 11, 11(d), 12, 13, 14, 15, 23, 24(2), 32(1).

Citizenship Act, R.S.C., 1985, c. C‑29.

Immigration Act, R.S.C., 1985, c. I‑2, Schedule E (am. R.S.C., 1985, c. 28 (4th Supp.)).

International Convention on Certain Questions Relating to the Conflict of Nationality Laws (Hague Convention on Conflict of Nationality Laws), Can. T.S. 1937, No. 7, art.1.

Police Act, R.S.B.C. 1996, c. 367, s. 7(2).

Authors Cited

Akehurst, Michael. “Jurisdiction in International Law” (1972‑1973), 46 B.Y.I.L. 145.

Arbour, J.‑Maurice. Droit international public, 2e éd. Cowansville, Qué.: Yvon Blais, 1992.

Brownlie, Ian. Principles of Public International Law, 4th ed. Oxford: Clarendon Press, 1990.

Combacau, Jean, et Serge Sur. Droit international public. Paris: Montchrestien, 1995.

Fox, James R. Dictionary of International and Comparative Law, 2nd ed. Dobbs Ferry, N.Y.: Oceana Publications, 1997.

Henkin, Louis et al. International Law: Cases and Materials, 2nd ed. St. Paul, Minn.: West Pub. Co., 1987.

Hogg, Peter W. Constitutional Law of Canada, vol. 2, loose‑leaf ed. Scarborough, Ont.: Carswell, 1992 (updated 1997, release 2).

Kindred, Hugh M. et al. International Law: Chiefly as Interpreted and Applied in Canada, 5th ed. Toronto: Emond Montgomery, 1993.

Lew, Julian D. M. “The Extraterritorial Criminal Jurisdiction of English Courts” (1978), 27 Int’l & Comp. L.Q. 168.

Oppenheim, Lassa Francis Lawrence. International Law: A Treatise, vol. 1, 8th ed. Edited by H. Lauterpacht. London: Longmans, Green and Co., 1955.

Oxman, Bernard H. “Jurisdiction of States”, in Encyclopedia of Public International Law, vol. 10. Amsterdam: North‑Holland, 1987, 277.

Randelzhofer, Albrecht. “Nationality”, in Encyclopedia of Public International Law, vol. 8. Amsterdam: North‑Holland, 1985, 416.

Schachter, Oscar. International Law in Theory and Practice. Boston: M. Nijhoff Publishers, 1991.

Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed. Toronto: Butterworths, 1994.

Waldman, Lorne. Immigration Law and Practice, vol. 1. Toronto: Butterworths, 1992 (loose-leaf updated June 1998, issue 24).

Weis, Paul. Nationality and Statelessness in International Law, 2nd ed. Germantown, Md.: Sijthoff & Noordhoff, 1979.

Williams, Sharon A., and A. L. C. de Mestral. An Introduction to International Law: Chiefly as Interpreted and Applied in Canada, 2nd ed. Toronto: Butterworths, 1987.

APPEAL from a judgment of the British Columbia Court of Appeal (1996), 1996 CanLII 2438 (BC CA), 85 B.C.A.C. 192, 112 C.C.C. (3d) 508, [1996] B.C.J. No. 2615 (QL), dismissing an appeal from conviction by Low J. sitting with jury. Appeal allowed, L’Heureux‑Dubé and McLachlin JJ. dissenting.

Neil L. Cobb and Kathleen Mell, for the appellant.

Gregory J. Fitch, for the respondent.

S. David Frankel, Q.C., for the intervener.

The judgment of Lamer C.J. and Cory, Iacobucci, Major and Binnie JJ. was delivered by

//Cory and Iacobucci JJ.//

1Cory and Iacobucci JJ. -- The present appeal brings two basic questions before the Court. First, does the Canadian Charter of Rights and Freedoms apply to the taking of the appellant’s statement by Canadian police in the United States in connection with their investigation of an offence committed in Canada for a criminal prosecution to take place in Canada, and if the Charter applies, was it breached in the circumstances? Second, if the Charter applies and was contravened, should the statement be excluded under s. 24(2) of the Charter under these circumstances?

I. Background

A. The Arrest

I. Background

On January 14, 1993, the appellant, Deltonia R. Cook, was arrested under a provisional warrant by a United States Marshal, Michael Credo, in New Orleans, Louisiana for the murder of a taxicab driver, John McKechnie, in Vancouver on May 19, 1992. The warrant for the appellant’s arrest was issued by a United States Magistrate in connection with an extradition request made by Canadian authorities. The appellant was read his Miranda rights upon arrest and he said he understood those rights. Marshal Credo did not interrogate the appellant.

3 After the arrest, the appellant was taken before a United States Magistrate. As noted by the trial judge, a public defender was present during the appellant’s court appearance, but it is not clear from the evidence to what extent he participated. The Magistrate asked the appellant if he wanted a lawyer appointed for him and the appellant replied that he did. The Magistrate said a court‑appointed lawyer would contact him; however, the appellant did not at any time hear from or contact a lawyer prior to the interrogation which gave rise to this appeal.

4 Two days after the arrest, Detectives Aitken and MacDonald from the City of Vancouver Police Department interviewed the appellant in a New Orleans prison and obtained a tape‑recorded statement from him. The detectives made no inquiries of the U.S. authorities as to whether the appellant had seen or expected to see a lawyer.

5 Early in the initial questioning, Detective Aitken told the appellant that he had been arrested for the killing of a taxicab driver in Vancouver on May 19, 1992. The interrogation then began with a series of background questions which included inquiries about the appellant’s family, religion, career, and visits to Vancouver when he was stationed at Whidbey Island in Washington as a United States Marine. During this initial portion of the interview, the appellant was not advised of his right to counsel or told that he was not required to speak to the detectives. The appellant was never told that what he said could be used in evidence.

6 After 20 minutes of interrogation and after being asked specifically whether or not he shot the cab driver, the appellant was finally advised of his right to counsel under s. 10(b) of the Charter, and then only partially. Detective Aitken told the appellant that he had the right to retain and instruct counsel without delay. However, the manner in which the warning was provided was so confusing that it deprived the appellant from forming a decision about whether or not to seek legal advice. For instance, the detective told the appellant that his right to counsel could be exercised by talking to a religious elder, his mother or a friend. Further, although Detective Aitken mentioned that legal aid was available to the appellant, he did not provide the appellant with a telephone number or any means to contact a legal aid lawyer in Vancouver. At this time, Detective Aitken also advised the appellant that he did not have to speak to the detectives.

7 After giving this convoluted s. 10(b) Charter warning, Detective Aitken then asked the appellant why his fingerprints “would be” on the cab where the deceased was found. In fact, the appellant’s fingerprints had not been found on the cab. The interview continued and the appellant gave a statement in which he denied killing the cab driver.

B. The Trial

The Crown’s case consisted of testimony from witnesses which implicated the appellant in the murder. Prior to the close of its case, the Crown sought a ruling which would permit it to use the appellant’s statement in cross‑examination to impeach his credibility. The admissibility of the statement became the subject of a two‑day voir dire. The defence alleged that the statement was obtained in breach of s. 10(b) of the Charter and he sought exclusion of the statement under s. 24(2). The trial judge found that there had been a breach of s. 10(b) but that the statement was admissible for the limited purpose of impeaching the appellant’s credibility in cross‑examination.

9 The appellant was the only witness called for the defence. He was questioned in direct examination about the statement made to police. He acknowledged that he had lied to the police when he told them that he met his friend, William Fennell, at another friend’s apartment on the evening of May 19, 1992. This version of the events contradicted what the appellant said in his testimony at trial: that he and Fennell had driven together from Whidbey Island to Vancouver on May 19, 1992, in Fennell’s car. The appellant said he lied in his statement to the police because he thought the police would let him go if he gave them a satisfactory statement, and because he wanted to dissociate himself from Fennell and his car. The appellant was later cross‑examined on this portion of his statement and again asked to explain why he lied to the Vancouver detectives.

10 On October 5, 1994, the jury entered a verdict of guilty of second degree murder. The trial judge sentenced the appellant to life imprisonment with no chance of parole for 15 years. The appellant’s appeal to the Court of Appeal was dismissed.

II. Relevant Charter Provisions

Everyone has the right on arrest or detention

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

. . .

(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.

(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.

III. Judicial History

A. Supreme Court of British Columbia, Ruling on Voir Dire

(1) Section 10(b) Ruling ([1994] B.C.J. No. 2473)

III. Judicial History

In a written decision dated September 29, 1994, Low J. found that the appellant’s statement to the Canadian police was voluntary, but it was obtained in breach of s. 10(b) of the Charter. He stated that the appellant was entitled, in the circumstances, to be informed promptly in the interview of his rights. He did not accept the Canadian officer’s evidence that the initial interview was to acquire background information and held that, in fact, the officers were eliciting corroborating evidence from the appellant.

13 Low J. also held at para. 27 that the appellant was informed of his rights in a manner which “deprived [him] of the opportunity to make an informed choice about talking to the police without obtaining legal advice”. The trial judge, at para. 28, specifically referred to three elements of the warning which may have confused the appellant:

The words “and I realize that probably means nothing” after the use of the s. 10(b) words are potentially misleading. The reference to obtaining advice from somebody other than a lawyer is misleading. The purpose of s. 10(b) is to give an arrested or detained person the opportunity to obtain legal advice, not spiritual or other advice. Finally, the advice about obtaining a lawyer from the Legal Aid Society of this province, to be of any value to the accused in New Orleans, had to be accompanied by an immediate offer to put him in touch with such a lawyer by telephone. Nothing said to the accused could have left him with the understanding that he could be so connected for legal advice.

Ultimately, Low J. concluded at para. 29 that the officer had given “the advice in a convoluted way which effectively confused the accused and distracted him from making a reflective choice about obtaining immediate legal assistance. Absent an explanation from Aitken [one of the detectives], I must conclude that he intended the result he obtained”.

(2) Section 24(2) Ruling

In an unreported oral decision released that same day (September 29, 1994), Low J. made a ruling under s. 24(2) of the Charter. He declared that admissibility must be determined by reference to the factors set out in R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265. He began by considering the nature of the breach and concluded that, although there was a serious breach of a fundamental and important right, the breach was not “egregious”. Low J. reviewed the case law, particularly R. v. Kuldip, 1990 CanLII 64 (SCC), [1990] 3 S.C.R. 618, and concluded that there is a distinction between incriminating evidence and evidence used for other purposes, such as to attack credibility. He held that since the statement was not incriminating and was not being tendered by the Crown for the truth of its contents, but only to challenge the credibility of the accused, the use of the statement did not render the trial unfair.

B. British Columbia Court of Appeal (1996), 1996 CanLII 2438 (BC CA), 85 B.C.A.C. 192

B. British Columbia Court of Appeal (1996)

Hinds J.A., Donald and Newbury JJ.A. concurring, first considered the applicability of the Charter to the taking of the appellant’s statement by Canadian police in New Orleans. He referred to R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, where this Court concluded that the Charter did not apply to the taking of a statement by U.S. authorities in the United States. He also considered R. v. Terry, 1996 CanLII 199 (SCC), [1996] 2 S.C.R. 207, where this Court held that the Charter did not apply where a statement was obtained in California by U.S. police at the request of a Canadian officer. Hinds J.A. concluded that these cases were not determinative since, unlike Harrer and Terry, the case before him involved the taking of a statement by Canadian authorities who happened to be in the United States.

16 He stated that there is an expectation within our criminal justice system that statements from persons accused of crimes will be obtained by Canadian police in a fair manner, without abuse, and in accordance with Canadian legal precepts of “voluntariness” and in accordance with the rights set out in s. 10(b). He held that that expectation should prevail whether the statement is obtained by Canadian police authorities within this country or abroad.

17 In the result, the Court of Appeal concluded that both ss. 10(b) and 24(2) of the Charter were applicable to the interrogation by Canadian police officers of an accused person in the United States with respect to an offence committed in Canada and that under the circumstances s. 10(b) had been violated.

18 Hinds J.A. went on to consider whether the trial judge properly admitted the statement under s. 24(2) for the purpose of impeaching the accused’s credibility in cross‑examination. He found that the procedure set out in R. v. Calder, 1996 CanLII 232 (SCC), [1996] 1 S.C.R. 660, even though decided subsequent to the trial judgment, had been followed. He held that the trial judge had not erred in his conclusion on the s. 24(2) application. Hinds J.A. cautioned that, although the intended use of the statement was an important factor in the trial judge’s determination under s. 24(2), the fairness of a trial cannot always be determined by reference to the intended use of the evidence sought to be admitted. He acknowledged that in some circumstances “not present in this case, the impeachment of an accused by his previous statement may seriously damage his defence” (at para. 52, emphasis added).

19 Hinds J.A. next considered whether, if the Charter did not apply to the actions of the Canadian police abroad, cross‑examination on the statement nonetheless rendered the trial unfair pursuant to ss. 7 and 11(d) of the Charter. He reviewed the factors set out in Harrer on the question of fairness and he reviewed the major circumstances of the trial; he concluded that admission of the statement for the limited purpose of impeaching the accused’s credibility would not violate ss. 7 and 11(d) of the Charter. Consequently, Hinds J.A. held that the appellant’s statement was admissible for the limited purpose of impeaching his credibility in cross‑examination.

20 Finally, Hinds J.A. rejected the appellant’s argument that the trial judge erred in his charge to the jury concerning the use that could be made of the appellant’s prior inconsistent statement. He concluded that the instructions given by the trial judge were adequate.

IV. Issues

21 1. Does the Charter apply to the taking of the appellant’s statement by Canadian police in the United States in connection with their investigation of an offence committed in Canada for a criminal prosecution to take place in Canada, and if the Charter applies, was it breached in the circumstances?

If the Charter applies and was contravened, should the statement be excluded under s. 24(2) of the Charter under these circumstances?

22 The parties raise two other issues on appeal. First, in the event that the Charter does not apply in the circumstances, would the admission of the statement render the trial unfair under ss. 7 and 11(d) of the Charter? Second, if the statement was properly admitted, did the trial judge fail to instruct the jury adequately regarding the proper use of the statement? We conclude that the Charter does apply to the actions of the Canadian detectives in New Orleans; we also find that the statement should be excluded under s. 24(2). As a result of these findings, it is not necessary to deal with these other two issues.

V. Analysis

A. Application of the Charter

V. Analysis

The Court is called upon to determine whether the investigative actions of Canadian authorities on foreign soil, in connection with a crime committed in Canada and to be prosecuted in Canada, are subject to the Charter. Viewed from another perspective, at issue is whether a suspect, in this case a U.S. citizen, to a crime committed in Canada can claim Canadian constitutional rights in connection with an interrogation conducted by Canadian police on foreign territory. In other words, in the circumstances of this case, does s. 32 of the Charter apply to the Canadian officials such that the appellant may invoke s. 10(b) of the Charter, and if the appellant’s rights under s. 10(b) have been violated, can the evidence obtained in violation of those rights be excluded under s. 24(2)?

24 The appellant submits that a plain reading of s. 32(1) of the Charter indicates that the Charter applies to Canadian authorities wherever they happen to be carrying out their duties. The respondent argues, however, that this Court’s decisions in Harrer, supra, and Terry, supra, have settled the issue by providing that the Charter does not apply to evidence gathering activities which take place outside of Canada whether those activities are undertaken by Canadian authorities or foreign authorities.

25 In our view, the Charter applies to the actions of the Vancouver detectives in interviewing the appellant in New Orleans. Two factors are critical to this conclusion and provide helpful guidelines for recognizing those rare circumstances where the Charter may apply outside of Canada: (1) the impugned act falls within s. 32(1) of the Charter; and (2) the application of the Charter to the actions of the Canadian detectives in the United States does not, in this particular case, interfere with the sovereign authority of the foreign state and thereby generate an objectionable extraterritorial effect.

(1) The Applicable Principles

26 Section 32(1) of the Charter provides that the Charter applies to all matters within the authority of Parliament and the legislature and government of each province. However, the scope of Charter application beyond Canadian territory cannot be determined merely by reference to s. 32(1). The analysis is further conditioned by the accepted principle of international law that “since states are sovereign and equal, it follows that one state may not exercise jurisdiction in a way that interferes with the rights of other states” (Hugh M. Kindred et al., International Law: Chiefly as Interpreted and Applied in Canada (5th ed. 1993), at p. 423). In essence, the principle of the sovereign equality of states generally prohibits extraterritorial application of domestic law since, in most instances, the exercise of jurisdiction beyond a state’s territorial limits would constitute an interference under international law with the exclusive territorial jurisdiction of another state. The Permanent Court of International Justice in The Case of the S.S. “Lotus” (1927), P.C.I.J., Ser. A, No. 10, at pp. 18‑19, articulated this principle as follows:

Now the first and foremost restriction imposed by international law upon a State is that ‑‑ failing the existence of a permissive rule to the contrary ‑‑ it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.

. . . all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty.

27 From the general principle stated in The S.S. “Lotus” that the basis of a State’s jurisdictional competence is territorial, it follows that an attempt to apply domestic law beyond Canada’s borders results in “extraterritoriality”, defined by James R. Fox, in the Dictionary of International and Comparative Law (2nd ed. 1997), at p. 106, as the “operation of laws upon persons or rights existing beyond the territorial limits of the state enacting such laws”. The respondent argues that, in accordance with the prohibition under international law against the extraterritorial application of domestic laws, the Charter cannot apply at all beyond Canada’s territorial boundaries. In our view, although territory is clearly a critical element in determining the scope of a state’s jurisdiction, territory alone is not determinative of jurisdictional competence under international law. There are some circumstances where the application of Canadian law to an undertaking by Canadian law enforcement authorities on foreign territory can be grounded on other jurisdictional principles, and will not result in an objectionable interference with the exercise of foreign jurisdiction.

28 While territoriality is the most common basis of jurisdiction, international law also permits states to evoke the nationality of the person subject to the domestic law as a valid basis of jurisdictional authority. As Oscar Schachter states in International Law in Theory and Practice (1991), at p. 254:

It had long been accepted that a State was entitled to apply its legislative (or prescriptive) authority to events and persons within its territory and to its nationals outside of the country. “Territoriality” and “nationality” were referred to as “bases” of jurisdiction and functioned as criteria of permissible authority. Territoriality is generally considered the normal basis of jurisdiction; nationality more exceptional, but always accepted in international relations.

29 Jurisdictional competence on the basis of territoriality and nationality is an incident of sovereign equality and independence, which Bernard H. Oxman describes as follows in “Jurisdiction of States” in the Encyclopedia of Public International Law, vol. 10 (1987), at p. 279:

The fundamental bases for the exercise of jurisdiction by a State are rooted in two aspects of the modern concept of the State itself: defined territory and permanent population. In principle, a State has jurisdiction over all persons, property and activities in its territory; a State also has jurisdiction over its nationals wherever they may be. [Emphasis added.]

30 This Court, when called upon to determine whether the Charter may apply beyond our borders, has made findings which are consistent with both the limits of s. 32(1) and the applicable jurisdictional limits of international law. For example, La Forest J. made the following observation in Canada v. Schmidt, 1987 CanLII 48 (SCC), [1987] 1 S.C.R. 500, one of a trilogy of extradition cases (which included Argentina v. Mellino, 1987 CanLII 49 (SCC), [1987] 1 S.C.R. 536, and United States v. Allard, 1987 CanLII 50 (SCC), [1987] 1 S.C.R. 564) where a majority held that s. 11 does not apply to extradition hearings (Schmidt, at p. 518):

There can be no doubt that the actions undertaken by the Government of Canada in extradition as in other matters are subject to scrutiny under the Charter (s. 32). Equally, though, there cannot be any doubt that the Charter does not govern the actions of a foreign country. . . . In particular the Charter cannot be given extraterritorial effect to govern how criminal proceedings in a foreign country are to be conducted. [Emphasis added.]

31 More recently, this Court held in Harrer that the Charter cannot apply to govern evidence gathering abroad by foreign officers. In Harrer, the accused was interrogated in the United States by U.S. authorities with respect to her immigration status and with respect to the circumstances of an alleged offence by her boyfriend in the United States. The interrogation then shifted to Harrer’s supposed criminal involvement in Canada relating to her boyfriend’s escape from custody while he was being held for extradition to the United States. The U.S. authorities did not give Harrer a second right to counsel warning when their questions shifted from the immigration matter and the U.S. offence to her possible criminal involvement in Canada, as would be required in Canada in accordance with s. 10( of the Charter. This Court held that the Charter did not apply to the conduct of the U.S. officials.

32 La Forest J., writing for Lamer C.J., L’Heureux‑Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ., explained at para. 12 that what was determinative was “the simple fact that the United States immigration officials and the Marshals were not acting on behalf of any of the governments of Canada, the provinces or the territories, the state actors to which, by virtue of s. 32(1) the application of the Charter is confined. . . . It follows that the Charter simply has no direct application to the interrogations in the United States because the governments mentioned in s. 32(1) were not implicated in these activities”.

33 La Forest J. underlined that the case was not determined by the fact that the impugned act occurred outside Canadian territory; in that regard he expressly declined to accept McLachlin J.’s view (writing concurring reasons for herself and Major J.) that the Charter is limited to the boundaries of Canada (at para. 35). He explained as follows at paras. 10‑11:

Let me first say a word about the argument concerning the territorial limits of the Charter, which appears to have played a considerable role in the thinking of the Court of Appeal. That argument is not necessary to the disposition of the case, but I would not wish my remarks to be interpreted as giving credence to the view that the ambit of the Charter is automatically limited to Canadian territory. . . .

. . . it strikes me that the automatic exclusion of Charter application outside Canada might unduly restrict the protection Canadians have a right to expect against the interference with their rights by our governments or their agents. Consequently, had the interrogation about a Canadian offence been made by Canadian peace officers in the United States in circumstances that would constitute a violation of the Charter had the interrogation taken place in Canada, an entirely different issue would arise. [Emphasis added.]

34 These remarks anticipate the application of the Charter to the circumstances which arise in the case at bar. However, the respondent submits that any door which La Forest J.’s remarks may have left open was decidedly closed in Terry where McLachlin J. wrote for a unanimous Court and held that U.S. enforcement officers, arresting a fugitive facing charges in Canada at the request of Canadian authorities, were not subject to Canadian Charter standards.

35 Terry was charged with first degree murder in connection with the stabbing of a man in British Columbia. He fled to California. Terry was taken into custody by police officers at Santa Rosa, California pursuant to an arrest warrant issued by a United States District Court in connection with an official Canadian request for extradition.

36 Once Terry was arrested, the Canadian authorities asked the Santa Rosa police to advise Terry of his U.S. rights and to take a statement from him. At trial in Canada, the Crown sought to introduce this statement as evidence. Terry argued that the statement was inadmissible as it had been obtained in breach of his Charter rights since the Santa Rosa police failed to advise him of his right to counsel at the time of his arrest in accordance with s. 10(b) thereby rendering the statement subsequently obtained susceptible to exclusion under s. 24(2).

37 This Court held that the Charter did not apply to the U.S. authorities. McLachlin J., for the Court, declared at para. 14 that to apply the Charter to the U.S. officers “would run counter to the settled rule that a state is only competent to enforce its laws within its own territorial boundaries”. McLachlin J. went on to state at para. 17 that 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 . . . As La Forest J. wrote in R. v. Harrer . . ., at para. 15, ‘Canada cannot impose its procedural requirements in proceedings undertaken by other states in their own territories’” (emphasis added).

38 Despite these references to the territorial limits of the Charter, McLachlin J. admitted at para. 15 that

[t]he 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.

39 Furthermore, she acknowledged that territorial limitations are imposed on Canadian law by the principles of state sovereignty and international comity (at para. 16). Finally, McLachlin J. relied on the objectionable effects of imposing the Charter on foreign authorities in rejecting the suggestion that since the U.S. officers were acting at the request of Canadian officers, they were in fact agents of the Canadian officers and for that reason subject to Charter standards. McLachlin J. explained that the fact that the U.S. authorities were assisting the Canadian officers does not serve to overcome the fact that imposing Canadian Charter standards on their actions would interfere with the sovereignty of the United States (at para. 19):

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. [Emphasis added.]

Thus, although s. 32(1) was not mentioned in this case, McLachlin J. appears to accept implicitly that the impugned act was beyond the scope of the Charter (s. 32(1)); and she explicitly acknowledged that the application of the Charter in the circumstances would generate an objectionable extraterritorial effect.

40 McLachlin J. concluded, at para. 27, that “[e]ven if one could somehow classify [the U.S. officers] 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 respondent argues that this finding makes it clear that the Charter does not apply to the gathering of evidence on foreign territory, whether that activity is undertaken by foreign officials acting on their own or at the request of Canadian authorities, or by Canadian actors themselves.

41 We cannot accept this submission. The respondent incorrectly assumes that there is no difference between applying the Charter to U.S. officials acting as agents of or at the request of Canadian law enforcement authorities and in applying the Charter to Canadian authorities themselves. In fact, there is a fundamental distinction that can be drawn between these two scenarios which illustrates that Terry, supra, is not at all determinative of the present appeal. Jurisdictional competence under international law to apply the Charter to the actions of Canadian law enforcement authorities gathering evidence abroad rests in this instance not on the principle of territoriality, but of nationality. Whereas in the present case the interrogation was conducted by the Vancouver police, the evidence in Terry was gathered by the U.S. authorities who were subject to U.S. jurisdiction on the basis of territoriality. Unlike the Vancouver police, the U.S. authorities in Terry could not be subjected to an extraterritorial assertion of Canadian jurisdiction on the basis of nationality.

42 The terms “nationality” and “citizenship” are often used as if they are synonymous, but the principle of nationality is much broader in scope than the legal status of citizenship. While a national may be a citizen of a state, nationality also refers to a person who does not possess the full political and civil rights of citizenship, but has nonetheless “a right to the protection of the state and in turn owes allegiance to it” (see Sharon A. Williams and A. L. C. de Mestral, An Introduction to International Law (2nd ed. 1987), at p. 290). International law permits each state to determine the rules relating to the acquisition of its nationality, provided that the domestic law is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality (International Convention on Certain Questions Relating to the Conflict of Nationality Laws (Hague Convention on Conflict of Nationality Laws), Can. T.S. 1937 No. 7, art. 1). The entry into state service is a criterion which is recognized under international law as sufficient to confer nationality (Albrecht Randelzhofer, “Nationality”, in Encyclopedia of Public International Law (1985), vol. 8, at p. 418. See also Paul Weis, Nationality and Statelessness in International Law (2nd ed. 1979), at p. 96, citing L. Oppenheim, International Law: A Treatise (8th ed. 1955), vol. 1, H. Lauterpacht, ed., at p. 656.) Law enforcement officers acting in their official capacity are state representatives who are authorized to give effect to coercive state power, in some instances at great personal risk. As a result, they undeniably owe allegiance to the state, and may expect a corresponding right to protection. On this basis, the two Vancouver detectives in this instance can be considered Canadian nationals, thereby justifying an extraterritorial assertion of jurisdiction.

43 To require that Canadian law enforcement authorities comply with Charter standards abroad may not, depending on the circumstances, interfere with the foreign state’s sovereign jurisdiction and integrity. However, as explained by McLachlin J. in Terry, even where the foreign officers can be described as the agents of Canadian authorities, to require that they adhere to Canadian Charter standards would interfere with foreign persons and the exercise of foreign jurisdiction. An objectionable extraterritorial effect would result if the Charter were applied to the actions of the foreign officers.

44 In our view, Harrer and Terry do not stand as authorities for the proposition that the Charter is absolutely restricted in its application to Canadian territory. Rather, the guiding principles to be gleaned from these cases are that: (1) the Charter cannot apply to actions which fall beyond the purview of s. 32(1); and (2) the Charter cannot be applied extraterritorially to govern the conduct of criminal proceedings by foreign authorities in another state since to do so would violate the principle of state sovereignty.

45 Chief Justice Lamer described the effect of the holdings in Harrer and Terry in a similar fashion in his reasons in Schreiber v. Canada (Attorney General), 1998 CanLII 828 (SCC), [1998] 1 S.C.R. 841, at para. 15:

Both of these cases concerned the conduct of American authorities acting in the United States, who took statements from suspects in a manner that, although consistent with the American Bill of Rights, was inconsistent with the Charter. This Court held, in both cases, that the Charter cannot govern the actions of foreign authorities acting in a foreign country. This is consistent with s. 32 of the Charter, which restricts its application to the “Parliament and government of Canada” and “the legislature and government of each province” This is also consistent, as McLachlin J. pointed out in Terry, with the principle of international comity, which suggests that it would be unrealistic to expect foreign authorities to know and comply with the laws of Canada.

46 In our view, the reasoning adopted in both Harrer and Terry can accommodate a finding that on the jurisdictional basis of nationality, the Charter applies to the actions of Canadian law enforcement authorities on foreign territory (which satisfies s. 32(1)), provided that the application of Charter standards would not interfere with the sovereign authority of the foreign state. The Chief Justice acknowledged that this was so in Schreiber, at para. 16:

[Canadian] officials are clearly subject to Canadian law, including the Charter, within Canada, and in most cases, outside it. They fall squarely within the purview of s. 32 of the Charter, as an arm of the executive branch, or the “government of Canada”. Moreover, because they are Canadian, there is no reason to be concerned with comity. They can be expected to have knowledge of Canadian law, including the Constitution, and it is not unreasonable to require that they follow it. [Emphasis added.]

47 Similarly, L’Heureux-Dubé J., with whom McLachlin, Bastarache and Binnie JJ. agreed, observed in Schreiber, at para. 27, that: “[b]y virtue of s. 32 of the Charter, the Charter is applicable to all matters within the authority of Parliament and the government of Canada, as well as the provincial legislatures and the provincial governments. . . . Where there is no action by one of these entities which infringes a right or freedom guaranteed by the Charter, there can be no Charter violation”. Citing Terry, L’Heureux‑Dubé J. agreed (at para. 31) that the actions of the Swiss authorities in conducting a search and seizure in Switzerland were not subject to Charter scrutiny. However, L’Heureux‑Dubé J. clearly suggested at para. 32 that the Charter would have applied if the search and seizure had been conducted by Canadian authorities on foreign territory

[t]herefore, it does matter where the search or seizure took place, if it took place outside Canada by persons not under the authority of the government of Canada. Clearly, the government of Canada did not undertake any search or seizure. Canadian officials merely requested that a search and seizure be undertaken. [Emphasis in original.]

She makes the same acknowledgement at para. 34: “I note that drawing a line between those Canadian actions which did not implicate the Charter, and the actions by Swiss authorities which would have implicated the Charter had they been undertaken by Canadian authorities . . .” (emphasis added).

48 In short, the principles at work in Harrer and Terry, and which were acknowledged in Schreiber, lead to the conclusion that the Charter applies on foreign territory in circumstances where the impugned act falls within the scope of s. 32(1) of the Charter on the jurisdictional basis of the nationality of the state law enforcement authorities engaged in governmental action, and where the application of Charter standards will not conflict with the concurrent territorial jurisdiction of the foreign state.

(2) Application to the Facts

In accordance with the principles discussed above, we conclude that the Charter applies to the actions of the Vancouver detectives in New Orleans in the present case. First, both the appellant’s arrest and detention and subsequent interrogation were actions initiated and carried out by Canadian law enforcement officials. The arrest warrant had been granted in response to an extradition request made by Canada. The interrogation was conducted by Canadian detectives, as opposed to foreign officials, in accordance with their powers of investigation as derived from Canadian law. Thus, the impugned action falls within the purview of s. 32(1) of the Charter and the first criterion is satisfied.

50 Second, in the particular circumstances of this case, the application of the Charter on the jurisdictional basis of nationality to the actions of the Canadian detectives abroad does not result in an interference with the territorial jurisdiction of the foreign state. In reaching this conclusion, we are relying in particular on the following factual elements: although the physical arrest was executed by a U.S. official pursuant to U.S. law, the arrest and the interrogation were initiated by a Canadian extradition request and related exclusively to an offence committed in Canada and to be prosecuted in Canada; the trial judge concluded at para. 15 that the United States Marshal “took great care not to become involved in the Vancouver investigation and impair it in any way [and that h]e had no intention of questioning the accused or advising him in any way”; and the interview was conducted solely by Canadian officers deriving their investigatory powers from Canadian legislation. In these circumstances, Canadian criminal law standards are not being imposed on foreign officials. Further, the application of the Charter in the circumstances to the simple questioning of the appellant by Canadian authorities does not implicate or interfere with any criminal procedures engaged by or involving U.S. authorities.

51 In essence, the principle of state sovereignty is not violated by the application of the Charter to the taking of the appellant’s statement by Canadian authorities in the United States. In this context, it is reasonable to expect the Canadian officers to comply with Charter standards. Furthermore, it is reasonable to permit the appellant, who is being made to adhere to Canadian criminal law and procedure, to claim Canadian constitutional rights relating to the interview conducted by the Canadian detectives in New Orleans.

52 The Attorney General of Canada intervened in these proceedings, in part, to warn the Court about the possible consequences of applying the Charter to the actions of Canadian authorities on foreign territory. The intervener first submits that the application of the Charter in this case will ultimately confer on every person in the world, who is in some respect implicated in the exercise of Canadian governmental authority abroad, those Canadian Charter rights which are attributed to “everyone” (ss. 2 (fundamental freedoms); 7 (life, liberty and security of the person); 8 (search or seizure); 9 (detention or imprisonment); 10 (rights upon arrest or detention); and 12 (treatment or punishment)). The intervener further submits that extending the Charter to the actions of Canadian police officers when they travel abroad on a criminal investigation will seriously impair Canada’s ability to conduct or participate in international criminal investigations.

53 We are not persuaded by the intervener’s submissions. We caution that the holding in this case marks an exception to the general rule in public international law discussed above that a state cannot enforce its laws beyond its territory. The exception arises on the basis of very particular facts before us. Specifically, the impugned actions were undertaken by Canadian governmental authorities in connection with the investigation of a murder committed in Canada for a process to be undertaken in Canada. The appellant, the rights claimant herein, was being compulsorily brought before the Canadian justice system. This situation is far different from the myriad of circumstances in which persons outside Canada are trying to claim the benefits of the Charter simpliciter.

54 The application of the Charter in this case does not violate the principle of state sovereignty by imposing Canadian criminal law standards on foreign officials and procedures. Our conclusion that the Charter applies in the present case must be understood within this narrow context, i.e., where no conflict occurs in the concurrent exercise of jurisdiction by Canada on the basis of nationality and by a foreign state on the basis of territoriality. It may well be a different case where, for example, Canadian authorities participate, on foreign territory, in an investigative action undertaken by foreign authorities in accordance with foreign procedures. As McLachlin J. observed in Terry, supra, at para. 19 “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” (emphasis added). However, such facts are not before the Court in this case and remain to be resolved another day.

(3) Was the Charter Breached?

The trial judge held that the Vancouver detectives obtained the appellant’s statement as a result of a breach of the appellant’s rights under s. 10(b) of the Charter. The Court of Appeal agreed with the trial judge’s statement s. 10(b) ruling. The respondent did not dispute that, if the Charter applied to the taking of the appellant’s statement in the United States, s. 10(b) was violated in the circumstances.

56 The instructions given by the police regarding the appellant’s right to counsel were confusing, misleading, and breached his rights guaranteed by s. 10(b) of the Charter. The trial judge’s findings in this regard are significant. He found that the violation of the appellant’s rights, while not as “flagrant” as some others, was serious and apparently deliberate. In his view, at para. 27, the information given to the appellant regarding his right to counsel was misleading to the extent that it “deprived the accused of the opportunity to make an informed choice about talking to the police without obtaining legal advice”. The trial judge found that the appellant was prevented from making a considered choice regarding legal assistance and that this was the very effect the police officer intended. The trial judge also referred to the “apparently deliberate” failure to tell the appellant that his statement could be used in evidence as an exacerbating factor.

57 In our view, the breach was indeed very serious if not flagrant. Let us again consider the evidence. The appellant had been arrested by a United States Federal Marshal, who read the appellant his “Miranda” rights from a card. He was then taken before a Federal Magistrate who asked him if he wanted counsel appointed for him. The appellant replied that he did and the Magistrate told him a court‑appointed lawyer would contact him. However, the appellant did not at any time speak to a lawyer over the following days. Two days later, when Detectives Aitken and MacDonald arrived from Vancouver, they made no inquiries as to whether the appellant had requested or obtained legal counsel. They conducted an interview with the appellant which lasted approximately 100 minutes. During the initial part of the interview, no warning was given regarding the right to counsel or the fact that the appellant was not required to speak to the detectives. At no time was the appellant warned that what he said could be used in evidence.

58 Approximately 20 minutes into the interview, the following exchange took place:

A[itken]: There’s a couple of things that I’ve got to tell you. First you’ve got the right to retain and instruct counsel without delay. And that means basically, and I realize that probably means nothing, but basically what it means is you can talk to somebody, get advice. You can talk to a lawyer, most people thinks that means you can talk to a lawyer but counsel can be anybody. Uh, you being a Muslim maybe you want to be counselled or uh, converse and get some advice from uh, I don’t know if you’d call it an elder in your group or, you understand where I’m coming from anyways. Someone who you respect in your religion, or your mom, or somebody down there you’re staying with, or your friend uh, Quinlon. Was that his name?

A[itken]: Terrance. Somebody like that. That’s what that means. And at that point you can make sort of a, a logical decision as to where you want to go with this. Okay? Do you understand what all that means?

[Appellant]: Yes sir.

A[itken]: Uh, and secondly, you realize you don’t have to talk to us. And, and again I realize you probably got about a thousand questions and we’ll do our best to uh, answer and explain where we’re coming from which is why we’re here.

[Appellant]: Yes sir.

A[itken]: You’re in charge here, okay. That’s your decision.

[Appellant]: Yes sir.

A[itken]: Like I say, we’re going to be square with you, we’re going to be straight with you, um, and there’s a, if you want to talk to a lawyer and you can’t afford a lawyer, we can get in touch with um, the B.C. British Columbia, Vancouver, Legal Aid Society, who can arrange duty counsel to give you advice as to how to obtain a lawyer now for free. Okay. You understand that. So you have that option, if you don’t, like I say if at some point you become uncomfortable with what’s going on here, say sorry boys that’s it, I’m out of here. You can go use a telephone, you can just go right back and climb into bed. That’s up to you. Like I say, you’re in charge here. Okay?

[Appellant]: Yes sir.

A[itken]: Do you understand all that?

[Appellant]: Yes sir. [Emphasis added.]

59 Although the detectives mentioned the availability of legal aid, they did not provide the appellant with a telephone number or any information as to how he could contact a legal aid lawyer. A detainee is entitled to receive this information as part of his rights under s. 10(b) (R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173; R. v. Pozniak, 1994 CanLII 66 (SCC), [1994] 3 S.C.R. 310). Most importantly, the explanation given regarding the right to counsel was confusing to the extent that it deprived the appellant of the opportunity to make a decision whether to obtain legal advice. To tell the appellant that he could exercise his right to counsel by talking to a religious elder, his mother or a friend must have misled him as to the nature of his rights.

60 In the course of their investigations, police have on occasion been required to lie. In many circumstances this may not only have been appropriate but also necessary and clearly an acceptable procedure. However for police to lie or mislead individuals with regard to their Charter rights is fundamentally unfair and demeaning of those Charter rights. Indeed to countenance it would bring the administration of justice into disrepute.

61 It must be emphasized that this very serious breach came at a time when the appellant was most vulnerable. He was in prison and had been denied the opportunity to seek and obtain legal advice. The significance of the vulnerability of a person in the appellant’s position was recognized in Bartle. There Lamer C.J. wrote, at p. 191:

This opportunity [to be informed of one’s rights and obtain advice] is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him‑ or herself. Accordingly, a person who is "detained" within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self‑incrimination and to assist him or her in regaining his or her liberty: Brydges, at p. 206; R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, at pp. 176‑77; and Prosper. Under s. 10(b), a detainee is entitled as of right to seek such legal advice "without delay" and upon request. As this Court suggested in Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383, at p. 394, the right to counsel protected by s. 10(b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process. [Emphasis in original.]

62 As well, it is noteworthy that while the appellant’s Miranda rights under American law were read to him, those rights were not respected since he was not provided with the counsel he requested. Therefore there was not only a breach of the Charter, but arguably also of the appellant’s rights under the American Constitution. The Canadian authorities, upon arriving in New Orleans, made no inquiries as to whether the appellant had exercised or attempted to exercise his right to counsel.

63 In light of the foregoing discussion, we conclude that the Charter applied to and was breached by the actions of the Canadian detectives in interrogating and obtaining a statement from the appellant in the United States in connection with the murder of the cab driver in Vancouver.

B. Section 24(2) Analysis

Next it must be determined whether the evidence should have been excluded pursuant to s. 24(2) of the Charter on the ground that its admission would tend to bring the administration of justice into disrepute.

65 The trial judge concluded that the evidence should not be excluded under s. 24(2), and the Court of Appeal found no error in this conclusion. An appellate court should only intervene with respect to a lower court’s s. 24(2) analysis when that court has “made ‘some apparent error as to the applicable principles or rules of law’ or has made an unreasonable finding” (R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, at para. 68; R. v. Duguay, 1989 CanLII 110 (SCC), [1989] 1 S.C.R. 93, at p. 98). In this case, the trial judge placed substantial reliance on the distinction between incriminating and exculpatory statements and the fact that the statement was to be admitted only for the purposes of impeaching the appellant’s credibility on cross‑examination. These factors should not have influenced the s. 24(2) analysis, and thus we must, with respect, find that the courts below were in error.

66 In Collins, supra, Lamer J., as he then was, carefully set out the factors to be considered in determining whether the admission of evidence would bring the administration of justice into disrepute. The first group of factors relate to the effect of admission of the evidence on the fairness of the trial; the second, to the seriousness of the breach; and the third, to the effect of exclusion of the evidence on the repute of the administration of justice. The question in all cases is whether the admission of the evidence could bring the administration of justice into disrepute, in the eyes of a reasonable person, dispassionate and fully apprised of the circumstances (Collins, at pp. 282 and 288).

(1) Trial Fairness

In Collins it was said (at p. 284), “[i]f the admission of the evidence in some way affects the fairness of the trial, then the admission of the evidence would tend to bring the administration of justice into disrepute and, subject to a consideration of the other factors, the evidence generally should be excluded” (emphasis in original). In Stillman, the importance of trial fairness was given even greater emphasis (at para. 72):

A consideration of trial fairness is of fundamental importance. If after careful consideration it is determined that the admission of evidence obtained in violation of a Charter right would render a trial unfair then the evidence must be excluded without consideration of the other Collins factors. A fair trial for those accused of a criminal offence is a cornerstone of our Canadian democratic society. A conviction resulting from an unfair trial is contrary to our concept of justice. To uphold such a conviction would be unthinkable. It would indeed be a travesty of justice.

68 In Collins it was noted that the factors relevant to the determination as to whether the admission of the evidence would render the trial unfair include the nature of the evidence and of the violation. In cases where, “after a violation of the Charter, the accused is conscripted against himself through a confession or other evidence emanating from him”, the admission of the evidence will render the trial unfair. This must be the result because the use of such evidence “strikes at one of the fundamental tenets of a fair trial, the right against self‑incrimination” (Collins, at p. 284). Thus the general rule is that evidence which results from an accused’s being compelled, in violation of the Charter, to participate in its discovery or creation must be excluded, although this rule may be subject to “rare exceptions” (Stillman, at para. 73).

69 The reasons of the majority in Stillman further clarified the analysis to be undertaken in this stage of the analysis. The initial step is to classify the type of evidence in question, first as conscriptive or non‑conscriptive. Non‑conscriptive evidence is evidence which “existed independently of the Charter breach in a form useable by the state” (Stillman, at para. 75); by contrast, evidence “will be conscriptive when an accused, in violation of his Charter rights, is compelled to incriminate himself at the behest of the state by means of a statement, the use of the body or the production of bodily samples” (at para. 80).

70 The evidence in question in this case was the statement made by the appellant to the Vancouver detectives. It should clearly be classified as conscriptive evidence. The appellant, following the violation of his s. 10(b) rights, was compelled to incriminate himself by making a statement to the police officers. Stillman recognized that this is “[t]he traditional and most frequently encountered example” of conscriptive evidence (at para. 80).

71 It was argued that since the statement of the appellant contained denials of guilt, it is not a “self‑incriminating statement” but rather an exculpatory one. In our view, the content of the statement does not change the characterization of the statement for the purposes of this analysis. The trial judge found that the first part of the interview was aimed at eliciting corroborating evidence that might have been helpful to the prosecution. It must be inferred from the very fact that the Crown sought to introduce the evidence at trial that the statement was “incriminating” in some sense, although it contained denials of guilt. A statement that is largely or even wholly exculpatory should still be considered “conscriptive” evidence if an accused was, like the appellant, conscripted against himself by being compelled, in breach of his Charter rights, to provide evidence which could later be used against him.

72 Therefore, the appellant’s statement is conscriptive evidence. This is not a case where the evidence would have been discovered absent the unlawful conscription of the appellant (see Stillman, at para. 103). These factors alone would be sufficient to conclude that the evidence must be excluded under s. 24(2). This follows since the general rule is that the admission of conscriptive evidence which would not have been discovered in the absence of the conscription of the accused will render the trial unfair. This conclusion is reinforced by the seriousness of the breach which should have been sufficient in itself to warrant the exclusion of the evidence.

(2) Admission for a Limited Purpose

The trial judge in this case, in determining that the evidence need not be excluded pursuant to s. 24(2), relied on the distinction between incriminating evidence tendered by the Crown for the truth of its contents and evidence that is not self‑incriminating and is used only to challenge the credibility of the accused on cross‑examination. The Court of Appeal found that the trial judge did not err in this respect, and noted that the procedure followed at trial (conducting a voir dire as to the admissibility of the statement for the limited purpose sought by the Crown) complied with Calder, supra, which had been released subsequent to the trial.

74 In Calder the Crown attempted to have the evidence admitted for the limited purposes of cross‑examination, after the trial judge had already ruled that the evidence should be excluded. It was held that the fact that the Crown now sought admission for limited purposes only was not a material change in circumstances sufficient to warrant a change in the judge’s ruling. The respondent in this case argued that the ratio in Calder should be restricted to this proposition and that this should not preclude admission of evidence for a limited purpose where the Crown is not “fettered” by a prior ruling under s. 24(2).

75 However, the decision in Calder also considered the broader issue. Specifically it considered whether a distinction should be drawn for the purposes of s. 24(2) where the Crown seeks to admit the evidence for the limited purpose of impeaching the accused’s credibility on cross‑examination. Sopinka J., writing for the majority, conceded that it might be possible for the Crown to succeed in having evidence admitted only for the purpose of cross‑examination that would otherwise be excluded, and that the Crown could seek a ruling to that effect, which would be made following a voir dire. However, he stated at para. 35 that this might be the case only in “very limited” and “very special” circumstances.

76 It is not necessary to speculate what “special circumstances” would be required to allow the admission of evidence for a limited purpose that was not otherwise admissible. In our view those circumstances would be very rare indeed. In this case, there are no special circumstances which would justify such a finding. Rather, we find that there should be no difference, for the purposes of deciding whether to exclude the evidence under s. 24(2), between the admission of evidence generally and admission for the limited purpose of challenging the credibility of the accused. The rationale for this general rule was clearly expressed in Calder, at para. 34:

The effect on the repute of the administration of justice is to be assessed by reference to the standard of the reasonable, well‑informed citizen who represents community values. The effect of destroying the credibility of an accused who takes the stand in his or her defence using evidence obtained from the mouth of the accused in breach of his or her Charter rights will usually have the same effect as use of the same evidence when adduced by the Crown in its case in chief for the purpose of incrimination. The fact that a jury carefully instructed can apply the distinction does not mean that use for the purpose of impeachment will, in the eyes of the jury, have a less detrimental effect on the case of the accused. Moreover, in determining admissibility under s. 24(2), it is not the carefully instructed juror who is the arbiter of the effect on the administration of justice but rather the well‑informed member of the community. This mythical person does not have the benefit of a careful instruction from the trial judge on the distinction. Not only will that person not tend to understand the distinction in theory, but, in any event, will regard the distinction as immaterial in assessing the effect on the repute of the administration of justice. If use of the statement is seen to be unfair by reason of having been obtained in breach of an accused’s Charter rights, it is not likely to be seen to be less unfair because it was only used to destroy credibility.

77 As a result, we must conclude that the trial judge erred in his analysis of the applicability of s. 24(2). We prefer the analysis of the Alberta Court of Appeal in a recent case that considered the same issue: R. v. Whitford (1997), 1997 ABCA 85, 115 C.C.C. (3d) 52 (Alta. C.A.). In that case, Berger J.A. found that evidence used to incriminate the accused and evidence used to impeach the accused’s credibility should be treated the same for the purposes of s. 24(2). He put it in this way, at p. 62:

A court should treat incrimination evidence and impeachment evidence in like manner when determining unfairness of a trial under s. 24(2). . . .

I conclude that the Crown’s strategic choice at trial to use the evidence only for impeachment purposes does not lessen the standard for admissibility. Acceptance of a lesser standard would encourage Charter breach in order to achieve tactical advantage at trial. A statement obtained in breach of the Charter for impeachment purposes, it would be thought, is better than no statement at all. In the case at bar, the trial focus on the credibility of the complainant and the Appellant leads me to conclude that it would be unfair to admit the evidence for purposes of cross‑examination.

78 While the distinction between incriminating and exculpatory statements may be important for some purposes (see, e.g., Kuldip, supra), it is not a factor that should influence the s. 24(2) analysis. Similarly the fact that the Crown seeks to use the evidence only in cross‑examination of the accused should not have persuaded the trial judge to decide in favour of admitting the evidence. A correct application of the factors set out in Collins and Stillman leads inevitably to the conclusion that the evidence should be excluded under s. 24(2).

VI. Disposition

For the foregoing reasons, the appeal is allowed, the judgments of the British Columbia Court of Appeal and of the British Columbia Supreme Court are set aside, and a new trial is ordered.

The reasons of L’Heureux-Dubé and McLachlin JJ. were delivered by

//L’Heureux-Dubé J.//

Reasons of L’Heureux-Dubé J. (Dissenting)

L’Heureux-Dubé J. (dissenting) -- I have read the joint reasons of Justices Cory and Iacobucci in this appeal, as well as the reasons of Justice Bastarache and, with respect, I cannot agree with their reasoning or the result that they reach. In my view, different principles than those set out in either set of reasons determine when s. 10(b) of the Canadian Charter of Rights and Freedoms applies outside Canada, and I do not accept the conclusion that it applies in this case. In addition, I believe that the evidence in this case was properly admitted.

81 The most important facts can be quickly summarized. The appellant, an American citizen from Louisiana, was charged with the murder of a Canadian citizen during a brief stay in Canada, after which he returned to the United States. He was extradited to Canada following his arrest by American police on a warrant issued by a U.S. magistrate. He alleges that, while he was being held in the American jail, Canadian police officers violated the rights “to retain and instruct counsel without delay and to be informed of that right” guaranteed by s. 10(b).

Issues

This appeal raises several issues. First, it must be determined whether s. 10(b) of the Charter applies to the questioning of the appellant by Canadian police while he was being held in an American jail. If it does, it must be determined whether s. 10(b) was violated, and, if so, whether the evidence should be excluded under s. 24(2). If s. 10(b) does not apply, it must be determined whether the evidence should nevertheless be excluded under the protection against unfair trials guaranteed by ss. 7 and 11(d) of the Charter. Finally, if the evidence is admissible, it must be determined whether the trial judge’s instruction to the jury concerning the use that could be made of the appellant’s statement was adequate.

83 What is at issue when considering whether s. 10(b) applies to the questioning is not whether the appellant is protected under the Charter against the admission of evidence obtained in a grossly improper manner. Nor is it an issue whether the conduct of the police officers will be carefully scrutinized to determine whether it caused any substantial unfairness to the appellant. Rather, the question is whether that protection will occur through the mechanism of ss. 7 and 11(d), which guarantee a fair trial in Canadian courts, or through the mechanism of s. 10(b). What must also be determined in this case, in my view, is how strictly Canadian officials must conform to the details of Canadian procedural protections, even when that may not be possible or practical because they are working within the structure of another legal system.

Principles on the Application of Section 10(b)

The first issue that arises is whether the protections of s. 10(b) of the Charter apply to the questioning of the appellant carried out by the Canadian detectives in the American jail. My colleagues Cory and Iacobucci JJ. argue that the question of whether Charter rights apply is determined first by examining whether the actions fall within the purview of s. 32(1), and then by determining whether, even if s. 32(1) applies, extraterritorial application in the circumstances of the case would mean that the Charter would thereby govern “criminal proceedings by foreign authorities in another state” (para. 44). The Charter does not apply in such cases, they argue, because this would “violate the principle of state sovereignty” (para. 44). My colleague Bastarache J. suggests, at para. 127, that the “focus of the analysis must be the relative roles of the Canadian and foreign officials in obtaining the specific evidence which the defendant seeks to exclude. If the Canadian officials were primarily responsible for obtaining the evidence in a manner which violated the Charter, then the Charter will apply to them and to the evidence obtained by them”. In my opinion, the question of when the Charter applies is not properly determined by looking to the intricacies of extraterritoriality in international law, nor can ordinary principles of statutory interpretation be used to determine its sphere of application. What is at issue, instead, is the interpretation of the Constitution of Canada, the question of whether that Constitution grants rights and freedoms to people outside the country, and the application of that Constitution in a place where it is not the “supreme law” of that jurisdiction.

85 As a preliminary note I point out that my colleagues’ reasons, like the arguments of the parties, proceed on the assumption that the appellant held Charter rights, even though he was neither present in Canada, nor a Canadian citizen, at the time of the alleged violation of these rights. In my opinion, this analysis misses a crucial first step -- a determination of whether the person claiming a Charter right is indeed the holder of a right under the Canadian constitution. The question of whether the claimant holds a right, in my view, must logically be determined prior to the question of whether there is state action involved that may have infringed that right.

86 For the appellant to allege that while he was in jail in Louisiana, his s. 10(b) rights were violated, he must first show that he held s. 10(b) rights under the Canadian constitution. This requires an examination of the language of the Charter guarantees and an interpretation of the purposes of the rights in the Canadian constitution. Certain Charter rights are guaranteed to citizens of Canada (ss. 3, 6, and 23). Other rights and freedoms in the Charter are held by “everyone” (ss. 2, 7, 8, 9, 10, 12), “any person charged with an offence” (s. 11), or “every individual” (s. 15). The appellant is claiming rights under s. 10(b), which guarantees its protections to “everyone”. The term “everyone” seems quite broad. Nevertheless, interpreting it must take into account the purposes of the Charter. I am not convinced that passage of the Charter necessarily gave rights to everyone in the world, of every nationality, wherever they may be, even if certain rights contain the word “everyone”. Rather, I think that it is arguable that “everyone” was used to distinguish the rights granted to everyone on the territory of Canada from those granted only to citizens of Canada and those granted to persons charged with an offence.

87 It is not necessary for the purposes of this appeal to decide exactly who is included by “everyone” and other similar general statements of Charter rights. Since neither party put forward arguments on the question of whether the appellant was a rights holder at the time his rights were allegedly violated, and therefore the question was conceded by the Crown, I prefer not to decide this appeal on that basis. However, I wish to note that the question of whether the appellant holds rights under the Charter is one that should be determined prior to the question of whether there has been action by a s. 32 government that infringed that right. A complainant who cannot establish that he or she held a right under the Charter cannot allege the violation of that right.

88 I now turn to an examination of the principles of s. 32 to determine whether the action of the Canadian officers in interviewing Cook can be considered government action that triggers the application of s. 32 of the Charter. First, this Court’s judgment in R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, must be examined. In that case, the issue was whether s. 10(b) of the Charter applied to the taking of a statement by U.S. Marshals on American soil in relation to a crime committed in Canada. The majority judgment decided that the Charter does not apply to actions carried out on foreign soil by foreign government actors. It left open the question of whether Charter rights are triggered when foreign officials act on their own territory at the request of Canadian officials, or by the actions of Canadian officials on foreign soil.

89 Many of the questions left unresolved in Harrer, supra, were resolved by the unanimous judgment of this Court in R. v. Terry, 1996 CanLII 199 (SCC), [1996] 2 S.C.R. 207. The judgment in Terry determined several points. First, McLachlin J. rejected the argument that foreign officials working at the request of the Canadian government could be considered agents of Canadian government actors for the purpose of triggering Charter protections. Charter norms cannot be imposed on foreign officers, since they constitute the legal authority in their jurisdiction, and this would compromise Canadian respect for its sovereignty. McLachlin J. also emphasized that where there is cooperation between Canadian and foreign officials on foreign soil, the Charter will also not apply out of the same respect for the sovereignty of the foreign jurisdiction and the legal responsibilities of the foreign officials. She noted at paras. 18-19:

The practice of cooperation between police of different countries does not make the law of one country applicable in the other country.

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. . . .[Emphasis added.]

90 This Court again examined these questions in Schreiber v. Canada (Attorney General), 1998 CanLII 828 (SCC), [1998] 1 S.C.R. 841. In that case, the defendant argued that s. 8 of the Charter required that a search warrant be issued before a request was made to Swiss authorities to search his bank account. Writing for the majority, I noted at para. 29:

The reality of international criminal investigation and procedure is that it necessitates co-operation between states. The fact that the government of Canada may play a part in international investigations and proceedings, which might have implications for individual rights and freedoms such as those enumerated in the Charter, does not by itself mean that the Charter is engaged. The specific actions undertaken by Canadian officials, within the authority of Parliament, the government of Canada, the provincial legislatures or the provincial governments, must be assessed to determine if they infringe a right or freedom guaranteed in the Charter.

I also noted at para. 32:

. . . it does matter where the search or seizure took place, if it took place outside Canada by persons not under the authority of the government of Canada. [Emphasis in original.]

As in Terry, supra, the majority judgment in Schreiber, supra, emphasized the importance of facilitating and allowing cooperation between Canadian and foreign officials when international investigations are underway. It also emphasized the importance of focusing on the question of whether the actor was “under the authority” of a Canadian government.

91 From these cases, therefore, I consider that the following two fundamental principles emerge regarding the application of the Charter outside the territorial boundaries of Canada where it has been established that the claimant is the holder of one of the rights or freedoms enumerated there. First, for the protections of the Charter to apply, the action alleged to have violated the claimant’s Charter rights must have been carried out by one of the governmental actors enumerated in s. 32. Under no circumstances can the actions of officials of another jurisdiction, acting outside Canada, be considered to violate the Charter. Officials of other jurisdictions will not be considered agents of Canadian authorities. This emerges from the need to respect the sovereignty and laws of countries where Canadian officials work, by not expecting foreign officials to comply with Canadian law or modify their procedures to respect Canadian law. It also follows from the recognition that different sets of procedural standards may conflict, and this could cause complication and confusion for both the accused and the investigating officers (Terry, supra, at para. 26).

92 Second, it follows from this principle, as emphasized in Terry, supra, that if there is cooperation between Canadian and foreign officials on foreign soil, the same considerations are pertinent and the Charter does not apply. Therefore, even if the action being challenged is attributable to a government listed in s. 32, that action will not trigger Charter application if it is carried out outside Canada in cooperation with another jurisdiction.

93 The important question in this appeal is to determine under what circumstances an investigation will be seen as cooperative. In my opinion, this must be determined by examining whether Canadian officials have legal authority in the place where the actions alleged to have infringed the Charter took place. This follows from the general principles regarding the application of s. 32. As La Forest J. stated in McKinney v. University of Guelph, 1990 CanLII 60 (SCC), [1990] 3 S.C.R. 229, at p. 262: “Government is the body that can enact and enforce rules and authoritatively impinge on individual freedom. Only government requires to be constitutionally shackled to preserve the rights of the individual.” These attributes of government are not present when officials work under the authority of a foreign government. When officials of a s. 32 government participate in an action that falls under the legal authority of a foreign government, it is not a matter “within the authority” of Parliament or a provincial legislature, as required by s. 32. Rather, it is an action undertaken under the authority of the foreign state, and it does not constitute government action even if there is involvement of Canadian government officials. In my opinion, the Charter does not apply to any investigation where Canadian officials no longer have the legal attributes of “government”; this occurs whenever an investigation takes place under the sovereignty of another government.

94 When Canadian officials work under the sovereignty of a foreign legal system, the investigation is necessarily cooperative. Foreign officials who permit Canadians to work with them, or to work on soil that is under their government’s legal authority, are bound to follow that country’s laws, and work within the procedural requirements of that system. So are the Canadian officials who work with them. In an investigation that takes place under foreign sovereignty, it is the foreign government that has legal authority over the mechanics of the investigation. This includes, for example, the circumstances under which the accused will be provided with access to counsel, how an arrest is made, and whether the validity of the detention can be determined by way of habeas corpus (as guaranteed by s. 10 of the Charter). The principle of respect for the foreign government’s sovereignty, clearly articulated in Terry, supra, means not imposing Canadian standards on a joint investigation on foreign soil, since all officials must respect that country’s laws and the procedures of that country’s legal system must be followed. In addition, it must be recognized that away from Canada, where the Canadian government has no legal authority, officials may not be able to provide the protections available in Canada because of differences in the legal systems and resources available. Excluding the application of the Charter to cooperative investigations ensures that Canadian standards are not imposed on foreign officials because they are working with Canadians, and recognizes that when Canadian officials work on territory that is under another government’s sovereignty, it is local officials and local laws that constitute the legal authority in the jurisdiction where the activities take place.

95 For this reason, I cannot accept the approach of Cory and Iacobucci JJ., who argue, at para. 48, “that the Charter applies on foreign territory in circumstances where the impugned act falls within the scope of s. 32(1) of the Charter on the jurisdictional basis of the nationality of the state law enforcement authorities engaged in governmental action, and where the application of Charter standards will not conflict with the concurrent territorial jurisdiction of the foreign state”. I believe that Cory and Iacobucci JJ.’s approach fails to give proper attention to the meaning of s. 32(1) itself. I believe that looking to whether Canadian officials have the attributes of “government” is a more logical and straightforward test than determining whether applying the Charter in a particular case would lead to objectionable effects under international law. It also focuses on the purposes of the Canadian constitution, whose interpretation is at issue. Finally, my colleagues agree that when there is a cooperative investigation undertaken in accordance with foreign legal procedures the Charter may not apply (see para. 54). However, they fail to see the ways in which cooperation is necessary, and foreign procedures are implicated whenever Canadians must work within another legal system.

96 Nor can I agree with my colleague Bastarache J. that the appropriate determination is to look at who was “in control” of the specific part of the cooperative investigation leading to the Charter breach. On territory under foreign sovereignty, the Canadian government no longer has authority, and Canadian officials, in the sense of having the coercive powers of the Canadian state behind them, are never really “controlling”. All their actions are constrained by the procedures and principles of the foreign legal system. Bastarache J. acknowledges this when he states, at para. 143, that under his test “the Canadian official may be obliged to cease taking a directing or primary role in the investigation in order to comply with the Charter”. This would considerably hamper cooperative investigations. First, courts will have to develop tests to define when a Canadian is in the “directing or primary role” in the investigation; it will be very difficult for Canadian officials to make this determination while working on an investigation that may require quick decisions and planning, and when they may not have complete control of events. Second, Canadians may have no choice but to take a “primary role” in a certain part of an investigation, even when they have to work under the standards and rules of a foreign jurisdiction. The approach of Bastarache J. ignores the importance of interpreting the Charter so that the realities of joint investigations are recognized, a consideration emphasized in Terry, supra, and Schreiber, supra.

Application to the Case at Bar

In my view, an application of the above principles to the case at bar mandates that the appellant did not benefit from the protections of s. 10(b). The Canadian police were acting under American legal sovereignty, and had no power to carry out any actions without being given permission by its legal system to do so. They had to cooperate with Americans and work under American law in order to carry out their investigations.

98 A review of the circumstances of this case strengthens this conclusion, since it shows the myriad ways in which cooperation was necessary here, and is necessary whenever Canadian officials work under the sovereignty of another government. American officials and the American legal system were in control of the arrest and questioning of the appellant. The arrest of the appellant was carried out by a United States Marshal, pursuant to a warrant issued by an American magistrate. He was being held in accordance with U.S. law in an American prison. American officials controlled his movements, his access to a telephone to contact counsel, and the circumstances in which he would be interviewed by the Canadians. The Canadian police had no control over his person. Canadian officials had no legal authority to order him moved, transferred, or released. They were only able to question the appellant through permission given by the American authorities. In short, the Canadian officers’ actions took place within the context of the United States legal system, and it was not a matter where the Canadian state’s legal powers were implicated. Section 10(b) of the Charter therefore did not apply to the questioning.

99 It is impossible to say, as my colleagues suggest, that the Canadians’ actions were somehow independent of that system, and were analogous to an investigation in Canada. My colleagues Cory and Iacobucci JJ. believe that it is “a different case where, for example, Canadian authorities participate, on foreign territory, in an investigative action undertaken by foreign authorities in accordance with foreign procedures” (para. 54, emphasis added). They also note, at para. 50, that the “questioning of the appellant by Canadian authorities does not implicate or interfere with any criminal procedures engaged by or involving U.S. authorities”. Bastarache J., too, suggests at para. 128 that the Canadian officials could “conduct their questioning in an entirely autonomous fashion”. I disagree with this characterization of the situation, and believe that it does not take account of the complex nature of this or any other interjurisdictional investigation, or of the fact that the Canadian officers were required to work under American rules, with the resources available in the American criminal justice system, and with American officials. In my view, all these factors show why such an investigation is a cooperative one, why the officers’ actions were not a matter “within the authority” of a Canadian government, and why s. 32 was not triggered. Therefore, s. 10(b) does not apply.

100 Having concluded that the appellant was not entitled to benefit from the protections of s. 10(b), there is no need to consider whether this section was violated, or whether the evidence should be excluded under s. 24(2).

Should the Evidence Be Excluded Under ss. 7 and 11(d)?

101

Should the Evidence Be Excluded Under ss. 7 and 11(d)?

The fact that the accused did not benefit from protections under s. 10(b) does not resolve the question of whether the evidence should be admitted. The Charter guarantees of a fair trial (s. 11(d)) and of respect for the principles of fundamental justice (s. 7) may apply to exclude the admission of evidence at a trial, whether or not a Charter right applied to the gathering of that evidence: see Harrer, supra, and Terry, supra. However, the fact that the evidence was obtained in a manner that would have violated one of the sections of the Charter is not determinative. As McLachlin J., concurring, stated in Harrer, supra, at para. 44:

A distinction must be made at the outset between unfairness in the way a statement was obtained and an unfair process or trial. The situation in which police take evidence is complex. Even where every effort is made to comply with the law, aspects of the process may, in hindsight, be argued to have been less than fair. . . . The point is simply this: unfairness in the way evidence is taken may affect the fairness of the admission of that evidence at trial, but does not necessarily do so. [Emphasis in original.]

She went on, at para. 45, to define a fair trial as follows:

At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused’s point of view: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused.

102 In this case, there are several factors about the gathering of the evidence that the appellant alleges lead to the conclusion that its admission would render the trial unfair. First, although the accused was read his Miranda rights by Marshal Credo when he was arrested, and had requested a lawyer during a court appearance, he had not yet been provided with a lawyer when he was interviewed by the Canadian detectives. Second, the Canadian detectives interviewed the appellant for approximately 20 minutes before warning him of his right to counsel. When they did so, the trial judge found that they misled him about the nature of that right and that, though they informed him of the availability of legal aid services, they failed to provide him with a phone number to get in touch with them. It must be evaluated whether these omissions were so serious that admitting the evidence obtained during the interview would lead to an unfair trial.

103 The Court’s decisions in Harrer, supra, and Terry, supra, emphasize that in determining whether admitting the evidence would lead to an unfair trial, all relevant circumstances must be taken into account. In my view, one of the important factors is whether it was Canadian or foreign police who were responsible for the alleged unfairness. The actions of Canadian police will be examined more strictly than those of foreign police who normally work under different standards than those expected in Canada. Canadian police should ensure, to the extent possible, that the letter and spirit of the Charter’s protections are accorded even when, as here, the rights themselves do not directly apply. Under the analysis under ss. 7 and 11(d), it should generally be recognized that when the actions of Canadian police depart from our standards, this will be seen as more serious than when foreign police do so because of the existence of different standards in that country. Similarly, when foreign police do not accord the protections of that country’s laws, this will generally be seen as more serious than when similar standards do not exist because the foreign legal system is different from ours.

104 However, the mere fact that there was what would constitute a technical breach of the Charter by Canadian officials will not automatically lead to exclusion of the evidence under ss. 7 and 11(d), just as the violation of one of the rights in the Charter does not lead to the automatic exclusion of evidence under s. 24(2). An analysis of the fairness of the trial requires both considering society’s interest in obtaining the truth, and examining whether, in substance, any significant unfairness was caused to the accused.

105 I believe that in this case the conduct of the Canadian detectives was not so serious that admission of the evidence would violate the appellant’s right to a fair trial, taking into account all the circumstances and society’s interest in finding out the truth. The trial judge noted that “[t]here was a serious breach of a fundamental and important right, but I do not find that the conduct of the detectives was egregious”. The accused was aware of his right to counsel from the time he was arrested, since the Miranda warning he was given by the American Marshal included the statement: “You have the right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning.” The accused admitted that he understood his Miranda rights. The trial judge also found that the accused’s statement was voluntary -- he knew that he did not have to talk to the Vancouver detectives, and understood that he could end the interview at any time. The detectives told the appellant, though not in the clearest way possible, that he had a right to counsel, and said they would put him in touch with the B.C. Legal Aid Society if he wished.

106 Though the Canadian police did not give him the statement of his rights until 20 minutes into the interview, before that point he was only questioned about background information. More importantly, the statements at issue in this appeal were made after that initial 20-minute period, after the accused was informed of his rights by the Canadian officers. In my view, therefore, the delay in giving the information is relatively unimportant for the purpose of determining the admissibility of these statements. Therefore, admitting evidence obtained in the latter part of the interview cannot be considered so unfair that it must be rejected. It would not violate s. 7 or s. 11(d) to admit evidence given voluntarily by the accused, who understood that he had a right to counsel and that he did not have to talk to police.

107 This conclusion is also strengthened by the fact that the evidence was admitted at trial for a limited purpose: impeaching the accused’s credibility on cross-examination. In many cases, whether the statements made were exculpatory or inculpatory, and whether they are to be used to build the Crown’s case against the accused or impeach the accused’s credibility is of no significance in the analysis under either ss. 7 and 11(d) or s. 24(2). As Sopinka J. stated in R. v. Calder, 1996 CanLII 232 (SCC), [1996] 1 S.C.R. 660, at para. 34:

The effect of destroying the credibility of an accused who takes the stand in his or her defence using evidence obtained from the mouth of the accused in breach of his or her Charter rights will usually have the same effect as use of the same evidence when adduced by the Crown in its case in chief for the purpose of incrimination.

However, Calder, supra, dealt with the question of whether a change in the proposed use of the statements by the Crown constituted a material change in circumstances so that the issue of exclusion of the evidence under s. 24(2) could be reopened. Sopinka J. concluded, at para. 35, that it would be in “very limited” and “very special” circumstances that “a change in use as proposed in this case will qualify as a material change of circumstances that would warrant reopening the issue once evidence has been excluded under s. 24(2)”. However, he acknowledged, at para. 35, that the fact the Crown was asking for admission for a limited purpose could make a greater difference during an initial s. 24(2) application:

To the extent that the Crown considers in a given case that restricting use of a statement to cross-examination will lighten its task in getting the statement admitted for this purpose under s. 24(2), it can seek a ruling to this effect either during its case or before cross-examining the accused. In either case, a voir dire will be necessary in which the trial judge will consider the admissibility of the statement for the limited purpose for which the Crown intends to use the statement.

Therefore, the fact that the Crown requests the admission of the evidence for a limited purpose may be a factor in the analysis in certain circumstances. I disagree with my colleagues Cory and Iacobucci JJ. that the majority judgment in Calder, supra, suggests that the circumstances under which the evidence will be admitted on an initial application under s. 24(2) are as exceptional as those which are required for reconsideration of a admissibility ruling which has already been made. I see no reason why this should not also be the case under ss. 7 and 11(d).

108 In my opinion, this is a case where limited use of the evidence is one of the factors that can be considered in the analysis. As noted by the trial judge, and by Hinds J.A. in the Court of Appeal, the ruling on the admissibility of the evidence came after many Crown witnesses had been cross-examined on prior statements they had made. The evidence was admitted for the limited purpose of impeaching the appellant’s credibility, and the trial judge gave carefully crafted instructions to the jury about the limited use that could be made of the statements. In the context of this trial, where the credibility of other witnesses was also impugned with prior inconsistent statements, without admission of this evidence the jury would have been given the mistaken impression that the accused had been consistent in his testimony, while other witnesses had changed their stories. This could distort, rather than contribute to the truth-finding process (see R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at p. 698, for similar reasoning). At the same time, the jury was instructed that the evidence was not to be considered as part of the Crown’s case against the accused. For these reasons, the fact that the accused’s statement was admitted only for the limited purpose of impeaching his credibility adds to the conclusion that admission of this evidence would not lead to an unfair trial.

109 Though there were technical breaches of the standards of the Charter that were improper, they were not so serious that admitting the evidence would lead to an unfair trial. This conclusion is strengthened by the fact that the evidence was admitted for a limited purpose. The fact that the accused was charged with murder also adds to this conclusion, since society has a particularly strong interest in getting at the truth regarding such a serious crime.

Charge to the Jury

110

Charge to the Jury

Finally, the appellant alleges that the trial judge’s charge to the jury regarding the statement made by the appellant during his interview with the detectives was inadequate. The Crown sought admission of this statement only for the purpose of impeaching the appellant’s testimony. The appellant argues that the trial judge did not make it sufficiently clear that a statement admitted for this limited purpose could only be used to impeach the credibility of the accused (see Calder, supra, at para. 25), and should have mentioned that the conflicting versions could not be used to infer the “consciousness of guilt” of the accused.

111 The trial judge instructed the jury as follows, in relation to out-of-court inconsistent statements generally:

If you decide that previous out-of-court statements by a witness are inconsistent with what the witness said under oath then you may use the statement to decide whether or not you believe the witness. Once you decide whether or not you believe the sworn testimony of the witness then you must not make further use of the out-of-court statement because it is not evidence which proves the matter contained within it.

After referring to the statement of the appellant, he stated the following:

That is a prior inconsistent statement which goes to the credibility of the accused just as I explained previously with respect to the other witnesses. What the accused said in his statement to the police is not evidence, that he got a call from Fennell and went to the apartment building. It is evidence that goes only to the credibility of the accused just as I have explained with respect to the other witnesses and their prior inconsistent statements.

112 In my view there is nothing improper about the trial judge’s charge. He clearly explained to the jury that the only acceptable use of out-of-court statements was for the purpose of determining the credibility of the witness. He repeated this admonition with respect to the testimony of the accused. He made it clear that there were no other uses to which this evidence could be put. There was no need for the judge to specifically enumerate the prohibited uses of the evidence.

Conclusion and Disposition

113

Conclusion and Disposition

Finally, I stress that these reasons in no way give Canadian officials free reign to violate human rights on foreign soil, or leave those who are the subject of cooperative investigations outside Canadian sovereignty without protection against the admission, in Canada, of evidence obtained in a seriously unfair manner. Such persons are protected under the fair trial provisions of ss. 7 and 11(d) when they are tried in Canada. As I indicated above, the analysis of whether admission of the evidence would lead to an unfair trial requires a close examination of the actions of Canadian officials. This analysis proceeds on the expectation that Canadian officials will do what they can in the circumstances, given the laws and resources with which they must work, to comply with the spirit and, where possible, the letter of the Charter’s protections. When serious unfairness occurs because of a failure to do so, which was not the case here, the evidence will be excluded under this protection against unfair trials.

114 For these reasons, I would dismiss the appeal.

The reasons of Gonthier and Bastarache JJ. were delivered by

//Bastarache J.//

115

Reasons of Bastarache J.

Bastarache J. -- This case raises before this Court, for the first time, the issue of whether the Canadian Charter of Rights and Freedoms applies to the investigatory activities of Canadian officials outside of Canada.

116 The background and case history have been described by Justices Cory and Iacobucci. I will not repeat them here. I wish to express my own views with regard to the application of the Charter in this case. I agree with the result reached by Cory and Iacobucci JJ. with regard to the application of the Charter and their disposition of the appeal.

117 The respondent argues that applying the Charter to Canadian police officers acting abroad infringes international law principles of jurisdiction. In particular, the respondent suggests that such an interpretation of s. 32(1) would be an extraterritorial application of Canadian law. To state my conclusions at the outset, I find that there is no conflict between an interpretation of s. 32(1) which favours the application of the Charter to the activities of Canadian officials conducting an investigation abroad, and international law principles of territorial jurisdiction. Since this case raises the application of the Charter to a police investigation, I will restrict my analysis to those guarantees implicated by such an investigation, namely, the “Legal Rights” contained in ss. 7-14. Whether these same principles apply with respect to other Charter rights is a question more appropriately left for a case in which those issues are squarely raised and argued.

The Scope of Section 32(1)

118 Section 32(1) of the Charter provides:

(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.

Section 32(1) applies the Charter to those persons exercising legislative authority or to those who are part of the executive government. These two categories frequently overlap in practice, but they are distinct bases upon which the Charter may be applied. In effect, the Charter applies to governmental action, which may arise either because of the nature of the powers exercised, or because the actor is actually a part of the government. In Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 156, Dickson J. (as he then was) observed: “It is intended to constrain governmental action inconsistent with those rights and freedoms; it is not in itself an authorization for governmental action.” On its face, there is no mention of a territorial limitation of the application of the Charter. Section 32(1) defines the application of the Charter according to who acts, not where they act.

119 Prima facie, there can be no doubt that the wording of s. 32(1) includes the actions of the Vancouver police, since they are constituted as part of the government and exercise authority under a provincial statute (Police Act, R.S.B.C. 1996, c. 367, s. 7(2)). Police officers are included within the terms of s. 32(1), not only because they exercise statutory powers conferred on them by the relevant legislature, but also because they are officers of the government. Indeed, the juridical status of a police officer has been described as “‘a ministerial officer exercising statutory rights independently of contract’” (Reference Re Power of Municipal Council to Dismiss a Chief Constable (1957), 1957 CanLII 110 (ON CA), 7 D.L.R. (2d) 222 (Ont. C.A.), at p. 225, quoting from Viscount Simonds in Attorney-General for New South Wales v. Perpetual Trustee Co., [1955] A.C. 457, at pp. 489-90; see also Police Act, R.S.B.C. 1996, c. 367, s. 7(2)).

120 When a police officer travels into the territory of another jurisdiction, either within Canada or internationally, it must be acknowledged that the statutory authorization to exercise coercive acts will likely come into conflict with the legal jurisdiction of the host territory. The reasons for this will be discussed in more detail below. However, the status of a police officer as an officer of the state is not altered by crossing a jurisdictional border, even if he or she is deprived of all the coercive powers conferred by the home state. Thus, for example, even if a Canadian police officer is obliged by the United States’ authorities to surrender his gun at the border, this does not mean that he or she is thereby stripped of his or her identity as an officer of the Canadian state; the officer is merely stripped of the statutory power to carry a gun, because that Canadian statutory power conflicts with the host state’s rules authorizing who may carry a firearm. From the perspective of the home legal system, however, police officers are still representatives of their home government. Even if the host jurisdiction fails to recognize the home police officer as an actor of that state, no possible conflict is created by the home jurisdiction’s imposing a status which only has juridical effect within the home territory. There is nothing in international law which suggests that the determination of the status of police officers within British Columbia law must be read in a manner which confines that status to the territory of British Columbia, and which disappears when they cross a border.

121 Indeed, usual practice would seem to suggest precisely the opposite. In this case, for example, the Vancouver police detectives were invited by their Louisiana colleagues to come to the United States in order to conduct whatever questioning of the suspect they considered appropriate. During this visit, there can be no doubt that Vancouver detectives were understood by their American counterparts to be part of the executive government of the province of British Columbia, and that they were given access to the suspect on that basis. In this case, the government of the host state chose to accord some legal significance to the status in British Columbia law of the two detectives as officers of the state. The two detectives were permitted to have access to the defendant while he was detained and to question him as they saw fit, without any supervision or involvement by the government of the host state.

122 Section 32(1) applies to officers of the Canadian state who are abroad, independent of whether they exercise governmental powers of coercion or not. The Charter has been applied to government officials even when they act on behalf of the state without exercising any statutory power (Lavigne v. OPSEU, 1991 CanLII 68 (SCC), [1991] 2 S.C.R. 211, at p. 313; Douglas/Kwantlen Faculty Assn. v. Douglas College, 1990 CanLII 63 (SCC), [1990] 3 S.C.R. 570, at p. 585; Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 2, at pp. 34-14 and 34-15). Thus, even if a Canadian police officer in a host state has no statutory powers whatsoever to exercise, he or she is still subject to the Charter under s. 32(1) by virtue of his or her status as part of the executive government of Canada or one of the provinces. That person’s movement into another jurisdiction does not alter his or her status or the application of the Charter to him or her. The fact that the officer may not be authorized to exercise any legislative power because of his or her presence in a foreign jurisdiction is immaterial.

123 This does not resolve the issue, however, of whether and to what extent s. 32(1) provides for the application of the Charter to investigative actions of Canadian officials and to evidence obtained with the participation of Canadian officials in a foreign state. Potentially, the exercise of those powers might be more susceptible to conflict with the foreign law than the mere ascription of governmental status to Canadian officials by Canadian law.

124 This concern is addressed by considering the express terms of s. 32(1) and the nature of the Charter obligations imposed. Section 32(1) specifically confines the application of the Charter to Canadian governments or matters within the authority of Canadian legislatures. By its terms, s. 32(1) dictates that the Charter applies to the Canadian police by virtue of their identity as part of the Canadian government. By those same terms, however, the Charter may not be applied to a person who is neither within the authority of the various Canadian legislatures, nor a Canadian official. Thus, s. 32(1) dictates that the Charter may not be applied to any matter within the authority of a foreign government, or to foreign personnel (unless they are somehow concurrently part of the Canadian government, or subject to Canadian legislative authority, a possibility not raised in this case).

125 This dichotomy raises difficult factual issues when Canadian and foreign officials cooperate to obtain evidence by way of a joint investigation. While within the foreign state, most useful investigative activities by Canadian police officers will involve, in some measure, the participation of foreign officials exercising their governmental powers, or the delegation of those powers to the Canadian officials. In this case, for example, the American officials exercised a statutory power in arresting the suspect at the request of the Canadian officials, and then detaining him until and while he was questioned by the Canadian officials. My learned colleague Justice L’Heureux‑Dubé concludes from these facts that applying the Charter in this case would amount to an application of the Charter beyond the scope of s. 32(1) since the “action [was] undertaken under the authority of the foreign state” (para. 93).

126 I disagree with my colleagues’ specific method of applying s. 32(1) to the difficult problem of joint or cooperative investigations. In my view, the key issue in cases of cooperation between Canadian officials and foreign officials exercising their statutory powers is determining who was in control of the specific feature of the investigation which is alleged to constitute the Charter breach. This inquiry involves weighing the relative roles of the Canadian officials and of the foreign officials. When a Canadian officer is invited by the foreign official to exercise some power during an investigation, whether s. 32(1) is engaged will depend on the extent to which the exercise of the power is supervised by the foreign official.

127 If, in weighing these factors, it is found that the foreign authority was responsible for the specific circumstances leading to the Charter breach in obtaining a specific piece of evidence, then those activities are not subject to the Charter, notwithstanding the participation of the Canadian officials in the cooperative investigation. In cases in which a defendant seeks to invoke s. 24(2) to exclude evidence from a trial being conducted in Canada, the focus of the analysis must be the relative roles of the Canadian and foreign officials in obtaining the specific evidence which the defendant seeks to exclude. If the Canadian officials were primarily responsible for obtaining the evidence in a manner which violated the Charter, then the Charter will apply to them and to the evidence obtained by them.

128 In this case, the Canadian police officers exercised virtually total control over the questioning procedure. The Vancouver detectives conducted their questioning of the accused without any participation by American officials. Although the accused was detained under the statutory authority of the foreign legal system at the time of the questioning, the foreign officials invited the Canadian officials to conduct their questioning in an entirely autonomous fashion. Indeed, the foreign officials in this case refrained from asking any questions of the accused at any point during the detention. The trial judge found a breach of the defendant’s s. 10(b) rights to be provided with a lawyer, and to be informed of that right. These rights could have been easily fulfilled and, in their capacity as the sole questioners of the accused, the Canadian police officers were in a position to inform the defendant of that right and to put the accused in touch with a Vancouver lawyer by telephone. Under these circumstances, the actions of the Canadian officials, who are subject to the Charter by virtue of their roles as government actors identified in s. 32(1), are subject to the Charter. Applying the Charter to their actions does not amount to an application of the Charter to foreign officials or a foreign authority, which is prohibited under s. 32(1).

International Law Principles of Jurisdiction

129

International Law Principles of Jurisdiction

Does this interpretation of s. 32(1) offend international law principles of jurisdiction? If it does, there is a presumption that s. 32(1) must be interpreted in conformity with those international law principles, unless the offending interpretation is clear and unmistakable, or unless there are other purposes evident in the Charter which modify the presumption. As Pigeon J. stated in Daniels v. White and The Queen, 1968 CanLII 67 (SCC), [1968] S.C.R. 517, at p. 541:

. . . Parliament is not presumed to legislate in breach of a treaty or in any manner inconsistent with the comity of nations and the established rules of international law. . . . if a statute is unambiguous, its provisions must be followed even if they are contrary to international law, as was said recently in Inland Revenue Commissioners v. Collco Dealings Ltd. ([1962] A.C. 1), where all relevant authorities are reviewed. In that case, the House of Lords came to the conclusion that the intent of Parliament was clear and unmistakable and, therefore, the plain words of a statute could not be disregarded in order to observe the comity of nations and the established rules of international law. However, the principle of construction was recognized as applicable in a proper case.

(See also Zingre v. The Queen, 1981 CanLII 32 (SCC), [1981] 2 S.C.R. 392, at pp. 409-10; National Corn Growers Assn. v. Canada (Import Tribunal), 1990 CanLII 49 (SCC), [1990] 2 S.C.R. 1324, at p. 1353, per Wilson J.; R. v. Treacy, [1971] A.C. 537, at p. 561, per Lord Diplock, who said there must be an “express provision to the contrary”; Chung Chi Cheung v. The King, 1938 CanLII 468 (UK JCPC), [1939] A.C. 160 (P.C.), at pp. 167-68; Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 330; J.-Maurice Arbour, Droit international public (2nd ed. 1992), at p. 59.)

130 The respondents claim that the application of the Charter to the actions of the police officers in this case amounts to an extraterritorial application of Canadian law which is prohibited by international law. It is necessary to examine the territorial principle more closely in order to determine whether this argument is sound.

131 Any discussion of territoriality begins with the fundamental distinction between a purported enforcement of domestic law in the territory of a foreign state (jurisdiction to enforce), and an attempt to give effect in domestic law to actions, people or things outside of the territory governed by domestic law (jurisdiction to prescribe). Attempts to enforce domestic law directly in the territory of a foreign state are prohibited in all but the most exceptional circumstances. In the words of Professor Brownlie, discussing “Extra-territorial Enforcement Measures”:

The governing principle is that a state cannot take measures on the territory of another state by way of enforcement of national laws without the consent of the latter. Persons may not be arrested, a summons may not be served, police or tax investigations may not be mounted, orders for production of documents may not be executed, on the territory of another state, except under the terms of a treaty or other consent given.

See Ian Brownlie, Principles of Public International Law (4th ed. 1990), p. 307. It was in this sense that the Permanent Court of International Justice observed in The Case of the S.S. “Lotus” (1927), P.C.I.J., Ser. A, No. 10, pp. 18-19:

Now the first and foremost restriction imposed by international law upon a State is that — failing the existence of a permissive rule to the contrary — it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.

But in the very next sentence, at p. 19, the International Court makes it very clear that the term “territoriality” has an entirely different meaning where a legal system merely purports to prescribe effects within its own legal system to events taking place abroad:

It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.

These two passages clearly illustrate the gulf that separates the principle of territoriality with regard to the jurisdiction to enforce, and territoriality as it might constrain the prescription of juridical consequences within the domestic legal system.

132 In the latter category of cases, most discussions of the nature of the territoriality principle have arisen from the application of a state’s criminal law to actions taking place in the territory of another state. It should be kept in mind, in the course of this discussion, that the nature of criminal prescriptions and the Charter are quite distinct, a point which shall be discussed in more detail below. For the moment, however, the discussion of territoriality as it relates to criminal jurisdiction provides useful material for understanding the general international law principles of territoriality.

133 In Libman v. The Queen, 1985 CanLII 51 (SCC), [1985] 2 S.C.R. 178, La Forest J., for the Court, extensively canvassed English and Canadian jurisprudence on the principle of the territorial limitations on criminal jurisdiction. Although finding that a very strict doctrine of territoriality was occasionally adopted to deny jurisdiction over any acts taking place in the territory of another jurisdiction, he challenges (at p. 185) the conventional view that English and Canadian courts have always refrained from exercising jurisdiction over acts taking place abroad (for the traditional approach, see Julian D. M. Lew, “The Extraterritorial Criminal Jurisdiction of English Courts” (1978), 27 Int’l & Comp. L.Q. 168). La Forest J. distills two principles from the cases in which the courts refrained from applying the criminal law to actions occurring in the territory of other states, at p. 208:

As noted earlier, the territorial principle in criminal law was developed by the courts to respond to two practical considerations, first, that a country has generally little direct concern for the actions of malefactors abroad; and secondly, that other states may legitimately take umbrage if a country attempts to regulate matters taking place wholly or substantially within their territories. For these reasons the courts adopted a presumption against the application of laws beyond the realm. . . .

Using these principles, La Forest J. concluded, at p. 209, that the territoriality doctrine has in modern times evolved to recognize that it is permissible to assert criminal jurisdiction over acts taking place in another state if they are connected to other acts that take place in the forum state which are in furtherance of criminal behaviour, or if the acts in the other state have some pernicious consequence within the forum:

This country has a legitimate interest in prosecuting persons for activities that take place abroad but have an unlawful consequence here, (as in Peters, for example). Indeed, from an early period the English courts have recognized such an interest in other countries; see Jacobi and Hiller, Nillins and Godfrey, supra. The protection of the public in this country is widely acknowledged to be a legitimate purpose of criminal law, and one moreover that another nation could not easily say offended the dictates of comity.

He goes on to state a general principle of territorial jurisdiction for criminal law, at pp. 212-13:

I might summarize my approach to the limits of territoriality in this way. As I see it, all that is necessary to make an offence subject to the jurisdiction of our courts is that a significant portion of the activities constituting that offence took place in Canada. As it is put by modern academics, it is sufficient that there be a “real and substantial link” between an offence and this country, a test well-known in public and private international law; see Williams and Castel, supra; Hall, supra.

Moreover, he dismisses concerns regarding the possibility of concurrent jurisdiction of different states over the same acts, finding that the courts of Canada can take cognizance of the decisions of other countries through the principles of autrefois acquit and autrefois convict.

134 These statements echo the approach adopted by the House of Lords in preceding cases. In Treacy, supra, at p. 564, Lord Diplock, concurring in the majority decision in that case made the following observations:

The source of any presumption that Parliament intended that the right created by the Act to punish conduct should be subject to some territorial limitation upon where the conduct takes place or its consequences take effect can, in my view, only be the rules of international comity, and the extent of the limitation, where none has been expressed in words, can only be determined by considering what compliance with those rules requires. . . . For reasons which I stated earlier, the rules of international comity, in my view, do not call for more than that each sovereign state should refrain from punishing persons for their conduct within the territory of another sovereign state where that conduct has had no harmful consequences within the territory of the state which imposes the punishment.

See also Canada (Human Rights Commission) v. Canadian Liberty Net, 1998 CanLII 818 (SCC), [1998] 1 S.C.R. 626, at para. 29.

135 On the international plane, the significance of the effects of activities within the territory of another state also received approval. Here again, I quote from The S.S. “Lotus”, supra, at p. 23:

On the contrary, it is certain that the courts of many countries, even of countries which have given their criminal legislation a strictly territorial character, interpret criminal law in the sense that offences, the authors of which at the moment of commission are in the territory of another State, are nevertheless to be regarded as having been committed in the national territory, if one of the constituent elements of the offence, and more especially its effects, have taken place there.

Writers on international law appear to be unanimous in recognizing the “objective territorial principle”, which entitles a state to prescribe juridical consequences for acts outside of its territory provided that those acts have some significant effect on the forum state (Brownlie, supra, p. 301; Hugh M. Kindred et al., International Law: Chiefly as Interpreted and Applied in Canada (5th ed. 1993), at pp. 431-32; Arbour, supra, at pp. 236-37; Jean Combacau and Serge Sur, Droit international public (2nd ed. 1995), at p. 350; Louis Henkin et al., International Law: Cases and Materials (2nd ed. 1987), at p. 826; Michael Akehurst, “Jurisdiction in International Law” (1972-1973), 46 B.Y.I.L. 145, at p. 154; Oscar Schachter, International Law in Theory and Practice (1991), at p. 262). Although the formulations of the objective principle vary among these jurists, their approach is basically similar. While the objective principle is unimpeachable as a matter of principle, it is recognized that when the interest of the forum state is less significant than the interest of the state in which the events take place, then the objective principle no longer authorizes asserting jurisdiction. When this is the case, the forum state engages in an impermissible extraterritorial application of its laws. This approach is encapsulated in the following passage:

[translation] Although the doctrine of “territoriality” has sometimes taken extreme forms leading to the claim that states have unlimited jurisdiction within their territory to make the activities of persons therein, for whatever reason, subject to their laws, it has generally been relaxed, particularly in modern times, to allow for a “reasonable connection” test and to hold for example that a state cannot exercise its legislative jurisdiction to govern the conduct of subjects within its territory if in so doing it infringes on the legislative jurisdiction of a state to which the matter is more clearly connected. . . . [Emphasis added.]

See Combacau and Sur, supra, at p. 350.

136 Thus, whether there is an extraterritorial application of law depends to a large extent on whether there is a conflict between the two legal systems engaged. If there is a conflict, then a state with a reasonable connection to the events, or, where two states have a reasonable connection to the events, the state which is most clearly connected to the events, may properly assume jurisdiction under international law principles. Further, a conflict between the legal systems giving rise to extraterritoriality may also arise because the remedies ordered by a court purport to interfere with rights which exist under another legal system (Brownlie, supra, at pp. 307-8, referring to U.S. v. Aluminum Co. of America, 148 F.2d 416 (1945), and U.S. v. Watchmakers of Switzerland Information Center, Inc., 133 F.Supp. 40 (1955), 134 F.Supp. 710 (1955)). Thus, the objective territorial principle will give way to an impermissible extraterritoriality on the basis of two factors: first, a conflict between the application of the two legal systems; and second, where there is a conflict, the application by a state of its laws without any, or with a lesser, real and substantial connection to the events in question.

137 In the case of laws which require or forbid particular behaviour, there is a serious danger of conflict between two legal systems. If one legal system requires a person to do a certain thing, and another legal system requires a person not to do that thing, then there is a clear conflict and the possibility of extraterritorial application of domestic law is significant. Criminal sanctions are of such a type and, therefore, international law requires that concurrent claims to jurisdiction be carefully circumscribed to ensure that a state purporting to assume jurisdiction over events occurring abroad has a significant connection, or in the case of conflict with another jurisdiction, the most significant connection to the events in question.

138 These principles suggest that it is necessary to evaluate the nature of the Charter guarantees, in particular those contained in ss. 7-14 in issue in this case, to determine whether there is a similar possibility of conflict with a foreign legal system. In this context, the words of Dickson J. in Hunter, supra, at pp. 156-57, are again highly significant:

[The Charter’s] purpose is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constrain governmental action inconsistent with those rights and freedoms; it is not in itself an authorization for governmental action. In the present 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 otherwise possess. It does not in itself confer any powers, even of “reasonable” search and seizure, on these governments. [Emphasis added.]

The legal rights contained in the Charter qualify and condition the exercise of powers by government officials. In the context of police investigations, the guarantees of the Legal Rights section of the Charter are not imperative in the sense of being a command to do a particular thing. Rather, those rights ensure that if the government chooses to conduct an investigation, it must observe certain rules.

Does Section 32(1) Create an Extraterritorial Effect?

139

Does Section 32(1) Create an Extraterritorial Effect?

With these principles in place, it is considerably easier to address the issues raised in this appeal. First and foremost, there is a real and substantial connection between the investigation taking place abroad and the Charter simply by virtue of the fact that Canadian officials are involved. Whatever the reason for their entry into the foreign jurisdiction, and whatever the extent of their powers while in the foreign jurisdiction, they are an official Canadian government presence in the other state. This alone constitutes a real and substantial connection with Canadian law. Nor can this connection be equated with nationality, which is a distinct basis of jurisdiction in international law (Arbour, supra, at pp. 238-40; Kindred et al., supra, at p. 432). The general rule of international law is that states are free to define nationality as they wish, as long as there is at least a minimum threshold of connection between the individual and the state (International Convention on Certain Questions Relating to the Conflict of Nationality Laws (Hague Convention on Conflict of Nationality Laws), Can. T.S. 1937 No. 7, art. 1). The minimum threshold in any particular case is assessed having regard to whether those connections are sufficient to warrant exercising diplomatic protection over the individual vis-à-vis some other state. In determining whether the minimum threshold for nationality has been met in international law include:

. . . the habitual residence of the individual concerned is an important factor, but there are other factors such as the centre of his interests, his family ties, his participation in public life, the attachment shown by him for a given country and inculcated in his children, etc.

(See Nottebohm Case (second phase), Judgment of April 6th, 1955: I.C.J. Reports 1955, p. 4, at p. 22.) From the perspective of international law, only one of the factors listed here relates to appurtenance to the government of a state. It is quite likely that government service would not be a sufficient connection where links to another state--such as residence--were present. Thus, government officials may well not be included within the range of circumstances in which nationality may be asserted.

140 In any event, Canadian law does not purport to extend nationality or diplomatic protection on the basis of government service. Indeed “nationality” is not defined in the Citizenship Act, R.S.C., 1985, c. C-29. However, the term has been interpreted by courts of this country in interpreting the Canadian definition of “national” used in the Schedule E of the Immigration Act, R.S.C., 1985, c. I-2, as am. by R.S.C., 1985, c. 28 (4th Supp.), which states that:

E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.

Lorne Waldman, in his work Immigration Law and Practice (1992 (loose-leaf)), vol. 1, at § 8.217.4, identifies four factors relevant to Canadian law:

(a) the right to return to the country of residence;

(b) the right to work freely without restrictions;

(d) full access to social services in the country of residence.

These criteria were adopted in Shamlou v. Canada (Minister of Citizenship and Immigration) (1995), 1995 CanLII 19407 (FC), 103 F.T.R. 241, per Teitelbaum J., at para. 36, where it was said:

I accept the criteria outlined by Mr. Waldman as an accurate statement of the law. The issue with respect to the Board’s application then really turns on whether or not it was reasonably open for the Board, on the facts before it, to conclude that the applicant was a person recognized by the competent authorities in Mexico as having most of the rights and obligations which are attached to a person of that nationality.

(See also Kanesharan v. Canada (Minister of Citizenship and Immigration) (1996), 1996 CanLII 22053 (FC), 120 F.T.R. 67, per Heald D.J., at para. 16.) I acknowledge on the facts of this case that it is highly likely that these two officers happen to enjoy the right of return to Canada and the other rights enumerated in Shamlou, supra. However, there is no conclusive evidence to this effect, nor can it be presumed in other cases that all officers of the Canadian state enjoy the status of nationality. The application of the nationality principle to Charter violations by police officers would assert jurisdiction by happenstance, and based on criteria irrelevant to their actual status. Under these circumstances, I consider the application of the nationality principle to Canadian police officers abroad to be irrelevant.

141 A finding of real and substantial connection does not alone resolve the international law question, however. It still remains to be seen whether the application of the Charter interferes with the jurisdictional integrity of the host state, and whether that state has a more real and substantial connection to the events, so as to displace the presumed jurisdiction of Canadian law.

142 There are three factors particularly relevant to this analysis. First, the terms of s. 32(1) do not extend the application of the Charter to the actions of foreign officials, or to the exercise of powers authorized by a foreign legal authority. The Charter only applies to Canadian police officials acting abroad. There can be no suggestion, therefore, that the Charter creates any legal consequences whatsoever for a foreign agent or for the application of foreign law.

143 Second, the nature of the rights contained in the relevant sections of the Charter are not mandatory, but rather conditional upon the occurrence of specified investigatory activities. Thus, if there is a rule of investigation in the foreign jurisdiction that directly contradicts a Charter provision, there is still no conflict. The reason for this is that the Charter does not impose any obligation to investigate; it simply requires that if an investigation is made by the officer, it must be conducted in accordance with certain conditions. It follows from this, moreover, that the application of the Charter to the Canadian official has no impact on the foreign legal system. At worst, the Canadian official may be obliged to cease taking a directing or primary role in the investigation in order to comply with the Charter. While some might view this consequence as regrettable, it does not raise any issues of extraterritoriality in international law. The mere fact that the Canadian police officer directing an investigation will be required to adopt the procedures of his or her colleagues in another country in order to pursue his or her investigation does not amount to a constraint to pursue the investigation as such, which would amount to a conflict. Nor can the foreign official (as opposed to the Canadian official) be characterized as being indirectly bound by the Charter in the course of a cooperative investigation. If, for example, the foreign official is bound by a rule of his or her legal system prohibiting the provision of a lawyer, there is nothing in the application of the Charter to his or her Canadian colleagues which fetters that official’s ability to abide by the rules defined by his or her legal system by refusing their request.

144 Third, the nature of the juridical consequences prescribed by the legal system of the forum do not raise any problems of extraterritoriality. The only remedy prescribed by the Charter for a breach of ss. 7-14 is contained in s. 24. Although the remedies are theoretically unlimited, in practice the remedy which will be claimed in cases involving Charter breaches during police investigations conducted abroad will be, as in this case, a ruling that the evidence be excluded from a trial in Canada. This remedy has no extraterritorial implications whatever. It only affects the conduct of a Canadian trial which, ex hypothesi, is being conducted in Canada, because there is an appropriate basis for the assertion of criminal jurisdiction — that is to say, a real and substantial connection to Canada. Usually, as in this case, that real and substantial connection is constituted by the commission in Canada of a criminal offence which was the initial impetus for Canadian officials’ travelling abroad in order to conduct their investigation. The only legal consequence for the Charter breach is that the evidence will not be admitted into the defendant’s trial. It may be suggested that there are other remedies available in the nature of civil damages. In my view, if such a case were to come forward, it would be dealt with according to conflict of law principles governing such claims, and does not raise any novel issues pertaining to extraterritoriality.

145 For these reasons, the application of the Charter to Canadian officials abroad as prescribed by s. 32(1) does not conflict with any principle of territorial jurisdiction. There is no need, therefore, in this case to apply the special rule of statutory of interpretation that Parliament normally intends to conform with international law.

Would a Conflict with International Law Compel Limiting the Charter Right?

146

Would a Conflict with International Law Compel Limiting the Charter Right?

In this case, it is argued that jurisdictional rules of international law limit the extent of duly recognized Charter rights.

147 Given the position and significance of the Charter in our society, and its supremacy in our legal order, I have grave misgivings that such an approach should be accepted without close scrutiny, and I would guard against any reading of these reasons which lends support to that proposition. In Law Society of Upper Canada v. Skapinker, 1984 CanLII 3 (SCC), [1984] 1 S.C.R. 357, at p. 366-67, Estey J. stated:

The Charter comes from neither level of the legislative branches of government but from the Constitution itself. It is part of the fabric of Canadian law. . . . With the Constitution Act, 1982 comes a new dimension, a new yardstick of reconciliation between the individual and the community and their respective rights, a dimension which, like the balance of the Constitution, remains to be interpreted and applied by the Court.

In R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, Dickson J. stated, at p. 344:

In my view [the purposive interpretation of the Charter] is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter’s protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore, as this Court’s decision in Law Society of Upper Canada v. Skapinker . . . illustrates, be placed in its proper linguistic, philosophic and historical contexts.

In my view, using international law as an interpretative aid in defining the content of the various rights in the Charter is an entirely different exercise from using non-human rights aspects of international law to circumscribe the Charter as a whole. Even when the application of those Charter rights directly conflicts with non-human rights principles of international law, the usual presumption that Parliament intends to legislate in conformity with international law should not be applied automatically. The Charter is a “new yardstick of reconciliation between the individual and the community” (Skapinker, supra, at p. 366); indeed, it is an expression of the fundamental relations between the individual and the state which is the principle legal organ of the society of which that individual is a part. That an interpretation of such rights might place the state in violation of its international law obligations should be accorded less weight than, in the case of a mere statute, an expression of the legislative will of the state as it may exist from time to time.

148 The application of these principles do not arise on the facts of this case. However, even if s. 32(1) were to conflict with some aspect with international law, I emphasize here that the presumption of statutory interpretation that Parliament intended to legislate in conformity with international law must be applied with great care in the Charter context. The Charter is the fundamental expression of the minimum obligations owed to individuals in our society; I would not be inclined to accept that Canada’s international law obligations could truncate rights defined by the Charter.

Policy Arguments

149

Policy Arguments

Several policy arguments were presented to the Court by the intervener Attorney General of Canada which merit attention. First, I observe that many of the legal rights contained in ss. 7-14 of the Charter depend upon contextual factors. The standard required for compliance with those guarantees may depend to some degree on the legal system where the accused is being investigated (Schreiber v. Canada (Attorney General), 1998 CanLII 828 (SCC), [1998] 1 S.C.R. 841, per Lamer C.J., at para. 24). Thus, it would be incorrect to assert that the Charter is entirely insensitive to local conditions in which the investigating officer may be acting.

150 Second, it was argued that the application of the Charter to Canadian officials abroad would lead to an unmanageable complexity in knowing the rules by which they are bound. This argument is unconvincing. Canadian police officials are fully aware of their Charter obligations. The fact that they are operating abroad makes it no more difficult than in Canada to be aware of their obligations under the Charter. As is clear from the discussion above, there is no question of a “conflict” between foreign procedures and Canadian procedures. If the compulsory foreign procedure adopted falls below the standard required by the Charter, then the Canadian officials may not take a directing or primary role in the part of the investigation involving those techniques. In essence, they may not exercise, even when invited to do so by the foreign authority, the powers purportedly conferred on them by the foreign investigatory procedures. This is no more complex than the obligation imposed by the Charter within Canada.

151 Third, evidence obtained as a result of a Charter breach is not automatically excluded at the trial of a defendant. Such evidence is only excluded under s. 24(2) where “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 provision ensures that circumstances in the foreign country may be taken into account in determining whether the evidence should be admitted notwithstanding the breach of the Charter.

152 Fourth, even if there are some exceptional examples of extreme inconvenience to Canadian police in conducting investigations abroad, this is not a compelling argument for asserting that the s. 32(1) violates international law principles of territoriality. If circumstances in a foreign state make it inconvenient or difficult for Canadian officials to comply with the Charter, then the fault lies primarily with the conditions within that state, and not with the stringency or over-extension of Charter rights.

Conclusion

153

Conclusion

As stated at the outset, I agree with the analysis of Cory and Iacobucci JJ. with regard to the existence of a Charter breach and the application of s. 24(2) of the Charter in the instant case. I would therefore allow the appeal and order a new trial.

Appeal allowed, L’Heureux‑Dubé and McLachlin JJ. dissenting.

Solicitors for the appellant: Cobb, McCabe & Co., Vancouver.

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

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

R. v. Cook, 1998 CanLII 802 (SCC), [1998] 2 SCR 597

I. Background

B. The Trial

II. Relevant Charter Provisions

III. Judicial History

(2) Section 24(2) Ruling

B. British Columbia Court of Appeal (1996)

V. Analysis

(2) Application to the Facts

(3) Was the Charter Breached?

B. Section 24(2) Analysis

(1) Trial Fairness

(2) Admission for a Limited Purpose

VI. Disposition

Reasons of L’Heureux-Dubé J. (Dissenting)

Issues

Principles on the Application of Section 10(b)

Application to the Case at Bar

Should the Evidence Be Excluded Under ss. 7 and 11(d)?

Charge to the Jury

Conclusion and Disposition

Reasons of Bastarache J.

International Law Principles of Jurisdiction

Does Section 32(1) Create an Extraterritorial Effect?

Would a Conflict with International Law Compel Limiting the Charter Right?

Policy Arguments

Conclusion

R. v. Cook, 1998 CanLII 802 (SCC), [1998] 2 SCR 597

I. Background

B. The Trial

II. Relevant Charter Provisions

III. Judicial History

(2) Section 24(2) Ruling

B. British Columbia Court of Appeal (1996)

V. Analysis

(2) Application to the Facts

(3) Was the Charter Breached?

B. Section 24(2) Analysis

(1) Trial Fairness

(2) Admission for a Limited Purpose

VI. Disposition

Reasons of L’Heureux-Dubé J. (Dissenting)

Issues

Principles on the Application of Section 10(b)

Application to the Case at Bar

Should the Evidence Be Excluded Under ss. 7 and 11(d)?

Charge to the Jury

Conclusion and Disposition

Reasons of Bastarache J.

International Law Principles of Jurisdiction

Does Section 32(1) Create an Extraterritorial Effect?

Would a Conflict with International Law Compel Limiting the Charter Right?

Policy Arguments

Conclusion

Cited By (10 cases)

R. v. McGregor, 2023 SCC 4

R. v. Bhogal, 2020 ONSC 7327

R v DH, 2015 ONSC 1857

R. v. Nedrick Thomas, 2013 ONSC 1463

R. v. Williams, 2013 ONSC 1173

Canada (Justice) v. Khadr , [2008] 2 S.C.R. 143, 2008 SCC 29

Minister Of Justice And Attorney General Of Canada, Minister Of Foreign Affairs, Director Of The Canadian Security Intelligence Service And Commissioner Of The Royal Canadian Mounted Police v. Omar Ahmed Khadr, 2008 CanLII 11072 (SCC), [2008] 2 SCR 143

R. v. Hape, 2007 SCC 26

United States of America v. Shulman, 2001 SCC 21

R. v. G. (B.), 1999 CanLII 690 (SCC), [1999] 2 SCR 475

Cited By (10 cases)

R. v. McGregor, 2023 SCC 4

R. v. Bhogal, 2020 ONSC 7327

R v DH, 2015 ONSC 1857

R. v. Nedrick Thomas, 2013 ONSC 1463

R. v. Williams, 2013 ONSC 1173

Canada (Justice) v. Khadr , [2008] 2 S.C.R. 143, 2008 SCC 29

Minister Of Justice And Attorney General Of Canada, Minister Of Foreign Affairs, Director Of The Canadian Security Intelligence Service And Commissioner Of The Royal Canadian Mounted Police v. Omar Ahmed Khadr, 2008 CanLII 11072 (SCC), [2008] 2 SCR 143

R. v. Hape, 2007 SCC 26

United States of America v. Shulman, 2001 SCC 21

R. v. G. (B.), 1999 CanLII 690 (SCC), [1999] 2 SCR 475