Transnational Crimes of Domestic Concern

• Author: Robert J Currie, Dr Joseph Rikhof
• Pages: 437-475

437

CHAPTER 8

TR ANSNATIONAL

CRIMES OF DOMESTIC

CONCER N

A. INTRODUCTION: “PURELY” DOMESTIC

CRIMES WITH A TR ANSNATIONAL

ELEMENT

Decades ago, Sir Robert Jennings arg ued that states should not take

jurisdiction over conduct that h ad “more or less remote rep ercuss ions”

in the state’s territory.1 With regard to criminal conduct, developments

in the last three or four decades indicate that state s are taking increas-

ingly broad views on the kinds of “reperc ussions” that will justify

takin g jurisdiction over reg ular, domestic law cri mes that have a tra ns-

national aspect.

Both the tran snational criminal and the transnational cr ime are real.

By now it is trite rhetoric to note that developments in communications

and mobility of persons mean that not only will crime and criminals

often be beyond purely territorial re ach, but that the crimes themselves

are “messier” and can someti mes only be said to take place in more than

one state. A state often will have an interest in punishi ng conduct that

has some impact on its domestic interests, even if strict ly speaking some

or all of the elements of the crime in quest ion took place outside th at state.

From the perspective of Canada, many of the most serious crimes hav-

ing an impact on Canadians (e.g., drug traff‌icking; money laundering;

1 Robert Jenni ngs, “Extraterritor ial Jurisdiction and t he United States Antitr ust

Laws” (1957) 33 Brit YB Int’l L 146 at 159.

INTERN ATIONAL AND TR ANSNATIONAL CRIM INAL LAW438

identity-related crime; cybercrime, including child pornography on the

Internet; and terrorism) are increasingly linked w ith activity conducted

in or through countries t hat lack effective domestic cr iminal ju stice re-

gimes, including a lack of capacity to engage in intern ational cooper-

ation with Canada. Cr iminals and terrorists strateg ically exploit these

countries, which they perceive to be “safe havens,” and use them as

bases for their criminal and terrorist activities.

Moreover, there is recognition that it is in the mutual interest of

states to protect the populations of other st ates from crim inal conduct

that may origi nate domestically but have effect s abroad. Some gener-

osity with regard to jurisdiction is required if criminal s are to be pre-

vented from using state borders and antiquated notions of sovereignty

to create impunity. As Justice Meredith, speaking specif‌ica lly to con-

spiracy, opined in the early twentieth century, “the law would be lame

if it were powerless to reach conspirators so long as they took care to

agree to carr y into effect their wrongs beyond the borders of the coun-

try in which they conspired to do the wrongs.”2

The focus of this chapter is tra nsnational crimes of domestic con-

cern. As was outlined in Chapter 1, this label describes offences that

are made crimi nal under the domestic law of a st ate; have not been the

subject of any international law regime, whether by way of customary

principles or treaty; and h ave aspects which touch on the jurisdiction

of another state. It is both a broad and a narrow c ategory: broad be-

cause it could encompass nearly the entire body of a state’s criminal

and regulatory law, but narrow because it basically amounts to a few

rules which need to be applied when a domestic offence somehow has

a transnational feature.

As was outlined in Chapter 2, a state will sometimes assume juris-

diction over offences, the conduct or effects of which occur in more

than one state, but where there are suff‌icient links to the prosecut-

ing state that juri sdiction is nonetheless considered “terr itorial” under

international (and the applicable domest ic) law. Section B, below i n

this ch apter, sur veys how this concept of qu alif‌ied territor iality3 is dealt

with under Canad ian law. Given that nea rly any offence may have some

aspect that touches on another st ate, nearly the entire body of Canadian

criminal and regulatory offences is potenti ally subject to jurisdiction

on the basis of qualif‌ied ter ritoriality. Accordingly, the goal here is not

to attempt to address the broad range of crimes that might be suscept-

2R v Bachrack (1913), 21 CCC 257 at 265 (Ont CA).

3 Also calle d “ext ended territorialit y”; see, for ex ample, Kate Brookson-Morri s,

“Conf‌licts of Cr iminal Jurisdict ion” (2007) 56 ICLQ 659.

Transnationa l Crimes of Domestic Concern 439

ible to qualif‌ied territori ality, but rather to examine the test and how

it is applied. Some queries and suggestions are posed about the inter-

national law aspect s of the matter, which are cur rently underdeveloped.

Section C, below in this chapter, focuses on those offences for

which Canada exerts extraterritorial jurisdiction, that is, offences which

take place entirely outside of Can ada but are nonetheless made subject

to Canadian cr iminal law. A great majority of ext raterritorial offences

arise from Can ada being part y to the various crime suppression treat-

ies and properly qualify as “transnational offences of inter national con-

cern,” and are thus dealt with in detail in Chapter 7. However, Canad a

does assert ext raterritorial jur isdiction over a range of what might be

called common domestic offences, employing a number of the cu stom-

ary international law principles of jurisdiction to do so, and these w ill

be explored. The peculiar issue of extraterritorial application of the

Canadian Charter of Rights and Freedoms4 poses di screte problems, and

is discussed in Chapter 10. Section D, below in this chapter, exam-

ine s the problem s as socia ted w ith ac ts of c rimi nal c onspi racy that h ave

extraterritorial aspects.

It will be apparent from the foregoing that this chapter is focused

primarily on jur isdiction, specif‌ically prescriptive jurisdiction (the

ability of a state to make cr iminal law) and to some extent judicial ju-

risdiction (the abilit y of courts to determine whether domestic or inter-

national law make s them competent to adjudicate a particular case).

Enforcement jurisdiction (the abilit y of a state to enforce its criminal law

by arresting and prosecuting offenders) is not particularly problematic

in this area; where Can adian courts have jurisdiction, either territori al

or extraterritori al, over an offence, they will tr y the offender domestic-

ally. If the offender is not present in Canada, jurisdiction over his per-

son will be sought and possibly obtai ned by way of ext radition or other

cooperative mechanisms, which are dealt with in Chapter 9.

B. QUALIFIED TERRITORIALIT Y IN

CANADIAN LAW

1) The Lib man Te s t

Traditionally, Canada has adhered to its Br itish roots and taken a pr i-

marily terr itorial approach to the admin istration of crim inal law. This

4Canadian Char ter of Rights and Freedoms, Part I of the Constitution Act, 1982, be-

ing Schedule B to the Ca nada Act 1982 (UK), 1982, c 11 [Charter].