08 Jun Lessons from the Great White North: Canada’s Supreme Court Limits Extraterritorial Application of its Charter
I just noticed this decision yesterday by the Canadian Supreme Court holding that the Canadian Charter of Rights and Freedoms generally does not apply to searches and seizures in foreign countries, even those that eventually result in evidence that is used in a trial of a Canadian citizen.
I’m far from knowledgeable about Canadian law, but it does seem that this issue is very similar to the U.S. Supreme Court’s decision in Verdugo-Urquidez to similarly limit the applicability of the U.S. search and seizure provision, the Fourth Amendment, to U.S. government actions overseas. The cases aren’t exactly the same, of course, but it is interesting that both achieved the same result by pretty different paths. The Canadian decision seems to rely heavily on principles of conflict of jurisdiction recognized under international law to reach its narrower interpretation of the Charter whereas the U.S. decision focused heavily on the text of the U.S. Constitution. But I’ll have to read the whole thing more carefully before I can say anything really useful.
One catty note: I am shocked, shocked! that the Canada Supreme Court did not actually cite the U.S. Supreme Court’s decision in Verdugo, even though the facts are quite similar and the Charter provision is pretty analogous to the Fourth Amendment (they did cite a law review article complaining about Verdugo, though). I am tempted to observe that citing foreign law is OK, in Canada’s Charter jurisprudence, as long as it isn’t American constitutional law. I’m sure that’s not right as a general matter, but it sure seems like it here.