Bad Behaviour Abroad: Beyond The Reach Of The Canadian Criminal Justice System?
by Tushar K. Pain
The courts can only try matters over which it has jurisdiction. That sounds simple and obvious enough. But how is jurisdiction determined?
Section 6(2) of the Criminal Code of Canada (hereinafter “the Code”) states that “…no person shall be convicted… of an offence committed outside Canada.” This sounds like a straight-forward concept: If it happened in Canada the Canadian courts can try it and if it didn’t then they can’t, right? But what if part of the offence occurred in Canada while part of it occurred outside of Canada? What if just a really small part of the offence occurred in Canada?
Section 6(2) of the Code deals with the primary basis for jurisidiction in Canada, which is territoriality. There are two aspects to territoriality – subjective and objective. Subjective territoriality exists where the prosecuting country asserts jurisdiction over an offence commenced within its boundaries that has consequences outside of those boundaries. As an example, take a telemarketing scam in which the fraudster-telemarketers are based in Canada. They call unwitting victims in the States and obtain their banking information for their bank accounts in the States. The money is then removed from the banks located south of the border. In a Canadian prosecution, jurisdiction would be based on subjective territoriality. Objective territoriality exists where a prosecuting country asserts jurisdiction over an offence commenced outside of its boundaries, but completed within its boundaries. Taking the reverse of the above example, where the fraudster-telemarketers are located in the States and the victims are located in Canada, Canadian jurisdiction over the alleged offences would be based on objective territoriality.
But how much of a connection needs to exist between the offence and Canada? The Supreme Court of Canada (in R. v. Libman, [1985] 2 S.C.R. 178) has stated that there must exist a real and substantial link between the offence and Canada. Whether there is a real and substantial link is to be assessed based on the circumstances and the importance of the elements of the offence linked to Canada, the facts which arose in Canada and the harm caused or which could have been caused in Canada.
So, if there’s no connection or link between the offence and Canada, then the Canadian courts cannot try the case, right? Wrong.
Section 7 of the Code lists several specific instances where offences committed wholly outside of Canada will, notwithstanding section 6(2), fall within the jurisdiction of Canada. As an example, section 7(4.1) confers jurisdiction on the Canadian courts for numerous sex offences (sexual interference, invitation to sexual touching, sexual exploitation, incest, anal intercourse (note: this section has been deemed to be of no force or effect in Ontario and Quebec), bestiality, child pornography offences, parent or guardian procuring sexual activity, householder permitting sexual activity, indecent acts, communicating with someone under the age of eighteen years for the purpose of obtaining sex for consideration) committed wholly abroad by Canadian citizens and permanent residents. The section was enacted in 1997 as a measure to protect children from unlawful sexual activity. Prosecutions under this section can only be commenced with the consent of the Attorney General.
But what about the “real and substantial link” test? Doesn’t that apply here? In the recent case of R. v. Klassen [2008] B.C.J. No. 2485, Justice Cullen of the British Columbia Supreme Court held that this test did not operate as a bar to jurisdiction for offences tried under section 7(4.1) as that test was concerned only with the territorial aspect of jurisdiction, which is subject to the codified presumption against extraterritoriality under section 6(2) of the Code. The Court held that by its wording section 7(4.1) operates notwithstanding section 6(2) and that jurisdiction under section 7(4.1) was not based on territoriality. Well, one might ask, “On what basis does jurisdiction exist under section 7(4.1)?” Justice Cullen found that jurisdiction under section 7(4.1) was based on the nationality principle, which allows states to exercise criminal jurisdiction over the conduct of their nationals, and, to a lesser extent, the universal principle, which allows states to exercise criminal jurisdiction over any individual, regardless of nationality, who commits certain crimes (agreed to be offences under international law) in any geographical location.
Justice Cullen held that the nationality principle reflects Canada’s clear interest in taking steps to prevent its own nationals or residents from using the advantages of Canadian nationality and residence to perpetuate the economic and/or sexual exploitation of children in other nations. His Honour also stated that the universal principle reflects Canada’s commitment under the The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (an international treaty).
It would seem then that the long arm of the law can, at times, grow longer.
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