Sunday, February 26, 2023
The Supreme Court of Canada February 17 dismissed 8-0 an appeal by ex-corporal Colin McGregor arguing the investigation that led to his 2019 conviction for sexual assault violated the Charter of Rights and Freedoms’ demands for reasonable search and seizure.
Its unanimous judgment ends McGregor’s multi-year court battle with successively higher bodies by describing the police’s investigation of his US home “reasonable pursuant to Charter standards.”
On September 30, 2019, McGregor was found guilty of two counts of voyeurism, one count of possession of a device for surreptitious interception of private communications, one count of sexual assault and one count of disgraceful conduct for incidents that took place between 2011 and 2017.
That Thursday, he was sentenced by a military judge at Canadian Forces Base Esquimalt in British Columbia to three years prison and another twenty years on the sex offender registry, and was ‘dismissed with disgrace’ from the Armed Forces.
After last Friday’s ruling, his sentence will continue in full. Moreover, after his release, he will be barred from future employment with the Canadian government.
From August 2015 to March 2017, McGregor was posted to the Canadian Defence Liaison Staff at Canada’s US embassy, which automatically gave him diplomatic immunity.
In January 2017, another member of the Canadian Armed Forces, also in Washington, D.C., found two audio recording devices in her home. Believing McGregor was responsible, she reported him to her senior officer, and to investigate, the Embassy waived McGregor’s diplomatic immunity at the request of the Canadian Forces National Investigation Service (CFNIS).
On February 16, 2017, CFNIS agents and local Virginia police executed a search warrant at the then-corporal’s staff quarters in Alexandria, seizing computers, CDs, storage devices and five hidden cameras.
Forensic analysis showed a 2011 video of McGregor groping an unconscious woman in Victoria and recordings from inside McGregor’s home of a woman using the restroom and a video of cartoon characters appearing aged under eighteen engaging in sex acts; a child pornography charge for the latter was later dropped.
The woman videoed later told the Esquimalt court she believed it was taken on a night when she invited McGregor over for drinks and video games. She reported blacking out and awakening to find him sexually touching her.
McGregor had sought to have the videos and images excluded from evidence, arguing the search violated Section 8 of the Charter of Rights and Freedoms that protects Canadians from “unreasonable search or seizure.”
The move and a subsequent appeal were rejected, with the Court Martial Appeal Court holding the Charter did not apply outside Canada and, notwithstanding, the search was permissible.
His latest appeal to Canada’s top court argued the search violated the Charter by inviting a re-evaluation of the controversial 2007 ruling R v Hape, that presently governs extraterritoriality. His counsel Diana Mansour told the court on May 19, 2022 military personnel “ought to have their Charter rights guaranteed when investigated by Canadian military police for Canadian criminal offences.
“The portability of the military justice system allows Canadian criminal law to apply to our military members when they are serving anywhere in the world and with it, so should the Charter apply.”
Patrice Germain, counsel for the Crown respondent, argued that Section 8 “did not apply to the search of the appellant [McGregor’s] residence in the United States, because Virginia state law, under which it was conducted, is not within the authority of Parliament or a provincial legislature.”
Justice Suzanne Côté, writing for the majority, said the warrant the CFNIS obtained and executed under Virginia law authorized the search, seizure and analysis of McGregor’s electronic devices: “A search is reasonable within the meaning of [Section 8] of the Charter if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.”
As well as “authorized by law”, the court also found the search was not “more intrusive than necessary”, Côté writing: “It is difficult to see how the CFNIS investigators could have acted differently to attain their legitimate investigative objectives.
“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.”
In fact, the Court left the Charter’s scope ambiguous, explaining: “I [Côté, representing four judges’ opinions and her own] find it unnecessary to deal with the issue of extraterritoriality to dispose of this appeal [because] the CFNIS did not violate the Charter” to begin with.
After the ruling, Mansour said: “We accept the court’s decision which leaves open the opportunity for another matter to address the legal issue of the extraterritorial application of the Charter in the Canadian military context.”
In an email to Law360 Canada, co-counsels for the Crown Chavi Walsh, Natasha Thiessen and Patrice Germain said the CFNIS investigation was “a textbook case of successful international law enforcement cooperation, which respected the rights of the accused and complied with Canada’s international legal obligations.
“This case demonstrates that the Canadian Armed Forces can maintain crucial military discipline by effectively investigating and prosecuting crimes, including those of sexual violence, anywhere the CAF operates.”