Media Advisory: BCCLA at Supreme Court of Canada to intervene on the international application of the Charter

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WHAT:           BCCLA at Supreme Court of Canada to intervene in McGregor v Her Majesty the Queen to argue that Canadian courts can apply the Charter to conduct that occurs abroad

WHEN:           May 19, 2022, at 9:30 am EST / 6:30 am PST

WHERE:         Supreme Court of Canada (Ottawa)

Ottawa, ON (unceded Algonquin Anishnaabeg Territory) – The Supreme Court of Canada will hear arguments in McGregor v Her Majesty the Queen today to determine whether the Charter can apply to searches and seizures conducted in another state’s territory.

The BCCLA will submit that a Canadian accused of a crime can invoke their Charter rights in a Canadian court in respect of the actions of Canadian officials, even when they have occurred abroad. Such an application is consistent with section 32 of the Charter. It also does not violate any international legal rules.

The BCCLA will argue that the issue is better viewed as a conflict of laws. The conflict is resolved by recognizing that foreign officials are not subject to Canadian constitutional standards, whereas Canadian officials, who are at all times subject to the Charter, must also comply with foreign state laws on their territory. When scrutinizing Canadian officials’ conduct abroad against the Charter, a court is simply exercising its domestic jurisdiction and should proceed as usual while being mindful of the fact that the conduct occurred outside Canada. This approach respects international comity, international legal rules, and existing Canadian jurisprudence.

The BCCLA is represented by Gib van Ert and Dahlia Shuhaibar of Olthuis van Ert.

The BCCLA’s factum is available here.