Charter rights do not apply in foreign countries: court
Conviction upheld: Governments must consent to have Canada’s constitution enforced on their soil
The trial judge did not err in concluding that the Charter was inapplicable to the RCMP’s conduct in Malaysia.
JUSTICE ELIZABETH BENNETT B. C. COURT OF APPEAL
Adecade after the murder of a Richmond pawnbroker, the B. C. Court of Appeal has confirmed his killer’s conviction after concluding the Charter of Rights and Freedoms did not apply abroad.
In a decision involving complex issues regarding the application of the constitution beyond Canada’s borders, the province’s high court unanimously dismissed Kien Beng Tan’s complaint that the RCMP violated his rights overseas. A notorious case solved after a years- long global manhunt that ended in Belgium, the ruling revolved primarily around the admissibility of evidence spoken in Cantonese, gathered by an officer posing as a cell plant, and the voluntary nature of Tan’s confession.
Now 32, Tan fled Canada in May 2004 after fatally stabbing 50- year- old Sonny Le in a dispute over redemption fees in a shop on No. 3 Road.
Police tracked Tan to Malaysia in June 2006, and two RCMP officers travelled there and obtained his fingerprints. Although the evidence was damning, no charges were laid as the Crown feared it would not survive a Charter challenge.
In 2007, Tan was arrested in Belgium for property crimes.
The RCMP again obtained his fingerprints and, while he was in custody, Tan confessed to the 2004 slaying to an undercover officer.
Tan was extradited to Canada in May 2008 and sentenced in 2011 to life imprisonment without parole eligibility for 10 years, the mandatory minimum for second- degree murder.
Although none of the evidence from Malaysia was used in the prosecution, Tan argued it tainted the material gathered later.
The appeal panel, however, quoted a 2007 Supreme Court of Canada saying the Charter does not apply overseas except in exceptional circumstances — specifically, the foreign state must manifestly grant permission for Canadian law to have status on its territory.
The justices also relied on a 2008 decision by the Federal Court dismissing Amnesty International and the B. C. Civil Liberties Association’s attempt to cite Canadian Forces members for violating the Charter by handing over Taliban insurgents to Afghan authorities who subjected them to abuse and torture.
The Federal Court engaged in an extensive discussion about what is required for a sovereign state to consent to the application of another’s constitutional law. It said something on the order of a valid sovereign authority signing a bilateral agreement, a “diplomatic accord” or similar document was required. Afghanistan, it said, did not consent to the enforcement or application of the Charter within its borders, so the Forces personnel could not be cited.
The Court of Appeal took a similar tack — that Malaysia had not consented to the application of the Canadian constitution on its soil.
“To engage the application of the Charter to the conduct of Canadian officials operating in a foreign state, an accused must tender evidence that a foreign official, possessed of the proper authority, consented to the application of the Charter,” said Justice Elizabeth Bennett, with the support of Justices John Hall and Anne MacKenzie.
“In my view, the trial judge did not err in concluding that the Charter was inapplicable to the RCMP’s conduct in Malaysia. ... Even if Mr. Tan did raise the issue of the fairness of the trial in Canada, the possible effect of the evidence gathered in Malaysia falls well short, in my view, of being anathema to the conscience of Canadians.”