Supreme Court says diplomatic immunity does not shield soldier from search that led to sex assault conviction

The Supreme Court of Canada says having diplomatic immunity does not shield a former Canadian Forces corporal from the search and seizure that led to his conviction for sexual assault and voyeurism in a military court. 

Colin McGregor was sentenced in 2019 to three years in prison for sexually touching an unconscious female colleague and secretly recording another while she used the washroom in incidents that took place between 2011 and 2017.

McGregor's lawyers argued that because he had diplomatic status while serving in Washington, D.C., his home should have been protected from search and seizure under Section 8 of the Charter of Rights and Freedoms. 

Section 8 protects Canadians from being the victim of unreasonable search and seizure.

But in an 8-0 judgment, the Supreme Court dismissed McGregor's appeal and ruled that not only was his immunity legally waived, but the 2017 search of his residence did not violate the Charter and the search was therefore reasonable under the law. 

"It is difficult to see how [military] investigators could have acted differently to attain their legitimate investigative objectives," the ruling said. "I conclude that they did not infringe Cpl. McGregor's rights under Section 8 of the Charter."

In 2017, one of McGregor's colleagues in the Canadian Armed Forces also posted to Washington reported to her senior officer that she believed McGregor had placed two audio recording devices in her home. 

The Canadian Forces National Investigation Service, CFNIS, looked into the matter and decided there were reasonable grounds to search his residence. 

The CFNIS went to the Alexandria police and obtained a warrant under Virginia law to conduct a search of his residence and anything found there, including electronic devices.  

The Canadian Embassy in Washington, D.C. waived McGregor's immunity with respect to his residence and personal property.

Video of assault discovered

While conducting their search, the CFNIS and Alexandria police seized a number of computers, hard drives, computer equipment and other media storage devices.

An analysis of those devices by investigators led to the discovery of a video of an alleged sexual assault in Esquimalt, B.C., in 2011. 

McGregor was charged in May 2017 and repatriated to the 5th Canadian Division Support Base Gagetown in Oromocto, N.B. He retired from the military four months later and relocated to Alberta.

He was found guilty in 2019 of sexual assault, two counts of voyeurism, one count of possession of a device for surreptitious interception of private communication and disgraceful conduct.

Actions conformed to Charter

McGregor's lawyers challenged his conviction at the Court Martial Appeal Court, arguing that the search violated the Charter. 

The appeal court agreed with the lower court martial decision, saying that the Charter did not apply outside of Canada, but even if it did, the search did not infringe Section 8. 

On Friday, the Supreme Court unanimously ruled that this case was not appropriate to be used as a test case for how the Charter applies outside of Canada, but was a moot point anyway because all justices felt the Charter had not been violated. 

"The actions of the CFNIS conformed to the Charter," the top court said Friday. "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." 

The Supreme Court ruled that Canadian military investigators operated within the law by not only getting a warrant to search the residence in the first instance, but also by seeking a second warrant to probe the seized devices further. 

"Working within the constraints of its authority in Virginia, the CFNIS sought the co-operation of local authorities to obtain and execute a warrant under Virginia law," the ruling said. 

"The evidence of sexual assault was discovered inadvertently by the investigators in the process of triaging the devices at the scene of the search; its incriminating nature was immediately apparent."

The ruling said that while the video evidence of the sexual assault was not something investigators expected to find, its discovery was lawful because the devices being searched were covered by the Virginia warrant.