Courting Transnational Criminal Law in-Canada

• Author: Gillian MacNeil
• Profession: Assistant Professor, Faculty of Law, University of Manitoba
• Pages: 71-92

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three

Courting Transnational Criminal Law

inCanada

GILLIAN MACNEIL*

A. INTRODUCTION

Criminal law has long been closely tied to state sovereignty. However,

states have increasingly agreed, by treaty, to implement a large amount

of non-domestic criminal law. is has given international law a growing

inuence over this core area of sovereign power. In this chapter, I exam-

ine the way Canadian courts engage with a specic subset of criminal

law treaties: those aimed at creating inter-state cooperation to suppress

transnational crimes, usually referred to as the “suppression conventions.”

e Supreme Court of Canada has determined that Canadian courts

should use international law (including the suppression conventions) in a

comprehensive manner when interpreting domesticating law. e reality

diers. Sometimes the engagement is signicant. In some cases, reference

* Assistant Professor, Faculty of Law, University of Manitoba.

 ere is a strain of scholarship that questions whether there can be a criminal law

without a sovereign. See Kai Ambos, “Punishment Without a Sovereign? e Ius

Puniendi Issue of International Criminal Law: A First Contribution Towards a

Consistent eory of International Criminal Law” () : Oxford Journal of

Legal Studies  at –.

 For a clear example, see the Supreme Court of Canada decision in B v Canada

(Citizenship and Immigration),  SCC  [B].

 

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is perfunctory. In some cases, courts give cogent reasons for not relying on

underlying treaty norms. At other times, the reasons given are less cogent.

In some cases, relevant treaties are not mentioned at all. e disconnect

is not simply between the Supreme Court and other Canadian courts.

Supreme Court practice is internally inconsistent.

is chapter is not simply a survey of court practice; rather, I take this

opportunity to consider the reasons for the varying approaches. is is a

necessary step to understanding why the inconsistency is a problem. Can-

ada’s legal system provides part of the explanation. However, the cases

equally contain hints that the suppression conventions are themselves a

factor in their non-use. While there are identiable reasons for the incon-

sistent ways Canadian courts use the suppression conventions, I will argue

that this inconsistency is neither inevitable, nor is it desirable. It is not

inevitable because, at a formal level, Canadian caselaw provides clear dir-

ections as to the appropriate use of international legal sources. When the

conventions are brought to the attention of Canadian courts, they have

 See, for example, the Supreme Court of Canada decision in R v Malmo-Levine; R

v Caine,  SCC .

 In some cases, the courts have referenced international instruments only to con-

clude that they are not relevant. See for example: Wang v Canada (Public Safety

and Emergency Preparedness),  FC  at para ; Canada (Public Safety and

Emergency Preparedness) v JP,  FCA  at para  (rev’d in B, above note );

Sittampalam v Canada (Minister of Citizenship and Immigration),  FCA  at

para . e cases suggest at least three reasons for which courts nd treaties are

not relevant: () the court does not consider the international instrument addresses

the particular issue (R v Orr,  BCSC ); () the international instruments

provide less guidance than Parliament’s implementation (R v D’Souza, ONSC

 at para  [D’Souza]); () Parliament has chosen to go beyond what is required

by a treaty (R v Tejani,  CanLII  (Ont CA)).

 See, for example, Canada (Citizenship and Immigration) v Singh Dhillon,  FC

 at para , where the court found (wrongly) that certain treaty obligations had

not been domesticated in Canadian law.

 R v Craig,  SCC  [Craig ] (which interprets the oence-related

property provisions of the Controlled Drugs and Substances Act, SC , c ); R v

Ouellette,  SCC  [Ouellette]; R v Nguyen,  SCC  [Nguyen].

 is does not mean that Canadian courts have no resort to non-Canadian sources

when approaching problems of criminal law. Canadian criminal law is rooted in

the English common law and consideration of how common law jurisdictions

address problems of criminal law is a familiar part of the Canadian approach.

What I argue here is twofold: that resort to international law in a criminal context

is still not reexive, and that doctrines of Canadian law may limit the applicability

of international law.