R. v. McGregor, 2020 CACM 82023 SCC 4 (39543)

“M was a member of the Canadian Armed Forces (“CAF”) posted to the Canadian Embassy in Washington, D.C. and residing in Alexandria, Virginia. By virtue of his position, he held diplomatic immunity. Following the discovery by another member of the CAF posted in Washington of two audio recording devices in her residence, the Canadian Forces National Investigation Service (“CFNIS”) investigated the matter and concluded that there were reasonable grounds to believe M had committed the offences of voyeurism and possession of a device for surreptitious interception of private communications. CFNIS sought the assistance of the Alexandria police for the purpose of obtaining a warrant under Virginia law. The Canadian Embassy waived M’s immunity with respect to his residence and property and the Alexandria police obtained a warrant to search his residence and objects found therein, including electronic devices, and to analyze the seized items.

When CFNIS and Alexandria police executed the search warrant, forensic investigators scanned the contents of some electronic devices found in M’s residence to determine which items to seize. They discovered evidence relating to unforeseen offences, including a sexual assault. The investigators seized the devices, removed them to Canada, and obtained Canadian warrants from the Court Martial for further analysis of their contents. M was arrested. He brought a motion in the Court Martial, arguing that the search and seizure of his electronic devices contravened s. 8 of the Charter, and seeking exclusion of the evidence. The military judge dismissed the motion, holding that the Charter did not apply extraterritorially, and that, in any event, the search and seizure were consistent with Charter standards. He subsequently convicted M of voyeurism, possession of a device for surreptitious interception of private communications, sexual assault, and disgraceful conduct. The Court Martial Appeal Court affirmed the military judge’s decision. It agreed that the Charter did not apply, and held that the evidence did not affect trial fairness at common law. It further concluded that even if the Charter applied, the search did not infringe M’s s. 8 rights.”

The SCC (8:0) dismissed the appeal. (Note: Brown J. did not participate in the final disposition of the judgment.)

Justice Côté wrote as follows (at paras. 3-4, 23-24, 44-45):

“In this appeal, the Court is invited to examine the extraterritorial application of the Charter pursuant to s. 32(1) of the Charter. Both parties rely on this Court’s decision in R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, which is the governing authority on the territorial reach and limits of the Charter. Cpl. McGregor takes the position that the Charter applied to the actions of the CFNIS, whereas the Crown argues that Hape dictates the opposite outcome. For their part, the interveners have focused their submissions on whether the Hape framework should be reaffirmed, modified, or overruled.

In the final analysis, I find it unnecessary to deal with the issue of extraterritoriality to dispose of this appeal. This is so because the CFNIS did not violate the Charter. Working within the constraints of its authority in Virginia, the CFNIS sought the cooperation of local authorities to obtain and execute a warrant under Virginia law. The warrant which issued authorized the search, seizure, and analysis of Cpl. McGregor’s electronic devices expressly. The evidence of sexual assault was discovered inadvertently by the investigators in the process of triaging the devices at the scene of the search; its incriminating nature was immediately apparent. Although the warrant did not contemplate such evidence, the digital files in issue fell squarely within the purview of the plain view doctrine. Furthermore, the CFNIS obtained Canadian warrants before conducting an in‑depth analysis of these devices. It is difficult to see how the CFNIS investigators could have acted differently to attain their legitimate investigative objectives. I conclude that they did not infringe Cpl. McGregor’s rights under s. 8 of the Charter.

I do not believe that this is an appropriate case in which to reconsider the extraterritorial application of the Charter. The parties do not contend that the Hape framework should be revisited; they simply debate its application to the facts at hand. As a rule, which the Court should depart from only in rare and exceptional circumstances, we should not overrule a precedent without having been asked to do so by a party. In this instance, only some interveners ask us to overturn Hape; in doing so, they go beyond their proper role. Doing what they are asking would mean deciding an issue that is not properly before us. Furthermore, as mentioned above, the extraterritorial application of the Charter has no bearing on the disposition of the present appeal. Indeed, the actions of the CFNIS conformed to the Charter, as the s. 8 analysis below makes clear. Simply put, I would dismiss the appeal even if I were to accept Cpl. McGregor’s argument that the Charter applies extraterritorially in the present context.

It is thus preferable to leave for another day any reconsideration of the Hape framework. A restrained approach is amply supported by our jurisprudence. As Sopinka J. emphasized in Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, “This Court has said on numerous occasions that it should not decide issues of law that are not necessary to a resolution of an appeal. This is particularly true with respect to constitutional issues” (para. 6; see also R. v. Yusuf, 2021 SCC 2, at paras. 3‑5; Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 S.C.R. 401, at para. 86; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, at pp. 381‑82; The Queen in Right of Manitoba v. Air Canada, [1980] 2 S.C.R. 303, at p. 320; Attorney General (Que.) v. Cumming, [1978] 2 S.C.R. 605, at pp. 610‑11; Winner v. S.M.T. (Eastern) Ltd., [1951] S.C.R. 887, at p. 901, per Rinfret C.J., rev’d in part [1954] A.C. 541 (P.C.); John Deere Plow Co. v. Wharton, [1915] A.C. 330 (P.C.), at p. 339; Citizens Insurance Co. of Canada v. Parsons (1881), 7 App. Cas. 96 (P.C.), at p. 109; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, at paras. 301‑2, per La Forest J., dissenting). There are no “exceptional circumstances” (Cumming, at p. 611) that warrant departing from this general rule in the present appeal. Therefore, I decline the interveners’ invitation to reconsider the proper approach to the extraterritorial application of the Charter. I would add that, as my colleagues Brown and Rowe JJ. noted in R. v. Sharma, 2022 SCC 39, at para. 75, it is inappropriate for interveners to supplement the evidentiary record at the appellate level. In the s. 8 analysis which follows, I show that even if the Charter were to apply to the actions of the CFNIS, the appeal should still be dismissed.


In sum, the CFNIS demonstrably observed the requirements of the Charter. The investigators discovered the incriminating evidence in the execution of a digital search expressly authorized by a valid warrant. The evidence of sexual assault, although not contemplated in the original warrant, fell squarely within the purview of the plain view doctrine. The CFNIS seized the evidence in accordance with that doctrine and subsequently obtained Canadian warrants before conducting an in‑depth analysis of the files in issue. Even on Cpl. McGregor’s view of the law, it is difficult to see how the CFNIS could have more fully complied with the Charter. In light of my conclusion that the investigative process was consistent with s. 8 of the Charter, it is unnecessary to address Cpl. McGregor’s argument that the evidence should be excluded under s. 24(2). For these reasons, I would dismiss the appeal and affirm Cpl. McGregor’s convictions.”