Supreme Court Dodges Key Issue in R. v. McGregor

A majority of the Supreme Court of Canada in R. v. McGregor opted not to address the extraterritorial application of the Canadian Charter of Rights and Freedoms, finding that the issue was not squarely before the Court since it was only addressed by interveners.

In this case, the Court had to consider whether the Charter applies to the actions of law enforcement agencies when they are pursuing an investigation outside of Canada. The CCLA had intervened to argue that the Supreme Court’s decision in R. v. Hape (and the Court Martial Appeal Court’s reliance on it in McGregor) was flawed and that the Charter may have extraterritorial application.

The CCLA has maintained that refusing to apply the Charter when Canadian officials are abroad results in a human rights gap, is against international human rights law and customary international law, and unjustly grants other states a veto over the Charter’s applicability. Even if an investigation is conducted outside of Canada, Canadians should be entitled to the protections and guarantees of due process provided by the Charter.

This case presented the Court with an opportunity to address the troubling human rights gap that was left by the Court’s decision in R. v. Hape. Unfortunately, the majority of the Court decided the case could be addressed without reconsidering Hape since the parties had argued the appeal on the basis that Hape applied (although they disagreed on the conclusions that flowed from its application). CCLA and many other interveners had argued that Hape was wrongly decided and should be reconsidered, but a majority found it would be improper to do this when none of the parties to the litigation were asking for it.

The CCLA is concerned about some of the comments the majority and one concurring opinion made about interveners, particularly since the interveners had made their intentions and the scope of their arguments known when seeking leave to intervene.  In being granted leave to intervene, CCLA and others assumed that there was nothing the Court considered to be “off-side” about their interventions. Interveners can play a significant role by providing valuable and different submissions to bring a broader perspective before the Court.

As a result of the Court’s decision, the application of the Charter to the actions of Canadian officials abroad remains unclear. This uncertainty leads to a significant human rights gap when Canadian officials, like members of the CAF, conduct investigations abroad.

To learn more, read our factum before the Supreme Court: https://ccla.org/wp-content/uploads/2022/05/39543-Cpl-McGregor-v-HMQ-Factum-of-the-Intervener-CCLA.pdf

Read the Supreme Court’s decision here: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/19693/index.do

The CCLA is grateful to its pro bono counsel, Leah West and Solomon Friedman of Friedman Mansour LLP in Ottawa for their representation in this appeal.