McGregor v R

This case deals with the application of the Charter to Canadian armed forces members stationed abroad. The Appellant, Corporal McGregor, was a Canadian Armed Forces member stationed in Washington DC and living in nearby Alexandria, Virginia. While he was stationed there, a fellow Canadian Armed Forces member discovered an audio recording device hidden in her residence and made a report to the Canadian Forces National Investigation Service (CFNIS). Cst. McGregor became the target of the investigation, and a warrant was sought for his residence to be searched.

The CFNIS sought the assistance of local authorities to obtain a warrant. Alexandria police officers obtained a warrant from the Virginia court authorizing the search of his home, seizure of his devices, and analysis of those seized devices. Virginia law permits the search of devices found within a residence under the authority of the warrant to search the residence.

The search of the devices began with a “triage” process inside the home. Officers found evidence of the suspected offences, and other offences including sexual assault. All seized devices were returned to the Virginia State court before being sent to Canada, where CFNIS obtained Canadian warrants to conduct further analyses.

At his trial before the Canada Court Martial, Constable McGregor argued that the search of his devices violated his section 8 protection against unreasonable search and seizure. Relying on Vu, he contended that officers should have obtained a separate warrant before searching his devices.

The Military Judge ruled that the Charter did not apply to the search of his residence, because CFNIS lacked the power to obtain its own warrant to search the premises. Even if the Charter did apply, the court ruled that it would not have found a section 8 violation and would not have excluded the evidence under 24(2).

Cst. McGregor appealed this decision to the Court Martial Appeal Court of Canada (CMAC). The CMAC dismissed the appeal, finding that the Military Judge was correct in concluding that the Charter did not have extra-territorial application in this case.

However, the CMAC held that even where the Charter does not apply, the military court should consider whether the admission of the evidence would affect the Applicant’s right to a fair trial. The Appeal Court found that admitting the evidence would not undermine the Applicant’s right to a fair trial in this case. In admitting the evidence, the CMAC noted that even in Canada, a single warrant may authorize both the seizure and the search of the electronic devices. Furthermore, the “triage” search was not conducted in an unreasonable manner. The triage search was conducted with the aim of finding evidence of the specific offences alleged. Once officers found evidence of other offences, those devices were set aside until a Canadian warrant could be secured.

The appeal was denied, and his convictions upheld. The SCC granted leave to appeal the decision of the CMAC.