Transnational Crimes of Domestic Concern

• Author: Joseph Rikhof/Robert J Currie
• Pages: 479-528

479

CHA PTER 8

TR ANSNATIONAL CRIMES

OF DOMESTIC CONCERN

A. INTRODUCTION: “PURELY” DOMESTIC

CRIMES WITH A TR ANSNATIONAL

ELEMENT

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

diction over conduct that had “more or less remote repercussions” in

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

in the last three or four decades indicate that states are ta king increas-

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

taking juri sdiction over regular, domestic law crimes t hat have a trans-

national aspect.

Both the tran snational crimina l and the transnationa l crime are real.

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

and mobility of persons mean t hat not only will crime and cr iminals

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

are “messier” and can sometimes only be said to take place in more

than one state. A state often will have an interest in punishing conduct

that has some impact on its domestic intere sts, even if strictly speaking

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

that state. From the perspective of Canada, many of the most serious

crimes hav ing an impact on Canadian s (e.g., drug traf f‌icking; money

1 Robert Jenni ngs, “Extraterritor ial Jurisdiction and t he United States Antitru st

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

INTERNATIONAL AND TRANSNATIONAL CRIMINAL LAW480

laundering; identity-related cr ime; cybercrime, including child por-

nography on the internet; and terrorism) are increasingly linked w ith

activity conducted in or through countries t hat lack effective domestic

crimina l justice regimes, including a lack of capacit y to engage in inter-

national cooperation with Canada. Crimin als and terrorist s strategic-

ally exploit these countrie s, which they perceive to be “safe havens,”

and use them as bas es for their crimina l and terrorist activities.

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

states to protect the populations of other states from criminal conduct

that may origin ate domestically but have effects abroad. Some gener-

osity with regard to jur isdiction is required if cr iminals are to be pre-

vented from using state borders and antiquated notions of sovereignty

to create impunity. As Meredith J, speaki ng specif‌ically to conspiracy,

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

carry into effect their wrongs beyond the borders of the country in

which they conspired to do the wrongs.”2

The focus of this chapter is transnational crimes of domestic con-

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

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

subject of any international law regi me, whether by way of custom-

ary principles or treaty; and have aspects which touch on the jurisdic-

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

because it could encompass nearly the enti re body of a state’s criminal

and regulatory law, but narrow because it ba sically 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 as sume juris-

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

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

state that jurisd iction is nonetheless considered “territoria l” under

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

this chapter, surveys how this concept of qualif‌ied ter ritori ality3 is de alt

with under Canadi an law. Given that nearly any offence may have some

aspect that touches on another state, nea rly the enti re body of Canadian

crimina l and regulatory offences is potentially subject to juris diction on

the basis of quali f‌ied territoriality. Accordingly, the goal here is not to

attempt to address the broad range of crimes that might be susceptible

to qualif‌ied terr itoriality, but rather to examine the test and how it is

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

3 Also calle d “exte nded territorialit y”; see, for ex ample, Kate Brookson-Morris,

“Conf‌licts of Cri minal Jurisdict ion” (2007) 56 ICLQ 659.

Transnational Crimes of Domestic Concern 481

applied. Some queries and suggestions are p osed about the international

law aspects of the matter, which are currently underdeveloped.

Section C, below in this ch apter, focuses on those offences for which

Canada exert s extraterritorial jurisdiction, that is, offences which take

place entirely outside of Canada but are nonetheless m ade subject to

Canadian cr iminal law. A great majority of extraterritori al offences arise

from Canada being pa rty to the various cr ime suppression treaties and

properly qualify as “transnational offences of international concern,”

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

assert ext raterritorial juri sdiction over a range of what might be called

common domestic offences, employing a number of the customar y inter-

national law principles of jur isdiction to do so, and these will be ex plored.

The peculiar issue of ext raterritorial application of the Canadian Charter

of Rights and Freedoms4 poses discrete problems and is d iscussed in

Chapter 10. Section D, below in this chapter, discusses certain problems

of enforcement jurisdiction that ar ise in both cross- border and extra-

territorial prosecutions, particularly relating to exercises of investigative

jurisdiction, such as se arch warrants and production orders. Sect ion E,

below in this chapter, examines the problems associated with acts of

crimina l conspiracy that have extraterritorial aspects.

B. QUALIFIED TERRITORIALIT Y IN

CANADIAN LAW

1) The Libman Te st

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

marily terr itorial approach to the admini stration of criminal l aw. This

was embodied in what is now sect ion 6(2) of the Criminal Code,5 which

states, “Subject to this Act or any other Act of Parliament, no person

shall be convicted . . . of an offence committed outside Canada.” As

Cory J noted in R v Finta, this import s a presumption that “Canadian

courts, as a rule, may only prosecute those crimes which have been

committe d withi n Canadian terr itory.”6

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

being Schedule B to t he Canada Act 1982 (UK), 1982, c 11 [Charter].

5 RSC 1985, c C-46 [Code].

6 R v Finta, [1994] 1 SCR 701 at para 170 [Finta]. In dissent, La Forest J r ef‌lected that

this provi sion did not remove the status of a cr iminal act as “culpable conduct in

the eyes of Can adians and the underly ing values of Canadian c riminal law,” but

simply precluded prose cution. This implemented the nor mal preference in favour

of the territor ial principle of jurisd iction at international l aw: ibid at para 40.