Schreiber v. Canada (Attorney General)

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.

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

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.

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.

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)

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”.

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.

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.

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.

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.

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.

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)

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

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.//

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 .

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.

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.

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.

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.

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.

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 place, if it took place outside Canada by persons not under the authority of the government of Canada. Clearly, the government of Canada did not undertake any search or seizure. Canadian officials merely requested that a search and seizure be undertaken. Because those actions that are properly subjected to Charter review under s. 8 were undertaken by foreign officials, the respondent instead has sought to implicate those actions undertaken in Canada which requested the search and seizure in Switzerland. But as Stone J.A. stated at p. 207:

To conclude that section 8 is engaged because the Canadian authorities sent the request to Switzerland even though they could not and did not conduct any search and seizure there would be to contort the language of this important protection and to give it application where no governmental action of the kind envisaged by the section is involved.

I find further support for this conclusion in the reasons of Dilks J. in R. v. Filonov (1993), 82 C.C.C. (3d) 516 (Ont. Ct. (Gen. Div.)), cited with approval by McLachlin J., writing for the Court in Terry, supra, at para. 18. In Filonov, Dilks J. considered whether the actions of U.S. authorities in conducting a search and seizure pursuant to a Canadian treaty request implicated s. 8 of the Charter . On facts analogous to this case, Dilks J. made two distinct findings which inform the analysis of the applicability of s. 8 of the Charter , and which are relevant to this appeal. First, at p. 520, he held that “[t]he sovereign authority of Canada ends with the sending of the request” for assistance. Second, at pp. 522-23 he found that:

. . . the United States’ part of the process was a discrete procedure carried out by authorities who were in no way controlled by or answerable to any Canadian authorities. The fact that the process was initiated by the latter did nothing to make their United States counterparts agents of the Canadian government. Even if they could be so considered, their conduct would not be governed by the Charter unless the Charter expressly said as much.

The implications of Dilks J.’s reasons are that s. 8 of the Charter did not apply to the sending of the request, and that those actions which might otherwise have been reviewable under s. 8 were not so reviewable on the facts of the case, because they were undertaken by the U.S. authorities.

I note that drawing a line between those Canadian actions which did not implicate the Charter , and the actions by Swiss authorities which 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: see, e.g., Canada v. Schmidt, [1987] 1 S.C.R. 500, at pp. 518-19; Argentina v. Mellino, [1987] 1 S.C.R. 536, at p. 547; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, per La Forest J. at p. 831, and per McLachlin J. at p. 846.

Finally, in the context of a criminal trial in Canada, I agree with the Chief Justice that s. 7 may apply to justify excluding evidence obtained abroad through foreign officials where it is necessary to preserve the fairness of the trial.

For these reasons, I would allow the appeal with costs.

The reasons of Gonthier and Iacobucci JJ. were delivered by

//Iacobucci J.//

Iacobucci J. (dissenting) -- I have read the reasons of both Chief Justice Lamer and Justice L’Heureux-Dubé in this matter and, with respect, I cannot agree with their reasons.

As explained by the Chief Justice, the parties brought this case before the Federal Court by way of a special case under Rule 475 of the Federal Court Rules, C.R.C., c. 663, to seek an 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?

I agree with the Chief Justice and with Justice L’Heureux-Dubé that the actions of the Swiss authorities in executing the search and seizure are not subject to s. 8 of the Canadian Charter of Rights and Freedoms since the Charter cannot apply extraterritorially (R. v. Terry, [1996] 2 S.C.R. 207, and R. v. Harrer, [1995] 3 S.C.R. 562). I also agree with the Chief Justice that Canadian authorities are indeed subject to Canadian judicial standards, including the Charter , in drafting and issuing a letter of request for foreign assistance.

However, I do not agree with my colleagues’ approaches to s. 8 of the Charter . The Chief Justice states at para. 17 of his reasons that “[i]t is clear that the Charter in general applies to such letters of request”. However, he concludes that s. 8 was not violated in this case because the respondent did not have a reasonable expectation of privacy with respect to the information sought. Justice L’Heureux-Dubé is of the view that s. 8 is not applicable to the request by the Canadian authorities for the execution of a search and seizure by the Swiss authorities. I take a different view of what triggers the application of s. 8 and the consequent engagement of the protective and preventative measure of judicial preauthorization.

The language of s. 8 provides very little guidance on the scope and purpose of the interests which it strives to protect. Dickson J. (as he then was) defined the purpose of s. 8 in Hunter v. Southam Inc., [1984] 2 S.C.R. 145 (at p. 160) as the protection of individuals “from unjustified state intrusions upon their privacy” (emphasis added). The scope of the s. 8 right to privacy is limited by the reasonableness of the individual’s expectation of privacy in a given set of circumstances. Dickson J. explained this approach in Hunter (at pp. 159-60):

The guarantee of security from unreasonable search and seizure only protects a reasonable expectation. This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from “unreasonable” search and seizure, or positively as an entitlement to a “reasonable” expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement. [Emphasis in original.]

Thus, the concept of a “reasonable expectation of privacy” is the organizing principle around which one can determine whether s. 8 applies to protect an individual’s interests in a given situation.

2. People Not Places

This Court has interpreted s. 8 to protect “people, not places or things” (per La Forest J. in R. v. Colarusso, [1994] 1 S.C.R. 20, at p. 60; see also R. v. Plant, [1993] 3 S.C.R. 281, at p. 291; Hunter, at p. 158, citing Katz v. United States, 389 U.S. 347 (1967); and R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 428-29). This principle marks a shift in focus in privacy rights from the protection of property interests in the place searched to a focus on the impact of the search and seizure on the individual regardless of the place searched (see Dickson J. in Hunter, at pp. 157-58). This broad interpretation of s. 8, unrestricted by the concept of property or the law of trespass, led this Court to find, in Plant, that an individual enjoys a reasonable expectation of privacy with respect to a biographical core of personal information held by others. Sopinka J., writing for the majority, stated (at p. 293):

. . . in order for constitutional protection to be extended, the information seized must be of a “personal and confidential” nature. In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual. [Emphasis added.]

The 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.

3. Ex Ante Protection

Of critical importance to the present appeal is the fact that s. 8 has been interpreted by this Court, since the seminal case of Hunter, 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. This Court has interpreted s. 8 purposively in order that it may be more than a prohibition against unreasonable search or seizure; s. 8 has been interpreted to guarantee the right to be secure against unreasonable search or seizure (see Dyment, at p. 427). As La Forest J. explained in Dyment, at p. 430:

. . . if the privacy of the individual is to be protected, we cannot afford to wait to vindicate it only after it has been violated. This is inherent in the notion of being secure against unreasonable searches and seizures. [Emphasis in original.]

L’Heureux-Dubé J. underlined the importance of the ex ante protection afforded by s. 8 in R. v. O’Connor, [1995] 4 S.C.R. 411, at p. 486, where she stated that “[t]he essence of privacy . . . is that once invaded, it can seldom be regained”.

Therefore, for s. 8 to protect one’s reasonable expectation of privacy effectively it must operate before the search and seizure is executed and before the information is disclosed. Section 8 would have very little value as a guarantee to the right to privacy if it operated only to exclude, ex post facto, information obtained in an unreasonable manner; by that time, the individual’s privacy has already been violated and the personal and intimate information is in the hands of the authorities.

This prophylactic interpretation of s. 8 has found effective expression in the judicial preauthorization requirement developed by Dickson J. in Hunter. He stated that an individual’s right to privacy must be balanced against the state’s interest in law enforcement. He made the following comments with respect to when the balance of interests should be assessed (at p. 160):

If the issue to be resolved in assessing the constitutionality of searches under s. 10 [of the Combines Investigation Act, which could be equated here with searches associated with a criminal investigation and in anticipation of a prosecution under the Criminal Code ] were [whether] in fact the governmental interest in carrying out a given search outweighed that of the individual in resisting the governmental intrusion upon his privacy, then it would be appropriate to determine the balance of the competing interests after the search had been conducted. Such a post facto analysis would, however, be seriously at odds with the purpose of s. 8. That purpose is, as I have said, to protect individuals from unjustified state intrusions upon their privacy. That purpose requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place. This, in my view, can only be accomplished by a system of prior authorization, not one of subsequent validation. [Emphasis in original.]

Thus, s. 8, which guarantees the right to privacy, is engaged and an assessment is made of the right to privacy and the state’s interest in law enforcement through the judicial preauthorization process, prior to the execution of the search and seizure.

The reasonableness of a warrantless search and seizure can be assessed by a court after the fact, as illustrated by R. v. Collins, [1987] 1 S.C.R. 265. Lamer J. (as he then was), writing for the majority, listed the three requirements which must be met for a warrantless search to be “reasonable” under s. 8 (at p. 278):

(a) it must be authorized by law;

(b) the law itself must be reasonable; and

(c) the manner in which the search was carried out must be reasonable.

In the present case, Swiss law permitted the execution of the request and governed the manner in which the search and seizure was carried out; Swiss laws and standards are not subject to Charter scrutiny. However, the present appeal asks the Court to determine whether the prior judicial authorization requirement of s. 8 is relevant to the actions of the Canadian authorities in requesting the search and seizure. Scrutiny of the actions of the Canadian authorities prior to the execution of the search and seizure by the Swiss authorities accords with the ex ante protection of privacy interests contemplated by s. 8.

The Chief Justice concludes that s. 8 protection was not triggered in the present case because the respondent did not have a reasonable expectation of privacy in the circumstances. As a result, the preauthorization process was not justified or required. I respectfully disagree. In my opinion, the respondent did have a reasonable expectation of privacy with respect to the information sought by the Canadian authorities and s. 8 consequently applies in full force with all of its attendant guarantees and preventative measures.

In my view, whether an individual’s privacy interests will attract s. 8 protection depends on whether a “reasonable person would expect that the investigative technique in question so trenched on personal privacy that it should only be available with some form of judicial pre-authorization” (see S. C. Hutchison, J. C. Morton and M. P. Bury, Search and Seizure Law in Canada (1993 (loose-leaf)) at p. 1-12). This brings us back to the concept of reasonable expectation of privacy; the preventative/prophylactic guarantees and measures which are at the heart of s. 8 are not engaged until a reasonable expectation of privacy in the information sought has been recognized.

This Court has taken this approach to s. 8 on numerous occasions where it has recognized that there are two distinct inquiries which must be made in relation to s. 8: (1) does the individual have a reasonable expectation of privacy in the circumstances? (2) if yes, was the search and seizure reasonable? (see for example R. v. Edwards, [1996] 1 S.C.R. 128, at para. 45; see also R. v. Belnavis, [1997] 3 S.C.R. 341). In my view, once it is established that an individual does have a reasonable expectation of privacy in a given circumstance, then s. 8 and its preventative measures are engaged.

This Court has considered the means through which a reasonable expectation of privacy may be identified in a given set of circumstances. La Forest J. recognized in Dyment that there are certain situations in which we should be “alert to privacy considerations” (p. 428). He noted that privacy claims can be grouped into categories: territorial or spatial privacy, privacy of the person, and privacy in relation to information (citing the Report of the Task Force established jointly by the Department of Communications/Department of Justice (1972), Privacy and Computers, at pp. 12-14). With respect to privacy in relation to information, which is directly at issue in the present appeal, La Forest J. made the following observations (at pp. 429-30):

This too [privacy in relation to information] is based on the notion of the dignity and integrity of the individual. As the Task Force put it (p. 13): “This notion of privacy derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit.” In modern society, especially, retention of information about oneself is extremely important. We may, for one reason or another, wish or be compelled to reveal such information, but situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected. [Emphasis added.]

In Plant, supra, Sopinka J. set out more precise guidelines for determining whether an individual has a reasonable expectation of privacy with respect to certain information entitling him/her to s. 8 protection. Sopinka J.’s guidelines took the form of a contextual framework which he described as follows (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.

Sopinka J. concluded that Plant did not have a reasonable expectation of privacy with respect to his electricity records, which while revealing the pattern of electricity consumption in the residence, cannot reasonably be said to reveal intimate details of the individual’s life. Sopinka J. concluded as follows (at p. 296):

. . . the appellant cannot be said to have held a reasonable expectation of privacy in relation to the computerized electricity records which outweighs the state interest in enforcing the laws relating to narcotics offences. As such, the appellant has failed to bring this search within the parameters of s. 8 of the Charter . [Emphasis added.]

Lacking a reasonable expectation of privacy in relation to the information, the individual did not benefit from the preventative guarantee of s. 8; judicial preauthorization for the valid seizure of the information was not required.

A number of principles can be distilled from the above-mentioned portions of the Dyment and Plant decisions. Law enforcement authorities must be alert to the privacy interests of individuals with respect to a biographical core of personal information. A reasonable expectation of privacy triggers the application of the s. 8 guarantees. Where a reasonable expectation of privacy exists and is threatened by a proposed governmental intrusion, law enforcement authorities are obliged to seek judicial preauthorization for their actions. Where, on the facts, the individual cannot claim a reasonable expectation of privacy with respect to the information sought, s. 8 does not apply at all and the authorities need not proceed through the preauthorization process.

C. Section 8 and the Present Facts: Does the Respondent Have a Reasonable Expectation of Privacy With Respect to His Swiss Bank Records?

In accordance with the principles discussed above, s. 8 will apply to protect the respondent’s privacy interests if the respondent is able to establish that he had a reasonable expectation of privacy with respect to his Swiss bank accounts. Applying the contextual framework developed by Sopinka J. in Plant, I conclude that the respondent does have a reasonable expectation of privacy with respect to his Swiss bank records. Banking information, unlike electricity records, does reveal intimate personal details about an individual including financial status and intimate lifestyle choices. Second, the relationship between a bank and a client can be characterized as one of confidence, which, according to Plant, leads to a greater expectation of privacy in the information. Finally, according to Plant, if the information is readily available without intrusion or the involvement of a third party, then it is less likely to constitute a violation of the individual’s privacy. In this case, 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 the respondent.

The Chief Justice concluded that “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” (para. 25). With respect, I cannot agree. The search and seizure was initiated by the Government of Canada by formal request to the Government of Switzerland in the absence of a treaty. The request was in furtherance of a Canadian investigation presumably leading to prosecution of a Canadian in Canada for an alleged violation of the Canadian Criminal Code. The right to privacy, as it has been interpreted under the Charter , protects people and not places. The impact on the individual of a search and seizure of bank records is the same whether the search and seizure took place in Canada or in Switzerland. The respondent has a reasonable expectation of privacy with respect to banking information no matter where the accounts are held. It is entirely reasonable, in my view, that the respondent should expect that Canadian authorities will not be able to request the assistance of Swiss authorities in obtaining his Swiss bank records without first obtaining some form of judicial preauthorization in Canada.

Justice L’Heureux-Dubé concludes, as mentioned above, that the letter of request is not subject to s. 8 scrutiny at all. In support of her conclusion she provides as an example the procedure for requests for assistance in the execution of a search and seizure between Canadian jurisdictions. The requesting authorities need not obtain prior judicial authorization in accordance with s. 8 before sending the request. Section 8 does not apply until the request is received, at which point a warrant must be obtained for the execution of the search and seizure. With respect, I do not find this example persuasive. In the domestic context, the requesting authority knows that the request will be subject to judicial scrutiny prior to the execution of the proposed search and seizure. In the present context, to the contrary, we have not been told whether the Swiss authorities will examine or review the basis behind a foreign request for a search and seizure nor are we aware of the form that any such examination would take. However, we have been told, as has been mentioned by the courts below, that there is a reasonable expectation that the request will be acted upon by the Swiss authorities.

It is somewhat formalistic to conclude that the procedure used within Canada to scrutinize interjurisdictional requests for assistance provides a full answer to the present case. A formalistic or legalistic approach is contrary to Charter jurisprudence which has long held that the rights that it guarantees must be interpreted generously and in a purposive manner (see Dyment, at p. 426; see also R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344, and Hunter, at p. 155). It is more appropriate to approach the issue on a principled basis. The respondent’s reasonable expectation of privacy with respect to the information sought by the Canadian authorities is determined and the action of the Canadian authorities, the issuing of the letter of request, effectively puts the respondent’s privacy interests in jeopardy; s. 8 therefore applies to balance the interests of the state and those of the respondent through a judicial preauthorization procedure. This result is in accordance with the broad and liberal interpretation consistently applied to s. 8 by this Court in an effort “to secure the citizen’s right to a reasonable expectation of privacy against governmental encroachments” (Dyment, at p. 426). A failure to apply s. 8 to the letter of request may result in the respondent’s privacy interests in effect “falling between two stools”. I say this because through the international situation at play herein, we have no assurance that judicial preauthorization has been observed such that one of the cornerstones of the s. 8 approach has been ignored.

As I acknowledged from the outset, I agree that the manner in which the actual search and seizure is carried out remains to be determined by Swiss law and not by Canadian law. Of course, a Canadian court may resolve to exclude evidence obtained by foreign authorities at the request of Canadian authorities if the manner of the search and seizure is unreasonable or offensive; however, there is no such evidence before the Court, and that would be a case for another day. A more satisfactory resolution results from the application of s. 8 to the actions of the Canadian authorities in issuing the letter of request; this does not amount to an extraterritorial application of the Charter and it serves to protect the respondent’s privacy interests.

I conclude that the respondent, 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 . Section 8 therefore applies in the circumstances and its substantive guarantees are activated and serve to protect the respondent’s privacy interests. Consequently, the Canadian authorities, in seeking information in which the respondent has a reasonable expectation of privacy, had an obligation to comply with s. 8 in drafting and issuing the letter of request; compliance with s. 8 would require judicial preauthorization for the state intrusion on the respondent’s privacy. Having failed to comply with the s. 8 requirements, the search and seizure was neither valid nor reasonable in the circumstances.

For the foregoing reasons, the appeal should be dismissed with costs and the holding of the majority of the Court of Appeal affirmed. The question put before the Court by way of a special case must be answered in the affirmative: the Canadian standard for the issuance of a search warrant should have been satisfied before the Minister of Justice and Attorney General of Canada submitted a letter of request asking Swiss authorities to search for and seize the respondent’s banking documents and records. However, pursuant to the submissions of the appellant, I would order that the effect of this decision be suspended for six months in order that the required legal changes, including the appropriate standard for judicial preauthorization in the international context, may be made.