The Supreme Court says diplomatic immunity does not protect the soldier from searches that led to a sex assault conviction
The Supreme Court of Canada says diplomatic immunity does not protect a former Canadian Armed Forces corporal from the search and seizure that led to his conviction on sexual assault and voyeurism charges in a military court.
Colin McGregor was sentenced to three years in prison in 2019 for sexually touching an unconscious colleague and secretly picking up another while she was using the washroom in incidents between 2011 and 2017.
McGregor’s attorneys argued that because he had diplomatic status while serving in Washington, DC, his home should be protected from search and seizure under Section 8 of the Charter of Rights and Freedoms.
Section 8 protects Canadians from being victims of unreasonable search and seizure.
But in an 8-0 ruling, the Supreme Court dismissed McGregor’s appeal, ruling that not only was his immunity legally waived, but the search of his residence in 2017 did not violate the charter and therefore the search was in accordance with the law was appropriate.
“It’s hard to see how [military] Investigators could have acted differently to achieve their legitimate investigative objectives,” the decision said. “I conclude they didn’t hurt Cpl. McGregor’s rights under Section 8 of the Charter.”
In 2017, a colleague of McGregor’s in the Canadian Forces, who was also deployed to Washington, reported to her senior officer that she believed McGregor had placed two audio recording devices in her home.
The Canadian Forces’ National Intelligence Service, CFNIS, investigated the matter and decided that there were valid reasons to search his home.
The CFNIS went to the Alexandria Police Department and obtained a search warrant under Virginia law to search his home and anything found there, including electronic equipment.
The Canadian Embassy in Washington, DC waived McGregor’s immunity over his residency and personal property.
Video of the attack discovered
During their search, CFNIS and Alexandria police officers seized a number of computers, hard drives, computer equipment and other media storage devices.
An analysis of these devices by investigators led to the discovery of video of an alleged sexual assault in Esquimalt, BC in 2011.
McGregor was charged in May 2017 and repatriated to the 5th Canadian Division Gagetown Support Base in Oromocto, NB. Four months later he retired from the military and moved to Alberta.
He was found guilty in 2019 of sexual assault, two counts of voyeurism, one count of possession of a device for secretly intercepting private communications and despicable conduct.
Actions consistent with the Charter
McGregor’s lawyers challenged his conviction in the Court of Martial Appeal, arguing that the search violated the Charter.
The Court of Appeals agreed with the lower court’s military decision, saying the charter did not apply outside of Canada, but even if it did, the search did not violate Section 8.
On Friday, the Supreme Court unanimously ruled that this case could not be used as a test case for applying the charter outside of Canada, but was a moot point anyway, as all judges believed the charter had not been violated.
“The actions of the CFNIS were consistent with the charter,” the top court said Friday. “Put simply, I would deny the appeal even if I accepted Cpl. McGregor would agree that the Charter applies extraterritorially in the present context.”
The Supreme Court ruled that the Canadian military investigators acted within the law by not only obtaining a first-instance search warrant for the home, but also seeking a second search warrant to further examine the confiscated equipment.
“The CFNIS worked within its authority in Virginia and sought to cooperate with local authorities to obtain and execute an arrest warrant under Virginia law,” the ruling reads.
“The evidence of sexual assault was accidentally discovered by investigators while examining the equipment at the search site; its incriminating nature was immediately evident.”
The ruling said that while investigators did not expect the video evidence of the sexual assault, its discovery was lawful because the devices searched fell under the Virginia warrant.