R v. A [1990] 1 S.C.R. 995: Witness compelled to testify in a criminal trial fearing for the security of his parents living outside the country -- Whether a remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms is available to persons living outside Canada.

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

ON APPEAL FROM THE SUPERIOR COURT AND FROM THE COURT OF APPEAL FOR QUEBEC

Constitutional law -- Charter of Rights -- Remedies -- Witness compelled to testify in a criminal trial fearing for the security of his parents living outside the country -- Whether a remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms is available to persons living outside Canada.

A has been subpoenaed to testify in a criminal trial. As a result of a perceived threat to the security of the appellants, and in particular to B and C, arising from the testimony to be given, the appellants applied before the Superior Court for an order of certiorari to quash the subpoena or, alternatively, for a remedy pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms. A was prepared to testify if B and C were protected or if the R.C.M.P. satisfied the court that the protection for B and C was no longer necessary. The Superior Court judge declined to deal with the application on the merits and dismissed it on the grounds firstly, that the subpoena was validly issued and secondly, that B and C were out of the country and a s. 24(1) Charter remedy was not available to persons living outside Canada. The Court of Appeal declined to hear appellants' appeal on the basis that it was without jurisdiction. Leave to appeal to this Court was granted not only from the judgment of the Court of Appeal but also from the judgment of the Superior Court. In this Court, the appellants abandoned the request that the subpoena be quashed.

Held (Lamer and McLachlin JJ. dissenting): The appeal should be allowed and a new hearing before a judge of the Superior Court is directed.

Per Dickson C.J. and Wilson, La Forest, L'Heureux-Dubé, Gonthier and Cory JJ.: The R.C.M.P. undertook to provide protection for A, B and C, three Canadian citizens. The undertaking was given in Canada where A was required to testify. It was due in part to the decision of the R.C.M.P. that B and C found themselves outside Canada when the application was brought. In those circumstances, the Superior Court judge was in error both in failing to consider the safety of the appellants and in finding that in the special circumstances of this case remedies were not available to persons who were out of the country. Since the appellants are now concerned solely with the protection of B and C or that they receive an explanation as to why the protection is no longer required, the Superior Court judge presiding at the rehearing might consider exercising either the inherent jurisdiction of the court or the application of an appropriate Charter remedy.

Per Wilson, L'Heureux-Dubé, Gonthier and Sopinka JJ.: The Superior Court judge erred in declining jurisdiction to entertain the application. With respect to the motion to quash the subpoena, clearly the court can control abuse of its own process. The subpoena power can be abused notwithstanding that on its face the subpoena is regular. If, therefore, the conduct of the authorities amounted to an abuse of the use of subpoena powers, some form of relief would have been available. With respect to the Charter application, if a breach of s. 7 of the Charter had been made out, relief could be granted to the appellants. The threat to B and C affected not only them and the security of their persons, but A as well. Protection for them was relief for A even though the actual physical acts might have been required to be performed outside the jurisdiction.

Per Lamer and McLachlin JJ. (dissenting): The Superior Court judge did not err in declining to grant an order for protection of B and C under s. 24(1) of the Charter on the ground that they were outside the country. The force of Canadian law does not generally extend beyond our borders. An order for protection outside those borders would seem incapable of enforcement through our courts; it is a settled principle that a court will not make unenforceable orders. The possibility that an extraterritorial order could be made in appropriate circumstances is not foreclosed. But this case did not establish the foundation of such an order.

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