Leaving the Charter at Home: From Hape to McGregor

Almost 20 years ago, in R. v. Hape, the Supreme Court held that Canadian police investigations can proceed unfettered by constitutional constraints, so long as they take place outside of Canada. The Court recently had the opportunity to revisit this position in R. v. McGregor, but declined to clarify Hape, let alone revisit it. This paper argues that this was a missed opportunity. Hape rests on the flawed premise that the extraterritorial application of the Charter would interfere with other nations’ sovereignty. The three exceptions to Hape’s general rule of non-extraterritorial application are either illusory or in tension with that premise. So is the reasoning in McGregor itself, which engages in the very analysis that Hape’s rationale should preclude. These considerations suggest that Hape should be reconsidered at the earliest opportunity.