The Canadian Constitution Foundation (CCF) will be intervening in the Supreme Court hearing of McGregor v The Queen on May 19 to argue for a new proposed test about when the Canadian Charter of Rights and Freedoms applies outside of Canada’s borders. In 2017, Corporal C.R. McGregor was charged with numerous offences and on court martial found guilty of sexual assault, two counts of voyeurism, one count of possession of a device for surreptitious interception of private communication, and disgraceful conduct. McGregor’s alleged offences occurred while he was stationed in Washington, D.C. at the Canadian Embassy, and the evidence to support the charges was obtained on the basis of a search of his home in Virginia. McGregor alleges that the search of his home needed to be compliant with the Canadian Charter of Rights and Freedoms, because although he was in the United States at the time, he was subject to Canadian jurisdiction under NATO’s Status of Forces Agreement. He alleges that the search was not Charter compliant. Although an American warrant had been obtained and Canada had waived diplomatic immunity to conduct a search, McGregor alleges that the search exceeded the scope of the diplomatic waiver. “The main overwhelming question in this case is ‘What is the test for whether the Charter applies outside of Canada?’” said CCF Litigation Director, Christine Van Geyn. “The idea that the executive could be immune from the Charter abroad is problematic and diminishes the rights and freedoms of all Canadians,” continued Van Geyn.
The CCF’s proposed test has three parts. First, the court must ask whether the officials are acting pursuant to valid laws or procedures. Second, if so, is their conduct substantially different from the principles emanating from the Charter? And third, if their conduct is substantially different from the principles of the Charter, is a substantive difference reasonable and justified in the circumstances?
“We are arguing for a new proposed test that takes into account the principles of sovereignty and comity while still restraining executive action abroad to ensure the protection of the rights of Canadians. The CCF takes no position on the merits of this appeal, and indeed applying our test could result in upholding McGregor’s conviction,” continued Van Geyn. “We are intervening in order to provide assistance to the Court in developing a nuanced test for when and how the Charter applies outside of Canada’s borders.”
The CCF is represented by Jesse Hartery and Akshay Aurora of McCarthy Tétrault.
“In 2007, the Supreme Court of Canada read down the text of the Charter to immunize executive action abroad from judicial review. It has also adopted a patchwork of exceptions that create profound doctrinal problems. This has resulted in a lack of clarity and predictability for citizens and governments alike. This case provides an opportunity for the Court to revisit its case law and take a nuanced approach by recognizing the importance of subjecting state actors to the constitutional constraints that were adopted in 1982, while having appropriate regard for the context when determining whether the actions of Canadian officials abroad are reasonable or justified. It is time for the Court to say unequivocally that state actors do not have a free pass while abroad,” said Hartery. The CCF’s intervener factum is available here. The case will be livestreamed on the Supreme Court of Canada website on May 19.