R. v. Terry [1996] 2 S.C.R. 207: Applicability of Charter outside Canada's boundaries: Whether failure of foreign police to comply with Canadian law rendering evidence so obtained inadmissible.

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Constitutional law - Charter of Rights - Applicability of Charter outside Canada's boundaries - Evidence obtained abroad according to foreign local law - Foreign law requiring less exacting procedural standard than Charter - Whether failure of foreign police to comply with Canadian law rendering evidence so obtained inadmissible - Canadian Charter of Rights and Freedoms, ss. 7, 11(d), 24(2).

Evidence - Admissibility - Poem and dream similar to facts - Whether or not poem and evidence of dream admissible.

The accused, who had allegedly fatally stabbed a man, fled to the U.S. where he was arrested by U.S. police on an extradition warrant acting on information from Canadian police. The Canadian police requested the U.S. police to advise the accused of his U.S. rights. Although the U.S. police complied with all American legal requirements they did not comply with the requirement in the Canadian Charter of Rights and Freedoms that a person be advised forthwith upon detention of his or her right to counsel. The statement obtained by the U.S. police and the items that they seized were admitted at trial. The accused was convicted of second degree murder and the conviction was confirmed on appeal. At issue was whether the failure of police officers in another country to conform to the requirements of the Charter rendered the evidence so gathered inadmissible under s. 24(2) of the Charter in a trial in Canada. The admissibility of a dream that the accused had related to witnesses and of an undated poem in his handwriting was also questioned.

Held: The appeal should be dismissed.

The U.S. police gathering evidence in the U.S. for the Canadian police were not subject to the Charter. Section 24(2), which applies only if a breach of the Charter is established, accordingly did not apply. Finding the U.S. police subject to and in breach of Canada's Charter when they detained the fugitive under a U.S. warrant would run counter to the settled rule that a state is only competent to enforce its laws within its own territorial boundaries. Indeed, this general rule is particularly true of the legal procedures enacted to enforce it. Under bilateral mutual legal assistance treaties the actions requested of the assisting state are undertaken in accordance with its own laws. The practice of cooperation between police of different countries does not make the law of one country applicable in the other country.

Considerations of fairness do not demand a remedy under s. 24(2) of the Charter. Section 24(2) is not an independent source of Charter rights. The Court cannot extend the Charter's ambit, in the name of fairness, to include as a "constructive" breach conduct not governed by it. It is not unfair to treat evidence gathered abroad differently from evidence gathered in Canada. People should reasonably expect to be governed by the laws of the state in which they are found. Travellers abroad are nevertheless not without a remedy for abuse in the course of foreign evidence-gathering. Provisions such as the s. 11(d) right to a fair trial and the s. 7 right not to be deprived of liberty except in accordance with the principles of fundamental justice may apply.

Foreign police gathering evidence for Canadian police should not, as a matter of policy, be required to conform to the Charter. Evidence gathering abroad occurred not because of any attempt to circumvent the Charter but because of the accused's decision to go abroad. High standards are to be encouraged by the Canadian police of the foreign police to avoid the possibility of the evidence being excluded or a stay being entered. Finally, any attempt to bind foreign police by Canadian law would be impossible to regulate.

It was not necessary to decide whether the U.S. police were acting as agents of the Canadian police. The probative value of the poem on the ultimate issue was not great, given that its connection to the known events was tenuous, but its prejudicial effect was considerable. It was nevertheless admissible as a link in the chain of inferences tending to establish guilt. Evidence relating to accused's dream too was admissible as part of the narrative of the accused's conduct after the crime. It was never suggested that the jury should treat the dream as an admission of the accused's guilt. Concerns about this evidence were alleviated by the careful instruction the jury received.

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