Ottawa, ON (unceded Algonquin Anishnaabeg Territory) – The BC Civil Liberties Association (BCCLA) is disappointed by the Supreme Court of Canada’s decision on Friday, February 17 in R v. McGregor. This case presented the Court with an opportunity to revisit its much-criticized decision in R. v. Hape. That case held that the Charter does not govern the activities of Canadian state officials when they act outside Canada, creating a significant gap in the Charter protections to which Canadians are entitled. Rather than revisit Hape on this point, the majority in McGregor held that it was unnecessary to deal with the issue.
The BCCLA intervened in this case to impress upon the Court that government officials should have to respect the Charter rights of citizens both inside and outside of the country. No international law rule prohibits an accused from invoking their Charter rights in a Canadian proceeding in respect of the actions of Canadian officials, even where those actions occurred abroad. The Hape decision, while sound in other respects, misinterpreted the requirements of international law on this point. The BCCLA urged the Court to correct this error and bring our law into compliance with international practice.
By refusing to rule on this point, the majority’s decision in McGregor leaves the law in confusion. On the one hand, Hape appears to remain good law. On the other hand, the majority did exactly what Hape prohibits—and what the BCCLA and other interveners urged it to do—namely, to scrutinize the conduct of Canadian officials for Charter compliance even when acting outside the country. The majority appears to invite litigants to challenge Hape again in some future case, when it could have solved the Hape problem now.
Gib van Ert, counsel for the BCCLA, states “So long as Hape is good law, Canadian officials will feel themselves free to violate Charter rights when acting outside the country. The BCCLA has consistently opposed that interpretation of the Charter – which finds no support in the text of the Charter, general Charter interpretive principles, or international law. Despite this outcome, the BCCLA will continue to insist that no government conduct – whether it takes place in this country or abroad – is beyond the reach of judicial review for Charter compliance.”
The BCCLA is represented by Gib van Ert and Dahlia Shuhaibar of Olthuis van Ert.