Looking overseas

Do rights-based restrictions on acceptable evidence collecting procedures apply to officials who act outside the jurisdiction of the country in which the trial is ultimately held? In R v Hape [2007] SCC (7 June 2007), a case that will be a leading authority on extra-territoriality and international criminal law, the Supreme Court of Canada decided that, while the Charter of Rights and Freedoms does not apply outside Canada’s territory, when the trial is subsequently governed by Canadian law questions regarding the admissibility of evidence are answered by reference to the acceptability of what happened judged in the light of the Charter.

By this approach, the fact that a course of conduct in the collection of evidence was lawful in the foreign jurisdiction would not be determinative of the admissibility of the evidence in a Canadian court. The ultimate criterion was, in this case, referred to as the “fair trial” requirement, although this usage of that expression must be read in context. The reference here is not to trial fairness in the technical sense of a trial in which the law is properly applied to facts that are determined without bias, but rather it is to fairness in the public policy sense: would admission of the evidence bring the administration of justice into disrepute?

Hape contains dicta on the interpretation of Charter provisions in view of Canada’s obligations in respect of international human rights law, particularly:

“56. In interpreting the scope of application of the Charter, the courts should seek to ensure compliance with Canada’s binding obligations under international law where the express words are capable of supporting such a construction.”

In this case, RCMP officers conducted searches of the defendant’s business documents held in the Turks and Caicos Islands, under supervision of an official of that country, and believing that they were acting lawfully. There was no evidence that what was done was not lawful, and in the circumstances the searches were not unreasonable in terms of s 8 of the Charter.

This approach is what was anticipated here, in noting the European Court’s decision re an Application by Saddam Hussein (see 17 March 2006). Questions still exist concerning what approach is appropriate to the possible use of torture in a foreign jurisdiction, resulting in the obtaining of evidence for use in a domestic court. This was considered here in commenting on the House of Lords case A v Secretary of State for the Home Department (see 9 December 2005). Neither of those cases was mentioned in Hape.