This decision followed a voir dire held to determine the admissibility of evidence seized on board the Cypriot vessel MV Pacifico. The accused was a Spanish national on trial for conspiracy to import cocaine into Canada. The Crown moved to introduce in evidence certain items found on board the Pacifico after it was arrested 100 nautical miles from the coast in international waters and brought to the port in Halifax, Nova Scotia.

The Royal Canadian Mounted Police (RCMP) had been conducting an investigation (code-named Operation Jules) from the early 1990s to February 1994 which gathered information providing reasonable and probable grounds to believe that the accused and co-conspirators were about to import a large quantity of drugs into Canada. On 21 and 22 February 1994 it became obvious that the conspirators were looking for a vessel to meet a larger vessel somewhere at sea in order to receive a shipment of drugs. The Lady Teri-Anne was secured for that purpose. The Canadian authorities also believed that Raymond LeBlanc, a Canadian citizen, was on board the vessel meeting the Lady Teri-Anne and that his task was to ensure the orderly transfer of drugs onto the Lady Teri-Anne. The RCMP obtained the necessary consent from the Attorney-General of Canada to exercise the power of arrest, entry, search and seizure outside Canada’s territory and in relation to Raymond LeBlanc on board a foreign vessel and in international waters.

At 19h27 on 21 February 1994, the Lady Teri-Anne left the Shelburne wharf and remained under continuous surveillance via eye witnesses, mobile radar systems and a navigational tracking system. In addition, several conversations were being intercepted between Raymond LeBlanc and the crew of the Lady Teri-Anne. The analysis of the conversations made it clear that Raymond LeBlanc was on board the other vessel and that he and the crew of the Lady Teri-Anne were exchanging information on co-ordinates in order to meet at a pre-arranged place at sea. There was no doubt that they were working as a team to ensure the meeting of the two vessels in order to transfer drugs from the one to the other. At 02h06 the Lady Teri-Anne stopped within 160 feet of another vessel and remained 'dead in the water' for approximately 25 minutes. At 02h22, the Lady Teri-Anne broke from the other vessel and proceeded in the direction of Shelburne wharf, while the other vessel turned south-east in the direction of the open sea. The other vessel turned out to be the Pacifico, a large vessel registered in Cyprus, whose captain was Jürgen Kirchhoff. The Pacifico was followed or tracked by radar from the time it left the meeting place with the Lady Teri-Anne until it was arrested and boarded in international waters.

Meanwhile, the Lady Teri-Anne docked at the Shelburne wharf at 07h52. For tactical reasons it was boarded at 11h10 and 170 bales of cocaine weighing 5,419 kg were removed. It became clear that Raymond LeBlanc had made his way from the Pacifico onto the Lady Teri-Anne to be brought back to shore. He was arrested at the Wildwood Motel in Shelburne.

At 11h59 the HMCS Terra Nova (the Canadian military vessel) was given instructions to arrest the Pacifico. At that time the two vessels were 18 miles apart. The commanding officer of the Terra Nova called the Pacifico and informed it that RCMP officers were on board and that they suspected that the captain of the Pacifico had a Canadian citizen on board which the Canadian authorities thought to be involved in a conspiracy to import narcotics. The Crown conceded that this was incorrect as Raymond LeBlanc had in fact been arrested in Shelburne. It was further conceded by the Crown that the only reason which in fact brought about the pursuit and the subsequent arrest of the Pacifico was the rendezvous between the two vessels and the reasonable belief by the Canadian authorities that the Lady Teri-Anne had obtained a cargo of illicit drugs transferred from the Pacifico onto the Lady Teri-Anne for importation into Canada. The commanding officer of the Terra Nova ordered the Pacifico to alter course and prepare for an RCMP boarding, with the threat that if it did not comply he would be compelled to fire across the bow. The Pacifico complied and allowed the boarding. While the Pacifico was escorted back to the shore of Nova Scotia, the Canadian authorities requested authorisation pursuant to the UN Convention against Illicit Traffic in Narcotics, Drugs and Psychotropic Substances 1988 (Vienna Convention) from the Director of the Cypriot Department of Merchant Shipping to board, search and take appropriate action if evidence of illicit traffic was found. The Cypriot government gave consent on 23 February 1994 and on the same day, arrest and search warrants were obtained from Canadian courts for the arrest of the captain of the Pacifico and the search of his vessel.

The accused argued that hot pursuit was not allowed by, and was contrary to, art 17 of the Vienna Convention and not justified under customary international law as the Pacifico, or one of its boats, never entered Canadian territorial waters. He further contended that such unlawful arrest, accompanied by threats of the use of force, was so reprehensible in terms of breach of international law that to allow the items seized as a result of such actions to be received as evidence against the accused would amount to an abuse of process.

Held: The items seized on the Pacifico shall be admitted in evidence.

The main argument of the accused is that, in accordance with art 17.3 of the Vienna Convention, Canada had no right whatsoever to order the Pacifico to stop nor to board until it had obtained authorisation from the Cypriot government. Assuming that art 17 of the Vienna Convention represents the domestic law of Canada, it does not have any applicability under the circumstances, nor do the words of art 17 allow the type of interpretation the accused seeks to place upon it. Prior to boarding, the Canadian authorities did not know which flag the vessel was flying, although they believed that the vessel had been engaged in illicit trafficking. Under such circumstances the Terra Nova could not request confirmation of registry or authorisation from the flag State to take appropriate measures. Those steps were taken after the boarding of the vessel while it was escorted to the Nova Scotia shore. The Vienna Convention in general and art 17 do not and did not prevent Canadian authorities from entering into hot pursuit of the Pacifico in accordance with the international law of the sea. Article 17.11 expressly provides that 'any action taken in accordance with this article shall take due account of the need not to interfere with or affect the rights and obligations and the exercise of jurisdiction of coastal states in accordance with the international law of the sea'.

As to the contention that the customary international law of the sea did not authorise any of the actions taken by the Canadian authorities in this case and the items seized should be excluded from evidence, the Crown submits that the arrest and subsequent boarding of the Pacifico in international waters was fully justified by customary international law of the sea reflected by art 23 of the Geneva Convention on the High Seas 1958 (Geneva Convention) on the basis of the doctrine of 'extended or extensive constructive presence', a doctrine carried forward into the United Nations Convention on the Law of the Sea 1982 (UNCLOS), in particular art 111.

Neither the Geneva Convention nor UNCLOS has been ratified by the Canadian Parliament. However, the Court agrees with Devonshire J in R v Mills (unreported decision of the English Circuit Court, 10 March 1995), McIntyre J in R v Kirchhoff (1996) 172 NBR (2d) 257 and R v Sunila and Soleyman (1986) 28 DLR (4th) 450, that art 23 of the Geneva Convention and art 111 of UNCLOS as they relate to the issues of extensive constructive presence are declaratory of existing customary international law and that such law is part of the Canadian domestic law. The fact that art 23 of the Geneva Convention was carried forward verbatim on the issue of extensive constructed presence into UNCLOS is of significance. The acceptance of the concept by the hundreds of nations who have recognised UNCLOS is an indication of widespread acceptance by nations of the concept of extensive constructive presence and provides evidence of state practice.

Looking at art 111’s requirements as they relate to this case, the Court concludes that the hot pursuit was exercised by a military vessel (Terra Nova) authorised to that effect. The hot pursuit was undertaken by the Terra Nova only after the Terra Nova had good reason to believe, after the arrest and boarding of the Lady Teri-Anne at the Shelburne wharf by the RCMP, that the Pacifico had violated the laws of Canada by working as a team with the Lady Teri-Anne, which was then in Canadian territorial waters with five tons of cocaine which had been unloaded from the Pacifico onto the Lady Teri-Anne, albeit outside of Canada’s territorial waters. Under such circumstances, the Pacifico had not only worked as a team with the Lady Teri-Anne but had also been used as a mother ship by the Lady Teri-Anne. The pursuit of the Pacifico was never interrupted and at no time did the Pacifico enter the territorial sea of any other State. The arrest of the Pacifico was only effected after an auditory signal to stop had been given and had been heard. The pursuit, arrest, boarding and subsequent seizure of the items on board the Pacifico were performed in accordance with the established law of the sea and Canada’s domestic laws. The allegations by the accused that the process of the Court is being abused by receiving the items seized on board the Pacifico are without merit.