Transnational Crimes of Domestic Concern

• Author: Robert J. Currie
• Profession: Schulich School of Law, Dalhousie University
• Pages: 407-444

407

CHAPTER 8

TR ANSNATIONAL

CRIMES OF

DOMESTIC CONCERN

A. INTRODUCTION: “PURELY” DOMESTIC

CRIMES WITH A TR ANSNATIONAL

ELEMENT

Decades ago, Sir Robert Jennings argued that states should not take

jurisdiction over conduct that had “more or less remote repercussions”

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

in the last th ree or four decades indicate that states are taking increas-

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

taking jurisdiction over regular, domestic law crimes that have a trans-

national aspect.

Both the transnational criminal and t he transnational crime are

real. By now it is t rite rhetoric to note that developments in communi-

cations and mobility of persons mean t hat not only will crime and

crimina ls often be b eyond purely territori al reach, but t hat the cr imes

themselves are “messier” and can sometimes only be said to t ake place

in more than one state. A state often wil l have an interest in punishing

conduct that has some impact on its domest ic interests, even if st rictly

speaking some or all of the elements of the crime in question took place

outside that state. From the persp ective of Canada, many of the most

serious cr imes h aving an impact on Canadians (e.g., drug traff‌icking;

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

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

INTERN ATIONAL AND TR ANSNATIONAL CRIM INAL LAW408

money laundering; identity-related crime; cybercrime, includi ng child

pornography on the Internet; and terrorism) are increasingly linked

with activity conducted in or through countries t hat lack effective do-

mestic crim inal justice regimes, including a lack of c apacity to engage

in international cooperation with Canada. Criminals and terrorists

strategically exploit these countries, which they perceive to be “safe ha-

vens,” and use them as bases for their cr iminal and ter rorist activitie s.

Moreover, there is recognition that it i s i n the mutual interest of

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

that may originate domestically but have effects abroad. Some gener-

osity with regard to jurisdiction i s required if criminals are to be pre-

vented from using state borders and antiquated notions of sovereignty

to create impunity. As Justice Meredith, speaking specif‌ically to con-

spiracy, opined in the early t wentieth century, “the law would be l ame

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 t his chapter is transnational crimes of domestic con-

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

are made crimin al under the domestic law of a state; have not been the

subject of any inter national law regime, whether by way of customary

principles or t reaty; and have aspects which touch on the jurisdict ion

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

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

and regulatory l aw, but nar row bec ause it basically amounts to a few

rules which need to be applied when a domestic offence somehow ha s

a transnational feature.

As was outlined in Ch apter 2, a state will sometimes assume juri s-

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 jur isdiction is nonetheles s considered “territori al” under

international (and the applicable domestic) law. Section B, below in this

chapter, surveys how this concept of qualif‌ied territoriality3 is deal t wit h

under Canadian law. Given that nearly any offence may have some as-

pect that touches on another state, nearly t he entire body of Canadian

crimina l and regulatory offences is potentially subject to jurisdiction on

the basis of qualif‌ied territoria lity. Accordingly, the goal here is not to

attempt to address the broad range of crimes that m ight be susceptible

2 R. v. Bachrack (1913), 21 C.C.C. 257 at 265 (Ont. C.A.).

3 Also cal led “extended territoria lity”; see, for example, Kate Brookson-Mor ris,

“Conf‌licts of Cri minal Jurisdict ion” (2007) 56 I.C.L.Q. 659.

Transnationa l Crimes of Domestic Concer n 409

to quali f‌ied terr itoriality, but rather to examine the te st and how it i s

applied. Some queries and suggestions are posed about the internation-

al law aspects of the matter, which are currently underdeveloped.

Section C, below i n this chapter, focuses on those offences for

which Canada exerts extraterritorial jurisdiction, that is, offences which

take place entirely outside of Canada but are nonetheless made subject

to Canadian crim inal law. A great majority of extrater ritorial offences

arise f rom Canada being party to the various cr ime suppression t reat-

ies and properly qualify as “transnational offences of international con-

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

does as sert extraterritori al jurisdiction over a range of what might be

called common domestic offences, employing a number of the custom-

ary intern ational law principles of jurisdiction to do so, and these will

be explored. The peculiar issue of extraterritorial application of the

Charter4 poses discrete problems, and is d iscussed in Chapter 10. Sec-

tion D, below in this chapter, examines the problems associated with

acts of crimin al conspiracy that have extraterritorial aspects.

It will be apparent from the foregoing that t his ch apter is focused

primarily on jurisdiction, specif‌ically prescriptive jurisdiction (th e a bi l it y

of a state to make criminal law) and to some extent judicial jurisdiction

(the ability of courts to deter mine whether domest ic or international

law makes them competent to adjudicate a particular case). Enforc e-

ment jurisdiction (the ability of a state to enforce it s crimin al law by

arresting and prosecuting offenders) is not particul arly problematic in

this area; where Canadi an courts have jurisdiction, either territorial or

extraterritorial, over an offence, they will try the offender domestically.

If t he offender is not present in Canada, jurisdiction over hi s person

will be sought and possibly obtained by way of extradition or other

cooperative mechanisms, which are dealt with in Chapter 9.

B. QUALIFIED TERRITORIALIT Y IN

CANADIA N LAW

1) The Libman Test

Traditionally, Canada ha s adhered to its Br itish roots and taken a pri-

marily ter ritorial approach to the admin istration of cr iminal l aw. This

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

ing Schedule B to t he Canada Act 1982 (U.K.), 1982, c. 11.