Making Sense of Extraterritoriality Jurisprudence: Heuristic Pro-forum Biases and the Need for an Algorithmic Approach

• Author: Christopher Ram
• Profession: The author was, at the time of writing, Legal Counsel with Justice Canada
• Pages: 143-166

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Making Sense of Extraterritoriality

Jurisprudence: Heuristic Pro-forum Biases

and the Need for an Algorithmic Approach

CHRISTOPHER RAM*

A. INTRODUCTION

is chapter, the rst of two by me, seeks to point out a problem in Can-

adian jurisprudence concerning the limits of jurisdiction in cases with

transnational and extraterritorial aspects. e following chapter discusses

possible statutory and judicial responses that might address this problem.

Legal reasoning usually combines algorithmic reasoning, in which the

selection and application of principles and rules is itself rule based, with

heuristic reasoning. Heuristics, sometimes described as “common sense,”

“mental shortcuts,” or “rules of thumb,” generate assumptions, which are

applied, often unconsciously, to reach conclusions in complex scenarios

where information is incomplete or uncertain. Heuristics are essential to

complex legal reasoning and decision-making, but they become unreliable

when the assumptions extend beyond the factual contexts in which they

were developed, which frequently occurs when heuristics based on the

* e author was, at the time of writing, Legal Counsel with Justice Canada. Views

expressed herein are those of the author personally and are not intended to reect

the views or positions of the Government of Canada or any department or agency

thereof.

 See Cass Sunstein, “Moral Heuristics and Moral Framing” ()  Minnesota

Law Review , and Jerey Rachlinski, “Heuristics, Biases and Philosophy”

() : Tulsa Law Review .

 

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laws and legal cultures of one state are applied to parties or events that

arise in another.

Over time, conscious and unconscious heuristics that predominantly

favour forum state law and jurisdiction produce cumulative pro-forum

biases in jurisprudence. ese then clash with algorithmic heuristic inter-

pretive principles intended to preserve parliamentary supremacy and limit

judicial discretion in extraterritorial matters. Judges are required to pre-

sume that domestic law is intended to conform with international law and

not to have extraterritorial application unless the legislature itself clearly

says otherwise, but pro-forum biases produce inconsistent cases that apply

the presumption, create arbitrary exceptions, or on occasion, simply ignore

it. is is a problem because it shifts both the exclusive authority of Parlia-

ment to make extraterritorial laws and the executive authority of ministers

over foreign policy into the hands of independent judges.

e solutions proposed in the next chapter include judicial and statu-

tory changes to reinforce the presumption against extraterritoriality as a

fairly hard limit on judicial discretion, to allow less discretion for heuristic

“common sense” reasoning, and choosing among rules based on pro-forum

biases. Drafting conventions should require clear and consistent language

whenever extraterritorial application is intended and silence when it is

not. Reliance on clear language would also ensure that international law

and foreign policy implications and safeguards were duly considered and

documented during the legislative process. Apart from reinforcing judicial

independence and the superior roles of Parliament and ministers over

extraterritorial matters, this would distinguish between substantive juris-

prudence that evolves dierently for constitutional, criminal, and other

domestic substantive questions, and jurisdictional cases that should apply

the same territorial limits to all Canadian laws.

B. JURISDICTION AND ITS DISCONTENTS

Questions of jurisdiction are fundamentally dierent from other issues

of domestic law. Domestic reasoning, principles of law, and heuristic

 R v Hape,  SCC  at paras – [Hape].

 See cases listed in note  below.

 “Jurisdiction” creates other limits on domestic law and judicial authority, but ref-

erences herein are only to limits based on national sovereignty and territoriality at

international law.