Henry Waldock
Last updated 2020-10-07
John Steinbeck, Travels With Charley
The Charter applies only to investigation in Canada. The courts will not require foreign police forces acting in their own countries to abide by the rules of the Canadian Charter. However, Canadian courts will exclude evidence which was obtained unfairly.
There are some ways to get foreign evidence into a Canadian Court, without bringing the witness here.
Victims of many property offences may provide their evidence by affidavit s.657.1.
Witnesses may also testify in Canadian proceedings by video-conference (s.714.2) or even by telephone (s.714.4). If they won't come to Canada to testify, encourage them to participate in a video-conference. Li, 2012 ONCA 291.
Where a court ordered commission evidence, it may be presented at trial. (s.712)
Affidavits provided under MLATs are admissible in court as evidence, subject to exclusionary rules. Boyce, 2019 ONCA 828
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Who Investigates in foreign country |
Advantages |
Disadvantages |
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Canadian police travel there and investigate |
Familiarity with case |
Investigator has no police powers in foreign land, except what the foreign authorities permit. Investigator needs to learn foreign law in order to comply with it. |
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Canadian police request cooperation of foreign police |
Familiarity with language |
Foreign police may do something unfair to suspect, rendering
evidence inadmissible in Canadian trial. |
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Canadian court orders commission evidence. |
Witnesses can be examined on oath in foreign jurisdictions. |
Limited by foreign law as to what kinds of information and
documents you can obtain, and in what circumstances the
examination will proceed. |
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MLAT - A treaty request for search & seizure powers in foreign land |
Special powers may be exercised in foreign land: |
Paperwork |
Mutual Legal Assistance in Criminal Matters Act
References:
Generally, five main types of compulsory assistance are available under the various MLATs:
gathering of evidence, including documents, affidavits and witness testimony;
lending of exhibits;
transfers of sentenced prisoners to testify or assist in an investigation or prosecution;
search and seizure;
the enforcement of fines and confiscation orders; and
Comission evidence (sometimes)
A request for foreign assistance must:
in the case of a treaty request, it meets the requirements of the applicable treaty;
in the case of a non-treaty request, to the extent that the relevant law of the foreign state is accessible in the circumstances, it meets the requirements of that law;
the request will be clear and comprehensible to the authorities in the foreign state who will have to execute it;
on the basis of the information contained in the request and any other oral or written information provided, there is a reasonable basis for the police or prosecuting authorities to believe that:
the information upon which they are proceeding is reliable; and
there is evidence in the foreign state relevant to the investigation or prosecution.
Police must prepare the request for assistance from the foreign
government, and forward it through the International Assistance Group of
the Department of Justice.
By operation of a NATO treaty, a soldier working in the USA bears the burden of complying with Canadian law and American law. Canadian military police suspected Cpl McGregor, 2020 CMAC 8 of various crimes, and briefed American police. Following local law, American authorities obtained a search warrant for his computer, which provide evidence of his guilt. They gave the electronic devices to Canadian authorities, who took them to Canada. There, they obtained Canadian warrants to examine the contents. (Brilliant!) Cpl McGregor objected to the admission of this evidence in his trial, because he claimed that the evidence had not been obtained from him by applying Canadian law. The court rejected this objection. Local law applied. The court would exclude the evidence only if it rendered the trial unfair.
The Minister of Justice sent Swiss authorities a letter requesting
assistance in the seizing of Schreiber's
([1988] 1 SCR 841) bank records. They did. Schreiber’s
lawyers applied for a declaration that he enjoyed the protection of s.8,
and that police should have given the Minister of Justice a request that
met the standard of an ITO for a search warrant. The Federal Trial
court and the Federal Appeal court agreed, but the Supreme Court of
Canada disagreed. Held: S.8 does not apply in Switzerland, and the
Canadian actions do not violate the suspect’s expectations of privacy in
Switzerland. He has no more expectation of privacy there than
Swiss law provides him.
Similarly, R.C.M.P. officers contacted police in Antigua, asking for
information which could be lawfully disclosed about Mr Mathur's,
2010
ONCA
311
banking.
Antiguan
police
provided some very helpful records by breaking Antiguan law. At
his trial, Mr Mathur asked the judge to exclude the evidence from his
trial, because it was illegally obtained. The Crown declined to
investigate the Antiguan police improprieties. The court found
that because the police had deliberately sought only lawfully obtained
evidence, the evidence could be admitted.
American police caught Mr Terry (1994 BCCA) in the USA for extradition. Canadian police asked the American police to question him. They gave him his Miranda rights, but not access to a Canadian Lawyer. Held, no breach of Charter: Charter doesn't have extraterritorial effect.
When American police arrested Mr Cook [1998] 2 SCR 597, they let Canadian police interrogate him. For 20 minutes the Canadian cops failed to advise him of his Charter rights. Held: Charter s.10(b) breached. Statement excluded. Charter s.32 – The Charter doesn’t extend beyond Canada’s jurisdiction, but a police officer takes a little bit of Canadian jurisdiction into foreign lands.
The court changed its mind about Cook in the subsequent case of Hape 2007 SCC 26, who laundered money in the Turks & Caicos Islands. Canadian police went there, and, under the authority of the local police force, searched Mr Hape's offices. The defence complained that this search violated s.8 of the Charter. The court concluded that the Charter doesn't apply, because the officers obeyed the law of the Turks & Caicos Islands and operated under the authority and direction of their senior police officer. The court concluded:
"The only reasonable approach is to apply the law of the state in which the activities occur, subject to the Charter’s fair trial safeguards and to the limits on comity that may prevent Canadian officers from participating in activities that, though authorized by the laws of another state, would cause Canada to be in violation of its international obligations in respect of human rights."
However, the court also said that a foreign country may consent to you applying Canadian law to your investigation in their country. If so, you must respect all Charter and Criminal Code requirements in your investigation.
Consent must come from an official high enough to overrule local law, and in a sufficiently formal manner that it's clear that the local state permits the enforcement of Canadian law in their territory. In Tan, 2014 BCCA 9, Canadian officers went to Malaysia, and, believing Cook applied, attempted to make their investigation comply with the Charter. However, Malaysian officials required them to comply with Malaysian law in their investigation. Although the Canadian officers believed that the Charter applied, Malaysia never consented to abandon their jurisdiction. The Charter did not apply to the Canadian actions in Malaysia.
American immigration authorities arrested Ms. Harrer
[1995] 3 SCR 562 because they believed she was in the country
illegally. But other American police questioned her about how she
helped her boyfriend escape Canadian custody. They gave her
Miranda rights, but not Charter rights. Held: Charter rights don’t
extend beyond Canada. They don’t bind the authorities in other
nations. But if we plan to hold a trial here in Canada, our courts
will determine whether admitting that evidence would be fair or unfair
in a Canadian trial, applying s.7.
Mr Dorsay
2006 BCCA 117 murdered his infant son in 1967 by suffocating him with a
plastic bag. He moved to Washington State. In 1995, he still
felt guilty. He sought assistance from psychologists, who informed
child protection authorities there. Mr Dorsay thought there might
be a warrant for his arrest, so he asked a police officer, and gave a
full confession. Canadian police merely asked American police to
get a search warrant for the psychologists' records - no MLAT was
used. Despite the American rule of privilege over psychological
records, the American police got a warrant, collected the records and
sent them to Canada. This may have violated the accused's rights
in the USA, which offended the trial judge, but the Court of Appeal was
less troubled by it.
The psychologists refused to assist the Canadian investigation.
Under MLAT, Canadian authorities commissioned a Canadian judge to go
Washington State. When he got there, Washington State judges
appointed him with the power to conduct a commission under
Canadian law. He subpoened the psychologists, who
testified under oath about Dorsay's confessions. (Note that under
American law, the psychologists could have refused to testify because of
privilege.) This evidence was found to be admissible in the
Canadian trial.
The existence of an MLAT procedure does not restrict you to relying
only on MLAT requests; other procedures can be even more effective.
However, under s.7 evidence may be excluded at trial in Canada.
Mr Mathur,
2007 CanLII 38943 (ON S.C.) working for the Federal government, took
bribes, which were wired to his bank account in Antigua. Canadian
police asked the Antiguan authorities for information about that bank
account. Contrary to Antiguan law, the Antiguan authorities
provided detailed information. The Canadian prosecutor requested
certified true copies of the bank records. Again, contrary to
Antiguan law, the authorities there provided them. The court found
that this evidence was obtained illegally, but the illegal actions were
committed entirely by foreign officials. The Canadian authorities
did nothing to cause these illegal actions. The evidence existed
independent of the accused. The court decided to admit the
evidence.
Therefore:
R. v. Guilbride 2002 BCPC 254
RCMP had RPG to believe that the vessel “Blue Dawn” was going to be used for importation of narcotics. They obtained a tracking warrant from a JP. They told the JP that the vessel was in Greece, and that they intended to get Greek authorities to execute it via MLAT. Really, all they were doing was getting the warrant to show the Greeks “good faith” and to prove that they could convince a Canadian judge to authorize a tracking warrant. They asked Greek authorities to help them, and insisted on obtaining a Greek legal opinion about installing the device before proceeding. The opinion was that they could. At trial a Greek legal expert testified that installing the tracking device was illegal in Greece.
Held: while the vessel was in Greek waters, even though it was a Canadian vessel, Greek law, not Canadian law applied. (s.477.1)(c) given narrow reading). Section 8 of the Charter did not apply, but section 7 applies to the trial. Because RCMP failed to tell the JP that they wanted the warrant only to show good faith, and not because they wanted to use it, the police did not show good faith.
Judge thought police should have obtained a proper legal opinion, and that police should have employed the full MLAT procedure. Section 7 violated.
But, because the police did try hard to get Greek authorities to address the legalities of installing a tracking device (and the Greek authorities mislead them), the evidence was not excluded under s.24(2). 2003 BCPC 0044
Lessons to be drawn:
Vessels with Canadian registration in foreign ports are still under foreign jurisdiction.
Use MLATs if possible.
When dealing with foreign jurisdications, get foreign legal advice. Get a competent interpreter (preferably one with legal skill and knowledge – try the courts)
When in a foreign land, do your best to comply with foreign law.
Document your efforts to comply with foreign law.
Be honest about the purposes for which you seek your tracking warrant.
To help Mr Khadr defend himself against the charges,
his lawyers asked Canada to disclose what he said to the Canadians, and
what they told the Americans. Canada said "no" because he's not
charged in Canada, and the Canadian officials were merely following the
law of a foreign jurisdiction. The Supreme Court of Canada said
"yes". (Khadr
2008 SCC 26) Ordinarily, Canadian officials in foreign
jurisdictions are not bound by the Charter, but when they participate in
activities which violate Canada's treaty obligations, then the Charter
does apply. This merely repeats what the court said in Hape.
Khadr asked the court to order the Canadian Government to ask the American government to return him to Canada. The Supreme Court declined to make a specific order affecting Canada's international relations. Instead, the court declared that Canada violated his s.7 rights, and left it to the government to sort out the mess. (Khadr 2010 SCC 3)
Before interviewing prisoners in foreign lands, you may want to inquire into the treatment of suspects. You should distance yourself from inhumane treatment of prisoners. This does not mean that all the protections of the Charter apply, but torture offends Canadian courts, and Canada's international obligations.
What worries me is that the court determined after
the fact whether Charter rights apply. But you folks need
to know before you go in what rules to follow. How do you
determine whether the country you're going to complies with Canada's
international treaty obligations? Here are some ideas:
Mr Khadr
2011 ONCA 358 was born in Canada but moved to Pakistan when he was
three. His dad associated with Osama Bin Laden. The
Americans wanted information from him. They paid the Pakistan
intelligence service half a million dollars to abduct and interrogate
him. Contrary to Pakistani law, those agents held him without
charges for 14 months, mistreated him, and got information from
him. For the first three months - contrary to the Vienna
Convention - he got no access to Canadian Consular Services, just a CSIS
agent.
When Pakistan finished with him, they asked the RCMP to investigate him
for his involvement in terrorism. When the officer tried to
interview him, Pakistani officials would not permit him to record the
interview, nor would they let him speak to Khadr alone. They
wouldn't let Khadr speak to a lawyer. The officer refused to investigate
under these conditions. and refused to take Khadr into his
custody. American agents persuaded Pakistani agents to hold Khadr
for another 6 months while they investigated him for terrorism
crimes. They Americans got more information from him. They
asked Canada to agree to release him to the USA. Canada refused,
so Pakistan sent him to Canada.
When he arrived, a Canadian police officer interviewed him properly,
according to Canadian rules. In that interview, Khadr admitted
enough to justify prosecuting him for a variety of terrorism offences.
The Americans sought extradition from Canada to the U.S.A.. This
requires a judicial hearing, to see whether the Americans have
sufficient evidence to justify charges.
The extradition judge said "no". He refused to consider Khadr's
confessions to Pakistani and American officials because they were
obtained in an abusive manner which rendered them unreliable. He
would have admitted the Canadian evidence, because of the good conduct
of Canadian officials in the case. But he saw it as an abuse of
process to let Americans prosecute the man whose basic human rights they
abused so thoroughly. He observed that Khadr can be prosecuted in
Canada instead. The appeal court agreed.
I found this an interesting decision to read. There is some
technical language, but there is also some high philosophy about the
importance of maintaining the rule of law especially when dealing with
people who would destroy our legal system.
The judges liked how Canadian officials behaved:
The basic message for police is that Canadian courts want you to distance yourself from abusive and illegal behaviour. Treat even the most evil people with as much human decency as the circumstances allow. When you deal with suspects in foreign lands, they may not enjoy Charter rights, but the courts still want you to treat them with basic fairness. Operate within the law, and respect international conventions on human rights.
When sharing intercepted communications with foreign investigators, you should seek assurances that they will maintain the privacy of the material you send them. Wakeling 2014 SCC 72
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