In 2017, Corporal C.R. McGregor was charged with numerous offences and on court martial found guilty of sexual assault, two counts of voyeurism, one count of possession of a device for surreptitious interception of private communication, and disgraceful conduct. McGregor’s alleged offences occurred while he was stationed in Washington, D.C. at the Canadian Embassy, and the evidence to support the charges was obtained on the basis of a search of his home in Virginia.

McGregor alleges that the search of his home needed to be compliant with the Canadian Charter of Rights and Freedoms, because although he was in the United States at the time, he was subject to Canadian jurisdiction under NATO’s Status of Forces Agreement. He alleges that the search was not Charter compliant. Although an American warrant had been obtained and Canada had waived diplomatic immunity to conduct a search, McGregor alleges that the search exceeded the scope of the diplomatic waiver.

The Canadian Constitution Foundation intervened in the Supreme Court hearing of McGregor v The Queen on May 19 to argue for a new proposed test about when the Canadian Charter of Rights and Freedoms applies outside of Canada’s borders.

The CCF’s proposed test has three parts. First, the court must ask whether the officials are acting pursuant to valid laws or procedures. Second, if so, is their conduct substantially different from the principles emanating from the Charter? And third, if their conduct is substantially different from the principles of the Charter, is a substantive difference reasonable and justified in the circumstances?

“The main overwhelming question in this case is ‘What is the test for whether the Charter applies outside of Canada?’” said CCF Litigation Director, Christine Van Geyn. “The idea that the executive could be immune from the Charter abroad is problematic and diminishes the rights and freedoms of all Canadians,” continued Van Geyn.

The CCF is represented by Jesse Hartery and Akshay Aurora of McCarthy Tétrault. Read our full release announcing our involvement here.

The CCF’s intervener factum is available here.
Update: A decision was released on Feb 17, 2023. We were unsuccessful in convincing the Court to adopt our test.

How should the Charter apply outside Canada? (McGregor v The Queen)

CCF Launch: April 26, 2022
Jurisdiction: Supreme Court of Canada
Status: Closed
Next Key Date: Closed

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