The Internationalization of Canadian Criminal Justice-Policy

• Author: Donald K. Piragoff, QC
• Profession: BA, LLB, LLM; and now KC (King's Counsel) as of 8 September 2022
• Pages: 25-67

25

two

e Internationalization of

Canadian Criminal Justice Policy

DONALD K. PIRAGOFF, QC*

A. INTRODUCTION

In , in the rst edition of the Canadian Bar Review, Herbert A. Smith

of McGill University questioned Lord Halsbury’s  statement that “all

crime is local.” As Canadians began to feel the impact of drug track-

ing, organized crime, and money laundering in the s and s, this

historical statement would have appeared too narrowly focused, as these

criminal activities do not recognize national boundaries and aect equally

and adversely Canada and its inhabitants. Crime has become increasingly

transnational in a way that could not have been envisioned in the time

of Lord Halsbury, or even in that of Herbert Smith. For instance, the

UN Oce on Drugs and Crime (UNODC), in its  global threat

* BA, LLB, LLM; and now KC (King’s Counsel) as of  September . Retired,

formerly Senior Assistant Deputy Minister of Justice, Policy Sector, Department of

Justice, Canada. e author expresses signicant gratitude to Annemieke Holthuis

(former Senior Counsel, Department of Justice, Canada) for her major contribu-

tion to an earlier unpublished draft manuscript, upon which we worked together

a few years ago and of which much is incorporated in this paper. e author also

expresses gratitude to former colleagues at the Department of Justice for their peer

review of this paper, in particular, Lucie Angers, Erin Mckey, and Paul Saint Denis.

 Macleod v New South Wales, [] AC , cited in Herbert A. Smith, “Extra- Territorial

Legislation” ()  Canadian Bar Review  at –, discussing the extent of

criminal jurisdiction of colonial legislatures.

 . , 

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assessment and its subsequent regional and thematic assessments, docu-

mented the interconnectedness and ows of transnational organized

crime from developed to developing economies, and back. e increasing

globalization of crime may be attributable to a number of factors. Techno-

logical advances in air travel, cargo transport, communications technology,

and the development of the internet fuel globalization in all its forms.

To address international aspects of crime, Canada responds by employing

international law and principles. As the Supreme Court of Canada noted in

R v Hape, a case in which the RCMP investigated the money- laundering

activities of a Canadian in the Turks and Caicos, the application of domes-

tic criminal law to conduct occurring outside of Canada is premised on

international law concepts of state sovereignty, comity and territoriality,

and other bases of jurisdiction on which states rely when enacting criminal

laws and investigating and prosecuting crime. Concepts of sovereignty

and the nation state are, however, being challenged as borders become

more porous and the political pressures and priorities of individual states,

and various unions of states, demand more coordinated responses within

the international community. Non-state actors, such as intergovernmental

and international organizations, play an increasing role in this process. In

, several noted Canadian legal scholars — Ronald St. John Macdonald,

Gerald Morris, and Douglas Johnston — predicted that in the year ,

the nation state, while still “an important actor in the international policy-

making process,” would be aected “by trends and institutions that have

already changed the substance, if not the form, of sovereignty.”

 UNODC, e Globalization of Crime: A Transnational Organized Crime reat

Assessment,  () at , online: www.unodc.org/unodc/data-and-analysis/

TOC-threat-assessments.html. Since , the UN has only produced a series of

regional and thematic transnational organized crime threat assessments.

 Parag Khanna, “e Future of Globalization” (Transcript of meeting at Chatham

House, London,  March ) at –, online: www.chathamhouse.org/sites/

default/les/public/Meetings/MeetingTranscripts/khanna.pdf.

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

 Ronald St. John Macdonald, Gerald L. Morris & Douglas M. Johnston, “Inter-

national Law and Society in the Year ” ()  Canadian Bar Review 

at . Interestingly, Paul Keppner argues that the age of imperialism similarly

spread the criminal justice systems of powers like Great Britain, Germany, France,

the Netherlands, and Portugal to the farthest corners of the world, resulting in

a “homogenisation of crime as an administrative issue across political and natural

borders.” Paul Knepper, e Invention of International Crime: A Global Issue in the

Making – (Basingstoke, UK: Palgrave Macmillan, ) at ; see also –.

The Internationalization of Canadian Criminal Justice Policy

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is paper will focus on the manner in which the development of

criminal justice policy at the federal level addresses crime with inter-

national dimensions, and the impact of international law, standards, and

norms (including transnational criminal law (TCL)) on criminal justice

policy development and enactment of criminal law in Canada. In the

face of global crime, criminal justice policy-making in Canada cannot be

undertaken in isolation, but must be considered against the backdrop of

international developments and international criminal justice policy-mak-

ing. is paper considers how international responses by states and inter-

national organizations to the changing nature of global crime and security,

as well as domestic criminal justice challenges, have led to the internation-

alization of Canadian criminal justice policies and laws. e paper will

also examine the domestic process by which internationalization occurs

in Canadian domestic criminal justice policy-making, and international-

ization’s impact on the ability of the Canadian legal profession to respond.

B. CANADIAN CRIMINAL JUSTICE POLICY ACTORS

Within the Government of Canada, the international criminal justice

policy function is shared essentially between the department of global

aairs (Global Aairs Canada), the department of justice (Justice Can-

ada), and the department of public safety (Public Safety Canada). Global

Aairs Canada, with its general responsibility over Canada’s foreign policy

and international relations, advances the Government of Canada’s pos-

itions in multilateral and regional fora, and negotiates multilateral treaties

and standards and norms. Its foreign policy coordination function works

to ensure consistency between Canada’s domestic and international pos-

itions. Justice Canada leads on the development of domestic criminal

justice policy; leads, advises, or participates in international negotiations

pertaining to criminal justice matters; and advises the Government of

Canada on implementing, into domestic policy and law, both the inter-

national treaties on criminal justice matters which Canada has signed, rati-

ed, or to which it has acceded, and the international standards and norms,

developed by international organizations, which Canada has adopted and

supports. Public Safety Canada has an interest in transnational crime, as

 Department of Foreign Aairs and International Trade Act, RSC , c E-.

 Department of Justice Act, RSC , c J-. e Criminal Law Policy Section, Policy

Sector, is primarily responsible for the development of domestic and international