Judgments

[1997] 2 F.C. 176

A-565-96

The Attorney General of Canada (Appellant) (Defendant)

v.

Karlheinz Schreiber (Respondent) (Plaintiff)

Indexed as: Schreiber v. Canada (Attorney General) (C.A.)

Court of Appeal, Stone and Linden, JJ.A., Henry D.J.—Vancouver, October 8, 1996; Ottawa, March 12, 1997.

Constitutional law — Charter of Rights — Criminal process — Search and seizure — Letter of request — Canadian standard for issuance of search warrant to be satisfied before submitting letter of request asking Swiss authorities to search for, seize Canadian citizen’s banking records — Charter protection for Canadians same whether search undertaken here or abroad — Right to be secure against unreasonable search or seizure justifying requirement of prior authorization.

Criminal justice — Letter of request — Canadian standard for issuance of search warrant to be satisfied before submitting letter of request asking Swiss authorities to search for, seize Canadian citizen’s banking records — As information may be used for criminal prosecution in Canada, plaintiff entitled to benefit of Charter, s. 8 right to be secure against unreasonable search, seizure — Prior authorization ensuring impartiality in balancing individual’s reasonable expectation of privacy against government’s interest in law enforcement.

International law — In context of criminal investigation of kickbacks allegedly received by respondent, high-level politicians, Minister of Justice sending letter of request to Swiss authorities asking search, seizure of banking records — Under Swiss law, Swiss authorities seizing records — Applicability of Charter, s. 8 — A.G. arguing Charter lacking extraterritorial effect — Letters of request recognized method of cooperation between states in absence of mutual assistance treaty — Governing principles silent as to internal standards of requesting state — Where letter of request sent to friendly state, reasonable expectation will be acted upon — Charter inapplicable to acts of foreign police — Here no extraterritorial Charter application as letter of request imposing no Canadian legal requirement on Swiss authorities thereby fettering their sovereign authority — Increasing recognition Charter may apply outside Canada in special circumstances.

In the context of a criminal investigation on kickbacks allegedly received by Messrs. Mulroney, Moores, and Schreiber in return for the awarding of various lucrative Canadian contracts to certain companies, a letter of request was sent, on behalf of the Minister of Justice and the Attorney General of Canada, to the Swiss authorities requesting, among other things, that they provide the Canadian government with the banking records of the respondent at the Schweitzerischer Bankverein Zurich. No search warrant or other judicial authorization was obtained prior to the letter of request being sent. In response, the records were seized by the Swiss authorities acting under Swiss law.

The respondent, a Canadian citizen, contended that the constitutional guarantees contained in the Charter should cover the letter of request. The Attorney General’s submission was that a privacy interest outside Canada was not clothed with Charter protection because section 8 does not generally have extraterritorial effect. Any search or seizure resulted from the actions of the Swiss authorities, acting under Swiss law.

The following question was put before the Trial Division of the Federal Court in the form of a special case for adjudication: Was the Canadian standard for the issuance of a search warrant required to be satisfied before the Minister of Justice and Attorney General of Canada submitted the letter of request asking Swiss authorities to search for and seize the plaintiff’s banking documents and records? The question was answered in the affirmative. This was an appeal from that decision.

Held (Stone J.A. dissenting), the appeal should be dismissed.

Per Linden J.A.: The Canadian standard for the issuance of a search warrant is based on the right “to be secure against unreasonable search or seizure”. That standard was set by Dickson J. in Hunter et al. v. Southam Inc.: reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search. Whether this standard applied to the letter of request depends on whether the application of the Charter to a request for assistance from another country means that impermissible extraterritorial effect would be given to the Charter; and whether the letter of request would interfere with the respondent’s right to security from unreasonable search and seizure.

In the absence of a mutual assistance treaty, letters of request are the recognized mode of communication and cooperation between states. The principles governing the international recognition of letters of request shed no light on the internal procedures or standards to be applied by the requesting state.

The reasons of the Motions Judge were substantially agreed with. He found that section 8 of the Charter did apply to the request for banking information located in Switzerland, and that the letter of request initiated a seizure which implicated the respondent’s reasonable expectation of privacy. He reasoned that the respondent was not seeking the application of the Charter to foreign law, or to the direct activities of the Swiss government in carrying out its decision to search and seize the bank records. He noted that the respondent was the subject of a Canadian criminal investigation by Canadian authorities, and that the information sought to be obtained could be used in a criminal prosecution in Canada. He found that, although the bank accounts over which the respondent asserted a privacy interest were located in Switzerland, that interest was jeopardized by the letter of request which was initiated in Canada. He took judicial notice of the fact that when a letter of request was sent to a friendly and co-operative state, there was a reasonable expectation of its acceptance and a likelihood of it being acted upon. He adopted the rationale that prior authorization of all lawful searches or seizures was necessary to ensure impartial balancing of the privacy interests of the individual with the law enforcement interests of government.

The protection afforded by the Charter to Canadian citizens against their government should be the same whether the search is undertaken at home or abroad, although certainly other governments cannot be bound by the Charter.

Section 8 of the Charter

The purpose of section 8 was identified by Dickson J. in Hunter as the protection of individuals from unjustified state intrusion upon their privacy. However, the right to privacy is not absolute. There must be an assessment of whether, in a particular situation, the public interest in being left alone by government must give way to government’s interest in intruding on the individual’s privacy in the discharge of its law enforcement responsibilities. The assessment is to be carried out by means of a system of prior authorization of searches and seizures which prevents unjustified searches before they occur and which, conversely, allows the breach of an individual’s privacy only where a standard of reasonable and probable grounds, impartially arrived at, has been met.

The privacy interest must be protected even before its actual physical invasion. This is inherent in the notion of being secure against unreasonable searches and seizures.

The territorial scope of section 8

As a rule, a state is only competent to enforce its law within its own territorial boundaries. The Charter has been held not to apply where the acts complained of were entirely those of foreign police and immigration officials.

Because the respondent was not seeking to apply the Charter to the activities of the Swiss government, the application of the Charter was not extra-territorial. There was nothing in the application of section 8 to the letter of request which would impose a Canadian legal requirement on the Swiss authorities responding to the letter of request so as to fetter their sovereign authority, something international law does not allow. It may be said that although nothing can be gained from applying the Charter to the conduct of Swiss authorities, requiring Canadian authorities to comply with the Canadian standard for the issuance of a search warrant when sending a letter of request to foreign authorities would prevent unjustified invasions of privacy by Canadian authorities in the future.

The Mutual Legal Assistance in Criminal Matters Act requires that any foreign requests executed in Canada must comply with the Canadian requirements for lawful search and seizure. Although Canada cannot impose its own procedural standards on other states, it can ensure that the right to a reasonable expectation of privacy is protected when a search is instigated by Canadian officials, whether at home or abroad. There is increasing recognition that, in special circumstances, the Charter may be applied outside Canada. The automatic exclusion of Charter application outside Canada might unduly restrict the protection Canadians have a right to expect against the interference with their rights by our governments or their agents.

The respondent’s security against unreasonable search and seizure was infringed by the letter of request

Section 8 does not merely penalize or forbid unreasonable searches and seizures; it prohibits interference with one’s security against unreasonable searches and seizures. The respondent’s security from unreasonable search and seizure has been affected by the reasonable expectation that the request would be acted upon by Swiss authorities. There was a reasonable expectation of privacy in the information sought (bank records which reveal important and personal details about an individual). There has been a fundamental shift in the law of search and seizure to the effect that the Constitution’s guarantee against unreasonable search and seizure protects people, not places.

The constitutionality of a state-sanctioned search and seizure is only partially determined by the manner in which it is executed. The initiation and authorization process is equally important to the determination of constitutionality. Although it is true that one state cannot compel another to comply with its request, there was no evidence of any reason why the request would be refused in this case. The reasonable expectation that the request would be acted upon was sufficient to engage section 8 of the Charter.

The role of section 7 and paragraph 11(d) of the Charter

Although the evidence illegally obtained could be excluded on the basis of section 7 and paragraph 11(d) of the Charter, this was not sufficient. First, it was not the evidence-gathering process in Switzerland which concerned the respondent on this appeal, but rather the initiation of that process here in Canada. Second, it was critical that unreasonable searches or seizures be prevented rather than condemned after they occur.

Availability of constitutionally permissible techniques for instituting a letter of request

The protection of individual rights does not depend upon the convenience of those engaged in law enforcement. Furthermore, it may well be that prior judicial approval for the request could be obtained through subsection 487.01(1) of the Criminal Code. In any event, the spectre of the need for legislative action cannot inhibit the Court from declaring unconstitutional conduct to be unconstitutional. There have been many cases in which Charter violations have necessitated remedial legislation.

Diminished effectiveness of investigation and prosecution

The Charter must be complied with, even if that may be inconvenient or even burdensome to law enforcement. Requiring Canadian officials to comply with section 8 of the Charter prior to initiating an international request has no effect on their ability to obtain effective international assistance because it does not impose any additional burden on the requested state.

Per Stone J.A. (dissenting): the appeal should be allowed and the question answered in the negative.

Privacy can never be absolute; it must be balanced against legitimate societal needs, notably that of law enforcement. Moreover, whether the protection of section 8 applies depends on the particular context in which it is asserted.

Does section 8 protect information in the foreign bank records?

In R. v. Terry and R. v. Harrer, the principal issue was whether paragraph 10(b) of the Charter was engaged by the taking of statements in a foreign country by foreign police. The Supreme Court of Canada determined that the Charter was not engaged in either case because it had no extraterritorial application in the circumstances. Neither case was, however, conclusive of the issue here under consideration.

Is the request a “search” or “seizure”?

The making of the request did not constitute either a search or a seizure of the bank records so as to engage the protection of the section 8 guarantee. It was the method chosen by the Canadian authorities to accomplish, if they could, a search and seizure of the bank records in Switzerland. While the request process ended with a search and seizure of the records, it did not of itself in Canada constitute either. The governmental action that is constrained by virtue of section 8 is “unreasonable search and seizure”. The fact that Canadian authorities made the request and had a reasonable expectation that the Swiss authorities would accept and act upon it did not convert the request into the type of governmental action that is proscribed by section 8. It would be wrong to emphasize the word “secure” at the expense of the remaining language of section 8, when that section guarantees the right to be secure against “unreasonable search and seizure” by Canadian state actors. In the present case, the Canadian authorities neither possessed the ability to carry out a search or seizure in Switzerland nor requested that the Swiss authorities should do so as their agents.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canada Evidence Act, R.S.C., 1985, c. C-5.

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 8, 10(b), 11(d),(h), 24(2), 32(1).

Combines Investigation Act, R.S.C. 1970, c. C-23, s. 10(1),(3).

Criminal Code, R.S.C., 1985, c. C-46, ss. 121(1), 487(1)(d) (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 68), 487.01 (as enacted by S.C. 1993, c. 40, s. 15), 487.02 (as enacted idem).

Federal Court Rules, C.R.C., c. 663, R. 475.

Mutual Legal Assistance in Criminal Matters Act, R.S.C., 1985 (4th Supp.), c. 30, ss. 11(1),(2), 12(1)(a),(b).

Treaty between Canada and the Swiss Confederation on Mutual Assistance in Criminal Matters, 7 October, 1993, [1995] Can. T.S. No. 24.

Treaty between the United States and the Swiss Confederation on Mutual Assistance in Criminal Matters, 23 January 1977, 27 U.S.T. 2019; T.I.A.S. No. 8.

CASES JUDICIALLY CONSIDERED

APPLIED:

Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145; (1984), 55 A.R. 291; 11 D.L.R. (4th) 641; [1984] 6 W.W.R. 577; 33 Alta. L.R. (2d) 193; 27 B.L.R. 297; 14 C.C.C. (3d) 97; 2 C.P.R. (3d) 1; 41 C.R. (3d) 97; 9 C.R.R. 355; 84 DTC 6467; 55 N.R. 241; R. v. Dyment, [1988] 2 S.C.R. 417; (1988), 73 Nfld. & P.E.I.R. 13; 55 D.L.R. (4th) 503; 229 A.P.R. 13; 45 C.C.C. (3d) 244; 66 C.R. (3d) 348; 10 M.V.R. (2d) 1; 89 N.R. 249; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; (1990), 65 D.L.R. (4th) 161; 54 C.C.C. (3d) 417; 29 C.P.R. (3d) 97; 76 C.R. (3d) 129; 47 C.R.R. 1; 106 N.R. 161; 39 O.A.C. 161; R. v. O’Connor, [1995] 4 S.C.R. 411; (1995), 130 D.L.R. (4th) 235; [1996] 2 W.W.R. 153; 68 B.C.A.C. 1; 103 C.C.C. (3d) 1; 44 C.R. (4th) 1; 33 C.R.R. (2d) 1; 191 N.R. 1; 112 W.A.C. 1; Colello v. U.S. S.E.C., 908 F.Supp. 738 (C.D. Cal., 1995); Reid v. Covert, 354 U.S. 1 (1957); R. v. Plant, [1993] 3 S.C.R. 281; (1993), 145 A.R. 104; [1993] 8 W.W.R. 287; 12 Alta. L.R. (3d) 305; 84 C.C.C. (3d) 203; 24 C.R. (4th) 47; 17 C.R.R. (2d) 297; 157 N.R. 321; 55 W.A.C. 104; R. v. Lillico (1994), 92 C.C.C. (3d) 90 (Ont. Gen. Div.); R. v. Eddy (T.) (1994), 119 Nfld. & P.E.I.R. 91; 370 A.P.R. 91 (Nfld. S.C.T.D.); R. v. Sanchez (1994), 20 O.R. (3d) 468; 93 C.C.C. (3d) 357; 32 C.R. (4th) 269 (Gen. Div.); The Schooner Exchange v. M’Faddon & Others (1812), 7 Cranch’s Reports 116; Zingre v. The Queen et al., [1981] 2 S.C.R. 392; (1981), 127 D.L.R. (3d) 223; 10 Man. R. (2d) 62; 61 C.C.C. (2d) 465; 23 C.P.C. 259; 38 N.R. 272; R. v. Kokesch, [1990] 3 S.C.R. 3; [1991] 1 W.W.R. 193; (1990), 51 B.C.L.R. (2d) 157; 61 C.C.C. (3d) 207; 1 C.R. (4th) 62; 50 C.R.R. 285; 121 N.R. 285.

DISTINGUISHED:

R. v. Harrer, [1995] 3 S.C.R. 562; (1995), 128 D.L.R. (4th) 98; 64 B.C.A.C. 161; 101 C.C.C. (3d) 193; 42 C.R. (4th) 269; 32 C.R.R. (2d) 273; 186 N.R. 329; 105 W.A.C. 161; R. v. Terry, [1996] 2 S.C.R. 207; (1996), 135 D.L.R. (4th) 214; 76 B.C.A.C. 25; 106 C.C.C. (3d) 508; 48 C.R. (4th) 137; 36 C.R.R. (2d) 21; 197 N.R. 105; 125 W.A.C. 25.

CONSIDERED:

R. v. Filonov (1993), 82 C.C.C. (3d) 516 (Ont. Gen. Div.); Canada v. Schmidt, [1987] 1 S.C.R. 500; (1987), 39 D.L.R. (4th) 18; 33 C.C.C. (3d) 193; 58 C.R. (3d) 1; 28 C.R.R. 280; 76 N.R. 12; 20 O.A.C. 161; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; (1991), 84 D.L.R. (4th) 438; 67 C.C.C. (3d) 1; 8 C.R. (4th) 1; 6 C.R.R. (2d) 193; 129 N.R. 81; United States v Verdugo-Urquidez, 108 L. Ed 2d 222 (1990); Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1; Brulay v. U.S., 383 F.2d 345 (1967).

REFERRED TO:

R. v. Collins, [1987] 1 S.C.R. 265; (1987), 38 D.L.R. (4th) 508; [1987] 3 W.W.R. 699; 13 B.C.L.R. (2d) 1; 33 C.C.C. (3d) 1; 56 C.R. (3d) 193; 28 C.R.R. 122; 74 N.R. 276; U.S. v. Sturman, 951 F.2d 1466 (6th Cir., 1992); United States v. Miller, 425 U.S. 435 (1976); R. v. Cook, [1996] B.C.J. No. 2615 (C.A.) (QL); R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627; (1990), 68 D.L.R. (4th) 568; 55 C.C.C. (3d) 530; 76 C.R. (3d) 283; 47 C.R.R. 151; [1990] 2 C.T.C. 103; 90 DTC 6243; 106 N.R. 385; 39 O.A.C. 385; R. v. Swain, [1991] 1 S.C.R. 933; (1991), 75 O.R. (2d) 388; 71 D.L.R. (4th) 551; 63 C.C.C. (3d) 481; 5 C.R. (4th) 253; 3 C.R.R. (2d) 1; 125 N.R. 1; 47 O.A.C. 81; R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577; (1991), 83 D.L.R. (4th) 193; 66 C.C.C. (3d) 321; 7 C.R. (4th) 117; 6 C.R.R. (2d) 35; 128 N.R. 81; 48 O.A.C. 81; Schreiber v. Canada (Attorney General), [1996] 3 F.C. 947(T.D.); R. v. Mack, [1988] 2 S.C.R. 903; [1989] 1 W.W.R. 577; 44 C.C.C. (3d) 513; 67 C.R. (3d) 1; 37 C.R.R. 277; 90 N.R. 173; Katz v. United States, 389 U.S. 347 (1967); R. v. Duarte, [1990] 1 S.C.R. 30; (1990), 71 O.R. (2d) 575; 65 D.L.R. (4th) 240; 53 C.C.C. (3d) 1; 74 C.R. (3d) 281; 45 C.R.R. 278; 103 N.R. 86; 37 O.A.C. 322; R. v. Colarusso, [1994] 1 S.C.R. 20; (1994), 110 D.L.R. (4th) 297; 87 C.C.C. (3d) 193; 26 C.R. (4th) 289; 19 C.R.R. (2d) 193; 49 M.V.R. (2d) 161; 162 N.R. 321; 69 O.A.C. 81; R. v. Evans, [1996] 1 S.C.R. 8; 131 D.L.R. (4th) 654; 69 B.C.A.C. 81; 104 C.C.C. (3d) 23; 45 C.R. (4th) 210; 33 C.R.R. (2d) 248; 191 N.R. 327; 113 W.A.C. 81; R. v. Jacques, [1996] 3 S.C.R. 312; (1996), 202 N.R. 49; R. v. Grant, [1993] 3 S.C.R. 223; [1993] 8 W.W.R. 257; 35 B.C.A.C. 1; 84 C.C.C. (3d) 173; 24 C.R. (4th) 1; 17 C.R.R. (2d) 269; 159 N.R. 161; 57 W.A.C. 1; R. v. Dersch, [1993] 3 S.C.R. 768; (1993), 33 B.C.A.C. 269; 85 C.C.C. (3d) 1; 25 C.R. (4th) 88; 18 C.R.R. (2d) 87; 48 M.V.R. (2d) 161; 158 N.R. 375; 54 W.A.C. 269; R. v. Silveira, [1995] 2 S.C.R. 297; (1995), 124 D.L.R. (4th) 193; 97 C.C.C. (3d) 450; 38 C.R. (4th) 330; 28 C.R.R. (2d) 189; 181 N.R. 161; 81 O.A.C. 161; Ziegler v. Hunter, [1984] 2 F.C. 608 (1983), 8 D.L.R. (4th) 648; 39 C.P.C. 234; 81 C.P.R. (2d) 1; 8 C.R.R. 47; 51 N.R. 1 (C.A.); Barr v. U.S. Dept. of Justice, 819 F.2d 25 (2nd Cir. 1987); Gulf Oil Corporation v. Gulf Canada Ltd. et al., [1980] 2 S.C.R. 39; (1980), 11 D.L.R. (3d) 74; 15 C.P.C. 267; 51 C.P.R. (2d) 1; 31 N.R. 451.

AUTHORS CITED

Canada. Law Reform Commission. Report on Search and Seizure. Ottawa: Supply and Services Canada, 1984.

Hutchison, Scott C. et al. Search and Seizure Law in Canada. Scarborough, Ont.: Carswell, 1993.

LaFave, Wayne R. and Jerold H. Israel. Criminal Procedure, 2nd ed. St. Paul, Minn.: West Publishing Co., 1992.

Ogilvie, M. H. “Banker and Customer Revisited” (1986), 65 Can. Bar Rev. 3.

Spinellis, D.D. “Securing Evidence Abroad” in M. Cherif Bassiouni, ed. International Criminal Law, Vol. II. Dobbs Ferry, N.Y.: Transnational Publishers, 1987.

APPEAL from the Trial Division decision ([1996] 3 F.C. 931 (1996), 137 D.L.R. (4th) 582; 108 C.C.C. (3d) 208; 37 C.R.R. (2d) 63) answering the following question of law in the affirmative: Was the Canadian standard for the issuance of a search warrant required to be satisfied before the Minister of Justice and Attorney General of Canada submitted the letter of request asking Swiss authorities to search for and seize the plaintiff’s banking documents and records? Appeal dismissed.

COUNSEL:

S. David Frankel, Q.C. for appellant (defendant).

Robert W. Hladun, Q.C., Gary D. Braun for respondent (plaintiff).

SOLICITORS:

Deputy Attorney General of Canada for appellant (defendant).

Hladun & Company, Edmonton, for respondent (plaintiff).

The following are the reasons for judgment rendered in English by

Stone J.A. (dissenting): The issue in this appeal is whether the learned Motions Judge [[1996] 3 F.C. 931 (T.D.)] erred in answering the following question of law in the affirmative [at page 936]:

Was the Canadian standard for the issuance of a search warrant required to be satisfied before the Minister of Justice and Attorney General of Canada submitted the letter of request asking Swiss authorities to search for and seize the plaintiff’s banking documents and records?

The answer was based on a construction of section 8 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] which reads:

8. Everyone has the right to be secure against unreasonable search or seizure.

The above question was stated to the Trial Division by way of a special case pursuant to Rule 475 of the Court [Federal Court Rules, C.R.C., c. 663] for adjudication in lieu of trial. The case was argued in the Trial Division and before us on the basis that the “Canadian standard for the issuance of a search warrant” referred to in the question is that which was formulated by Dickson J. (as he then was) in Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145, at page 168:

… reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure.

THE FACTS

The circumstances surrounding the sending of the letter of request (the request) to the Swiss authorities are set forth in the special case. It reads in part:

1. Pursuant to Rule 475 of the Federal Court Rules, the parties hereby agree that the following shall constitute all of the facts necessary for the determination of this matter.

Statement of Facts

2. The Plaintiff is a Canadian citizen, who resides both in Canada and in Europe.

3. The Plaintiff has an interest in accounts at the Schweizerischer Bankverein (also known as the Swiss Banking Corporation), Paradaplatz 6, Zurich, Switzerland.

4. On September 29, 1995, Kimberly Prost, Senior Counsel and Director of the International Assistance Group of the Federal Department of Justice, acting on behalf of the Minister of Justice, signed a Letter of Request directed to the Competent Legal Authority of Switzerland, seeking the assistance of the Swiss government with respect to a Canadian criminal investigation. A copy of the said Letter of Request is attached hereto, and marked Exhibit “A”.

5. The Swiss government received and accepted the aforesaid Letter of Request.

6. In response to the Letter of Request the Swiss authorities, acting under their laws, issued an Order for the seizure of documents and records relating to the Plaintiff’s aforesaid accounts.

7. An application by the Plaintiff challenging the Swiss Order was dismissed by the Swiss Federal Court on May 1, 1996. The documents and records are presently being examined by the Swiss Chief Federal Prosecutor. If she decides to make them available to Canadian authorities, then the Plaintiff can challenge that decision before the Swiss Courts.

8. Prior to delivery of the Letter of Request no Search Warrant or other judicial authorization, supported by information on oath, had been obtained in Canada with respect to the seizure of the Plaintiff’s Swiss banking documents and records.

9. The parties agree that the determination of the following question of law will be dispositive of the within action:

…

10. The parties agree that the applicability and validity of the law under which the Swiss authorities acted is not relevant to the determination of this question.

By the request, the appellant asked the Competent Legal Authority of Switzerland to assist the Government of Canada “in a matter concerning the investigation of violations of Canadian criminal laws”. The appellant assured the Authority that in similar criminal investigations “Canada will extend to the Government of Switzerland reciprocal cooperation and is ready and willing to render assistance to Switzerland in accordance with the law of Canada”. The request stated that the Commercial Crime Section of the Royal Canadian Mounted Police at Ottawa was “conducting a criminal investigation of `Frauds on the Government’ under Section 121(1) of the Criminal Code of Canada R.S.C., 1985, chapter C-45, as amended” and that “[c]harges under the above noted section will be considered upon conclusion of the investigation.” It is apparent that the request and its content was in the nature of a private communication between the Government of Canada and the Swiss authorities, and that the request was sent for the purpose of furthering an investigation that the RCMP had already initiated in Canada.

The facts upon which the request was based are set forth in a “summary of facts” embodied in the document. Those of direct relevance may be briefly summarized. The respondent, who currently resides in Germany, is a Canadian citizen. At the material time he was the owner of a Liechtenstein company called Kensington Anstalt which in turn owned another Liechtenstein company called International Aircraft Leasing (IAL). In March 1985, Air Canada, then a federal Crown corporation, was engaged in negotiations for the purchase of a new fleet of aircraft with three manufacturers including Airbus Industrie of Toulouse, France. On March 7, 1985, IAL signed an agreement with Airbus Industrie which provided that IAL would receive commissions of 2 to 2.5 percent of each contract that Airbus Industrie obtained for the sale of aircraft in Canada. According to the request, the RCMP “had reliable information that Mr. Schreiber was given these commissions” in order to pay Mr. Brian Mulroney, a former Prime Minister of Canada and Mr. Frank Moores, a private Canadian lobbyist and Director of CGI Government Consultants International Incorporated “to ensure that Airbus Industrie obtained a major contract with Air Canada for the planned upgrade of their aircraft fleet”. On the basis of a German magazine article and a Canadian Broadcasting Corporation television program, both of March 1995, it was stated in the request that commissions on the sale of each plane were paid by Airbus Industrie to IAL’s Liechtenstein account and then transferred to IAL’s account 18679 at the Schweizerischer Bankverein Zurich, in Zurich, Switzerland, and that the funds were reportedly then transferred to accounts 34107 and 34117 said to have been opened by Mr. Moores at the same bank in Zurich “as payment to Mr. Moores, and Mr. Mulroney’s assistance in obtaining the contract”. The request also asserted the belief of the RCMP that the respondent and Mr. Moores “conspired with Mr. Mulroney to obtain secret commissions to ensure that Airbus received the contract from Air Canada to purchase the aircraft”. The request went on to state:

If the investigation determines that these payments were made, then charges of giving a reward or benefit to an official under Sections 121(1)((a)(i), 121(1)(b) and 121(1)(e) of the Code will be considered against … Mr. SCHREIBER.

The request makes reference to two other Canadian federal government contracts, which it asserted “resulted in commissions being paid to IAL and a portion of these commissions are reported to have been paid” to Mr. Moores and Mr. Mulroney. All three cases, it was said, “demonstrate an ongoing scheme” by the three named individuals “to defraud the Canadian government of millions of dollars of public funds” between September, 1984 and June, 1993.

The material part of “the purpose of the request”, set forth in the same document, reads:

The Government of Canada respectfully requests the assistance of the Competent Legal Authority of Switzerland to perform the following:

—   provide all banking information available at the Schweizerischer Bankverein Zurich, 6 Paradeplatz, Zurich, for any accounts in the names of Karlheinz SCHREIBER, Frank MOORES, Brian MULRONEY, International Aircraft Leasing and Kensington Anstalt, or which they hold power of attorney, or in which they are the beneficial owners, in particular account numbers 18679 (Mr. SCHREIBER), 34107 & 34117 both believed to be registered to Mr. MOORES. We require copies of the signature cards and other forms used to open the accounts, transaction records including deposit slips, cheques, drafts, transfer forms etc. showing the flow of funds through the accounts, and all general correspondence between the clients (Mr. MULRONEY, Mr. MOORES, and Mr. SCHREIBER) and the bank, for the period September 4, 1984 to present. The account managers for these accounts are believed to be Andre STROBEL and Paul SCHNEIDER.

The request also described in some detail the procedure laid down in the Canada Evidence Act [R.S.C., 1985, c. C-5] for “introduction of documents into evidence before a Canadian Court”, which description concludes:

It is, therefore, further requested that any business record obtained in response to this request be accompanied by a certification as described in order to meet the admissibility requirements of the Canada Evidence Act.

THE JUDGMENT BELOW

The Motions Judge expressed the view [at page 943] that “the application of section 8 is an inescapable product of the government’s enforcement activity within Canada”. At pages 941-943 of his reasons he elaborated as follows:

The defendant relies on the cases of Terry, supra; Harrer, supra and Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon, [1994] 3 S.C.R. 1022, for a number of propositions. Specifically, the defendant notes that the Supreme Court of Canada, in the above decisions, has emphasized the following principles: a Canadian does not take Canadian law when travelling abroad; travellers to foreign states should know that law officers in different states co-operate with each other; extradition treaties exist; evidence taken in one state may be used in another; and, the practice of cooperation between the police of different states does not make the law of one state applicable in the other state.

While the defendant relies on Terry, supra, this decision, in my opinion, is clearly distinguishable from the present case. Terry was a case in which the appellant argued that the foreign (American) police were obliged to conform to the Charter. It is clear that the application of the Charter in Terry would have been extraterritorial; in the present case, however, the application of the Charter is not extraterritorial. I therefore do not view Terry as a bar to the application of the Charter in this case.

In the case before the Court, the plaintiff is not seeking the application of the Charter to foreign law, or to the direct activities of the Swiss government in carrying out its decision to search and seize the bank records in question. The application of the Charter clearly stops at the water’s edge. However, the question to be addressed in the case at bar is whether the standard required by section 8 of the Charter should apply to the letter of request procedure in Canada, prior to the search or seizure taking place. Of course, the answer to this question can only be considered by noting that Mr. Schreiber is the subject of a Canadian criminal investigation by Canadian authorities, and that the information sought to be obtained may be used in a criminal prosecution in Canada, pursuant to the Canadian Criminal Code.

…

In my opinion, to apply the Charter to the letter of request procedure in Canada depends on whether there is a material connection between the information requested in the letter of request, and any alleged violations of Canadian criminal law. The fact that the information requested and provided may not become evidence in a criminal trial is not, in my view, a significant consideration.

In the present case, the defendant conceded that judicial notice could be taken of the fact that Canada would not send a letter of request to an unfriendly, uncooperative state. In this regard, the Canadian officials knew that the Swiss authorities would seize the requested records, subject, of course, to Swiss law. As such, it was not simply a request; there was a reasonable expectation of its acceptance, and a likelihood of it being acted upon.

THE ISSUES

The appellant raises three alternative issues. The first is that section 8 is not engaged because the Charter simply does not protect otherwise personal and confidential bank records kept or maintained in a foreign country and, particularly, that the request sent by Canada to Switzerland did not engage the Charter. The second is that the application of section 8 was not triggered by the request because it did not of itself constitute either a “search” or a “seizure”. The third is that even if section 8 is engaged, the requesting procedure did not infringe the respondent’s “reasonable expectation of privacy” and that such procedure is constitutionally “reasonable”. It goes without saying that the question of whether, apart from the Charter, the Canadian standard for the issuance of a search warrant ought to be adhered to before a request of this kind is submitted to a foreign government, does not arise for decision on this appeal.

ANALYSIS

Introduction

At the time the request was submitted to the Swiss authorities, no mutual legal assistance treaty between Canada and Switzerland under the Mutual Legal Assistance in Criminal Matters Act, R.S.C., 1985 (4th Supp.), c. 30 which was proclaimed in force October 1, 1988, was in effect. Under subsection 11(2) of that statute, where the Minister of Justice approves a request of a foreign state to have a search or a seizure carried out in Canada, a competent authority in Canada is required to “apply ex parte for a search warrant to a judge of the province in which the competent authority believes that evidence of the commission of the offence may be found”, and subsection 12(1) empowers the issuance of a search warrant “where the judge is satisfied by statements under oath that there are reasonable grounds to believe that”, inter alia , “an offence has been committed with respect to which the foreign state has jurisdiction” and “evidence of the commission of the offence … will be found in a building, receptacle or place in the province”. A Treaty between Canada and the Swiss Confederation on Mutual Assistance in Criminal Matters, [1995] Can. T.S. No. 24, was signed on October 7, 1993, and came into force on November 17, 1995, some seven weeks after the request was sent to the Swiss authorities. Article 5 of the Treaty provides that a request “shall be executed in accordance with the law of the Requested State”. The “assistance” made available under the Treaty, addressed in Article 1(3), includes “(b) taking testimony or other statements” and “(c) producing objects, documents, records and evidence, including exhibits”. Article 29 provides that the Treaty’s provisions “shall not affect … other agreements or arrangements or which may result from a well-established practice of the competent authorities”.

The appellant points out that while the request here in question was made on a state to state basis outside of any treaty in accordance with principles of comity, it is not the only avenue utilized by Canada for enlisting foreign assistance in criminal investigation. The cooperation of a foreign state may also be sought on an informal basis by way of request from one police force to another. Further, a formal request—not possible in this case—is available in some instances under a mutual assistance bilateral treaty or under multilateral conventions, such as the treaty between Canada and Switzerland which came into force on November 17, 1993, referred to above. Canada will be required to obtain prior judicial approval before a request can be sent to foreign authorities if the judgment below stands.

The difficulty facing law enforcement authorities in combatting crime—including international or transnational crime—should not be minimized. In M. C. Bassiouni, International Criminal Law, Vol. II (Transnational Publishers: Dobbs Ferry, N.Y., 1987), at page 351, D. D. Spinellis [—Securing Evidence Abroad—] describes this difficulty in general terms:

Criminal offences affecting more than one country have increased in the last decades. International commerce, tourism and the mobility of the labor force have all contributed to this increase. However, it is the internationally organized crimes and the economic crimes which are producing the most difficult legal problems.

In R. v. Mack, [1988] 2 S.C.R. 903, Lamer J. (as he then was) stated emphatically, at page 916:

One need not be referred to evidence to acknowledge the ubiquitous nature of criminal activity in our society. If the struggle against crime is to be won, the ingenuity of criminals must be matched by that of the police; as crimes become more sophisticated so too must be the methods employed to detect their commission.

Again, in R. v. Harrer, [1995] 3 S.C.R. 562, at page 574, La Forest J., for the majority, rejected the imposition of domestic procedural rules on foreign authorities gathering evidence for use in Canada because to do so would stand in the way of effective cooperation in fighting international crime:

For us to insist that foreign authorities have followed our internal procedures in obtaining evidence as a condition of its admission in evidence in Canada would frustrate the necessary cooperation between the police and prosecutorial authorities among the various states of the world.

The Motions Judge took account of jurisprudence of the Supreme Court of Canada with respect to the scope of protection guaranteed by section 8, beginning with the leading case of Hunter, supra. It will be useful here, before addressing the specific issues, to isolate some of the principles developed in the caselaw and relied upon by the respondent. In Hunter, supra, Dickson J. borrowed from the opinion of Stewart J. of the United States Supreme Court in Katz v. United States, 389 U.S. 347 (1967) with respect to the Fourth Amendment, that section 8 protects a “reasonable expectation of privacy” and, like the Fourth Amendment, protects “people, not places”. Dickson J. [at page 156] favoured the need for “a broad purposive analysis, which interprets specific provisions of a constitutional document in the light of its larger objects”. He described the purpose of the Charter at page 156:

Its purpose is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constrain governmental action inconsistent with those rights and freedoms; it is not in itself an authorization for governmental action.

The fundamental teachings of Hunter, supra, have guided the Supreme Court in its many subsequent decisions under section 8, one of the earliest being R. v. Dyment, [1988] 2 S.C.R. 417 where it was confirmed by La Forest J., concurring, at page 427, that the section “guarantees the right to be secure against unreasonable search and seizure” (emphasis added). Two years later, in R. v. Duarte, [1990] 1 S.C.R. 30, at page 43, La Forest J., for the majority, reaffirmed privacy as the primary value served by section 8 and stated that “the spirit of s. 8 must not be constrained by narrow legalistic classifications”. In R. v. Colarusso, [1994] 1 S.C.R. 20, La Forest J., for the majority, encapsulated the fundamental teachings of Hunter, supra, and Dyment, supra, at pages 52-53 and 60-61:

Hunter v. Southam Inc., [1984] 2 S.C.R. 145, teaches us that s. 8, like other Charter rights, must be broadly and liberally construed to effect its purpose. And that purpose, it identified, is to secure the citizen’s right to a reasonable expectation of privacy against governmental encroachments. The need for privacy can vary with the nature of the matter sought to be protected, the circumstances in which and the place where state intrusion occurs, and the purposes of the intrusion …. The requirement for seizing items for the purpose of criminal law enforcement has also been set at a high level; not surprisingly—it involves the freedom of the individual. Absent exigent circumstances, there is a requirement of prior authorization by a judicial officer as a precondition to a valid seizure for the criminal law purposes; see Hunter, supra. And the minimum requirement for such authorization is that the judicial officer be satisfied that there are reasonable and probable grounds that an offence has been committed and that the search will afford evidence of that offence. This high threshold, together with the general approach set forth in Hunter, at p. 155, that the function of the Charter “is to provide … for the unremitting protection of individual rights and liberties” sought to be protected, is the proper perspective from which the situation in the present case must be assessed.

…

At all events, they seized information involving the bodily integrity of the individual that could only be obtained originally with his consent or later pursuant to a statute for the limited purposes intended by the statute. This really goes to the underlying reason for the protection afforded by s. 8; one must not overemphasize the purely physical aspects of the seizure. In both Hunter and Dyment, the Court emphasized that what is protected by s. 8 is people, not places or things. The principal right protected by s. 8 is individual privacy, and the provision must be purposively applied to that end. The following statement from Dyment, at pp. 429-30, is relevant here:

Finally, there is privacy in relation to information. This too is based on the notion of the dignity and integrity of the individual. As the Task Force put it (p. 13): “This notion of privacy derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit.” In modern society, especially, retention of information about oneself is extremely important. We may, for one reason or another, wish or be compelled to reveal such information, but situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected. Governments at all levels have in recent years recognized this and have devised rules and regulations to restrict the uses of information collected by them to those for which it was obtained; see, for example the Privacy Act, S.C. 1980-81-82-83, c. 111. (Emphasis added.)

Two recent decisions, R. v. O’Connor, [1995] 4 S.C.R. 411 and R. v. Evans, [1996] 1 S.C.R. 8, serve to highlight the objective of section 8 and the importance of the interests protected. In O’Connor, supra, at pages 485-487, L’Heureux-Dubé J. stated:

It is apparent, however, that privacy can never be absolute. It must be balanced against legitimate societal needs. This Court has recognized that the essence of such a balancing process lies in assessing reasonable expectation of privacy, and balancing that expectation against the necessity of interference from the state: Hunter, supra, at pp. 159-60. Evidently, the greater the reasonable expectation of privacy and the more significant the deleterious effects flowing from its breach, the more compelling must be the state objective, and the salutary effects of that objective, in order to justify interference with this right. See Dagenais, supra.

In R. v. Plant, [1993] 3 S.C.R. 281, albeit in the context of a discussion of s. 8 of the Charter, a majority of this Court identified one context in which the right to privacy would generally arise in respect of documents and records (at p. 293):

In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual. (Emphasis added.)

Although I prefer not to decide today whether this definition is exhaustive of the right to privacy in respect of all manners of documents and records, I am satisfied that the nature of the private records which are the subject matter of this appeal properly brings them within that rubric. Such items may consequently be viewed as disclosing a reasonable expectation of privacy which is worthy of protection under s. 7 of the Charter.

The essence of privacy, however, is that once invaded, it can seldom be regained. For this reason, it is all the more important for reasonable expectations of privacy to be protected at the point of disclosure. As La Forest J. observed in Dyment, supra, at p. 430:

… if the privacy of the individual is to be protected, we cannot afford to wait to vindicate it only after it has been violated. This is inherent in the notion of being secure against unreasonable searches and seizures. Invasions of privacy must be prevented, and where privacy is outweighed by other societal claims, there must be clear rules setting forth the conditions in which it can be violated. (Emphasis in last sentence added.)

In Evans, supra, Sopinka J., for the majority, reaffirmed the purpose of section 8 in the following words at page 16:

What then is the purpose of s. 8 of the Charter? Previous decisions of this Court make it clear that the fundamental objective of s. 8 is to preserve the privacy interests of individuals. As this Court stated in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 160, the objective of s. 8 of the Charter is “to protect individuals from unjustified state intrusions upon their privacy”. Clearly, it is only where a person’s reasonable expectations of privacy are somehow diminished by an investigatory technique that s. 8 of the Charter comes into play. As a result, not every form of examination conducted by the government will constitute a “search” for constitutional purposes. On the contrary, only where those state examinations constitute an intrusion upon some reasonable privacy interest of individuals does the government action in question constitute a “search” within the meaning of s. 8.

As was again confirmed in O’Connor, supra, “privacy can never be absolute” and that “[i]t must be balanced against legitimate societal needs”. Among those needs, as was recognized, for example, by La Forest J. in Dyment, supra, at page 430, is that of law enforcement. Moreover, whether the protection of section 8 applies depends on the particular context in which it is asserted: R. v. Plant, [1993] 3 S.C.R. 281; R. v. Jacques, [1996] 3 S.C.R. 312. Further, urgent or exigent circumstances may justify a warrantless search or seizure as, for example, with respect to narcotics: R. v. Grant, [1993] 3 S.C.R. 223; R. v. Dersch, [1993] 3 S.C.R. 768. See also R. v. Silveira, [1995] 2 S.C.R. 297.

With the foregoing in mind I now turn to the first issue.

Does section 8 protect information in the foreign bank records?

This raises the question of whether the section 8 guarantee extends to information contained in the foreign bank records here involved. The appellant begins his argument by pointing out that all of the Supreme Court decisions relied on by the Motions Judge concerned situations of either a search or a seizure in Canada by Canadian law enforcement authorities. While he does not dispute that Canadian law entitles an individual to a privacy interest in his or her bank records and that, if those records are in Canada, the interest is protected by section 8 of the Charter, he submits that the situation is different where, as here, the records are outside of Canada. Nothing in the language of the Charter, he argues, evinces an intention of its framers to extend its reach beyond this country’s borders. By requiring compliance with the Canadian standard for the issuance of a search warrant before the appellant conveyed the request to the Swiss authorities, the appellant submits, the Motions Judge gave the Charter extraterritorial application, thereby disregarding the decisions in Harrer, supra, and R. v. Terry, [1996] 2 S.C.R. 207.

Indeed, the appellant submits that Terry, supra, is dispositive of the issue under discussion. That case must, of course, be understood in its factual context and what it actually decided. Terry was charged with first degree murder in British Columbia. He fled to Santa Rosa, California, where he was taken into custody by the local police pursuant to an arrest warrant issued by a U.S. District Court in connection with a Canadian request for extradition. Upon learning of the arrest, an officer of the RCMP at Prince George, British Columbia, asked the Santa Rosa police to take down any statement Terry cared to make after advising him of his American rights. He was given a “Miranda warning”, after which he made a statement to the police. The statement was found to be admissible at trial and he was convicted. The conviction was upheld on appeal. At issue before the Supreme Court of Canada was whether the failure of the Santa Rosa police to inform Terry of a right to counsel at the time of his arrest constituted a breach of his paragraph 10(b) Charter rights. It was argued that the statement should be excluded under subsection 24(2) of the Charter because of the alleged breach of paragraph 10(b). In holding that there had been no breach of that paragraph, McLachlin J. stated at pages 216-217:

The general rule that a state’s criminal law applies only within its territory is particularly true of the legal procedures enacted to enforce it; the exercise of an enforcement jurisdiction is “inherently territorial”: D. P. O’Connell, International Law (2nd ed. 1970), vol. 2, at p. 603. As La Forest J. wrote in R. v. Harrer, [1995] 3 S.C.R. 562, at para. 15, “Canada cannot impose its procedural requirements in proceedings undertaken by other states in their own territories”.

The practice of cooperation between police of different countries does not make the law of one country applicable in the other country. Bilateral mutual legal assistance treaties negotiated under the authority of the Mutual Legal Assistance in Criminal Matters Act, R.S.C., 1985, c. 30 (4th Supp.), stipulate that the actions requested of the assisting state shall be undertaken in accordance with its own laws, not those of the requesting state: see, for example, the Treaty between the Government of Canada and the Government of the United States on Mutual Legal Assistance in Criminal Matters, Can. T.S. 1990 No. 19, Art. VII, s. 2. As Dilks J. noted in R. v. Filonov (1993), 82 C.C.C. (3d) 516 (Ont. Ct. (Gen. Div.)), at p. 520, “[t]he sovereign authority of Canada ends with the sending of the request” for assistance. Thus, if the Santa Rosa police in this case had been responding to a treaty request, they would not have been governed by the Charter.

Still less can the Charter govern the conduct of foreign police cooperating with Canadian police on an informal basis. The personal decision of a foreign officer or agency to assist the Canadian police cannot dilute the exclusivity of the foreign state’s sovereignty within its territory, where its law alone governs the process of enforcement. The gathering of evidence by these foreign officers or agency is subject to the rules of that country and none other. Consequently, any cooperative investigation involving law enforcement agencies of Canada and the United States will be governed by the laws of the jurisdiction in which the activity is undertaken: See Williams and Castel, Canadian Criminal Law: International and Transnational Aspects (1981), at p. 320.

It follows that the Charter did not apply to the California police when they detained the appellant. They were subject only to American law. Their conduct cannot amount to a breach of the Charter. No breach of the Charter being established, the statement cannot be ruled inadmissible under s. 24(2) of the Charter: R. v. Shafie (1989), 47 C.C.C. (3d) 27 (Ont. C.A.). [Emphasis added.]

It was also her view that there had been no “constructive” breach of a Charter right, and that it was not unfair to treat evidence gathered abroad differently than evidence gathered in Canada. Nor would a traveller abroad be left without a remedy where evidence was gathered in an abusive fashion. As she put it at pages 218-219:

The first answer to this argument is that s. 24(2) is not an independent source of Charter rights; it is merely a remedy for their breach. The argument amounts to a plea that this Court should, in the name of fairness, treat conduct which is not governed by the Charter as a “constructive” breach of the rights it protects. In short, we are asked to rewrite the Charter. That, in my view, is something this court cannot and should not do. The framers of the Charter must be taken to have been aware of the principle of international law which, as a general rule, precludes the application of domestic laws or procedural codes to a process of enforcement effected on foreign soil. It is not for this Court to so extend its ambit.

The second answer to this argument is that it is not in fact unfair to treat evidence gathered abroad differently from evidence gathered on Canadian soil. People should reasonably expect to be governed by the laws of the state in which they currently abide, not those of the state in which they formerly resided or continue to maintain a principal residence: Harrer, supra, at para. 50; Tolofson, supra. The appellant’s argument amounts to asserting that a Canadian traveller takes Canadian law with him or her, a proposition that is belied by the principle that within its territory, a state is exclusively competent to exercise an enforcement jurisdiction.

Nor does this leave the traveller abroad without a remedy for abuse in the course of foreign evidence-gathering. As this Court articulated in Harrer, supra, while s. 24(2) of the Charter may not be available in such a case, other provisions are. The Charter guarantees the accused a fair trial: s. 11(d). More generally, the Charter provides that the accused’s liberty cannot be limited except in accordance with the principles of fundamental justice: s. 7. To admit evidence gathered in an abusive fashion may well violate the principles of fundamental justice. For example, the common law confessions rule was extended in accordance with the principles of fundamental justice under s. 7 of the Charter in R. v. Hebert, [1990] 2 S.C.R. 151. The principle against self-incrimination has similarly been held to be one of the principles of fundamental justice under s. 7: R. v. S. (R.J.), [1995] 1 S.C.R. 451, per Iacobucci J. The accused may use these and other principles of fundamental justice to obtain redress for abuses abroad in gathering evidence subsequently tendered against him or her. [Emphasis added.]

Finally, McLachlin J. rejected the contention that policy reasons required the statement to be excluded when she stated, at pages 219-220:

I come finally to the appellant’s argument on policy. The appellant argues that unless foreign police are “obliged” to conform to the Charter, Canadian police will circumvent Charter guarantees by gathering evidence through foreign police bound by lower procedural standards. I cannot accept this submission. First, it is the decision of the suspect to go abroad that triggers the application of the foreign law. Thus the situation was not one that can be created or manipulated by the Canadian police in order to facilitate gathering evidence. Second, even if the Charter does not apply abroad, Canadian police have an incentive to encourage foreign police cooperating with them to observe high standards in order to avoid the possibility of having the evidence excluded or a stay entered on the ground that its use would violate the principles of fundamental justice or render the trial unfair. Finally, any attempt to bind foreign police by Canadian law would be impossible to regulate. Police are sworn to uphold the law of their own land, not someone else’s. Moreover, the concurrence of two sets of legal obligations applicable to the same police force might well produce confusion. The foreign police may be initially investigating a suspect at the request of the RCMP, but if they have reason to believe he or she has committed an offence in their country as well, which country’s procedural rules would they follow? How would a lawyer advise an accused about his or her rights? How could the accused make a sensible decision on what those rights are? The rules governing the gathering of evidence must be clear and simple, as well as fair. The general principle is that the law of the land in which one finds oneself governs the conduct of the enforcement process, supplemented, as fairness requires it, with the right to provide relief at trial. This affords the best chance of securing both clarity and fairness. [Emphasis added.]

In the earlier decision of Harrer, supra, respecting the admissibility at trial of a statement taken outside of Canada by foreign police, McLachlin J., concurring, stated at page 589:

Harrer, when in the United States, must be taken to bound by the law of the United States. Not only does the person outside Canada not enjoy the protections of the Charter, he or she must be taken to have accepted the procedures in place in the foreign jurisdiction, provided that they fall within the range of procedures generally accepted in free and democratic countries. Where the evidence has been obtained in conformity with the law of another country, concerns about unfairness are attenuated by the fact that the accused has submitted to the foreign jurisdiction and must be taken to have accepted the law of that jurisdiction. In Canada, every person has the right to expect that the authorities will comply with the Charter; outside Canada, their right is to be treated in accordance with the laws of the foreign country in question: Tolofson v. Jensen, [1994] 3 S.C.R. 1022, at p. 1049, per La Forest J. Travellers to foreign countries must observe the laws of that country, and must accept that it is the laws and procedures of that country which will govern their existence there. Travellers to foreign countries must also be taken to know that law officers in different countries cooperate with each other, that extradition treaties exist, and that evidence taken in one state may be used in another. When these circumstances are taken into account, the alleged unfairness of the way Harrer was treated disappears. [Emphasis added.]

La Forest J., for the majority, opined that the Charter had no application in the circumstance because the foreign police were not acting as agents for the Canadian authorities. He underlined, at page 570, that his remarks were not “to be interpreted as giving credence to the view that the ambit of the Charter is automatically limited to Canadian territory”.

The appellant places heavy reliance on the above-quoted passages from Terry, supra, and Harrer, supra, and particularly the portions that I have underlined, and contends that these cases have authoritatively determined the issue under discussion against the respondent because, like those, the present case involves the gathering of evidence in a foreign country by authorities of that country. I am not persuaded, however, that this is a correct appreciation of what was actually decided. The principal issue in those cases was whether paragraph 10(b) of the Charter was engaged by the taking of a statement or statements in a foreign country by foreign police. The Supreme Court determined that the Charter was not engaged in either case because the Charter had no extraterritorial application in the circumstances. Thus in Terry, supra, that the gathering of evidence in the United States from Terry for use against him in a criminal prosecution in Canada was the focus of that decision is indicated by some of the language employed by McLachlin J.: e.g. “the process of enforcement effected on foreign soil”; “evidence gathered abroad”; and “[t]he general principle … that the law of the land in which one finds oneself governs the conduct of the enforcement process”. These words of qualification should not be ignored. While in Terry, supra, the statement was taken by the foreign police at the behest of the RCMP in Canada, that fact does not appear to have formed the basis of any argument that the Charter was thereby engaged. In my view, therefore, neither Terry, supra, nor Harrer, supra, is conclusive of the issue under consideration. It thus becomes necessary to consider the second issue, namely whether the request constituted a “search” or “seizure” under section 8 of the Charter.

Is the request a “search” or “seizure”?

The appellant submits the request procedure adopted in this case did not amount to either a “search” or a “seizure” because there could never be in Canada a “search” or a “seizure” of the bank records or of the information contained therein by the Canadian authorities for the simple reason that these records are physically located in Switzerland. In any event, a “search” or “seizure” could not occur in that country until after the Swiss authorities had accepted the request, something they were not obliged to do. The mere making of the request, it is said, did not breach a section 8 right, and it is of no moment that, as the Motions Judge found, “Canada would not send a letter of request to an unfriendly, uncooperative state” and that “the Canadian officials knew that the Swiss authorities would seize the requested records”. In short, there was simply no “search” or “seizure” in Canada to which section 8 of the Charter could attach.

The Motions Judge did not deal explicitly with this issue in deciding that section 8 was engaged. What was significant to him was that the information sought by the Canadian authorities through the Swiss authorities would be used in a criminal prosecution of the respondent in Canada, and that the request was more than a “mere request”. As he put it, in making the request “the Canadian officials knew that the Swiss authorities would seize the requested records, subject, of course, to Swiss law”, and that “there was a reasonable expectation of its acceptance, and a likelihood of it being acted upon”. The respondent supports that view and adds that the request engages the Charter because it “set in motion” the search and seizure in Switzerland. The respondent further contends that the request was otherwise improper because it amounted to a “fishing expedition”. In my view, however, this begs the question of whether the request itself represented a “search” or “seizure”. The fact that the Swiss authorities could be expected to act on the request is surely not the same as saying that the request constituted a “search” or a “seizure” in Canada. In fact the Motions Judge himself understood the question before him as being [at page 941], “whether the standard required by section 8 of the Charter should apply to the letter of request procedure in Canada, prior to the search or seizure taking place”. (Emphasis added.)

The Supreme Court has provided some guidance of the reach of the words “search” and “seizure” in section 8. In Dyment, supra, La Forest J. stated, at page 431, that “the essence of a seizure under s. 8 is the taking of a thing from a person by a public authority without that person’s consent”, a position reiterated by him in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, at page 502. Essentially the same position was adopted both by Wilson J. and Sopinka J., at pages 493 and 610, respectively, who shared the view of Marceau J.A. in Zeigler v. Hunter, [1984] 2 F.C. 608(C.A.), at page 630, that a seizure is “the taking hold by a public authority of a thing belonging to a person against that person’s will”. See also R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627, per Wilson J., at page 641. These definitions must, of course, be understood with the purpose of the Charter, as discussed in Hunter, supra and in subsequent decisions of the Supreme Court, in mind. What is clear, as has been pointed out by S. C. Hutchison, J. C. Morton and M. P. Bury, Search and Seizure Law in Canada (Carswell: Scarborough, 1993), at page 2-5, is that “a governmental action amounts to a `search and seizure’ if the action violates the privacy of a person”. While the word “search” has not been defined in the case law with similar specificity it, as Evans, supra, illustrates, connotes some form of examination by governmental authorities. As well, a “search” for information depends on the existence of a reasonable expectation of privacy in that information: Plant, supra, per Sopinka J., at page 291 et seq. See also Dyment, supra, per La Forest J., at pages 429-430.

The importance of the request to the process that ended with the search or seizure of information in the foreign bank records cannot be denied. It may be inferred, indeed, that without it the Swiss authorities would not have acted as they did. They accepted the request and proceeded to search and seize as they had been requested to do. The making of the request did not, in my view, constitute either a search or a seizure of the bank records so as to engage the protection of the section 8 guarantee. It was the method chosen by the Canadian authorities to accomplish, if they could, a search or seizure of the records in Switzerland. The case affords another example of cooperation between law officers of different countries in investigating suspected criminal activity with an international dimension. While the request process ended with a search and seizure of the bank records in Switzerland, in my view it did not of itself in Canada constitute either.

The respondent quite properly points out that, as was stated by La Forest J. In Dyment, supra, at page 430, if the privacy interest of an individual is to be protected “against unreasonable search and seizure” it is “inherent in the notion of being secure” that we do not wait to vindicate that interest “only after it has been violated”. He argues from this that by preparing and sending the request to the Swiss authorities the Canadian authorities violated rights that are protected by section 8. It is of no moment, he contends, that the Canadian authorities did not in fact play any part in the actual search and seizure of his bank records in Switzerland and that the conduct of the Swiss authorities in doing so was governed entirely by Swiss laws. I am unable to agree. The decisions of the Supreme Court on section 8 beginning with Hunter, supra, have made it clear that the Charter is intended to constrain governmental action inconsistent with the rights and freedoms it enshrines. In that case, Dickson J. stated, at page 160, that the objective of section 8 is “to protect individuals from unjustified state intrusions upon their privacy”, a view which has been affirmed in subsequent decisions including most recently by La Forest J. in Colarusso, supra, at pages 52-53, and by Sopinka J. in Evans, supra, at page 16. The governmental action that is constrained by virtue of section 8 “is unreasonable search and seizure”. In my view, the sending of the request did no more than ask that a search and seizure of the respondent’s bank records be conducted in Switzerland by the Swiss authorities in accordance with the laws of that country. This is the only conduct that is challenged in this case. The fact that the Canadian authorities made the request and that they had a reasonable expectation the Swiss authorities would accept and act upon it did not, to my mind, convert the request into the type of governmental action that is proscribed by section 8. To conclude that section 8 is engaged because the Canadian authorities sent the request to Switzerland even though they could not and did not conduct any search and seizure there would be to contort the language of this important protection and to give it application where no governmental action of the kind envisaged by the section is involved. It would be wrong, in my view, to emphasize the word “secure” at the expense of the remaining language of section 8, when that section guarantees the right to be secure against “unreasonable search and seizure” by Canadian state actors. In the present case, as I understand the facts, the Canadian authorities neither possessed the ability to carry out a search or seizure in Switzerland nor requested that the Swiss authorities should do so as their agents.

This is not to suggest that any evidence gathered by the Swiss authorities in effectuating the request could be used automatically in any criminal prosecution of the respondent in Canada for, as Terry, supra, shows, any abuse in the course of gathering such evidence would afford a basis for excluding it if the abuse affected the fairness of the trial. Nor is it to suggest that, apart from the Charter, the Canadian standard for the issuance of a search warrant could not, theoretically, by some modification of the current practice, be made to apply to the request procedure in Canada. However, I cannot see how that possibility assists the respondent’s argument that, indeed, the Charter imposes adherence to that standard, which is the only issue this Court is called upon to address on this appeal.

In view of the foregoing conclusion, it is not necessary to canvass the third issue argued before us. Nor need I address an ultimate question that would have arisen if I had decided to dismiss the appeal, namely whether and on what terms the judgment of this Court should be suspended in order to allow time for the appellant to seek leave to appeal to the Supreme Court of Canada. An order of the Trial Division of August 15, 1996 [[1996] 3 F.C. 947 suspended the effects of the judgment pending the present appeal on various terms including the appellant’s request of the Swiss authorities that they “take no further action on the letter of request … related, inter alia , to the banking records” of the respondent.

DISPOSITION

I would allow the appeal with costs, set aside the judgment of the Trial Division and answer the question posed by the special case in the negative.

* * *

The following are the reasons for judgment rendered in English by

Linden J.A.: The question of law to be decided in this appeal, as agreed by the parties pursuant to Rule 475,[1] is as follows:

Was the Canadian standard for the issuance of a search warrant required to be satisfied before the Minister of Justice and Attorney General of Canada submitted the letter of request asking Swiss authorities to search for and seize the plaintiff’s banking documents and records?

On September 29, 1995, a letter of request was sent, on behalf of the Minister of Justice and the Attorney General of Canada, to the Competent Legal Authority of Switzerland (the Swiss authorities) requesting their assistance in the investigation of an alleged criminal offence under subsection 121(1) of the Criminal Code of Canada.[2] The facts provided to the Swiss authorities in the letter of request as the basis for the criminal investigation describe “an ongoing scheme by Mr. Mulroney, Mr. Moores, and Mr. Schreiber to defraud the Canadian government of millions of dollars of public funds from the time Mr. Mulroney took office in September, 1984 until he resigned in June, 1993”.[3] This alleged scheme involved the possible payment of funds to Mr. Moores and Mr. Mulroney in order to ensure that various lucrative Canadian contracts went to certain companies. The letter requested, among other things, that the Swiss authorities provide the Canadian government with all banking information available at the Schweizerischer Bankverein Zurich (the Swiss Banking Corporation) for Karlheinz Schreiber, Frank Moores, Brian Mulroney, International Aircraft Leasing and Kensington Anstalt. The letter further asked that “any business record obtained in response to this request be accompanied by a certification as described in order to meet the admissibility requirements of the Canada Evidence Act”.

In response to the letter of request, the Swiss authorities issued an order for the seizure of the requested documents, which are now in the possession of the Swiss Chief Federal Prosecutor, pending the outcome of this litigation. According to the agreed statement of facts prepared by the parties, “[p]rior to delivery of the Letter of Request no Search Warrant or other judicial authorization, supported by information on oath, had been obtained in Canada with respect to the seizure of the plaintiff’s Swiss banking documents and records”. In other words, because the proposed search was to be made abroad, the usual procedure for domestic searches, a system that complies with the Canadian Charter of Rights and Freedoms,[4] was not followed.

The plaintiff and respondent on this appeal, Karlheinz Schreiber, one of the individuals named in the letter of request, is a Canadian citizen who resides both in Canada and in Europe. He is also the owner of International Aircraft Leasing and Kensington Anstalt. Through his counsel, he contends that the constitutional guarantees contained in the Charter should cover the letter of request. Counsel for the Crown argues that, this being a request for a search to be done abroad, it is not regulated by the Charter, which applies only to searches done in Canada.

The Issues

The question before this Court requires an analysis of section 8 of the Charter, which constitutionalizes a minimum standard for government search and seizure. It states:

8. Everyone has the right to be secure against unreasonable search or seizure.

The Canadian standard for the issuance of a search warrant, as referred to in the question for adjudication, is based on the right “to be secure against unreasonable search or seizure”. The standard was set by Dickson J., as he then was, in Hunter et al. v. Southam Inc. as “reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search”.[5] Whether this standard applies to the letter of request depends on two central issues: first, would the application of the Charter to a request for assistance from another country mean that impermissible extraterritorial effect would be given to the Charter; and, second, would the letter of request interfere with the respondent’s right to security from unreasonable search and seizure?

Whether the search or seizure proposed to be conducted by the government would in fact satisfy the Canadian standard for the issuance of a search warrant is not an issue before this Court. The question on appeal asks only whether the Canadian standard for the issuance of a search warrant was “required to be satisfied” and the appellant has deliberately led no evidence regarding whether “reasonable grounds” existed for the sending of the letter of request. The conduct of the Swiss authorities in responding to the letter of request is also not at issue in this appeal. It is agreed by the parties that “the applicability and validity of the law under which the Swiss authorities acted is not relevant to the determination of this question”. The action of the Canadian officials in sending the letter of request is the only conduct under scrutiny in this case.

At the time the letter of request was sent, no treaty governing the use of international requests for mutual assistance was in place between Canada and Switzerland.[6]

Where no mutual assistance treaty is in force, international law indicates that letters of request are the recognized mode of communication and co-operation between states. D. D. Spinellis describes the international procedures which are usually followed in the sending of such letters:[7]

The object of the request is to have the requested evidence collected. The reasons for the request are the circumstances for which the taking of evidence in the territory of the requested state is necessary. It should be noted that before requesting such judicial assistance, the requesting authority must have adequate suspicion with respect to the offense and the person concerned. The act requested should be aimed toward corroborating a suspicion against an identified offender with regard to clearly described circumstances. The request should be based on certain already existing evidence and not used as a means for deciding whether any grounds for suspicion exist or whether pieces of evidence exist.

It will be noted that “suspicion” is a sufficient basis for these international requests. While these principles govern the international recognition of the letter of request, they do not shed any light on the internal procedures or standards to be applied by the requesting state. Hence, our difficulty.

On November 17, 1995, several weeks after the letter of request was sent to the Swiss authorities according to international custom, the Treaty between Canada and the Swiss Confederation on Mutual Assistance in Criminal Matters[8] came into force. Article 1 of the Treaty establishes a reciprocal obligation to provide mutual assistance on a broad range of measures relevant to the investigation and prosecution of criminal offences, as listed in Article 1(3), including the taking of testimony or other statements and producing documents and records. Most importantly, Article 5 provides that “[a] request shall be executed in accordance with the law of the Requested State”.

The regulation of international requests for assistance by treaties such as the one which now exists between Canada and Switzerland places certain obligations on the parties to the treaty. In Canada, these treaty obligations are carried out according to the Mutual Legal Assistance in Criminal Matters Act,[9] which has been in force in Canada since October 1, 1988. Subsection 11(2) of the Act provides that, once the request of a foreign state for a search or seizure has been approved by the Minister of Justice, a competent authority in Canada must “apply ex parte for a search warrant to a judge of the province in which the competent authority believes that the evidence of the commission of the offence may be found”. Section 12 of the Act states that the search warrant may be granted where statements under oath establish that there are reasonable and probable grounds to believe that “an offence has been committed with respect to which the foreign state has jurisdiction” and evidence or information about the offence “will be found in a building, receptacle or place in the province”.

As a result, persons being investigated by a foreign state which seeks assistance from Canadian authorities will have the full benefit of the Canadian standard for the issuance of a search warrant. However, neither the Treaty nor the Act address the exact issue before this Court, that is, whether Canadian officials should be held to the Canadian standard when initiating searches abroad.

Decision of the Motions Judge

The Motions Judge, Wetston J., answered the question for adjudication in the affirmative. He found first that section 8 of the Charter did apply to the request for banking information located in Switzerland and, second, that the letter of request initiated a seizure which implicated the respondent’s reasonable expectation of privacy. He distinguished this case from R. v. Terry[10] and R. v. Harrer,[11] cases in which the Supreme Court has affirmed the well-recognized principle that the Charter can only extend as far as Canadian territorial limits, on the ground that the application of the Charter in this case would not be extraterritorial. The Motions Judge reasoned that [at page 941], in this case “the plaintiff is not seeking the application of the Charter to foreign law, or to the direct activities of the Swiss government in carrying out its decision to search and seize the bank records in question”. The plaintiff [at pages 941-942] “is the subject of a Canadian criminal investigation by Canadian authorities, and the information sought to be obtained may be used in a criminal prosecution in Canada, pursuant to the Canadian Criminal Code”.

Recognizing that individual privacy is at the heart of section 8 protection, the Motions Judge found that, although the bank accounts over which the plaintiff asserted a privacy interest were located in Switzerland, that interest was jeopardized by the letter of request which was initiated in Canada. He stated [at pages 943-944]:

I am not suggesting that Charter protection travels with the plaintiff; rather, the application of section 8 is an inescapable product of the government’s enforcement activity within Canada. As such, I do not agree that, in this case, the location of the search or seizure is determinative of the question of the application of section 8 of the Charter.

On the issue of whether the letter of request engaged section 8 protection, the Motions Judge took judicial notice of the fact that a letter of request sent to a friendly and cooperative state was [at page 943] “not simply a request”. Instead, “there was a reasonable expectation of its acceptance, and a likelihood of it being acted upon”. Despite finding that a procedure for obtaining prior authorization of such a letter may not currently exist in Canadian law, the Motions Judge adopted the rationale that prior authorization of all lawful searches or seizures is necessary to ensure impartial balancing of the privacy interests of the individual with the law enforcement interests of government.

I am in substantial agreement with the reasons of the Motions Judge. They capture the unfairness which is felt when it is said that the constitutional requirements for a valid search or seizure against a Canadian need not be complied with merely because it is to be executed abroad. The interference with a person’s security from unreasonable search and seizure is not any less when the physical search is done by the Swiss authorities. Consequently, in my view, the protection afforded by the Charter to Canadian citizens against their government should be the same whether the search is undertaken at home or abroad, although certainly other governments cannot be bound by our Charter.

Analysis

The language of section 8 itself provides very little guidance on the purpose and scope of the right to be protected from unreasonable search and seizure. The approach to be taken in applying this constitutional guarantee was provided by Dickson J. in Hunter, which is the starting point for an analysis of the question on appeal. The issue in Hunter was whether a provision of the Combines Investigation Act,[12] which granted broad powers of search and seizure to the Director of Investigation and Research and his representatives in the course of conducting an inquiry, was consistent with section 8 of the Charter. Dickson J. endorsed a purposive approach to section 8 which requires that the constitutionality of a search or seizure be measured according to “its `reasonable’ or `unreasonable’ impact on the subject of the search or the seizure, and not simply on its rationality in furthering some valid government objective”.[13] Furthermore, it requires that measurement of the impact be made in relation to the purpose of the guarantee or, in other words, “the interests it is meant to protect”.[14] The purpose of section 8 was identified by Dickson J. as the protection of individuals “from unjustified state intrusions upon their privacy”.[15]

Following Hunter, La Forest J. elaborated upon the relationship between privacy, the individual and democratic society in R. v. Dyment:[16]

Grounded in man’s physical and moral autonomy, privacy is essential for the well-being of the individual. For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order. The restraints imposed on government to pry into the lives of the citizen go to the essence of the democratic state.

In the light of its critical role, La Forest J. reiterated in Dyment that:[17]

[The right to be secure against unreasonable search or seizure] … must be interpreted in a broad and liberal manner so as to secure the citizen’s right to a reasonable expectation of privacy against governmental encroachments. Its spirit must not be constrained by narrow legalistic classifications based on notions of property and the like which served to protect this fundamental human value in earlier times.

The importance of giving full effect to section 8 protection is strongest in the course of a criminal investigation, such as is ongoing in this case. The rationale for strong protection in the criminal law context was most eloquently articulated by La Forest J. in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission) when he stated:[18]

For reasons that go to the very core of our legal tradition, it is generally accepted that the citizen has a very high expectation of privacy in respect of such investigations. The suspicion cast on persons who are made the subject of a criminal investigation can seriously, and perhaps permanently, lower their standing in the community. This alone would entitle the citizen to expect that his or her privacy would be invaded only when the state has shown that it has serious grounds to suspect guilt. This expectation is strengthened by virtue of the central position of the presumption of innocence in our criminal law. The stigma inherent in a criminal investigation requires that those who are innocent of wrongdoing be protected against overzealous or reckless use of the powers of search and seizure by those responsible for the enforcement of the criminal law.

The right to privacy is not, however, absolute. Section 8 protects the individual only where the state is engaged in an “unjustified” intrusion on the expectation of privacy. Whether an intrusion is “unjustified” requires an assessment of “whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement”.[19] This assessment is to be carried out, according to Dickson J., by means of a system of prior authorization of searches and seizures which prevents unjustified searches before they occur and which, conversely, only allows the breach of an individual’s privacy where a standard of reasonable and probable grounds, impartially arrived at, has been met.[20]

A requirement of prior authorization, usually in the form of a valid warrant, has been a consistent prerequisite for a valid search and seizure both at common law and under most statutes. Such a requirement puts the onus on the state to demonstrate the superiority of its interest to that of the individual. As such it accords with the apparent intention of the Charter to prefer, where feasible, the right of the individual to be free from state interference to the interests of the state in advancing its purposes through such interference.

The function of prior authorization is to be performed, according to Dickson J., by a person who is “at a minimum capable of acting judicially”.[21] This requirement of prior authorization creates something like a constitutional presumption against the reasonableness of a warrantless search, and is the linchpin of the section 8 guarantee.[22]

The privacy interest must be protected even before its actual physical invasion. As La Forest J. wrote in Dyment: “if the privacy of the individual is to be protected, we cannot afford to wait to vindicate it only after it has been violated. This is inherent in the notion of being secure against unreasonable searches and seizures”.[23] L’Heureux- Dubé J. echoed this logic more recently in R. v. O’Connor when she stated that “[t]he essence of privacy … is that once it is invaded, it can seldom be regained. For this reason, it is all the more important for reasonable expectations of privacy to be protected at the point of disclosure”.[24]

The message in these statements is clear: the right to privacy is protected in advance of any physical search, that is, as soon as any government action threatens the security of the individual’s privacy interest. The occasions for such challenges before an actual search, however, are rare because search warrants are usually obtained ex parte, something that is necessary for their effectiveness. Similarly, letters of request are sent in confidence and are rarely made public until after the physical search or seizure is made. This does not mean, however, that a physical search must be executed before the authorizing instrument can be challenged; such a legal challenge may be undertaken before or after a physical search has been executed.

(a)       The Territorial Scope of Section 8

The effect of the letter of request upon the respondent’s reasonable expectation of privacy cannot be addressed until the territorial scope of the Charter is considered.

While it has not yet dealt specifically with the precise issue on appeal in this case, the Supreme Court has considered the territorial scope of the Charter in numerous contexts. In Terry, it was said that there is a “settled rule that a state is only competent to enforce its laws within its own territorial boundaries”.[25] The facts of Terry were that the appellant was charged with first degree murder in Canada and then fled to the U.S. He was arrested in California pursuant to a U.S. warrant following a Canadian request for extradition. After the arrest, the California police notified the RCMP, who asked them to take down any statement that Terry might make. It was not until this point that the California police gave Terry a “Miranda warning” and took a statement from him.[26]

This statement was admitted as evidence at the trial. The issue before the Supreme Court was whether the statement should have been excluded under subsection 24(2) of the Charter because of the failure of the California police to advise Terry of his right to counsel at the moment of his arrest in violation of paragraph 10(b) of the Charter.

McLachlin J., writing for the Court, found that the statement was admissible because the actions of the California police could not result in a breach of the Charter. To exclude the statement taken by the California police under subsection 24(2) would allow the Charter to “govern the conduct of foreign police cooperating with Canadian police on an informal basis”.[27] McLachlin J. elaborated further on this point:[28]

The personal decision of a foreign officer or agency to assist the Canadian police cannot dilute the exclusivity of the foreign state’s sovereignty within its territory, where its law alone governs the process of enforcement. The gathering of evidence by these foreign officers or agency is subject to the rules of that country and none other.

The application of the Charter to the conduct of American authorities who took a statement from an individual arrested in the U.S. would make the California police subject to the Charter, a clearly problematic result.

Harrer is a case which also involved the use of a statement made to the police in the U.S. for criminal prosecution in Canada. Again, the Supreme Court found that the Charter could not be applied to exclude the interrogation by U.S. officials. Harrer was arrested by immigration authorities in the U.S. who had reason to believe that she was illegally in the country due to an assault conviction in Canada. The immigration authorities who arrested Harrer were accompanied by the U.S. police, who suspected that Harrer had assisted her boyfriend in escaping custody in Canada, where he was awaiting extradition to the U.S. for drug charges. When Harrer was arrested, she was read a “Miranda warning” and informed that she was wanted for questioning in connection with her boyfriend’s escape from custody. Following the receipt of information from the RCMP regarding Harrer’s participation in the escape, the interrogation shifted to this subject, but Harrer did not receive a second warning as would be required by Canadian law. The information obtained during this interrogation was eventually used by the Canadian government against Harrer in order to try her for assisting in the escape. The issue for the Supreme Court was whether the interrogation violated paragraph 10(b) of the Charter and, consequently, whether it should have been excluded under subsection 24(2).

La Forest J. found that the Charter could not apply where the acts complained of were entirely those of the United States police and immigration officials. In support, he stated:[29]

What I think is determinative against the argument that the Charter applied to the interrogation in the present case is the simple fact that the United States immigration officials and the Marshals were not acting on behalf of any of the governments of Canada, the provinces or the territories, the state actors to which, by virtue of s. 32(1) the application of the Charter is confined…. It follows that the Charter simply has no direct application to the interrogations in the United States because the governments mentioned in s. 32(1) were not implicated in these activities.

La Forest J. also found that admission of the evidence would not be contrary to the protection of liberty in accordance with the principles of fundamental justice under section 7 of the Charter or contrary to the guarantee of a fair trial under paragraph 11(d) of the Charter.

The appellant relies heavily on these two cases in order to argue that the Charter cannot apply to the letter of request in this case because it initiated a search and seizure which was carried out in Switzerland and so should be governed by the laws of that state alone. Essentially, the appellant submits that, by banking in Switzerland, the respondent gave up the protection of the Charter. In contrast, the respondent contends that both Terry and Harrer are cases involving paragraph 10(b), which, because it provides protection to “[e]veryone … on arrest or detention”, addresses a narrower class of individuals than section 8, which protects “[e]veryone”. Second, the respondent argues that the case at bar cannot result in the extra-territorial application of the Charter, as would have occurred in Terry or Harrer, because the respondent is not attempting to have the Canadian courts review the conduct of the Swiss authorities. Instead, the respondent seeks only to apply the Charter to the conduct of the Canadian government in initiating a criminal investigation leading to a search and seizure of evidence abroad.

I am in agreement with the Motions Judge that, because the respondent is not seeking to apply the Charter to the activities of the Swiss government [at page 941], “[t]he application of the Charter clearly stops at the water’s edge”. This is consistent with the principles set out in Terry and Harrer. Subject to certain exceptions, it is clear that the Charter cannot be enforced against foreign governments, only our own. The statements which were sought to be excluded in Terry and Harrer resulted from the conduct of American authorities in the course of carrying out their duties under American law and according to American procedural standards. The respondent in this case, however, does not challenge the principle of Terry and Harrer; rather it is argued that the factual situations are different.

In Terry, the issue raised was “whether the failure of police officers in another country to conform to the requirements of the Canadian Charter of Rights and Freedoms renders the evidence thus gathered inadmissible in a trial in Canada”.[30] The crux of the respondent’s complaint here, however, is whether the conduct of Canadian officials in this country conformed with the requirements of the Charter. There is nothing in the application of section 8 to the letter of request which would impose a Canadian legal requirement on the Swiss authorities responding to the letter of request so as to fetter their sovereign authority, something international law does not allow.

In Harrer, La Forest J. made clear at the outset that “in questioning the appellant the United States Immigration agents and the American Marshal were carrying out their respective duties under the immigration laws of their country and in relation to the offences of which Hagerman was charged in that country”.[31] When questioning shifted to Harrer’s participation in Hagerman’s escape, La Forest J. explained that the American official “not unnaturally, simply acted in accordance with American law”.[32] Again, the contrast is clear. The government action complained of in Harrer occurred as a result of the conduct of American authorities acting on American soil, whereas the action complained of by the respondent in this case was that of Canadian officials done in Canada.

Subsection 32(1) states that the Charter applies “to the Parliament and government of Canada in respect of all matters within the authority of Parliament”. In R. v. Filonov, Dilks J. stated that “[t]he Charter deals … with the relationship between Parliament and the legislatures on the one hand and the people under the sovereign authority of those bodies on the other”.[33] For this reason, he found that section 8 of the Charter could not apply to a search conducted by American authorities pursuant to an American search warrant, following a request by Canada under its Mutual Legal Assistance Treaty with the United States. What is being challenged in this case, however, is the conduct of Canadian officials in Canada, that is, the preparation and signing of the letter of request.

A further distinction lies in the fact that both Terry and Harrer sought the protection of paragraph 10(b) of the Charter, which ensures that “[e]veryone” is to be informed of the right to retain and instruct counsel “[upon] arrest or detention”. In both cases, however, the arrest or detention occurred at the hands of American authorities in the U.S. The flaw in this argument was aptly described by McLachlin J. in Harrer as follows:[34]

Harrer attempts to circumvent the domestic limits of the Charter by arguing that the s. 10(b) breach occurs when the evidence was tendered at trial. The trial judge, she argues, was not applying s. 10(b) of the Charter to the events that occurred in the United States, but rather applying it in Canada to evaluate those events. I cannot accept this argument. The right to counsel is given “on arrest or detention”. The right therefore appertains to the time of arrest or detention, and not to the time at which evidence is admitted at trial.

In this case, there is no such error in the respondent’s logic. His security against unreasonable search and seizure was said to be threatened when the letter of request was sent by Canadian officials.

The case law on extradition from Canada further underscores the difference between what is being sought by the respondent in this case and the extra-territorial application of the Charter which the Supreme Court has consistently resisted. In Canada v. Schmidt,[35] a Canadian citizen was to be extradited to the United States on an Ohio charge of child stealing after she had been acquitted of kidnapping for the same offence under U.S. federal law. She sought the protection of section 7 and paragraph 11(h) of the Charter, which protects persons from being tried for the same crime twice. La Forest J. rejected this argument on the following grounds:[36]

There can be no doubt that the actions undertaken by the Government of Canada in extradition as in other matters are subject to scrutiny under the Charter (s. 32). Equally, though, there cannot be any doubt that the Charter does not govern the actions of a foreign country….

These propositions must, I think, be kept firmly in mind in examining the right protected by s. 11(h). The right is that of a person charged with an offence not to be tried for the offence again if he or she has already been finally acquitted of the offence. The Government of Canada, to which the Charter applies, is not trying the fugitive.

As with Terry and Harrer, it is the action taken by the foreign government which was being attacked in Schmidt. The argument made in Kindler v. Canada (Minister of Justice),[37] that section 7 of the Charter should apply in order to protect a convicted murderer who was to be extradited to the U.S. to face the death penalty, is similar. Again, the action complained of, the imposition of the death penalty in the United States following a conviction for murder, “does not result from any initiative taken by the Canadian Government”.[38]

American jurisprudence on the application of the U.S. Constitution’s Fourth Amendment to foreign searches is similar to ours.[39] LaFave and Israel state in their text on American criminal procedure that “[i]f the police of a foreign country, acting to enforce their own law and without instigation by American officials, conduct a search which would not meet the requirements of the Fourth Amendment if conducted in this country, and the fruits are later offered into evidence here, the evidence is not subject to suppression on constitutional grounds”.[40] In Brulay v. U.S.,[41] the Court held that amphetamine tablets found by Mexican border officials who arrested Brulay and searched his car without a search warrant were admissible. The Mexican officials had been notified by American authorities that Brulay was carrying on such activities, but neither the arrest nor the search were instigated by them. The Court refused to exclude the evidence according to the law against unreasonable search and seizure on the ground that American authorities had not been in any way involved in the search and seizure, which took place in Mexico. It further reasoned that the exclusionary rule is “a court-created prophylaxis designed to deter federal officers from violating the Fourth Amendment …. no prophylactic purpose is served by applying an exclusionary rule here since what we do will not alter the search policies of the sovereign Nation of Mexico”.[42] The basis for the exclusion of evidence, according to this leading American case, is whether its exclusion will deter unconstitutional conduct by American authorities in the future. The position of the respondent can be recast according to this rationale: although nothing can be gained from applying the Charter to the conduct of Swiss authorities, requiring Canadian authorities to comply with the Canadian standard for the issuance of a search warrant when sending a letter of request to foreign authorities would prevent unjustified invasions of privacy by Canadian authorities in the future.

The necessity of measuring requests for international assistance according to domestic standards has been affirmed on similar logic by a United States District Court in Colello v. U.S. S.E.C.[43] The Court found that a request by the American Securities and Exchange Commission (SEC) pursuant to a mutual assistance treaty and resulting in a Swiss asset freeze was an “unreasonable search and seizure” contrary to the Fourth Amendment because it did not satisfy the American standard of “probable cause”.[44] In imposing the higher “probable cause” requirement, the Court rejected the argument that the plaintiffs had willingly “assumed the risk” of a lower standard of protection in placing their money in a foreign country, and that the public interest in prosecuting international crime justified a lower standard. The Court adopted a particularly colourful statement of the United States Supreme Court that, “[w]hen the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land”.[45] In essence, the Court in Colello found that the SEC could not use the procedures established by the Treaty in order to immunize their own participation in the Swiss asset freeze from the Fourth Amendment right to be free from unreasonable seizures. While the Colello case differs to the extent that the request occurred pursuant to a treaty, the broader point applies. A government cannot use the need for international assistance as an excuse to justify its own constitutionally impermissible conduct.[46]

The “deterrence” rationale explained in Brulay and used by the Court in Colello is a helpful tool for explaining the intersection of domestic rights protection with the increasing need for international cooperation in the investigation and prosecution of crime. Section 8 of the Charter ought to be applied when it can help to deter future unconstitutional conduct by Canadian officials, even if the conduct of those officials triggers the assistance of a foreign state. Recent attempts by the Canadian legislature and courts to find a balance between the continued enforcement of individual rights and the limits of state jurisdiction are consistent with this rationale. First, the Mutual Legal Assistance in Criminal Matters Act, as explained earlier, requires that any foreign requests executed in Canada must comply with the Canadian requirements for lawful search and seizure.[47]⁴⁷ Although Canada cannot impose its own procedural standards on other states, it can ensure that the right to a reasonable expectation of privacy is protected when a search is instigated by Canadian officials, whether at home or abroad.

Second, there is increasing recognition, in special circumstances, that the Charter may be applied outside of Canada. In Harrer, La Forest J. cautioned against concluding that “the ambit of the Charter is automatically limited to Canadian territory”.[48] He postulated that “the automatic exclusion of Charter application outside Canada might unduly restrict the protection Canadians have a right to expect against the interference with their rights by our governments or their agents”.[49] La Forest J. described an interrogation by Canadian police about a Canadian offence which takes place in the United States and an interrogation by U.S. officials acting as agents of the Canadian police as examples of situations in which this rule might not apply. McLachlin J. also referred to the existence of “exceptions” to this rule against extra-territorial application of the Charter in Terry:[50]

The principle that a state’s law applies only within its boundaries is not absolute: The Case of the SS. “Lotus” (1927), P.C.I.J. Ser. A., No. 10, at p. 20. States may invoke a jurisdiction to prescribe offences committed elsewhere to deal with special problems, such as those provisions of the Criminal Code , R.S.C., 1985, c. C-46, pertaining to offences on aircraft (s. 7(1), (2)) and war crimes and other crimes against humanity (s. 7(3.71)). A state may likewise formally consent to permit Canada and other states to enforce their laws within its territory for limited purposes.

Most recently, the British Columbia Court of Appeal, relying on La Forest J.’s comments in Harrer, has found that a statement obtained by Canadian police in the U.S. for use in the prosecution of a Canadian offence should be subject to paragraph 10(b) of the Charter.[51] The Court used reasoning which was similar to the “deterrence” rationale in Brulay:[52]

There is an expectation within our criminal justice system that statements from persons accused of a crime will be obtained by Canadian police authorities fairly, without abuse, in accordance with Canadian legal precepts of “voluntariness” and in accordance with the rights set forth in s. 10(b) of the Charter. That expectation should prevail whether the statement is obtained by Canadian police authorities within this country or abroad. To preclude the operation of the Charter to statements obtained by Canadian police authorities on foreign soil would encourage the proliferation of unacceptable police procedures.

These examples demonstrate that the settled rule regarding extra-territorial application of the Charter is being refined to better reflect the underlying purposes of the Charter. The aim of the Charter is to regulate the conduct of our government in its dealings with individuals by ensuring that it complies with certain basic liberal democratic values. Hence, in this context, where the Charter can prevent unjustified intrusions upon individual privacy, it should be applied, unless to do so would interfere with the sovereign authority of another state.

(b) Is the respondent’s security against unreasonable search and seizure infringed by the letter of request?

In order for the letter of request to engage section 8, it must be a government action which interferes with the individual’s security against unreasonable search and seizure. Section 8 does not merely penalize or forbid unreasonable searches and seizures; it prohibits interference with one’s security against unreasonable searches and seizures. This is clearly a broader protection than a mere bar against unreasonable search and seizure, in that there is a possible prophylactic aspect to the protection. The Supreme Court has taught us that we cannot wait to vindicate the right to privacy until after it has been violated and that it must be protected at the point of disclosure.[53] The question to be asked, therefore, is not whether a letter of request is a “search”. To answer that question positively would require us to employ a very broad meaning of the word. Rather, the question to be asked is whether the letter of request jeopardizes the respondent’s reasonable expectation of privacy, his security against unreasonable search and seizure. Such an approach allows the Court to identify the letter of request which triggered the collection of evidence in Switzerland as a source of jeopardy to the respondent’s privacy interest without having to characterize it as a “search”. I shall analyze this further.

The appellant argues that the letter of request did not interfere with the respondent’s privacy interest because it could not compel Swiss authorities to execute a search and seizure of the requested evidence. Without legal force, it is submitted, the letter of request could not threaten the reasonable expectation of privacy which is the trigger for section 8 protection. The search and seizure did not begin, according to the appellant, until Swiss authorities, acting under their own law, elected to respond to the request and execute the search. The respondent asserts that this position artificially distinguishes between a request, which would in all probability be acted upon, and the physical seizure of the information, which is counter to the spirit of Hunter which seeks to reduce unjustified intrusions on the privacy of individuals.

The Motions Judge was convinced that the respondent’s security from unreasonable search and seizure had been affected by the reasonable expectation that the request would be acted upon by Swiss authorities. I agree with the Motions Judge. First, a reasonable expectation of privacy existed in the information sought. The appellant concedes that there is a privacy interest in banking records in Canada, but argues that the privacy interest cannot be maintained when an individual chooses to bank outside of Canada. This logic ignores the fundamental shift which has occurred in the law of search and seizure and which is best articulated in the oft-cited statement of Stewart J. that the U.S. Constitution’s guarantee against unreasonable search and seizure “protects people, not places”.[54] Dickson J. explicitly adopted this philosophy in Hunter, stating that it was “equally appropriate in construing the protections in s. 8 of the Charter of Rights and Freedoms”.[55] So too, Justice La Forest reiterated in R. v. Colarusso that “what is protected by s. 8 is people, not places or things” and it must be “purposively applied”.[56] Therefore, an approach to protection against unreasonable search and seizure which focuses on the impact of the search or seizure on the individual cannot be reconciled with the position that a person may have a privacy interest in banking information in Canada but not in Switzerland. The impact of the government action on the privacy interest of individuals, the “people”, is the same in each case, though the places may be different.

The inclusion of informational privacy within the scope of section 8 has been addressed on numerous occasions by the Supreme Court. In Dyment, La Forest J. stated:[57]

In modern society, especially, retention of information about oneself is extremely important. We may, for one reason or another, wish or be compelled to reveal such information, but situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected.

Sopinka J. also commented on the privacy interest engaged by information about oneself in R. v. Plant:[58]

In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual.

Certainly, not all information about a person will fit within the “biographical core” referred to by Sopinka J. The factors relevant to such a determination include the nature of the information itself, the nature of the relationship between the party releasing the information and the party claiming its confidentiality, the place where the information was obtained, the manner in which it was obtained, and the seriousness of the crime being investigated.[59] The letter of request which is at issue on this appeal sought any and all details which existed at the Schweizerischer Bankverein in connection with the respondent. Specifically, it requested that the Swiss authorities:

Provide all banking information available at the Schweizerischer Bankverein Zurich, 6 Paradeplatz, Zurich, for any accounts in the names of Karlheinz SCHREIBER, Frank MOORES, Brian MULRONEY, International Aircraft Leasing and Kensington Anstalt, or which they hold power of attorney, or in which they are the beneficial owners, in particular account numbers 18679 (Mr. SCHREIBER), 34107 & 34117 both believed to be registered to Mr. MOORES. We require copies of the signature cards and other forms used to open the accounts, transaction records including deposit slips, cheques, drafts, transfer forms etc. showing the flow of funds through the accounts, and all general correspondence between the clients (Mr. MULRONEY, Mr. MOORES, and Mr. SCHREIBER) and the bank, for the period of September 4, 1984 to present. The account managers for these accounts are believed to be Andre STROBEL and Paul SCHNEIDER.

In Plant, Sopinka J. found that computerized electricity records maintained by a utility commission did not fit within the “core” of protected information primarily because they were collected in the context of a commercial relationship which did not involve confidential communications. Instead, the information was available to the police through a computer data bank. The information was also available, upon request, to members of the public wishing to find out about energy consumption at a particular address.

In contrast, the bank records sought in the letter of request, unlike electricity consumption records, reveal important and personal details about an individual. The heightened privacy interest in banking records was described by Puddester J. in R. v. Eddy (T.) as a “substantially greater expectation of privacy relating to the records of an individual’s personal financial position, and the pattern of the individual’s operating on his or her bank account”.[60] Puddester J. found in that case that warrantless inquiries by the police at a bank regarding the identity of a bankbook holder and about a major transaction which took place on that account did interfere with a reasonable expectation of privacy. In part because of this privacy interest, the relationship between a customer and his or her bank is characterized at common law by a duty of confidentiality and secrecy.[61] This duty was also discussed by McCombs J. in R. v. Lillico:[62]

… the bank … has an obligation to keep the information confidential. It is an implied term of the contract between a bank and its customer that the bank will not divulge information about the state of the customer’s account or any of the transactions, or any information relating to the customer acquired through the keeping of the account, unless the bank is either compelled by a court order to do it, or the circumstances give rise to a public duty of disclosure: see Tournier v. National Provincial and Union Bank of England, [1924] 1 K.B. 461 (C.A.).

A bank is not at liberty to freely disclose information about its customers’ accounts and bank activity to members of the public or the police. The information cannot be obtained by any member of the public wishing to find out more about the banking affairs of the respondent. McCombs J. ultimately declined, in Lillico, to apply section 8 to a warrantless inquiry which determined that a cheque had been deposited into a particular account and that there had been significant account activity afterwards. The inquiry contained in the letter of request is distinguishable, however, because it was extremely broad-reaching and, essentially, directed the Swiss authorities to provide the Canadian government with a complete picture of the banking affairs of the respondent. The nature of the relationship in this case points to the existence of a reasonable expectation of privacy.

The manner in which the requested information must be obtained further suggests that the respondent held a reasonable expectation of privacy in his Swiss banking records. This criteria has been explained as follows: “if the information is readily available to the police without invoking the assistance of a third party for the particular query, it will be less readily characterized as an invasion of the subject’s reasonable expectation of privacy”.[63] In Plant, the records on electricity consumption were directly available to the police. In this case, however, the information could not be obtained without the assistance of Swiss authorities who, according to the agreed statement of facts, “issued an Order for the seizure of documents and records relating to the [respondent]’s aforesaid accounts”. In light of these indicia, the fact that the information is located in Switzerland instead of Canada does nothing to diminish the reasonable expectation of privacy to which these factors point.

The last factor enumerated in Plant is the seriousness of the crime under investigation. The implications of this fact have been discussed in light of the purpose of section 8 protection:[64]

Of the factors identified by the Court for consideration in this analysis, this one is difficult to reconcile with other elements of the s. 8 privacy analysis. Those cases had suggested that an expectation of privacy was not dependent on the police position relative to the information being sought. Whether the subject was entitled to expect privacy should not ordinarily be determined by the reasons motivating the police interest in the information in question. This factor might well be highly relevant to a consideration of whether the search was reasonable when considered in its context, and might be a powerful factor in s. 24(2) analysis, but it does not fit cleanly into a consideration of whether the individual has a reasonable expectation of privacy.

I find this criticism persuasive and therefore decline, at this point, to comment on the seriousness of the crime being investigated.

Having established that the location of the information outside the country does not diminish the respondent’s reasonable expectation of privacy, I turn now to a consideration of how sending the letter of request is a government action which threatens an individual’s security against unreasonable search and seizure. The constitutionality of a state-sanctioned search and seizure is only partially determined by the manner in which it is executed. The initiation and authorization process is equally important to the determination of constitutionality. To limit the protection of section 8 of the Charter to the physical execution of searches or seizures would seriously undermine its effectiveness in protecting the privacy interests of individuals from unjustifiable or unreasonable intrusions by the state.

Hunter v. Southam is a case in which the focus was on the adequacy of the legislation authorizing searches in certain situations, and is illustrative of this point:[65]

… the issue in this appeal concerns the constitutional validity of a statute authorizing a search and seizure. It does not concern the reasonableness or otherwise of the manner in which the appellants carried out their statutory authority. It is not the conduct of the appellants, but rather the legislation under which they acted, to which attention must be directed.

On the facts in Hunter, Dickson J. held that the provision of the statute authorizing certain broad-ranging searches was inconsistent with section 8 of the Charter. He did this on the basis that the authorization did not have to be granted by an impartial and judicial arbiter and because authorization did not depend on evidence of reasonable and probable grounds, established upon oath, to believe that an offence had been committed. The authorizing legislation itself violated section 8; the existence of an actual illegal search conducted under the statute was apparently not of importance to the holding of unconstitutionality.

The judicial review of search warrants, although usually conducted after a physical search has been made, is also guided by the principles in Hunter. In order to be upheld upon review, the issuance of the warrant itself must be based on reasonable inferences to support the finding of reasonable grounds to believe an offence has been committed.[66] Again, the reasonableness of the grounds on which the search was initiated are as integral to the assessment of the legality of the “search and seizure” as the manner in which the search was carried out. Each of these examples demonstrates that a purposive approach to section 8 requires constitutional protection, where possible, before the government action succeeds in invading the sphere of privacy which section 8 has mapped out.[67]

The appellant argues that the letter of request imposed no legal obligation on Switzerland to comply with its terms. He, therefore, analogizes the letter of request to an application made in Canada for a search warrant or a “wiretap” authorization, and maintains that an application, unlike a search warrant or an order authorizing a search, cannot diminish the reasonable expectation of privacy which section 8 protects. This argument is problematic for several reasons. First, as the Motions Judge pointed out, judicial notice can be taken [at page 943] “of the fact that Canada would not send a letter of request to an unfriendly, uncooperative state”. The request itself states that “Canada will extend to the Government of Switzerland reciprocal co-operation and is ready and willing to render assistance to Switzerland in accordance with the law of Canada”. It also impresses upon the Swiss authorities the importance which the Canadian government attaches to its compliance. The letter states:

This investigation is of serious concern to the Government of Canada as it involves criminal activity on the part of a former Prime Minister. Further investigation cannot be conducted by the RCMP until the information available in Switzerland is received. Any priority which could be placed on this request would be greatly appreciated.

International cooperation according to the principle of comity is a staunchly entrenched foundation of international law. Its justification was best expressed by U.S. Chief Justice Marshall in The Schooner Exchange v. M’Faddon & Others,[68] when he explained that, despite the exclusive jurisdiction of a state within its own territory, reciprocal state assistance occurs as a matter of common interest. This general principle was affirmed by the Supreme Court of Canada in Zingre v. The Queen et al.[69] In deciding whether to issue a commission authorizing two Swiss “extraordinary investigation judges” to take testimony in Canada in order to further Swiss prosecution of its own nationals for crimes committed in Manitoba, Dickson J. wrote:[70]

It is upon this comity of nations that international legal assistance rests. Thus the courts of one jurisdiction will give effect to the laws and judicial decisions of another jurisdiction, not as a matter of obligation but out of mutual deference and respect. A foreign request is given full force and effect unless it be contrary to the public policy of the jurisdiction to which the request is directed (see Gulf Oil Corporation v. Gulf Canada Limited et al.)[71] or otherwise prejudicial to the sovereignty of the citizens of the latter jurisdiction.

Although the appellant is correct in stating that one state cannot compel another to comply with its request, there is no evidence of any reason why the request would be refused in this case. As such, I reiterate the reasoning of the Motions Judge that, with the sending of the letter of request, there was a [at page 943] “reasonable expectation of its acceptance, and a likelihood of it being acted upon”.[72] This “reasonable expectation”, which was both serious and immediate, is sufficient to engage section 8 of the Charter, particularly when the thrust of its protection, as stated by Dickson J. in Hunter, is to institute a “means of preventing unjustified searches before they happen”.[73]

In light of this “reasonable expectation”, the analogy drawn by the appellant between the letter of request and an application for a search warrant is inapt. A closer analogy can be drawn between the letter of request and a search warrant, or an order authorizing a search or seizure. Such an order, like the letter of request, does not command or require that a search or seizure take place, but instead merely authorizes its execution should the police choose to carry it out.[74] Although an order authorizing a search or seizure to take place does not compel the police to undertake a search or seizure, it creates a “reasonable expectation” that a search or seizure will occur in the immediate future, usually within the time period stated in the order. An example of this distinction might arise where a peace officer obtains a warrant to search a certain location for evidence of a criminal offence, but then chooses not to proceed with the investigation. Although the search has been “authorized” by a justice of the peace, he or she does not order the search to proceed. With both the letter of request and the search warrant, therefore, the state has armed itself with the power to intrude upon a reasonable expectation of privacy held by an individual in order to satisfy the interests of law enforcement, although no legal requirement exists to compel the search. It should follow from this that in each case, the state should equally be required to seek prior authorization on the basis of “reasonable and probable grounds”, as the Canadian standard for the issuance of a search warrant mandates.

For these reasons, I conclude that, unless a letter of request complies with the Hunter v. Southam standard, it would jeopardize the security from unreasonable search and seizure which section 8 was designed to prevent.

(c)        Other Issues

(i)         The role of section 7 and paragraph 11(d):

It has been argued by the Crown that any possible unfairness resulting from a narrow interpretation of section 8 can be rectified by the exclusion of evidence on the basis section 7 and paragraph 11(d) as McLachlin J. explained in the context of the admissibility of evidence gathered abroad as follows:[75]

The Charter guarantees the accused a fair trial: s. 11(d). More generally, the Charter provides that the accused’s liberty cannot be limited except in accordance with the principles of fundamental justice: s. 7. To admit evidence gathered in an abusive fashion may well violate the principles of fundamental justice …. The accused may use these and other principles of fundamental justice to obtain redress for abuses abroad in gathering evidence subsequently tendered against him or her.

Although these provisions certainly may reduce the potential unfairness, they are of limited application. First, it is not the evidence-gathering process in Switzerland which concerns the respondent on this appeal, but rather the initiation of that process here in Canada. Second, where the privacy interest is the catalyst for engaging section 8 protection, it is critical that unreasonable searches or seizures be prevented rather than condemned after they occur. This is the motivating reason behind the prior authorization requirement in Hunter. Exclusion of evidence after the fact does not achieve this purpose.

(ii) Availability of constitutionally permissible techniques for instituting a letter of request:

I am also unpersuaded by the argument that under the current state of the law, the government should not be held to the standard set out in Hunter because it could not have obtained prior authorization of the letter of request under existing Criminal Code provisions. The Motions Judge, relying on Sopinka J.’s reasoning in R. v. Kokesch, responded to this argument by stating that, whether or not such a procedure existed, “the unavailability of other, constitutionally permissible, investigative techniques is neither an excuse nor a justification for constitutionally impermissible investigative technique”.[76] Sopinka J. made this statement in the context of a refusal to allow a warrantless search where the prime reason for failure to obtain the warrant was lack of reasonable and probable grounds on which to obtain such a warrant. While the same cannot necessarily be said of the failure to obtain a warrant in the case at bar, these words remind us that the protection of individual rights does not depend upon the convenience of those engaged in law enforcement. The goals of law enforcement are often made more difficult by the need to respect individual rights.

Furthermore, it may well be that prior judicial approval for the request could be obtained through subsection 487.01(1) [as enacted by S.C. 1993, c. 40, s. 15] of the Criminal Code. It provides:

487.01 (1) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property if

(a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing;

(b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and

(c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.

This provision of the Criminal Code was enacted, as recognized by the appellant, in order to fill any potential “gap” in the ability of peace officers to obtain prior judicial authorization of a search or seizure in accordance with Hunter. Given the existing lack of legislation governing the sending of letters of request in Canada, the case at bar might well fall within such a “gap”. Furthermore, prior authorization for a “device or investigative technique”, in the form of a letter of request, might have been obtained by a member of the RCMP instead of a member of the Department of Justice. Although section 487.01 only authorizes a police officer to execute the warrant, the RCMP might have named the Department of Justice pursuant to section 487.02 [as enacted idem ] in order to authorize their assistance. Section 487.02 provides:

487.02 Where an authorization is given under section 184.2, 184.3, 186 or 188, a warrant is issued under section 487.01 or 492.1 or subsection 492.2(1) or an order is made under subsection 492.2(2), the judge or justice who gives the authorization, issues the warrant or makes the order may order any person to provide assistance where the person’s assistance may reasonably be considered to be required to give effect to the authorization, warrant or order.

Had the Canadian authorities proceeded in this way, and assuming that it was an available route, the initial requirement in Hunter would have been satisfied and the letter of request would have complied with the Canadian constitutional standard for the issuance of a search warrant.

If this means of obtaining prior authorization is not available or if it is deemed unsuitable, Parliament may be required to create a new mechanism for obtaining authorization of international letters of request. If the judgment of this Court were to have such an effect, it would not be unprecedented, as there are many instances in which violations of the Charter have required remedial legislative action.[77] The spectre of the need for legislative action cannot inhibit the Court from declaring unconstitutional conduct to be unconstitutional.

(iii) Diminished effectiveness of investigation and prosecution:

I wish to address briefly the concern of the appellant that the imposition of the Charter on Canadian letters of request will result in less effective investigation and prosecution of criminal offences which require international co-operation on either a formal or an informal basis. First, if the Charter is to be taken seriously, the courts are obligated to ensure that the values contained in it are respected, even if that may be inconvenient or even burdensome to law enforcement. Therefore, while it is important to bear in mind the difficulty of prosecuting such crimes, it is equally important to ensure that Canadian authorities are not able to circumvent the Charter in the investigation and prosecution of an offence in Canada simply because it involves the collection of evidence abroad. Such conduct was admonished in the domestic context by the Supreme Court in R. v. Colarusso, when it held that the seizure of a legally obtained blood sample from a hospital for the purposes of criminal prosecution of an individual was a “too convenient way of getting around the requirements set forth in Hunter and in Dyment for seizing property for purposes of law enforcement”.[78] Second, requiring Canadian officials to comply with section 8 of the Charter prior to initiating an international request has no effect on their ability to obtain effective international assistance because it does not impose any additional burden on the requested state. It simply means that international searches triggered by Canadian officials will be subject to the same standard as searches which take place wholly within Canada.

In conclusion, I agree with the Motions Judge that the answer to the question is yes. I would, therefore, dismiss the appeal with costs. There will be a suspension of this judgment for the same reasons and on similar terms as those granted by Mr. Justice Gibson on August 15, 1996 [[1996] 3 F.C. 947 (T.D.)], until the time for leave to appeal expires or until such time as the Supreme Court of Canada disposes of any application for leave to appeal that may be launched or further order of the Court. The freeze on further action by the Swiss government shall remain in effect pending the outcome of any appeal that may be taken.

Henry D.J.: I agree.

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