Tuesday, May 4, 2010

Charter applies to foreign governments acting overseas?

R. v. Mathur, 2010 ONCA 311, released online today, deals with a situation where documents used in a Canadian criminal case are obtained in breach of a foreign constitution.

Canadian officials were not involved in the seizure of the documents or the foreign wrongdoing.

Specifically, Antiguan police seized records, in breach of Antigua's constitution, which requires a search warrant for such actions. The accused sought to have the records excluded.

In order to answer the question of whether the admission of the evidence would violate Mr. Mathur's right to a fair trial guaranteed under ss. 7 and 11(d) of the Charter, the application judge considered a number of relevant factors. In the end the trial judge allowed the records and the Court of Appeal agreed -- but in so doing appear to have applied the Charter to actions of a foreign state acting overseas. An interesting decision:

[36] The trial judge considered the fact that the records had been unlawfully obtained weighed in favour of exclusion, but that it was not the only factor. As was his duty, he weighed all the factors - those which favoured the admission of the records and those which favoured exclusion of the records. He concluded, on balance, that the evidence favoured the admission of the records and dismissed the appellant's motion to exclude. His decision was a discretionary one - he weighed all of the relevant factors both for and against admission of the records and made his decision accordingly. We see no basis on which to interfere with his exercise of discretion.

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