I have been trying to get around to blogging on a number of interesting ICL/TCL decisions which have arisen in the Canadian case law over the last year or so. In the first of these, R. v. Tan, the British Columbia Court of Appeal dealt with the difficult question of whether the Canadian Charter of Rights and Freedoms (our constitutional human rights code) can be applied to the conduct of Canadian police when they are operating in a foreign state. The case is in some sense a replay of R. v. Hape, the 2007 case in which the Supreme Court of Canada provided the analytical structure with which to assess this issue. As we discuss in greater detail in Chapter 10 of the book, Hape has some significant methodological problems, which shaped the BCCA’s analysis in Tan despite an able effort on the part of the Court.
Tan, suspected of a murder in Richmond, BC, left Canada and went to Malaysia. The investigating RCMP officers strongly suspected that he was involved in the murder, and sought the permission of the Royal Malaysian Police (RMP) to interrogate and fingerprint Tan in that country. Permission was provided by the RMP, by way of an Interpol liaison in Malaysia, and the interview and fingerprinting were conducted in a hotel in Penang. At trial, Tan sought to have the fruits of that process excluded from evidence, on the basis that the RCMP had not adhered to Charter standards.
Writing for a unanimous panel, Justice Elizabeth Bennett quickly zeroed in on the issue with this argument, which was whether it could be said that the Charter applied to the interrogation of Tan that occurred in Malaysia. She set out the majority’s relevant findings from Hape: if Canadian police were to adhere to Charter standards while investigating in a foreign state, this would amount to an extraterritorial application of the Charter, and thus would breach the customary international law prohibition on exercising enforcement jurisdiction extraterritorially.
In this case there was some evidence suggesting that there had been Malaysian permission for both the questioning and for Charter application, which led Justice Bennett to consider what the standards were for determining when the foreign state had provided valid consent for applying the Charter—a topic on which the SCC had said little in Hape. After examining the only post-Hape case to deal with the issue (the decision of MacTavish J. of the Federal Court in Amnesty International Canada v. Canada (Chief of the Defence Staff)), Justice Bennett concluded that the “expression of consent [for Charter application] must be from a valid sovereign authority of that state” (para 57). She then examined in some detail the legal criteria for a state to provide “consent” for international law purposes, including the International Law Commission’s Draft Articles on State Responsibility and the Commentaries to the Articles. This led her to a set of criteria for determining whether consent had been given:
"- The foreign official or entity purporting to give consent to the application of Canadian constitutional law must be an agent or “state organ” of the foreign state (Articles 4-6 of the Articles on State Responsibility);
- The foreign official or entity purporting to give consent must have apparent or actual authority to consent to the application of the Canadian Charter to an investigation by Canadian authorities in that foreign territory. Obviously, officials with “full powers” to make international treaties suffice (Articles 7 and 8 of the Vienna Convention), but in most cases, the issue will not be as clear. The Court must determine whether the official or entity at issue is able to agree to the Canadian investigation and the application of Canadian law. In other words, the question is whether this official or entity purporting to proffer consent has the apparent or actual authority to give a binding expression of the sovereign will of the state.
- Consent of the foreign state must be informed and freely given; error, coercion, fraud or corruption vitiate consent (Commentaries on Articles of State Responsibility);
- The consent must be in accordance with any domestic laws of the state purporting to give consent (see Amnesty); and
- The foreign state must specifically consent to the application of the Canadian Charter (see Amnesty).
This is not an exhaustive list, but simply an overview. All of the circumstances of each case must be analyzed. However, the focus of the analysis should not only fall on whether there is evidence that foreign officials consented. While that is a factor to consider, the focus should also be on who those officials are and the nature of their authority within the foreign state and under international law. The consent analysis must be done with a view to determining the will of the sovereign foreign state. In short, the law of consent to the extraterritorial application of the Charter must be grounded in international law principles relating to sovereignty. In my view, this approach is consistent with the principles articulated in Hape, and accords with the subsequent jurisprudence in Amnesty."
Justice Bennett then turned to whether consent had been given by Malaysia in this case. The record contained evidence from RCMP officer Ferreira, who had obtained permission from the Director of Criminal Investigation of the RMP, conveyed by way of Inspector Singh, an Interpol liaison in Malaysia. The Malaysian police, however, had asserted the application of Malaysian criminal procedure and ensured it was adhered to. Ultimately, while Justice Bennett was satisfied that the Malaysian police had given permission for the operation itself, she was not satisfied that the “second-hand” evidence of what Inspector Singh had conveyed was sufficient to properly accommodate the need for Malaysian sovereignty to be respected. Application of the Charter could only occur if an official empowered to engage Malaysia’s international legal interests had provided the consent. The record did not provide evidence of this, and thus the Charter could not be applied to the interrogation and fingerprinting.
As one would expect from Justice Bennett—an internationally well-regarded criminal law specialist—the judgment is a model of clarity. Faced with a lacuna left over from Hape, and with little previous authority to assist (and none from a senior appellate level), she explores the issue of foreign permission/consent logically and fluidly. Moreover, the judgment makes impressive use of public international law on various subject matters, which is all too rare in Canadian courts (though slowly becoming more common). Justice Bennett cites the Lotus case, the Draft Articles and their Commentaries, and a number of international law textbooks (including, to my great pleasure, the first edition of our textbook).
Here the Court of Appeal is wrestling with the same issue that troubled Justice MacTavish in the Amnesty case: how is it to be determined whether or not the foreign state gave permission for the Charter to be applied during the “cooperative” or other mission which found Canadian state officials on the foreign state’s soil?
Two points of interest here. First, it is worth highlighting that while the analysis appears to be largely factual, in my view this question is actually one of mixed fact and law. This is because the question has two aspects. Factually, it falls to be determined whether the appropriate official actually provided permission for the Canadian police to be operating in the foreign state, in the sense that the official was empowered to do so within the law of that state; but it is also a question of law, because the answer to the factual query has legal effect under public international law. This is because Canadian police are only validly operating in the foreign state if the appropriate permission has been given, and otherwise are breaching the customary international law prohibition on the exercise of extraterritorial enforcement jurisdiction.
The second point of interest stems from the first. The approach taken by Justice Bennett on this question of foreign state consent is fuller and more nuanced than that provided by the Federal Court in Amnesty, perhaps due to the quality and/or content of submissions by counsel who appeared in each case. Yet each court displays some of the discomfort that is produced by the route to the jurisdictional findings that the Supreme Court made in Hape. In Chapter 10 of the book, where we analyze Hape itself, we make the point that the Supreme Court seemed to confuse the question of whether Canadian police operating in the foreign state means jurisdiction is being exercised extraterritorially, with the question of which state’s law applies at the time of the operation. In Hape, it was clear that the Canadian police had permission from police officials in the Turks & Caicos Overseas Territory to operate there, and while the local law applied, the police were there lawfully for international law purposes—therefore, there would have been no exercise of extraterritorial enforcement jurisdiction if the Court had been willing to apply the Charter at the trial back in Canada. Justice Bennett, it seems to me, subtly adverts to this point in paragraph 72 of the judgment, when she remarks: “The Crown errs in its assumption that because Malaysian law was enforced, the Charter could not be applied,” though she then moves on to the consent issue.
In Tan this question seems to come back around. Justice Bennett assesses with great care the question of whether the foreign state gave consent to apply the Charter, because that is what the Hape structure demands. However, the situation on the ground is the same as that in Hape: the Canadian police clearly received the permission of the Malaysian authorities to conduct the interrogation of Mr. Tan. The Crown, in fact, conceded this in its factum. Once that conclusion is reached, then there is no unlawful extraterritorial enforcement jurisdiction. Naturally the Canadian police cannot try to comply with Charter standards, but that is because, as pointed out above, Malaysian law applied to the investigation. There is no legal reason that the Charter could not be applied to the police’s conduct at the Canadian trial. As we point out in the book, any sensible Charter analysis would have to take into account the fact that police were legally unable to adhere strictly to Charter standards, but that can be the subject of balancing under s. 24(2). Accordingly, the analysis of consent for Charter application in Tan is driven by the problems within the Hape structure, and not by any need to actually do it.
The final question, to my mind, regards Justice Bennett’s finding that the Malaysian police were unable to give permission for the Charter to be applied to the investigation, even if they had sought to do so. She holds, in agreement with the trial judge, that the consent had been given by “Malaysian authorities” (essentially the Malaysian RMP) for the Canadian police to operate in that state, but that no official of sufficient authority had provided permission for the Charter to be applied. The issue with the greatest legal resonance in a case such as this is whether foreign police are lawfully entitled to operate on a state’s soil, which relaxes the prohibition on extraterritorial enforcement jurisdiction. If the officials who provided permission in this case had sufficient authority to waive that particular rule, how can it be that they did not also have the authority to authorize application of the Charter? Put another way, if the relevant officials in this case did not have the authority to grant permission to apply the Charter, how did they have authority to allow Canadian police to operate on their soil in the first place? This is another way in which the Hape structure can lead courts and counsel down garden paths.
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