Canadian soldier who filmed himself sexually abusing colleague has appeal dismissed

Saturday, February 18, 2023

The Supreme Court of Canada Friday dismissed an appeal by ex-corporal Colin McGregor arguing the search and seizure which led to his 2019 conviction for sexual assault violated the Charter of Rights and Freedoms on the grounds he had diplomatic immunity.

On September 30, 2019, McGregor was found guilty of two counts of voyeurism, one count of possession of a device for surreptitious interception of private communications, one count of sexual assault and one count of disgraceful conduct.

That Thursday, he was sentenced by a military judge at Canadian Forces Base Esquimalt to three years prison and another twenty years on the sex offender registry, and was ‘dismissed with disgrace’ from the Armed Forces.

From August 2015 to March 2017, McGregor had been posted to the Canadian Defence Liaison Staff at Canada’s embassy in Washington, D.C. He had diplomatic immunity by virtue of his position.

In January 2017, another member of the Canadian Armed Forces, also posted in Washington, found two audio recording devices in her home. Believing that McGregor was responsible, she reported him to her senior officer.

Investigators with the Canadian Forces National Investigation Service made a request to the Canadian Embassy seeking to waive McGregor’s diplomatic immunity, which was granted.

On February 16, 2017, CFNIS agents and local police executed a search warrant at the then-corporal’s staff quarters. The CFNIS officers seized computers, CDs, storage devices and five hidden cameras, which were disguised as smoke detectors and alarm clocks.

Forensic analysis of the devices revealed a video of McGregor groping an unconscious woman lying on the ground. The woman shown in the video, which was taken in Esquimalt in 2011, later said that she believed it was taken on a night when she invited McGregor over for drinks and video games. She reported blacking out and awakening to find McGregor sexually touching her.

Further analysis found photos and videos taken from inside McGregor’s home, showing a woman using the bathroom, and a video of child-like cartoon characters engaging in sex acts. A child pornography charge in relation to the cartoon video was later dropped.

McGregor sought to have the videos and images excluded from evidence, on the grounds that the search violated section 8 of the Canadian Charter of Rights and Freedoms, which protects Canadians from “unreasonable search or seizure.” The motion was rejected.

Following McGregor’s conviction in October 2019, lawyers for the then-36-year-old appealed to the Court Martial Appeal Court, arguing that the evidence should have been excluded.

In December 2020, the court dismissed the appeal, holding that the Charter did not apply outside Canada and, even if it did, the search was permissible.

McGregor appealed further to the Supreme Court, arguing that the Charter did apply to the search of his residence and that the search violated the Charter.

At a May 2022 hearing, Diana Mansour, counsel for McGregor, told the court that Canadian military members “ought to have their Charter rights guaranteed when investigated by Canadian military police for Canadian criminal offences.”

“The portability of the military justice system allows Canadian criminal law to apply to our military members when they are serving anywhere in the world and with it, so should the Charter apply.” she added.

Patrice Germain, counsel for the Crown, instead argued that the search was authorised under Virginia law and thus the Charter did not apply.

“Section 8 of the Charter did not apply to the search of the appellant’s residence in the United States, because Virginia state law, under which it was conducted, is not within the authority of Parliament or a provincial legislature.”

Yesterday, the Supreme Court unanimously dismissed McGregor’s appeal, holding that it was unnecessary to deal with whether the Charter applied overseas, because, in any event, the search was a reasonable search and seizure and therefore did not breach the Charter.

Justice Suzanne Côté, writing for the majority, found that the Investigation Service had asked local authorities to obtain and execute a search warrant under Virginia law. That warrant authorized the search, seizure and analysis of McGregor’s electronic devices.

“A search is reasonable within the meaning of s. 8 of the Charter if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.” she wrote.

“The search of [McGregor]’s devices was authorized by law.”

The court also found that the search was carried out in a reasonable manner, holding that it was “not more intrusive than necessary” and that although investigators did not expect to find the sexual assault video, the file fell into “plain view”.

Finding that the Investigation Service had also obtained Canadian warrants before searching the devices any further, Côté held: “It is difficult to see how the CFNIS investigators could have acted differently to attain their legitimate investigative objectives.”

“Simply put, I would dismiss the appeal even if I were to accept Cpl. McGregor’s argument that the Charter applies extraterritorially in the present context.”

Lawyers for both McGregor and the Crown commented on the ruling.

“We accept the court’s decision which leaves open the opportunity for another matter to address the legal issue of the extraterritorial application of the Charter in the Canadian military context.” said McGregor’s counsel, Diana Mansour.

In an email to Law360, Chavi Walsh, Natasha Thiessen and Patrice Germain, co-counsel for the Crown, described the CFNIS investigation as “a textbook case of successful international law enforcement cooperation, which respected the rights of the accused and complied with Canada’s international legal obligations.”

“This case demonstrates that the Canadian Armed Forces can maintain crucial military discipline by effectively investigating and prosecuting crimes, including those of sexual violence, anywhere the CAF operates.”, they added.

McGregor’s three-year prison sentence will continue. Upon release, he will be barred from future employment with the Canadian government and must sign the sex offender registry for 20 years.

[edit]