There has been a good deal of discussion among Canadian academics over the extent to which “international” law applies in Canada. Criticisms have been made of R v Hape, 2007 SCC 26 (a case I noted here on 11 June 2007).
A domestic trial is conducted according to domestic law. In criminal cases the main point of contention, when evidence is collected in another country, is whether it is admissible according to domestic law.
Some people think that this involves extraterritorial application of domestic law. It doesn’t. Nobody in another country is affected in any way by what the domestic court rules in a domestic criminal trial. Certainly, officials in another country may wish to consult the domestic law if they are to be helpful in obtaining evidence that will be admissible domestically, but that is a practical matter, not a legal one.
If evidence is collected in another country in a way that is unlawful according to the law of that country, the question for domestic courts is still determined according to domestic law. It is quite likely that illegality in another country would also be illegality domestically, at least where the other country follows the common law tradition inherited from England, or where it has incorporated into its law the same human rights treaties and conventions. But that is not necessarily so. Imagine, for example, that in some country search warrants could only be granted if it was certain that evidence would be found. That is a much higher standard than the usual (and in this example, domestic) requirement of reasonable grounds to suspect that evidence would be found. The question for the domestic court would be whether the domestic standard was met, notwithstanding that the search was illegal in the other country.
In R v McGregor, 2023 SCC 4 (17 February 2023) the Court had, in anticipation of the appeal, allowed submissions from interveners on whether the law as stated in Hape needed to be changed. As it turned out, and unsurprisingly in my view, the Court decided it did not need to consider Hape, as neither party to the appeal suggested that Hape was materially wrong.
The circumstances surrounding the obtaining of the evidence in McGregor were unremarkable. There was no illegality either according to the law of the foreign country (the USA) or of Canada.
The Court did not find it necessary to grapple with supposedly difficult questions about the extent to which so-called international common law is part of the common law of Canada, or whether comity requires Canadian statutes to be read according to a foreign prescription. I say “supposedly” because I think that the criticisms of Hape, summarised by Karakatsanis and Martin JJ at [66]-[76] are well founded.
But one can still ask, is there really a question about extraterritorial application of the Canadian Charter of Rights and Freedoms? Does international law impose on domestic courts new rules for interpreting legislation, or does domestic law inherently recognise equivalent rules? No, no and yes.
More interesting is the discussion of the role of interveners. Rowe J is strong and restrictive on this, but Karakatsanis and Martin JJ jointly wanted to discuss Hape so were more tolerant of an expansive role for interveners in assisting the Court in developing the jurisprudence by dealing with questions of public importance.
