R. v. Mehan, 2017 BCCA 21
[52] The context in this case is provided by the jurisdiction in which the interception was authorized and undertaken. The “search” of the appellants’ communications was authorized by a Californian court. It concerned criminal activities that had occurred in that state. It was undertaken by the DEA, an American law enforcement agency, in Los Angeles. The DEA Server that intercepted the appellants’ communications was located in Los Angeles. In short, all of the evidence obtained in the U.S. investigation of the appellants’ criminal activities in California was gathered in the U.S. The fact that the appellants were residents of Canada, and that their intercepted email communications occurred in Canada, did not convert the U.S. investigation into a Canadian investigation. Only when the U.S. investigation was completed, did the DEA loan its server to the CFSEU.
[53] The appellants contend that the CFSEU’s actions in the Canadian investigation and prosecution brought the interceptions within the Canadian “communication process”. Their submission relies on the near-contemporaneous speed with which the DEA transmitted the appellants’ communications to the CFSEU. However, the timing of the transmissions alone cannot convert the U.S. interception into a Canadian interception. There is, in my view, no principled distinction to be made between the pony express delivering the DEA-intercepted communications to the CFSEU and the almost simultaneous delivery by electronic transmission that occurred in this case. The appellants’ communications were still captured and stored, however briefly, on the DEA Server before being shared with the CFSEU. In these circumstances, the subsequent actions of the CFSEU, in receiving and reviewing the communications, occurred outside the Canadian communication process and therefore TELUS does not apply.
[54] It is common ground that the Charter does not apply to actions of foreign law enforcement agencies with respect to the investigative techniques or procedures they use to obtain evidence in their jurisdictions, so long as they are not acting as agents of the Canadian authorities, and the manner in which they obtained the evidence would not render the trial unfair (e.g., torture): Harrer at paras. 11-12 and Hape at para. 113. Nor does the Charter govern the actions of foreign law enforcement agencies that choose to cooperate with Canadian law enforcement agencies on an informal basis: Terry at para. 19. McLachlin J. (as she then was), noted in Terry:
19 … any cooperative investigation involving law enforcement agencies of Canada and the United States will be governed by the laws of the jurisdiction in which the activity is undertaken …
[55] Similarly in Hape, the Court held that the Charter did not apply to searches and seizures in other jurisdictions. In that case, the RCMP suspected that the accused Canadian was money laundering through his investment company in the Turks and Caicos Islands. The Islands’ authorities permitted the RCMP to continue their investigation on the Islands under the authority of the Islands’ police. Corporate records and other evidence incriminating the accused were obtained without a warrant, which was not required in that jurisdiction. The accused objected to the admissibility of that evidence at trial. However, the trial judge held that the Charter did not apply to foreign-gathered evidence and convicted the accused. His conviction was upheld on appeal to the Supreme Court, where Mr. Justice Lebel, for the majority wrote:
[87] The theoretical and practical impediments to extraterritorial application of the Charter can thus be seen more clearly whether the s. 8 guarantee against unreasonable search and seizure is in issue than where the issue relates, as in cases discussed above, to the right to counsel. Searches and seizures, because of their coerciveness and intrusiveness, are by nature vastly different from police interrogations. The power to invade the private sphere of persons and property, and seize personal items and information, is paradigmatic of state sovereignty. These actions can be authorized only by the territorial state. From a theoretical standpoint, the Charter cannot be applied, because its application would necessarily entail and exercise of the enforcement jurisdiction that lies at the heart of territoriality. As a result of the principles of sovereign equality, non-intervention and comity, Canadian law and standards cannot apply to searches and seizures conducted in another state’s territory.
[56] The decision in R. v. Della Penna, 2012 BCCA 3, offers additional insight into this issue. There, lawfully obtained information from a U.S. interception of a telephone conversation, placed by the Canadian accused, in Canada, to a civilian agent of the DEA in the state of Washington, was shared with Canadian police. The Canadian police relied on the information to obtain a Part VI authorization in the Canadian prosecution of the accused for importing and trafficking drugs into Canada. The trial judge excised the information from the affidavit in support of the application, which ultimately resulted in the accused’s acquittal. On appeal, this Court set aside the acquittal and ordered a new trial, finding that the judge erred in law by excising admissible evidence from the affidavit. Writing for the Court, Mr. Justice Hall held that Hape “is conclusive in favour of the admissibility of the contents of the telephone conversation” (at paras. 45 and 48).
[57] Cooperation between law enforcement agencies in different jurisdictions is common for combatting transnational crime, including illicit drug importation and trafficking. Cooperation between jurisdictions to address international criminal activity has been recognized by the Supreme Court as a necessary and effective feature of multi-jurisdictional investigations: United States of America v. Cotroni, 1989 CanLII 106 (SCC), [1989] 1 S.C.R. 1469 at 1485; Hape at para. 98; and Wakeling at paras. 1 and 57. As Moldaver J. observed in Wakeling:
[57] … Multi-jurisdictional cooperation between law enforcement authorities furthers the administration of justice in all of the jurisdictions involved. It must not be forgotten that Canada is often on the receiving end of valuable information from foreign law enforcement authorities. … [Emphasis added by Moldaver J.].
[58] Based on the undisputed underlying facts and the above jurisprudence, in my view, the judge did not err in finding there was no evidentiary or legal basis that required him to embark on a voir dire to determine the admissibility of the intercepted communications. Those communications were disclosed by the DEA to the CFSEU in cooperation and in the context of an investigation into organized crime. The CFSEU relied on the communications to investigate the appellants in Canada. A voir dire would not have assisted the court in determining the real issues as the Charter was not applicable in these circumstances. The evidence was properly admitted at trial.
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