Weighing the Scales about Acting Extraterritorially

AuthorSteve Coughlan, Robert J. Currie, Hugh M. Kindred, Teresa Scassa
Pages135-175
CHAPTER
6
Weighing
the
Scales
about
Acting
Extraterritorially
A.
INTRODUCTION:
DISTINGUISHING
"CAN"
FROM
"SHOULD"
We
have
discussed
the
international
law
rules
governing
when
Canada
would
be
seen
by
other
nations
as
having
the
ability
to
act
extraterri
torially.
1
That
question
when
Canada
can
effectively
act
extraterri
torially
matters,
but
is
not
the
central
question.
Rather,
the
more
important
question
(and
the
question
that
is
the
focus
of
this
chapter)
is
the
one
that
explores
when
Canada
should
act
extraterritorially:
When
is
doing
so
the
right
decision?
The
question
of
whether
Canada
con
ef
fectively
act
extraterritorially
is
a
relatively
easy
one.
As
discussed
in
Chapter
3,
for
the
most
part
it
depends
on
the
issue
of
whether
a
juris
dictional
claim
would
be
recognized
at
international
law
by
other
coun
tries.
Additionally,
it
involves
the
practical
consideration
of
whether
any
claim
Canada
might
make
to
act
extraterritorially
will
be
enforceable,
either
unilaterally
or
through
the
co-operation
of
other
states.
There
is
also
the
purely
domestic
question
of
when
Canadian
courts
(or
admin
istrative
bodies)
will
recognize
and
implement
extraterritorial
claims
by
Parliament
or
the
legislatures.
2
1
See
Chapter
3,
Section
A.
2
In
this
regard,
it
is
worth
noting
s
8
of
the
Interpretation
Act,
RSC
1985,
c
I-21.
The
provision
was
enacted
by
Parliament
and
therefore
is
subject
to
amendment
by
that
body,
but
at
present
it
(in
general)
limits
the
application
of
statutes
to
the
territory
of
Canada,
with
expansion
in
some
cases
to
the
exclusive
economic
zone
of
Canada,
and
in
other
cases,
to
the
continental
shelf.
Finally,
it
also
envisions
that
135
136
LAW
BEYOND
BORDERS
Whether,
in
general
or
in
a
specific
situation,
Canada
should
act
extraterritorially
is
a
much
more
difficult
question
that
raises
many
other
issues.
The
nationality
principle,
for
example,
might
allow
Can
ada
to
legislate
quite
broadly
over
the
behaviour
of
Canadian
citizens
wherever
they
might
be
in
the
world;
it
does
not
follow
that
it
would
be
a
sensible
decision
for
Parliament
to
exploit
the
nationality
principle
to
the
maximum
extent
possible.
As
the
Supreme
Court
has
noted:
While
the
Parliament
of
Canada,
unlike
the
legislatures
of
the
Prov
inces,
has
the
legislative
competence
to
enact
laws
having
extraterri
torial
effect,
it
is
presumed
not
to
intend
to
do
so,
in
the
absence
of
clear
words
or
necessary
implication
to
the
contrary.
This
is
because
"[i]n
our
modem
world
of
easy
travel
and
with
the
emergence
of
a
global
economic
order,
chaotic
situations
would
often
result
if
the
principle
of
statutes
should
be
taken
to
apply
extraterritorially
where
that
result
"expressly
or
by
necessary
or
reasonable
implication
was
intended."
The
section
reads:
8.
(i)
Every
enactment
applies
to
the
whole
of
Canada,
unless
a
contrary
inten
tion
is
expressed
in
the
enactment.
(2)
Where
an
enactment
that
does
not
apply
to
the
whole
of
Canada
is
amended,
no
provision
in
the
amending
enactment
applies
to
any
part
of
Cana
da
to
which
the
amended
enactment
does
not
apply,
unless
it
is
provided
in
the
amending
enactment
that
it
applies
to
that
part
of
Canada
or
to
the
whole
of
Canada.
(2.1)
Every
enactment
that
applies
in
respect
of
exploring
or
exploiting,
con
serving
or
managing
natural
resources,
whether
Living
or
non-living,
applies,
in
addition
to
its
application
to
Canada,
to
the
exclusive
economic
zone
of
Canada,
unless
a
contrary
intention
is
expressed
in
the
enactment.
(2.2)
Every
enactment
that
applies
in
respect
of
exploring
or
exploiting
natu
ral
resources
that
are
(a)
mineral
or
other
non-living
resources
of
the
seabed
or
subsoil,
or
(b)
living
organisms
belonging
to
sedentary
species,
that
is
to
say,
organisms
that,
at
the
harvestable
stage,
either
are
immobile
on
or
under
the
seabed
or
are
unable
to
move
except
in
constant
physical
contact
with
the
sea
bed
or
subsoil
applies,
in
addition
to
its
application
to
Canada,
to
the
continental
shelf
of
Cana
da,
unless
a
contrary
intention
is
expressed
in
the
enactment.
(3)
Every
Act
now
in
force
enacted
prior
to
December
Ti,
1931
that
expressly
or
by
necessary
or
reasonable
implication
was
intended,
as
to
the
whole
or
any
part
thereof,
to
have
extra-territorial
operation
shall
be
construed
as
if,
at
the
date
of
its
enactment,
the
Parliament
of
Canada
had
full
power
to
make
laws
having
extra-territorial
operation
as
provided
by
the
Statute
ofWestminster,
1931.
Weighing
the
Scales
about
Acting
Extraterritorially
137
territorial
jurisdiction
were
not,
at
least
generally,
respected
;
see
Tolof-
son
v
Jensen,
(S.C.C.
),
at
p.
1051,
per
La
Forest
J.
3
In
short,
Canada
should
not
exercise
extraterritorial
jurisdiction
in
every
circumstance
where
it
could
do
so.
At
a
minimum,
the
question
of
whether
Canada
should
act
extraterri
torially
requires
consideration
of:
(1)
the
domestic
concerns
that
might
tempt
Canada
to
legislate
with
extraterritorial
effect;
(2)
the
impact
on
international
relations
of
Canada
choosing
to
act
or
not
act
extra
territorially;
and
(3)
the
attitude
Canada
should
adopt
towards
other
states
acting
extraterritorially
within
Canada
s
jurisdiction.
Related
to
these
questions
is
whether
one
is
discussing
unilateral
or
multilateral
extraterritorial
action.
Whether
Canada
is
attempting
to
act
independ
ently
of
or
in
concert
with
other
states
is
very
relevant
to
when
it
should
act
extraterritorially.
Equally,
whether
the
discussion
is
about
unilateral
action
by
another
state
or
a
joint
international
effort
should
affect
the
Canadian
viewpoint
of
other
countries
legislating
action
that
will
have
effect
in
Canada.
Our
goal
in
this
chapter,
however,
is
more
ambitious
than
simply
listing
the
relevant
considerations.
We
hope
to
provide
guidance
as
to
how
to
take
those
competing
considerations
into
account
in
any
given
case.
As
the
title
of
this
chapter
indicates,
whether
Canada
should
act
extraterritorially
in
a
given
situation
is
settled
by
weighing
the
com
peting
interests
against
one
another.
There
are
various
disincentives
to
acting
extraterritorially:
most
notably,
that
to
do
so
can
threaten
com
ity
between
states,
and
that
laws
that
overreach
the
effective
grasp
of
the
state
might
be
unenforceable.
On
the
other
hand,
there
are
certain
incentives
to
act
extraterritorially
on
some
occasions,
which
will
be
re
lated
to
the
particular
policy
goals
to
be
served
by
that
action.
Whether
Canada
should
act
extraterritorially
on
any
given
occasion
depends
on
weighing
the
incentives
against
the
disincentives
in
each
particular
case.
In
this
chapter,
we
will
discuss
both
the
disincentives
and
the
in
centives
to
acting
extraterritorially.
As
discussed
in
Chapter
3,
each
of
the
legislative,
executive,
and
adjudicative
branches
exert
jurisdiction
in
some
form,
and
therefore
each
has
the
ability
to
act
extraterritorial
ly.
The
extraterritoriality
we
discuss
and
the
analysis
we
put
forward
in
this
chapter
is
predominantly
based
on
legislative
action:
specific
3
Society
of
Composers,
Authors
and
Music
Publishers
of
Canada
v
Canadian
Assn
of
Inter
net
Providers,
at
para
54.

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