Case information

Canadian Charter of Rights and Freedoms — Extraterritoriality — Search and seizure — Canadian Forces National Investigation Service seizing and searching contents of electronic devices during search of residence in United States of America of Canadian Armed Forces Regular Member posted to United States of America — Admissibility of evidence seized during search at Standing Court Martial in Canada — Whether Canadian Charter of Rights and Freedoms applied to search — If yes, whether search breached right to be free from unreasonable search and seizure — If search breached s. 8 of Charter, whether evidence should be excluded pursuant to s. 24(2) of Charter — Whether exception of customary or international law necessitates unilateral Canadian authority in context of Canadian Armed Forces member required to be on foreign soil — Whether cooperation between states precludes exception of consent to principle of sovereignty?

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(PUBLICATION BAN IN CASE)

Cpl. McGregor, a Canadian Armed Forces member, was posted to and resided in the United States. The Canadian Forces National Investigation Service suspected he committed the offences of interference and voyeurism by surreptitiously placing audio recording devices in the residence of another Canadian Armed Forces member also posted to the United States. An American police force obtained a search warrant in Virginia permitting entry into and a search of Cpl. McGregor’s residence in Virginia. Virginia law permits searching electronic devices under the authority of a warrant to search a residence. The American police entered Cpl. McGregor’s residence and invited the Canadian Forces National Investigation Service to conduct the search. Officers seized electronic devices and searched some devices during the search of the residence. They discovered evidence of the suspected offences and other offences. Electronic devices were seized, removed to Canada and searched further pursuant to warrants from the Court Martial. The Standing Court Martial dismissed a motion to exclude the evidence for breach of s. 8 of the Canadian Charter of Rights and Freedoms. Cpl. McGregor was convicted for sexual assault, two counts of voyeurism, possession of a device for unlawful interception, and disgraceful conduct. The Court Martial Appeal Court dismissed an appeal.