Transnational Crimes of Domestic Concern

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

479

CHAPTER 8

TRANSNATIONAL CRIMES

OF DOMESTIC CONCERN

A. INTRODUCTION: “PURELY” DOMESTIC

CRIMES WITH A TRANSNATIONAL

ELEMENT

Decades ago, Sir Robert Jennings argued 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 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 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 that not only will crime and criminals

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 having an impact on Canadians (e.g., drug traff‌icking; 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 crime; cybercrime, including child por-

nography on the internet; and terrorism) are increasingly linked with

activity conducted in or through countries that lack effective domestic

criminal justice regimes, including a lack of capacity to engage in inter-

national cooperation with Canada. Criminals and terrorists strategic-

ally 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 states from criminal conduct

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

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

vented from using state borders and antiquated notions of sovereignty

to create impunity. As Meredith J, speaking 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 in 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 regime, 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 category: broad

because 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 prosecuting

state that jurisdiction is nonetheless considered “territorial” under

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

this chapter, surveys how this concept of qualif‌ied territoriality3 is dealt

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 qualif‌ied territoriality. Accordingly, the goal here is not to

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

to qualif‌ied territoriality, 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 Concern481

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 exerts extraterritorial jurisdiction, that is, offences which take

place entirely outside of Canada but are nonetheless made subject to

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

from Canada being party to the various crime suppression treaties and

properly qualify as “transnational offences of international concern,”

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

assert extraterritorial jurisdiction over a range of what might be called

common domestic offences, employing a number of the customary inter-

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

The peculiar issue of extraterritorial application of the Canadian Charter

of Rights and Freedoms4 poses discrete problems and is discussed in

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

of enforcement jurisdiction that arise in both cross- border and extra-

territorial prosecutions, particularly relating to exercises of investigative

jurisdiction, such as search warrants and production orders. Section E,

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

criminal conspiracy that have extraterritorial aspects.

B. QUALIFIED TERRITORIALITY IN

CANADIAN LAW

1) The Libman Test

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

marily territorial approach to the administration of criminal law. 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 imports a presumption that “Canadian

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

committed within 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.