Schreiber v. Canada (Attorney General)

Schreiber v. Canada (Attorney General)
Collection
Supreme Court Judgments
Date
1998-05-28
Report
[1998] 1 SCR 841
Case number
26039
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; McLachlin, Beverley; Iacobucci, Frank; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
Federal Court of Appeal
Subjects
Constitutional law
Notes
SCC Case Information: 26039
Decision Content
Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841
The Attorney General of Canada Appellant
v.
Karlheinz Schreiber Respondent
and
The Attorney General of Quebec Intervener
Indexed as: Schreiber v. Canada (Attorney General)
File No.: 26039.
1998: March 20; 1998: May 28.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, McLachlin, Iacobucci, Bastarache and Binnie JJ.
on appeal from the federal court of appeal
Constitutional law ‑‑ Charter of Rights ‑‑ Application ‑‑ Canadian government sending letter of request to Swiss authorities seeking assistance with Canadian criminal investigation ‑‑ Swiss authorities issuing order for seizure of documents relating to certain bank accounts ‑‑ Whether Charter applies to letter of request ‑‑ Canadian Charter of Rights and Freedoms, s. 32(1) .
Constitutional law ‑‑ Charter of Rights ‑‑ Search and seizure ‑‑ Canadian government sending letter of request to Swiss authorities seeking assistance with Canadian criminal investigation ‑‑ Swiss authorities issuing order for seizure of documents relating to certain bank accounts ‑‑ Whether Canadian standard for issuance of search warrant had to be satisfied before letter of request was sent ‑‑ Canadian Charter of Rights and Freedoms, s. 8 .
The respondent S, a Canadian citizen who resides in both Canada and Europe, has an interest in bank accounts in Switzerland. The federal Department of Justice sent a letter of request to the Swiss authorities seeking their assistance with respect to a Canadian criminal investigation. The Swiss government accepted the request, and issued an order for the seizure of the documents and records relating to S’s accounts. Prior to the delivery of the letter of request, no search warrant or other judicial authorization had been obtained in Canada. S brought a special case before the Federal Court, Trial Division, to determine whether the Canadian standard for the issuance of a search warrant was required to be satisfied before the Minister of Justice submitted the letter of request to the Swiss authorities. The trial judge answered the question in the affirmative. The Federal Court of Appeal, in a majority judgment, upheld that decision.
Held (Gonthier and Iacobucci JJ. dissenting): The appeal should be allowed.
Per L’Heureux‑Dubé, McLachlin, Bastarache and Binnie JJ.: By virtue of s. 32 of the Canadian Charter of Rights and Freedoms , the Charter is applicable to all matters within the authority of Parliament and the government of Canada. The specific actions undertaken by Canadian officials must be assessed to determine if they infringe a right or freedom guaranteed by the Charter . Section 8 of the Charter protects S from intrusions upon his privacy by the government of Canada through unreasonable use of the power of search or seizure. By itself, the sending of the letter of request does not engage s. 8 of the Charter . All of those actions that rely on state compulsion in order to interfere with S’s privacy interests were undertaken in Switzerland by Swiss authorities and are not subject to Charter scrutiny. Drawing a line between those Canadian actions that did not implicate the Charter , and the actions by Swiss authorities that would have implicated the Charter had they been undertaken by Canadian authorities, is consistent with this Court’s jurisprudence on matters involving Canada’s international co-operation in criminal investigations and prosecutions. In the context of a criminal trial in Canada, s. 7 may apply to justify excluding evidence obtained abroad through foreign officials where it is necessary to preserve the fairness of the trial.
Per Lamer C.J.: The Charter generally applies to the letter of request, as it was prepared by Canadian officials within Canada. However, since the reasonableness of searches and seizures is measured by balancing the state’s interest in law enforcement against the individual’s interest in privacy, s. 8 is only triggered if the individual who is claiming a Charter breach can show that he or she has a reasonable expectation of privacy in the place searched or the material seized. Expectations of privacy must necessarily vary with the context. Consideration of such factors as the nature of the information itself, the nature of the relationship between the party releasing the information and the party claiming its confidentiality, the place where the information was obtained, the manner in which it was obtained and the activity which brings the individual into contact with the state allow for a balancing of the societal interests in protecting individual dignity, integrity and autonomy with effective law enforcement. The information at issue here, namely personal financial records obtained from a bank, is clearly the sort that S would expect to remain confidential, as they are part of the biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. However, the records were located in Switzerland, and obtained in a manner consistent with Swiss law. A Canadian residing in a foreign country should expect his or her privacy to be governed by the laws of that country and a reasonable expectation of privacy will thus generally correspond to the degree of protection those laws provide. A search carried out by foreign authorities, in a foreign country, in accordance with foreign law does not infringe on a person’s reasonable expectation of privacy, as he or she cannot reasonably expect more privacy than he or she is entitled to under that foreign law. In this case, there is no evidence that S’s records were seized illegally in Switzerland, and it therefore cannot be said that his reasonable expectation of privacy was violated. As a result, there can be no violation of s. 8 .
Per Gonthier and Iacobucci JJ. (dissenting): The right to privacy guaranteed by s. 8 of the Charter protects people, not places or things. Section 8 has been interpreted to provide ex ante protection for privacy rights, rather than merely an ex post validation or condemnation of a state intrusion on an individual’s privacy. The ex ante protection is ensured by the judicial preauthorization requirement for a valid search and seizure. Law enforcement authorities will be obliged to seek prior judicial authorization for a proposed search and seizure where it is recognized that the target of the search and seizure has a reasonable expectation of privacy with respect to the information sought. Applying the contextual framework developed in R. v. Plant, S does have a reasonable expectation of privacy with respect to his Swiss bank records. Banking information reveals intimate personal details about an individual including financial status and intimate lifestyle choices. Moreover, the relationship between a bank and a client can be characterized as one of confidence, which leads to a greater expectation of privacy in the information. Finally, the information had to be obtained through intrusion of the Swiss bank and with the assistance of a third party; this points to a reasonable expectation of privacy in the information on the part of S. S, having a reasonable expectation of privacy with respect to the information sought by the Canadian authorities, falls within the protective framework provided by s. 8 of the Charter , which applies in full force with all of its attendant guarantees and preventative measures. In this case compliance with s. 8 would require judicial preauthorization for the state intrusion on S’s privacy. Having failed to comply with the s. 8 requirements, the search and seizure was neither valid nor reasonable in the circumstances.
Cases Cited
By L’Heureux‑Dubé J.
Referred to: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Terry, [1996] 2 S.C.R. 207; R. v. Filonov (1993), 82 C.C.C. (3d) 516; Canada v. Schmidt, [1987] 1 S.C.R. 500; Argentina v. Mellino, [1987] 1 S.C.R. 536; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779.
By Lamer C.J.
Distinguished: R. v. Terry, [1996] 2 S.C.R. 207; R. v. Harrer, [1995] 3 S.C.R. 562; referred to: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Katz v. United States, 389 U.S. 347 (1967); R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Belnavis, [1997] 3 S.C.R. 341; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Feeney, [1997] 2 S.C.R. 117; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; Comité paritaire de l’industrie de la chemise v. Potash, [1994] 2 S.C.R. 406; R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Collins, [1987] 1 S.C.R. 265.
By Iacobucci J. (dissenting)
R. v. Terry, [1996] 2 S.C.R. 207; R. v. Harrer, [1995] 3 S.C.R. 562; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Colarusso, [1994] 1 S.C.R. 20; R. v. Plant, [1993] 3 S.C.R. 281; Katz v. United States, 389 U.S. 347 (1967); R. v. Dyment, [1988] 2 S.C.R. 417; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Belnavis, [1997] 3 S.C.R. 341; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 8 , 24(1) , 32(1) .
Federal Court Rules, C.R.C., c. 663, r. 475.
Authors Cited
Canada. Report of the Task Force established jointly by the Department of Communications/Department of Justice. Privacy and Computers. Ottawa: Information Canada, 1972.
Hutchison, Scott C., James C. Morton and Michael P. Bury. Search and Seizure Law in Canada. Carswell: Toronto, 1993 (loose‑leaf updated 1994, release 2).
APPEAL from a judgment of the Federal Court of Appeal, [1997] 2 F.C. 176, 144 D.L.R. (4th) 711, 210 N.R. 9, 114 C.C.C. (3d) 97, 6 C.R. (5th) 314, 42 C.R.R. (2d) 76, [1997] F.C.J. No. 277 (QL), affirming a decision of the Federal Court, Trial Division, [1996] 3 F.C. 931, 137 D.L.R. (4th) 582, 116 F.T.R. 151, 108 C.C.C. (3d) 208, 1 C.R. (5th) 188, 37 C.R.R. (2d) 63, [1996] F.C.J. No. 913 (QL), answering a special case question in the affirmative. Appeal allowed, Gonthier and Iacobucci JJ. dissenting.
S. David Frankel, Q.C., for the appellant.
Robert W. Hladun, Q.C., for the respondent.
Claude Girard and Gilles Laporte, for the intervener.
The following are the reasons delivered by
//The Chief Justice//
The Chief Justice --
I. Facts
1 This case was brought before the Federal Court (Trial Division) by way of a special case under Rule 475 of the Federal Court Rules, C.R.C., c. 663. The parties agreed on a statement of facts which they believed was necessary for the determination of the matter, which is as follows. The respondent is a Canadian citizen who resides in both Canada and Europe. He has an interest in accounts at the Swiss Banking Corporation in Zurich. On September 29, 1995, the Director of the International Assistance Group of the Federal Department of Justice, acting on behalf of the Minister, signed a letter of request directed to the competent legal authority of Switzerland, seeking the assistance of the Swiss government with respect to a Canadian criminal investigation. The Swiss government accepted the letter of request, and issued an order for the seizure of the documents and records relating to the respondent’s accounts. Prior to the delivery of the letter of request, no search warrant or other judicial authorization had been obtained in Canada.
2 The respondent brought a special case before the Federal Court to seek the answer to the following question:
Was the Canadian standard for the issuance of a search warrant required to be satisfied before the Minister of Justice and Attorney General of Canada submitted the Letter of Request asking Swiss authorities to search for and seize the Plaintiff’s [now the respondent’s] banking documents and records?
II. Judgments Below
A. Federal Court, Trial Division, [1996] 3 F.C. 931
3 Wetston J. began by considering the appellant’s (defendant at trial’s) argument regarding this Court’s decisions in R. v. Terry, [1996] 2 S.C.R. 207, and R. v. Harrer, [1995] 3 S.C.R. 562. He rejected their submission that to answer the special case in the affirmative would mean to apply the Charter extraterritorially, as the respondent (plaintiff at trial) is not seeking the application of the Charter to either foreign law or the activities of the Swiss government. Rather, the question to be addressed in the case at bar is whether the standard required by s. 8 of the Canadian Charter of Rights and Freedoms should apply to the letter of request procedure in Canada.
4 Wetston J. went on to address this question. He held that it could only be considered by noting that the respondent is the subject of a Canadian criminal investigation by Canadian authorities, and that the information sought to be obtained may be used in a criminal prosecution in Canada. In his opinion, whether the Charter should be applied to the letter of request depends on whether there is a material connection between the information requested in the letter of request, and any alleged violations of Canadian criminal law. He took judicial notice of the fact that it was likely that the letter would be accepted and acted upon.
5 Wetston J. then considered whether the respondent had a reasonable expectation of privacy in the records in question. He acknowledged that banking records are personal and confidential. He then considered the effect of maintaining these records in Switzerland, and held that “the application of section 8 is an inescapable product of the government’s enforcement activity within Canada” (p. 943), and “[i]f the [respondent] can be prosecuted in Canada, I see no reason why he should not be entitled to the corollary benefits of the Charter ” (p. 944). As a result, he concluded that the respondent had a reasonable expectation of privacy. Having so held, he considered whether s. 8 required prior authorization by a neutral judicial officer before the letter of request could be sent. He held that prior authorization is crucial in balancing the interests of the individual with those of the government, and that it cannot be done by the police or government enforcement authorities (Hunter v. Southam Inc., [1984] 2 S.C.R. 145). As a result, such authorization should have been obtained before the letter of request was sent, and the special case should be answered in the affirmative.
B. Federal Court of Appeal, [1997] 2 F.C. 176
Linden J.A. (Henry D.J. concurring)
6 After reviewing the facts and judgement below, Linden J.A. set out the two issues he believed needed to be answered to decide the case at bar. First, would the application of the Charter to a request for assistance from another country mean that impermissible extraterritorial effect would be given to the Charter ? Second, would the letter of request interfere with the respondent’s right to be secure against unreasonable search and seizure? At the time of the letter of request, no treaty was in force governing the use of international requests for mutual assistance between Canada and Switzerland. Hence, letters of request are the recognized mode of co-operation between states. These can be sent on the basis of “suspicion”.
7 Linden J.A. held that the way in which s. 8 is to be applied was set out by Dickson J. in Hunter, supra. Section 8 is intended to protect individuals from unjustified state intrusions upon their privacy, and whether an intrusion is unjustified depends on the balance between the government’s interest in law enforcement and the individual’s interest in privacy. This assessment ought to be carried out by a system of prior authorization, so as to prevent unjustified searches before they occur.
8 Linden J.A. then turned to a consideration of the territorial scope of s. 8 . He considered Terry, supra, and Harrer, supra, but distinguished them because they involved the conduct of American authorities acting in the United States, whereas the impugned conduct in this case involved the actions of the Canadian government within Canada. Hence, he concluded that it falls within the purview of s. 32(1) of the Charter . Another distinction is that in both Terry and Harrer, the protection sought was that of s. 10 (b), whereas in this case, it is s. 8 .
9 Linden J.A. held that s. 8 ought to be applied when it can help deter future unconstitutional conduct by Canadian officials, even if the conduct of those officials triggers the assistance of a foreign state. Although Canada cannot impose its own procedural standards on other states, it can ensure that the right to a reasonable expectation of privacy is protected when a search is instigated by Canadian officials, whether at home or abroad.
10 The next question to be answered was whether the respondent’s security against unreasonable search and seizure was infringed by the letter of request. Linden J.A. held that the courts cannot wait to vindicate the right to privacy until after it has been violated, but rather, it must be protected at the point of disclosure. The appropriate question is not whether the letter of request is a “search”. Rather, it is whether the letter jeopardizes the respondent’s reasonable expectation of privacy. It does not make sense to distinguish between a request, which would in all probability be acted upon, and the physical seizure of information. To do so would be counter to the spirit of Hunter, which seeks to reduce unjustified intrusions on individual privacy. Section 8 protects “people, not places”. This approach to protection against unreasonable search and seizure which focuses on the impact of the search or seizure on the individual would be inconsistent with the proposition that a person may have a privacy interest in banking information in Canada but not in Switzerland. The impact of the government action on the privacy interest of individuals is the same in each case.
11 Linden J.A. concluded that the constitutionality of a state-sanctioned search and seizure is only partially determined by the manner in which it is executed. The initiation and authorization process that precedes the execution of the search is equally important to the determination of constitutionality. In Hunter, the focus was on the adequacy of the legislation that authorized the search, not on an actual illegal search itself.
12 In this case, Linden J.A. held that there was a reasonable expectation that the Swiss government would comply with the letter of request. In light of this expectation, the analogy drawn by the appellant between the letter of request and an application for a search warrant was not appropriate. A closer analogy could be drawn between the letter and a search warrant itself. In both cases, the state has armed itself with the power to intrude upon a reasonable expectation of privacy held by an individual in order to satisfy the interests of law enforcement, although no legal requirement exists to actually compel the search. It should follow from this that in both situations, the state should be required to seek prior authorization on the basis of reasonable and probable grounds. Hence, Linden J.A. held that the trial judge’s decision was correct, and dismissed the appeal.
Stone J.A. (dissenting)
13 Stone J.A. agreed that Terry and Harrer were not dispositive of the issue before him, as the issue in those cases was whether s. 10(b) was engaged by the taking of a statement in a foreign country by foreign police. Stone J.A. then considered whether the letter actually constituted a “search” or “seizure” for the purposes of s. 8 of the Charter . He held that the fact that Swiss authorities could be expected to act on the request was not the same as saying that it constituted a search or seizure in Canada. A “search” consists of some form of examination by governmental authorities, which violates the privacy of the individual. The making of the request does not constitute a search or seizure so as to engage the protection of the s. 8 guarantee. The respondent argued that his right to be secure from unreasonable search and seizure encompassed the acts of the Canadian government in requesting the information, but Stone J.A. disagreed. In his view, the request did no more than ask that a search and seizure take place. The fact that the Canadian authorities made the request and that they had a reasonable expectation that the Swiss authorities would act upon it did not convert the request into the sort of government action that is limited by s. 8 . Hence, Stone J.A. would have allowed the appeal.
III. Analysis
14 The issue in this appeal is set out by the special case, which I reproduce here for convenience:
Was the Canadian standard for the issuance of a search warrant required to be satisfied before the Minister of Justice and Attorney General of Canada submitted the Letter of Request asking Swiss authorities to search for and seize the Plaintiff’s [now the respondent’s] banking documents and records?
Although it does not say so explicitly, the question set out above is really whether the letter of request violated the respondent’s guarantee of security against unreasonable search and seizure contained in s. 8 of the Charter . Other legal issues can arise, and have arisen, out of the sending of a letter of request. These issues are not raised in the special case, and are therefore not before the Court.
15 Before considering the substantive content of the s. 8 guarantee, there are some preliminary issues, raised by the appellant, that should be addressed. The first of these issues concerns the application of the Charter . Specifically, the appellant argues that this Court’s decisions in Terry and Harrer stand for the proposition that the Charter cannot apply extraterritorially. Both of these cases concerned the conduct of American authorities acting in the United States, who took statements from suspects in a manner that, although consistent with the American Bill of Rights, was inconsistent with the Charter . This Court held, in both cases, that the Charter cannot govern the actions of foreign authorities acting in a foreign country. This is consistent with s. 32 of the Charter , which restricts its application to the “Parliament and government of Canada” and “the legislature and government of each province.” This is also consistent, as McLachlin J. pointed out in Terry, with the principle of international comity, which suggests that it would be unrealistic to expect foreign authorities to know and comply with the laws of Canada.
16 In my view, the case at bar is quite different from Terry and Harrer. The impugned conduct in this case is the letter of request, which was prepared and sent by Canadian officials. These officials are clearly subject to Canadian law, including the Charter , within Canada, and in most cases, outside it. They fall squarely within the purview of s. 32 of the Charter , as an arm of the executive branch, or the “government of Canada”. Moreover, because they are Canadian, there is no reason to be concerned with comity. They can be expected to have knowledge of Canadian law, including the Constitution, and it is not unreasonable to require that they follow it. This is especially true for officials who perform functions in the name of the Attorney General, who may indeed have additional responsibilities that flow from the special nature of that office.
17 It is clear that the Charter in general applies to such letters of request. However, before the substantive guarantees of s. 8 in particular can be triggered, a preliminary issue must be determined. The question to be decided in order to see if government actions comply with s. 8 is whether the respondent had a reasonable expectation of privacy in his banking records in Switzerland. In my opinion, for reasons which I will discuss below, he did not, and therefore s. 8 protection is not triggered. Therefore, this appeal must be allowed, and the special case must be answered in the negative.
18 In cases involving s. 8, the appropriate starting point is the reasons of this Court in Hunter, supra. In that decision, Dickson J. (as he then was) held that the reasonableness of searches and seizures would be measured by balancing the state’s interest in law enforcement against the individual’s interest in privacy. However, he also held that the Charter could not, and did not, protect against any and all intrusions by the state into the lives of individuals. Rather, s. 8 would only be implicated if the individual who was claiming a Charter breach could show that he or she had a reasonable expectation of privacy in the place searched or the material seized. If no such expectation exists, there can be no Charter breach, as s. 8 only protects people, not places or things (Hunter, at p. 159, citing Katz v. United States, 389 U.S. 347 (1967)). In R. v. Edwards, [1996] 1 S.C.R. 128, for example, Cory J. (for the majority) held that the accused had no expectation of privacy in someone else’s apartment, and therefore could not claim his s. 8 rights had been breached when that apartment was searched. Similarly, in R. v. Belnavis, [1997] 3 S.C.R. 341, the majority of this Court (per Cory J.) held that a search of a car did not violate the passenger’s s. 8 rights, as she had no reasonable expectation of privacy in respect of its contents.
19 Hence, the question of whether the respondent had a reasonable expectation of privacy in his bank records is the preliminary issue to be decided. If he cannot show that he had such a reasonable expectation, his s. 8 protection is not triggered at all. This Court has said a great deal about how expectations of privacy, and their reasonableness, can be ascertained. In my view, the single most important idea that emerges from the jurisprudence is that expectations of privacy must necessarily vary with the context. This is inherent in the idea that privacy is not a right tied to property, but rather a crucial element of individual freedom which requires the state to respect the dignity, autonomy and integrity of the individual. The degree of privacy which the law protects is closely linked to the effect that a breach of that privacy would have on the freedom and dignity of the individual. Hence, a person is entitled to an extremely high expectation of privacy in relation to his or her bodily integrity (as in R. v. Stillman, [1997] 1 S.C.R. 607, or R. v. Dyment, [1988] 2 S.C.R. 417) or residence (see R. v. Feeney, [1997] 2 S.C.R. 117), and entitled to a much lesser expectation in relation to a vehicle in which he or she was merely a passenger (as in Belnavis, supra) or an apartment to which he or she was a visitor (as in Edwards, supra).
20 Of course, expectations of privacy must necessarily depend on more than just the nature of the thing being searched and its connection with the person claiming a s. 8 right. As La Forest J. stated in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, at p. 506, “the degree of privacy the citizen can reasonably expect may vary significantly depending upon the activity that brings him or her into contact with the state”. This was what was meant by La Forest J. in Comité paritaire de l’industrie de la chemise v. Potash, [1994] 2 S.C.R. 406, and by Wilson J. in R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627, when they stated that the content of the reasonable expectation of privacy depended on “context”. In both of these cases, the Court dealt with the difference between searches and seizures conducted to ensure compliance with regulatory regimes and those conducted for the purpose of enforcing the criminal law.
21 In R. v. Plant, [1993] 3 S.C.R. 281, Sopinka J. set out a framework for determining a person’s reasonable expectation of privacy, based on a number of contextual factors. He stated (at p. 293):
Consideration of such factors as the nature of the information itself, the nature of the relationship between the party releasing the information and the party claiming its confidentiality, the place where the information was obtained, the manner in which it was obtained and the seriousness of the crime being investigated allow for a balancing of the societal interests in protecting individual dignity, integrity and autonomy with effective law enforcement.
Before applying these factors in the case at bar, I should note that Linden J.A. rejected the seriousness of the crime being investigated as a valid determinant of the respondent’s expectation of privacy. In my view, Linden J.A. was correct in holding that the seriousness of the crime being investigated, as between different Criminal Code offences, does not in itself affect the expectation of privacy of the person being investigated. However, I would nevertheless replace this factor, in keeping with La Forest J.’s comments in Thomson Newspapers, supra, with the proposition that the activity which brings the individual into contact with the state may affect the expectation of privacy which that individual is entitled to, particularly in the context of regulatory regimes which are not, strictly speaking, part of the criminal law.
22 I now turn to a consideration of these factors. The information at issue consists of personal financial records, obtained from a bank. It is clear that these records are of the sort that the respondent would expect would remain confidential, as they are part of what Sopinka J. referred to as the “biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state” (Plant, supra, at p. 293). This would clearly point towards a finding that the respondent did have a reasonable expectation of privacy in relation to those records. However, under Plant, the place where the records were located and the manner in which they were obtained are equally important factors. Of critical importance to this case is the fact that the records were located in Switzerland, and obtained in a manner consistent with Swiss law.
23 In Terry, supra, McLachlin J. stated that “[p]eople should reasonably expect to be governed by the laws of the state in which they currently abide, not those of the state in which they formerly resided or continue to maintain a principal residence” (para. 24). This rule means that a Canadian residing in a foreign country should expect his or her privacy to be governed by the laws of that country and, as such, a reasonable expectation of privacy will generally correspond to the degree of protection those laws provide. This, if anything, is more true for the person who decides to conduct financial affairs and keep records in a foreign state. It may be fairly assumed that such a person has made an informed choice about where to conduct business, and thereby to create corresponding records, particularly banking records. The state of the prevailing bank secrecy laws in foreign countries is among the considerations a reasonably prudent bank client will take into account in deciding where to conduct his or her affairs. Accordingly, such a client, in my view, cannot reasonably expect greater privacy protection than is provided under the very laws he or she has expressly decided to have applied to his or her financial affairs and create the corresponding records. In short, having sought the benefit of foreign laws in choosing to place his or her funds under the jurisdiction of a foreign state, the client must also accept their burden.
24 In other words, a person who has property or records in a foreign state runs a risk that a search will be carried out in accordance with the laws of that state. He cannot “reasonably expect” that this will not happen, if the laws of the state clearly permit it. Of course, in Canada, the prevailing domestic law must itself be measured against the Charter to determine whether it violates the constitutional privacy right which s. 8 guarantees (Hunter, supra; R. v. Collins, [1987] 1 S.C.R. 265). However, this Court is much more reluctant to measure the laws of foreign states against guarantees contained in the Canadian Constitution. At the same time, if use of the evidence obtained on the strength of foreign laws affected the fairness of a trial held in Canada, it could be excluded under a combination of ss. 7 and 24(1) of the Charter , as suggested in Terry and Harrer, supra. No such suggestion has been made in this case, as no criminal trial has taken place in this matter, and, therefore, it is unnecessary to say any more about this possibility.
25 On the facts of this case, therefore, a search carried out by foreign authorities, in a foreign country, in accordance with foreign law does not infringe on a person’s reasonable expectation of privacy, as he or she cannot reasonably expect more privacy than he or she is entitled to under that foreign law. In the case at bar, there is no evidence that the respondent’s records were seized illegally in Switzerland. In fact, the parties declined to lead any evidence whatsoever about Swiss law. The respondent must have reasonably expected that, if he did his banking in Switzerland, his records could be searched in accordance with Swiss law. Therefore, it cannot be said that his reasonable expectation of privacy was violated. As a result, there can be no violation of s. 8. This appeal must therefore be allowed with costs, and the special case must be answered in the negative.
The judgment of L’Heureux-Dubé, McLachlin, Bastarache and Binnie JJ. was delivered by
//L’Heureux-Dubé J.//
26 L’Heureux-Dubé J. -- I have read the reasons of both the Chief Justice and Justice Iacobucci, and although I agree with the result that the Chief Justice reaches, I prefer to reach that result by a different route. In my view, Stone J.A. (dissenting) correctly decided this case at the Federal Court of Appeal ([1997] 2 F.C. 176) when he held that the Department of Justice’s action in sending a letter of request to the Swiss authorities is not proscribed by s. 8 of the Canadian Charter of Rights and Freedoms .
27 By virtue of s. 32 of the Charter , the Charter is applicable to all matters within the authority of Parliament and the government of Canada, as well as the provincial legislatures and the provincial governments. Concomitantly, the rights and freedoms enumerated in the Charter are guaranteed only against interference from actions taken by Parliament and the government of Canada, or the provincial legislatures and the provincial governments. Where there is no action by one of these entities which infringes a right or freedom guaranteed by the Charter , there can be no Charter violation.
28 The respondent wisely does not seek to challenge the actions of the Swiss authorities as a violation of s. 8 of the Charter . Instead, the respondent urges a very broad interpretation of s. 8 ’s guarantee against unreasonable search and seizure, in order to impugn the sole act of the Department of Justice in sending the letter of request. Because the letter of request initiated a process which ultimately led to the search and seizure of the respondent’s bank records in Switzerland, by Swiss authorities acting pursuant to their own laws, the respondent argues that the letter of request should have been subject to prior judicial authorization consistent with this Court’s dictates in Hunter v. Southam Inc., [1984] 2 S.C.R. 145. In my view, for the reasons that follow, the sending of the letter of request does not attract s. 8 scrutiny.
29 The reality of international criminal investigation and procedure is that it necessitates co-operation between states. The fact that the government of Canada may play a part in international investigations and proceedings, which might have implications for individual rights and freedoms such as those enumerated in the Charter , does not by itself mean that the Charter is engaged. The specific actions undertaken by Canadian officials, within the authority of Parliament, the government of Canada, the provincial legislatures or the provincial governments, must be assessed to determine if they infringe a right or freedom guaranteed in the Charter . In this case, the sending of the letter of request is the only relevant action which was authorized and undertaken by the government of Canada, and therefore the only action which can be assessed for any impact on the respondent’s Charter rights.
30 Section 8 of the Charter protects the respondent from intrusions upon his privacy by the government of Canada, through unreasonable use of the power of search or seizure: Hunter, supra, at p. 160. It is useful first to consider the issue of interjurisdictional co-operation wholly within the domestic Canadian context, in order to appreciate that the letter of request did not intrude upon the respondent’s privacy, and therefore did not engage s. 8 of the Charter . If the police in one Canadian jurisdiction want to investigate, for instance, bank records in another Canadian jurisdiction, the investigating authorities would ask the authorities in that other jurisdiction to undertake a search or a seizure. The request itself would not be subject to Charter scrutiny. No prior judicial authorization would be obtained until the request had been received, at which time the authorities would secure a warrant in order to undertake the search or seizure. In the event that the search or seizure was challenged, it would be the warrant, and the actions taken pursuant to that warrant, which would be subjected to Charter review. The original investigator’s action in making the request to the authorities in another province would not be challengeable, because it is not an action which invades anyone’s right to be secure against unreasonable search and seizure. This is the reason why no prior judicial authorization is required before making the request, and not, as Iacobucci J. suggests, because the requesting authorities know that the search or seizure eventually will be subject to prior judicial authorization before it is executed.
31 This reasoning is apposite to the present appeal. By itself, the letter of request does not engage s. 8 of the Charter . All of those actions which rely on state compulsion in order to interfere with the respondent’s privacy interests were undertaken in Switzerland by Swiss authorities. Neither the actions of the Swiss authorities, nor the laws which authorized their actions, are subject to Charter scrutiny: R. v. Terry, [1996] 2 S.C.R. 207, at p. 217. The Charter does not protect everyone against unreasonable search and seizure in the abstract. Rather, the Charter guarantees everyone the right to be secure against unreasonable search and seizure by, inter alia, the government of Canada.
32 On the applicability of s. 8 to the facts of this case, I must respectfully disagree with the approach taken by Iacobucci J. He states (at para. 42) that “[t]he focus of the right to privacy, therefore, is the impact of an unreasonable search or seizure on the individual; it matters not where the search and seizure took place” (emphasis in original). Although I agree that s. 8 protects “people, not places or things”, it only protects people against actions by the government of Canada that interfere with a person’s privacy interests through the unreasonable use of a search or seizure. Therefore, it does matter where the search or seizure took