Extra-Territorial Jurisdiction of the Courts: Difference between revisions

Revision as of 10:23, 6 May 2020

General Principles

See also: Jurisdiction of the Courts

Under s. 6, Courts of Canada have jurisdiction over criminal matters committed within the territory of Canada.^[1]

The purpose of s. 6 is to recognize that the "primary basis of criminal jurisdiction is territorial".^[2] States are hesitant to make "discriminate attempts to control activities that take place wholly within the boundaries" of other countries.^[3]

It also reflects the "principle of sovereign integrity" where a state has "exclusive sovereignty over all persons, citizens or aliens, and all property, real or personal, with its own territory".^[4]

It is enough that the offence was initiated or realized in Canada to allow for jurisdiction to prosecute an offence.Cite error: Closing </ref> missing for <ref> tag

6.
[omitted (1)]

Offences outside Canada

(2) Subject to this Act or any other Act of Parliament, no person shall be convicted or discharged under section 730 [order of discharge] of an offence committed outside Canada.

Definition of enactment

(3) In this section, "enactment" means

(a) an Act of Parliament, or

(b) an Act of the legislature of a province that creates an offence to which Part XXVII [Pt. XXVII – Summary Convictions (ss. 785 to 840)] applies,

or any regulation made thereunder.
R.S., 1985, c. C-46, s. 6; R.S., 1985, c. 27 (1st Supp.), s. 4, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 10.
[annotation(s) added]

– CCC

Note up: 6 (2) and (3)

Section 6(2) prohibits anyone from being convicted or discharge of "an offence committed outside Canada" subject to any other Acts of Canada.^[5] This requires a "real and substantial connection" between the offence and the country. A "significant portion" of the offence should take place in Canada.^[6] It could also be characterized as a "meaningful" connection with the jurisdiction.^[7]

It is not necessary that the particular connection be the "most real and substantial".^[8]

Section 481.2 grants jurisdiction over offences occurring outside of Canada except where otherwise prevented by Acts of Parliament. This section does not provide a free-standing authority to assert jurisdiction but rather only applies in conjunction with another Act of Parliament conveying jurisdiction.^[9] It states that:

Offence outside Canada

481.2 Subject to this or any other Act of Parliament, where an act or omission is committed outside Canada and the act or omission is an offence when committed outside Canada under this or any other Act of Parliament, proceedings in respect of the offence may, whether or not the accused is in Canada, be commenced, and an accused may be charged, tried and punished within any territorial division in Canada in the same manner as if the offence had been committed in that territorial division.
1996, c. 31, s. 72; 2008, c. 18, s. 10.

– CCC

Note up: 481.2

Probationary term can apply to the accused's conduct outside of the Country.^[10]

Obedience to de facto Law of Another Country

Obedience to de facto law

15 No person shall be convicted of an offence in respect of an act or omission in obedience to the laws for the time being made and enforced by persons in de facto possession of the sovereign power in and over the place where the act or omission occurs.
R.S., c. C-34, s. 15.

– CCC

Note up: 15

↑ see s. 6
R v Libman, 1985 CanLII 51 (SCC), [1985] 2 SCR 178, per La Forest J
Davidson v British Columbia (Attorney General), 2006 BCCA 447 (CanLII), per Levine JA, at para 5
↑ Libman, supra
↑ Libman, supra
↑ R v Finta, 1994 CanLII 129 (SCC), [1994] 1 SCR 701, per Cory J, at p. 806
↑ section 6(2) states "Subject to this Act or any other Act of Parliament, no person shall be convicted or discharged under section 730 of an offence committed outside Canada."
↑ Libman v The Queen, 1985 CanLII 51 (SCC), [1985] 2 SCR 178, per La Forest J
↑ McCabe v British Columbia (Securities Commission), 2016 BCCA 7 (CanLII), per Goepel JA, at para 36
Torudag v British Columbia (Securities Commission), 2011 BCCA 458 (CanLII), per Hall JA, at para 19
↑ McCabe, supra, at para 35
↑ United States of America v. Patterson, 2017 BCCA 52 (CanLII), per MacKenzie JA, at paras 73 to 75
↑ R v Greco, 2001 CanLII 8608 (ON CA), per Moldaver JA
see also Breach of Undertaking, Recognizance, or Probation (Offence)
cf. R v B(O) (1997), 1997 CanLII 949 (ON CA), 116 CCC (3d) 189 (Ont. C.A.), per Abella JA (accused sexually assaulted his grand-daughter while in the US. Canada had no jurisdiction to try the case)

Principles Limiting Jurisdiction Outside of Canada

Sovereign Equality and The Obligation of Non-Intervention

The international principle of sovereign equality states that "[c]ountries generally respect each other’s borders and will not attempt to adjudicate matters that occurred within the borders of another sovereign country" and "countries will exercise jurisdiction over their own nationals but not over another country’s nationals except, of course, where that country’s nationals commit an offence within another country’s borders". ^[1]

This is a principle of customary international law and has been adopted in Canada.^[2] It obliges a state to limit its actions outside of its border.^[3]

In order to preserve sovereignty and equality, there is a related duty of "non-intervention" which gives each country the "right to be free from intrusion by other states in its affairs and the duty of every other state to refrain from interference."^[4]

A country should not extend its jurisdiction to enforce "its laws when to do so would infringe on the sovereignty of another state".^[5]

Comity

The principle of "comity" refers to the "informal acts performed and rules observed by states in their mutual relations out of, politeness, convenience and goodwill, rather than strict legal obligation".^[6] It is an interpretive principle that prefers interpretations of laws that do not infringe on the sovereignty of another state.^[7] It is not a binding rule of law, but rather more of a principle of interpretation based on the "deference and respect" that countries have for each other.^[8]

In application, comity requires "that a state ought to assume jurisdiction only if it has a real and substantial link to the event".^[9]

Comity creates the presumption that "Canada will, in passing legislation, act in compliance with its international obligations including treaty obligations" and that "courts will favour an interpretation of legislation that reflects the value and principles of international law".^[10]

Real and Substantial Connection

At common law, the "real and substantial connection" test sets the limits on the assumption of jurisdiction by a court.^[11]

Factors to consider in the test include:^[12]

the connection between the forum and the plaintiff’s claim;
the connection between the forum and the defendant;
unfairness to the defendant in assuming jurisdiction;
unfairness to the plaintiff in not assuming jurisdiction.

Where the crown fails to establish a real and substantial connection there is some suggestion that the accused must be acquitted since the Crown failed to prove an essential element.^[13]

Presumption of Statutory Interpretation

It is a presumption of statutory interpretation that legislation will conform to international law.^[14] However, where presumption is overcome, the Courts must give extraterritorial effect to the law.^[15]

↑ R v Chowdhury, 2014 ONSC 2635, at para 22
R v Cook, [1998] 2 SCR 597, 1998 CanLII 802 (SCC)(complete citation pending), at para 26 (sovereign equality "generally prohibits extraterritorial application of domestic law since, in most instances, the exercise of jurisdiction beyond a state’s territorial limits would constitute an interference under international law with the exclusive territorial jurisdiction of another state.")
↑ British Columbia (AG) v Brecknell, 2018 BCCA 5, per Harris JA, at para 23
↑ Brecknell, ibid., at para 23
↑ Hape, supra, at para 45
↑ Chowdhury, supra, at para 34
Brecknell, ibid., at para 23
↑ Hape, supra, at para 47
↑ Brecknell, supra, at para 24
Hape, supra, at paras 47 to 52
↑ Chowdhury, supra, at paras 31, 32
↑ Hape, supra, at para 62
↑ Chowdhury, supra, at para 32
↑ e.g. Muscutt v Courcelles, 2002 CanLII 44957 (ON CA), per Sharpe JA
↑ R v Milliea, 2008 NBPC 11 (CanLII), per Ferguson J, at para 28
↑ R v Finta, 1992 CanLII 2783 (ON CA), per Cory J
↑ Brecknell, supra, at para 24
Hape, supra, at paras 53 to 56
↑ Brecknell, supra, at para 24
Hape, supra, at to 56 paras 53 to 56{{{3}}}

Charter Rights Outside of Canada

The Courts have no jurisdiction to enforce Charter rights on other state's actions.^[1] The rights are not enforceable due to the principle of comity.^[2]

It is only where foreign state actors operate as agents of the Canadian state that the Charter can be engaged.^[3]

↑ R v Harrer, 1995 CanLII 70 (SCC), [1995] 3 SCR 562, per La Forest J
R v Terry, 1996 CanLII 199 (SCC), [1996] 2 SCR 207, per McLachlin J
R v Hape, 2007 SCC 26 (CanLII), per LeBel J
R v Tan, 2014 BCCA 9 (CanLII), per Bennett JA
R v Mehan, 2017 BCCA 21 (CanLII), per D Smith JA, at para 28
↑ Hape, supra, at para 52
Harrer, supra, at para 15
↑ Hape, supra, at paras 103 to 105

Power to Issue Orders

The courts have no power ot authorize the enforcement of Canadian laws relating to "matters in the exclusive territorial jurisdiction of another state".^[1]

The use of investigative powers relates to enforcement jurisdiction, which cannot be controlled by Canadian law absence consent of the foreign state or rule of international law.^[2]

↑ R v Hape, 2007 SCC 26 (CanLII), per LeBel J, at para 105
↑ Hape, supra, at para 105

Discretionary Limitations

Forum Non Conveniens

The courts have discretion to refuse to accept jurisdiction on the basis of the principle of forum non-conveniens.^[1] Criteria to consider include:^[2]

the residence and domicile of the parties,
the location of the natural forum,
the location of the evidence,
the place of residence of the witnesses,
the location of the alleged conduct and transaction, including the place of formation and execution of the contract,
the existence of an action pending in another jurisdiction between the same parties (in an imperfect lis pendens situation) and the stage of such proceeding,
the law applicable to the dispute,
the ability to join all parties,
the need for enforcement in the alternative court,
the juridical advantages for the plaintiff, and
the interests of justice.

↑ Boucher v Stelco Inc. 2005 SCC 64 (CanLII), per LeBel J, at para 37
↑ Boucher v Stelco, ibid., at paras 37 to 38
Muscutt v Courcelles, 2002 CanLII 44957 (ON CA), per Sharpe JA, at para 42

Special Cases

Offences by Public Service Employees

Section 7(4) grants jurisdiction over criminal acts of public service employees who commit indictable offences outside of Canada while employed.

7.
[omitted (1), (2), (2.01), (2.02), (2.1), (2.2), (2.21), (2.3), (2.31), (2.33), (2.34), (3), (3.1), (3.7), (3.71), (3.72), (3.73), (3.74), (3.75)]

Offences by Public Service employees

(4) Every one who, while employed as an employee within the meaning of the Public Service Employment Act in a place outside Canada, commits an act or omission in that place that is an offence under the laws of that place and that, if committed in Canada, would be an offence punishable by indictment shall be deemed to have committed that act or omission in Canada.
[omitted (4.1), (4.11), (4.3), (5), (5.1), (6), (7), (8), (9), (10) and (11)]

– CCC

Note up: 7 (4)

Offences Against Cultural Property

Section 7(2.01) imposes jurisdiction over offences under s. 322, 341,344, 380, or 434 committed outside of Canada that is "in relation to cultural property" where the accused is a citizen permanent resident or ordinarily resides in Canada.

7
[omitted (1) and (2)]

Offences in relation to cultural property

(2.01) Despite anything in this Act or any other Act, a person who commits an act or omission outside Canada that if committed in Canada would constitute an offence under section 322 [theft], 341 [fraudulent concealment], 344 [robbery], 380 [fraud], 430 [mischief] or 434 [arson, damage to property] in relation to cultural property as defined in Article 1 of the Convention, or a conspiracy or an attempt to commit such an offence, or being an accessory after the fact or counselling in relation to such an offence, is deemed to have committed that act or omission in Canada if the person

(a) is a Canadian citizen;

(b) is not a citizen of any state and ordinarily resides in Canada; or

(c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act and is, after the commission of the act or omission, present in Canada.

(2.02) For the purpose of subsection (2.01) [extraterritorial offences in relation to cultural property], Convention means the Convention for the Protection of Cultural Property in the Event of Armed Conflict, done at The Hague on May 14, 1954. Article 1 of the Convention is set out in the schedule to the Cultural Property Export and Import Act.
[omitted (2.1), (2.2), (2.21), (2.3), (2.31), (2.33), (2.34), (3), (3.1), (3.7), (3.71), (3.72), (3.73), (3.74), (3.75), (4), (4.1), (4.11), (4.3), (5), (5.1), (6), (7), (8), (9), (10) and (11)]
R.S., 1985, c. C-46, s. 7; R.S., 1985, c. 27 (1st Supp.), s. 5, c. 10 (3rd Supp.), s. 1, c. 30 (3rd Supp.), s. 1, c. 1 (4th Supp.), s. 18(F); 1992, c. 1, ss. 58, 60(F); 1993, c. 7, s. 1; 1995, c. 5, s. 25; 1997, c. 16, s. 1; 1999, c. 35, s. 11; 2000, c. 24, s. 42; 2001, c. 27, s. 244, c. 41, ss. 3, 126; 2002, c. 13, s. 3; 2004, c. 12, s. 1; 2005, c. 40, s. 2; 2012, c. 1, s. 10, c. 15, s. 1; 2013, c. 9, s. 2, c. 13, s. 3; 2014, c. 25, s. 3.
[annotation(s) added]

– CCC

Note up: 7 (2.01) and (2.02)

Sexual Offences

See also: Sexual Assault (Offence)

Section 7(4.1) which grants jurisdiction over sexual offences^[1] However, consent of the Attorney General is required^[2] for offence committed outside of Canada by Canadian citizens or permanent residents.

7.
...

Offence in relation to sexual offences against children

(4.‍1) Notwithstanding anything in this Act or any other Act, every one who, outside Canada, commits an act or omission that if committed in Canada would be an offence against section 151 [sexual interference], 152 [invitation to sexual touching], 153 [sexual exploitation] or 155 [incest], subsection 160(2) [compelling bestiality] or (3) [bestiality in presence of or by child], section 163.‍1 [child pornography], 170 [parent or guardian procuring sexual activity], 171 [householder permitting prohibited sexual activity], 171.‍1 [making sexually explicit materials available to child], 172.‍1 [child luring], 172.‍2 [agree or arrange sexual offence against child] or 173 [Indecent acts] or subsection 286.‍1(2) [comm. to obtain sexual services for consideration – person under 18] shall be deemed to commit that act or omission in Canada if the person who commits the act or omission is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act.
...

Consent of Attorney General

(4.3) Proceedings with respect to an act or omission deemed to have been committed in Canada under subsection (4.1) [extraterritorial offence re sexual offences against children] may only be instituted with the consent of the Attorney General.
...
R.S., 1985, c. C-46, s. 7; R.S., 1985, c. 27 (1st Supp.), s. 5, c. 10 (3rd Supp.), s. 1, c. 30 (3rd Supp.), s. 1, c. 1 (4th Supp.), s. 18(F); 1992, c. 1, ss. 58, 60(F); 1993, c. 7, s. 1; 1995, c. 5, s. 25; 1997, c. 16, s. 1; 1999, c. 35, s. 11; 2000, c. 24, s. 42; 2001, c. 27, s. 244, c. 41, ss. 3, 126; 2002, c. 13, s. 3; 2004, c. 12, s. 1; 2005, c. 40, s. 2; 2012, c. 1, s. 10, c. 15, s. 1; 2013, c. 9, s. 2, c. 13, s. 3; 2014, c. 25, s. 3; 2018, c. 11, s. 27; 2019, c. 25, s. 4.
[annotation(s) added]

– CCC

Note up: 7 (4.1) and (4.3)

Constitutionality

Section 7(4.10) is not ultra vires of the Constitution for violating the principle of sovereign equality or comity.^[3]

Any extension of jurisdiction that permits evidence collected by foreign law enforcement will still be subject to trial fairness requirements under s. 7 of the Charter.^[4]

↑ listed as "section 151, 152, 153, 155 or 159, subsection 160(2) or (3), section 163.1, 170, 171, 171.1, 172.1, 172.2 or 173 or subsection 212(4)"
↑ s. 7(4.3)
↑ R v Klassen, 2008 BCSC 1762 (CanLII), per Cullen J
↑ Klassen, ibid., at para 113

Terrorism Offences

7.
...

Nuclear terrorism offence committed outside Canada

(2.21) Despite anything in this Act or any other Act, everyone who commits an act or omission outside Canada that if committed in Canada would constitute an offence under any of sections 82.3 to 82.6 [radioactive material or device offences], or a conspiracy or attempt to commit such an offence, or being an accessory after the fact or counselling in relation to such an offence, is deemed to have committed that act or omission in Canada if

(a) the act or omission is committed on a ship that is registered or licensed, or for which an identification number has been issued, under any Act of Parliament;

(b) the act or omission is committed on an aircraft that
(i) is registered in Canada under regulations made under the Aeronautics Act, or

(ii) is leased without crew and operated by a person who is qualified under regulations made under the Aeronautics Act to be registered as owner of an aircraft in Canada under those regulations;

(c) the person who commits the act or omission is a Canadian citizen; or

(d) the person who commits the act or omission is, after the commission of the act or omission, present in Canada.

...

Offence relating to financing of terrorism

(3.73) Notwithstanding anything in this Act or any other Act, every one who, outside Canada, commits an act or omission that, if committed in Canada, would constitute an offence against, a conspiracy or an attempt to commit an offence against, or being an accessory after the fact or counselling in relation to an offence against, section 83.02 [providing or collecting property for certain terror-related activities] is deemed to commit the act or omission in Canada if

(a) the act or omission is committed on a ship that is registered or licensed, or for which an identification number has been issued, under an Act of Parliament;

(b) the act or omission is committed on an aircraft
(i) registered in Canada under regulations made under the Aeronautics Act, or

(ii) leased without crew and operated by a person who is qualified under regulations made under the Aeronautics Act to be registered as the owner of an aircraft in Canada under those regulations;

(c) the person who commits the act or omission
(i) is a Canadian citizen, or

(ii) is not a citizen of any state and ordinarily resides in Canada;

(d) the person who commits the act or omission is, after its commission, present in Canada;

(e) the act or omission is committed for the purpose of committing an act or omission referred to in paragraph 83.02(a) [providing or collecting property for enumerated terrorist activity] or (b) [providing or collecting property with intent to cause harm for political purpose] in order to compel the Government of Canada or of a province to do or refrain from doing any act;

(f) the act or omission is committed for the purpose of committing an act or omission referred to in paragraph 83.02(a) [providing or collecting property for enumerated terrorist activity] or (b) [providing or collecting property with intent to cause harm for political purpose] against a Canadian government or public facility located outside Canada; or

(g) the act or omission is committed for the purpose of committing an act or omission referred to in paragraph 83.02(a) [providing or collecting property for enumerated terrorist activity] or (b) [providing or collecting property with intent to cause harm for political purpose] in Canada or against a Canadian citizen.

Terrorism offence committed outside Canada

(3.74) Notwithstanding anything in this Act or any other Act, every one who commits an act or omission outside Canada that, if committed in Canada, would be a terrorism offence, other than an offence under section 83.02 [providing or collecting property for certain terror-related activities] or an offence referred to in paragraph (a) of the definition terrorist activity in subsection 83.01(1) [terrorism offences – definitions], is deemed to have committed that act or omission in Canada if the person

(a) is a Canadian citizen;

(b) is not a citizen of any state and ordinarily resides in Canada; or

(c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act and is, after the commission of the act or omission, present in Canada.

Terrorist activity committed outside Canada

(3.75) Notwithstanding anything in this Act or any other Act, every one who commits an act or omission outside Canada that, if committed in Canada, would be an indictable offence and would also constitute a terrorist activity referred to in paragraph (b) of the definition terrorist activity in subsection 83.01(1) [terrorism offences – definitions] is deemed to commit that act or omission in Canada if

(a) the act or omission is committed against a Canadian citizen;

(b) the act or omission is committed against a Canadian government or public facility located outside Canada; or

(c) the act or omission is committed with intent to compel the Government of Canada or of a province to do or refrain from doing any act.

(3.76) and (3.77) [Repealed, 2000, c. 24, s. 42]
...
R.S., 1985, c. C-46, s. 7; R.S., 1985, c. 27 (1st Supp.), s. 5, c. 10 (3rd Supp.), s. 1, c. 30 (3rd Supp.), s. 1, c. 1 (4th Supp.), s. 18(F); 1992, c. 1, ss. 58, 60(F); 1993, c. 7, s. 1; 1995, c. 5, s. 25; 1997, c. 16, s. 1; 1999, c. 35, s. 11; 2000, c. 24, s. 42; 2001, c. 27, s. 244, c. 41, ss. 3, 126; 2002, c. 13, s. 3; 2004, c. 12, s. 1; 2005, c. 40, s. 2; 2012, c. 1, s. 10, c. 15, s. 1; 2013, c. 9, s. 2, c. 13, s. 3; 2014, c. 25, s. 3.
[annotation(s) added]

– CCC

Note up: 7 (2.21), (3.73), (3.74), and (3.75)

Hostage Taking

7.
...

Offence of hostage taking

(3.1) Notwithstanding anything in this Act or any other Act, every one who, outside Canada, commits an act or omission that if committed in Canada would be an offence against section 279.1 [hostage taking] shall be deemed to commit that act or omission in Canada if

(a) the act or omission is committed on a ship that is registered or licensed, or for which an identification number has been issued, pursuant to any Act of Parliament;

(b) the act or omission is committed on an aircraft
(i) registered in Canada under regulations made under the Aeronautics Act, or

(ii) leased without crew and operated by a person who is qualified under regulations made under the Aeronautics Act to be registered as owner of an aircraft in Canada under such regulations;

(c) the person who commits the act or omission
(i) is a Canadian citizen, or

(ii) is not a citizen of any state and ordinarily resides in Canada;

(d) the act or omission is committed with intent to induce Her Majesty in right of Canada or of a province to commit or cause to be committed any act or omission;

(e) a person taken hostage by the act or omission is a Canadian citizen; or

(f) the person who commits the act or omission is, after the commission thereof, present in Canada.

(3.2) to (3.6) [Repealed, 2013, c. 13, s. 3]

– CCC

Note up: 7 (3.1)

Human Trafficking

See also: Trafficking in Persons (Offence)

7.
...

Offence in relation to trafficking in persons

(4.11) Notwithstanding anything in this Act or any other Act, every one who, outside Canada, commits an act or omission that if committed in Canada would be an offence against section 279.01 [trafficking in persons], 279.011 [trafficking in persons, under 18], 279.02 [material benefit from trafficking] or 279.03 [withholding or destroying docs] shall be deemed to commit that act or omission in Canada if the person who commits the act or omission is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act.
(4.2) [Repealed, 2002, c. 13, s. 3]
...
R.S., 1985, c. C-46, s. 7; R.S., 1985, c. 27 (1st Supp.), s. 5, c. 10 (3rd Supp.), s. 1, c. 30 (3rd Supp.), s. 1, c. 1 (4th Supp.), s. 18(F); 1992, c. 1, ss. 58, 60(F); 1993, c. 7, s. 1; 1995, c. 5, s. 25; 1997, c. 16, s. 1; 1999, c. 35, s. 11; 2000, c. 24, s. 42; 2001, c. 27, s. 244, c. 41, ss. 3, 126; 2002, c. 13, s. 3; 2004, c. 12, s. 1; 2005, c. 40, s. 2; 2012, c. 1, s. 10, c. 15, s. 1; 2013, c. 9, s. 2, c. 13, s. 3; 2014, c. 25, s. 3.

– CCC

Note up: 7 (4.11)

Misc Circumstances

Internationally Protected Persons

See also: Definitions of Parties, Persons, Places and Organizations#Internationally Protected Persons

7 ...

Offence against internationally protected person

(3) Notwithstanding anything in this Act or any other Act, every one who, outside Canada, commits an act or omission against the person of an internationally protected person or against any property referred to in section 431 used by that person that, if committed in Canada, would be an offence against any of sections 235 [punishment for murder – max and min penalties], 236 [manslaughter], 266 [assault], 267 [assault with a weapon or causing bodily harm], 268 [aggravated assault], 269 [unlawfully causing bodily harm], 269.1 [torture], 271 [sexual assault], 272 [sexual assault with a weapon or causing bodily harm], 273 [aggravated sexual assault], 279 [kidnapping and forcible confinement], 279.1 [hostage taking], 280 to 283 [abduction and detention of young persons], 424 [threat against an internationally protected person] and 431 [attack on premises, residence or transport of internationally protected person] is deemed to commit that act or omission in Canada if

(a) the act or omission is committed on a ship that is registered or licensed, or for which an identification number has been issued, pursuant to any Act of Parliament;

(b) the act or omission is committed on an aircraft
(i) registered in Canada under regulations made under the Aeronautics Act, or

(ii) leased without crew and operated by a person who is qualified under regulations made under the Aeronautics Act to be registered as owner of an aircraft in Canada under those regulations;

(c) the person who commits the act or omission is a Canadian citizen or is, after the act or omission has been committed, present in Canada; or

(d) the act or omission is against
(i) a person who enjoys the status of an internationally protected person by virtue of the functions that person performs on behalf of Canada, or

(ii) a member of the family of a person described in subparagraph (i) who qualifies under paragraph (b) or (d) of the definition internationally protected person in section 2 [general Code definitions].

...
R.S., 1985, c. C-46, s. 7; R.S., 1985, c. 27 (1st Supp.), s. 5, c. 10 (3rd Supp.), s. 1, c. 30 (3rd Supp.), s. 1, c. 1 (4th Supp.), s. 18(F); 1992, c. 1, ss. 58, 60(F); 1993, c. 7, s. 1; 1995, c. 5, s. 25; 1997, c. 16, s. 1; 1999, c. 35, s. 11; 2000, c. 24, s. 42; 2001, c. 27, s. 244, c. 41, ss. 3, 126; 2002, c. 13, s. 3; 2004, c. 12, s. 1; 2005, c. 40, s. 2; 2012, c. 1, s. 10, c. 15, s. 1; 2013, c. 9, s. 2, c. 13, s. 3; 2014, c. 25, s. 3.

– CCC

Note up: 7 (3)

United Nations Personnel

Section 7(3.71) relates to offence against United Nations or associated personnel.

7
...

Offence against United Nations or associated personnel

(3.71) Notwithstanding anything in this Act or any other Act, every one who, outside Canada, commits an act or omission against a member of United Nations personnel or associated personnel or against property referred to in section 431.1 that, if committed in Canada, would constitute an offence against, a conspiracy or an attempt to commit an offence against, or being an accessory after the fact or counselling in relation to an offence against, section 235 [punishment for murder – max and min penalties], 236 [manslaughter], 266 [assault], 267 [assault with a weapon or causing bodily harm], 268 [aggravated assault], 269 [unlawfully causing bodily harm], 269.1 [torture], 271 [sexual assault], 272 [sexual assault with a weapon or causing bodily harm], 273 [aggravated sexual assault], 279 [kidnapping and forcible confinement], 279.1 [hostage taking], 424.1 [threat against United Nations or associated personnel] or 431.1 [attack on premises, accommodation or transport of United Nations or associated personnel] is deemed to commit that act or omission in Canada if

(a) the act or omission is committed on a ship that is registered or licensed, or for which an identification number has been issued, under an Act of Parliament;

(b) the act or omission is committed on an aircraft
(i) registered in Canada under regulations made under the Aeronautics Act, or

(ii) leased without crew and operated by a person who is qualified under regulations made under the Aeronautics Act to be registered as owner of an aircraft in Canada under those regulations;

(c) the person who commits the act or omission
(i) is a Canadian citizen, or

(ii) is not a citizen of any state and ordinarily resides in Canada;

(d) the person who commits the act or omission is, after the commission of the act or omission, present in Canada;

(e) the act or omission is committed against a Canadian citizen; or

(f) the act or omission is committed with intent to compel the Government of Canada or of a province to do or refrain from doing any act.

...

[annotation(s) added]

– CCC

Note up: 7 (3.71)

Section 7(3.72) relates to offence involving explosive or other lethal device.

7.
...

Offence involving explosive or other lethal device

(3.72) Notwithstanding anything in this Act or any other Act, every one who, outside Canada, commits an act or omission that, if committed in Canada, would constitute an offence against, a conspiracy or an attempt to commit an offence against, or being an accessory after the fact or counselling in relation to an offence against, section 431.2 [accesses or uses explosive or other lethal device to harm persons or destroy property] is deemed to commit that act or omission in Canada if

(a) the act or omission is committed on a ship that is registered or licensed, or for which an identification number has been issued, under any Act of Parliament;

(b) the act or omission is committed on an aircraft
(i) registered in Canada under regulations made under the Aeronautics Act,

(ii) leased without crew and operated by a person who is qualified under regulations made under the Aeronautics Act to be registered as owner of an aircraft in Canada under those regulations, or

(iii) operated for or on behalf of the Government of Canada;

(c) the person who commits the act or omission
(i) is a Canadian citizen, or

(ii) is not a citizen of any state and ordinarily resides in Canada;

(d) the person who commits the act or omission is, after the commission of the act or omission, present in Canada;

(e) the act or omission is committed against a Canadian citizen;

(f) the act or omission is committed with intent to compel the Government of Canada or of a province to do or refrain from doing any act; or

(g) the act or omission is committed against a Canadian government or public facility located outside Canada.

...

[annotation(s) added]

– CCC

Note up: 7 (3.72)

Sections 7(5) to (11) set out the procedural requirements of deemed jurisdiction under this section.

Torture

7
...

Jurisdiction

(3.7) Notwithstanding anything in this Act or any other Act, every one who, outside Canada, commits an act or omission that, if committed in Canada, would constitute an offence against, a conspiracy or an attempt to commit an offence against, being an accessory after the fact in relation to an offence against, or any counselling in relation to an offence against, section 269.1 [torture] shall be deemed to commit that act or omission in Canada if

(a) the act or omission is committed on a ship that is registered or licensed, or for which an identification number has been issued, pursuant to any Act of Parliament;

(b) the act or omission is committed on an aircraft
(i) registered in Canada under regulations made under the Aeronautics Act, or

(ii) leased without crew and operated by a person who is qualified under regulations made under the Aeronautics Act to be registered as owner of an aircraft in Canada under those regulations;

(c) the person who commits the act or omission is a Canadian citizen;

(d) the complainant is a Canadian citizen; or

(e) the person who commits the act or omission is, after the commission thereof, present in Canada.

(3.76) and (3.77) [Repealed, 2000, c. 24, s. 42] ...

[annotation(s) added]

– CCC

Note up: 7 (3.7)

Non-citizens

Any extra-territorial jurisdiction conveyed by s. 7 in relation to a non-citizen must only be applied with the consent of the Attorney General of Canada.

s. 7
...

If accused not Canadian citizen

(7) If the accused is not a Canadian citizen, no proceedings in respect of which courts have jurisdiction by virtue of this section shall be continued unless the consent of the Attorney General of Canada is obtained not later than eight days after the proceedings are commenced.
...
R.S., 1985, c. C-46, s. 7; R.S., 1985, c. 27 (1st Supp.), s. 5, c. 10 (3rd Supp.), s. 1, c. 30 (3rd Supp.), s. 1, c. 1 (4th Supp.), s. 18(F); 1992, c. 1, ss. 58, 60(F); 1993, c. 7, s. 1; 1995, c. 5, s. 25; 1997, c. 16, s. 1; 1999, c. 35, s. 11; 2000, c. 24, s. 42; 2001, c. 27, s. 244, c. 41, ss. 3, 126; 2002, c. 13, s. 3; 2004, c. 12, s. 1; 2005, c. 40, s. 2; 2012, c. 1, s. 10, c. 15, s. 1; 2013, c. 9, s. 2, c. 13, s. 3; 2014, c. 25, s. 3.

– CCC

Note up: 7 (7)

The requirement for consent from the Attorney General of Canada only applies to non-citizens who are not also permanent residents.^[1]

Purpose

The purpose of the requirement for consent at the beginning of the proceedings is to require the government to "consider the international implications of the prosecution of a non-citizen for an extra-territorial offence" "in order to avoid possible international relations issues".^[2]

Burden

The crown has no burden to establish the accused was a Canadian citizen to exempt itself from s. 7(7) limiting the jurisdiction of the court. There must be an application by the accused before the Crown has a burden to adduce evidence on citizenship.^[3]

↑ R v Patel, 2016 ONCJ 172 (CanLII), per Copeland J, at para 20
↑ Patel, ibid., at para 27
↑ R v Minot, 2011 NLCA 7 (CanLII), per Hoegg JA (3:0)

Applicable Forum for Section 7 Jurisdiction Offences

Template:Quotation7

Evidence

7
...

Certificate as evidence

(10) In any proceedings under this Act, a certificate purporting to have been issued by or under the authority of the Minister of Foreign Affairs is admissible in evidence without proof of the signature or authority of the person appearing to have signed it and, in the absence of evidence to the contrary, is proof of the facts it states that are relevant to the question of whether any person is a member of United Nations personnel, a member of associated personnel or a person who is entitled under international law to protection from attack or threat of attack against his or her person, freedom or dignity.

Idem

(11) A certificate purporting to have been issued by or under the authority of the Minister of Foreign Affairs stating

(a) that at a certain time any state was engaged in an armed conflict against Canada or was allied with Canada in an armed conflict,

(b) that at a certain time any convention, treaty or other international agreement was or was not in force and that Canada was or was not a party thereto, or

(c) that Canada agreed or did not agree to accept and apply the provisions of any convention, treaty or other international agreement in an armed conflict in which Canada was involved,

is admissible in evidence in any proceedings without proof of the signature or authority of the person appearing to have issued it, and is proof of the facts so stated.
R.S., 1985, c. C-46, s. 7; R.S., 1985, c. 27 (1st Supp.), s. 5, c. 10 (3rd Supp.), s. 1, c. 30 (3rd Supp.), s. 1, c. 1 (4th Supp.), s. 18(F); 1992, c. 1, ss. 58, 60(F); 1993, c. 7, s. 1; 1995, c. 5, s. 25; 1997, c. 16, s. 1; 1999, c. 35, s. 11; 2000, c. 24, s. 42; 2001, c. 27, s. 244, c. 41, ss. 3, 126; 2002, c. 13, s. 3; 2004, c. 12, s. 1; 2005, c. 40, s. 2; 2012, c. 1, s. 10, c. 15, s. 1; 2013, c. 9, s. 2, c. 13, s. 3; 2014, c. 25, s. 3; 2018, c. 11, s. 27; 2019, c. 25, s. 4.

– CCC

Note up: 7 (10) and (11)

Attendance at Trial

Appearance of accused at trial

481.3 For greater certainty, the provisions of this Act relating to

(a) the requirement of the appearance of an accused at proceedings, and

(b) the exceptions to that requirement

apply to proceedings commenced in any territorial division pursuant to section 481 [certain offences in Canada but out of local province], 481.1 [offence in Canadian waters] or 481.2 [offence outside Canada].
1996, c. 31, s. 72.

[annotation(s) added]

– CCC

Note up: 481.3

[1] see s. 6
R v Libman, 1985 CanLII 51 (SCC), [1985] 2 SCR 178, per La Forest J
Davidson v British Columbia (Attorney General), 2006 BCCA 447 (CanLII), per Levine JA, at para 5

[2] Libman, supra

[3] Libman, supra

[4] R v Finta, 1994 CanLII 129 (SCC), [1994] 1 SCR 701, per Cory J, at p. 806

[5] section 6(2) states "Subject to this Act or any other Act of Parliament, no person shall be convicted or discharged under section 730 of an offence committed outside Canada."

[6] Libman v The Queen, 1985 CanLII 51 (SCC), [1985] 2 SCR 178, per La Forest J

[7] McCabe v British Columbia (Securities Commission), 2016 BCCA 7 (CanLII), per Goepel JA, at para 36
Torudag v British Columbia (Securities Commission), 2011 BCCA 458 (CanLII), per Hall JA, at para 19

[8] McCabe, supra, at para 35

[9] United States of America v. Patterson, 2017 BCCA 52 (CanLII), per MacKenzie JA, at paras 73 to 75

[10] R v Greco, 2001 CanLII 8608 (ON CA), per Moldaver JA
see also Breach of Undertaking, Recognizance, or Probation (Offence)
cf. R v B(O) (1997), 1997 CanLII 949 (ON CA), 116 CCC (3d) 189 (Ont. C.A.), per Abella JA (accused sexually assaulted his grand-daughter while in the US. Canada had no jurisdiction to try the case)

[11] R v Chowdhury, 2014 ONSC 2635, at para 22
R v Cook, [1998] 2 SCR 597, 1998 CanLII 802 (SCC)(complete citation pending), at para 26 (sovereign equality "generally prohibits extraterritorial application of domestic law since, in most instances, the exercise of jurisdiction beyond a state’s territorial limits would constitute an interference under international law with the exclusive territorial jurisdiction of another state.")

[12] British Columbia (AG) v Brecknell, 2018 BCCA 5, per Harris JA, at para 23

[13] Brecknell, ibid., at para 23

[14] Hape, supra, at para 45

[15] Chowdhury, supra, at para 34
Brecknell, ibid., at para 23

[16] Hape, supra, at para 47

[17] Brecknell, supra, at para 24
Hape, supra, at paras 47 to 52

[18] Chowdhury, supra, at paras 31, 32

[19] Hape, supra, at para 62

[20] Chowdhury, supra, at para 32

[21] .g. Muscutt v Courcelles, 2002 CanLII 44957 (ON CA), per Sharpe JA

[22] R v Milliea, 2008 NBPC 11 (CanLII), per Ferguson J, at para 28

[23] R v Finta, 1992 CanLII 2783 (ON CA), per Cory J

[24] Brecknell, supra, at para 24
Hape, supra, at paras 53 to 56

[25] Brecknell, supra, at para 24
Hape, supra, at to 56 paras 53 to 56{{{3}}}

[26] R v Harrer, 1995 CanLII 70 (SCC), [1995] 3 SCR 562, per La Forest J
R v Terry, 1996 CanLII 199 (SCC), [1996] 2 SCR 207, per McLachlin J
R v Hape, 2007 SCC 26 (CanLII), per LeBel J
R v Tan, 2014 BCCA 9 (CanLII), per Bennett JA
R v Mehan, 2017 BCCA 21 (CanLII), per D Smith JA, at para 28

[27] Hape, supra, at para 52
Harrer, supra, at para 15

[28] Hape, supra, at paras 103 to 105

[29] R v Hape, 2007 SCC 26 (CanLII), per LeBel J, at para 105

[30] Hape, supra, at para 105

[31] Boucher v Stelco Inc. 2005 SCC 64 (CanLII), per LeBel J, at para 37

[32] Boucher v Stelco, ibid., at paras 37 to 38
Muscutt v Courcelles, 2002 CanLII 44957 (ON CA), per Sharpe JA, at para 42

[33] sted as "section 151, 152, 153, 155 or 159, subsection 160(2) or (3), section 163.1, 170, 171, 171.1, 172.1, 172.2 or 173 or subsection 212(4)"

[34] s. 7(4.3)

[35] R v Klassen, 2008 BCSC 1762 (CanLII), per Cullen J

[36] Klassen, ibid., at para 113

[37] R v Patel, 2016 ONCJ 172 (CanLII), per Copeland J, at para 20

[38] Patel, ibid., at para 27

[39] R v Minot, 2011 NLCA 7 (CanLII), per Hoegg JA (3:0)

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@@ Line 24: / Line 24: @@
 </ref>
-{{quotation1|
+{{quotation2|
 .<br>
 {{Removed|(1)}}
@@ Line 41: / Line 41: @@
 {{Annotation}}
 |[{{CCCSec|6}} CCC]
-|{{NoteUp|}}
+|{{NoteUp|6|2|3}}
 }}
@@ Line 62: / Line 62: @@
 </ref>
 It states that:
-{{quotation1|
+{{quotation2|
 ; Offence outside Canada
 .2  Subject to this or any other Act of Parliament, where an act or omission is committed outside Canada and the act or omission is an offence when committed outside Canada under this or any other Act of Parliament, proceedings in respect of the offence may, whether or not the accused is in Canada, be commenced, and an accused may be charged, tried and punished within any territorial division in Canada in the same manner as if the offence had been committed in that territorial division.
@@ Line 69: / Line 69: @@
 {{LegHistory00s|2008, c. 18}}, s. 10.
 |[{{CCCSec|481.2}} CCC]
-|{{NoteUp|}}
+|{{NoteUp|481.2}}
 }}
@@ Line 79: / Line 79: @@
 ; Obedience to ''de facto'' Law of Another Country
-{{quotation1|
+{{quotation2|
 ; Obedience to de facto law
 No person shall be convicted of an offence in respect of an act or omission in obedience to the laws for the time being made and enforced by persons in de facto possession of the sovereign power in and over the place where the act or omission occurs.
@@ Line 85: / Line 85: @@
 R.S., c. C-34, s. 15.
 |[{{CCCSec|15}} CCC]
-|{{NoteUp|}}
+|{{NoteUp|15}}
 }}
@@ Line 217: / Line 217: @@
 Section 7(4) grants jurisdiction over criminal acts of public service employees who commit indictable offences outside of Canada while employed.
-{{quotation1|
+{{quotation2|
 .<br>
 {{Removed|(1), (2), (2.01), (2.02), (2.1), (2.2), (2.21),  (2.3), (2.31), (2.33), (2.34), (3), (3.1), (3.7), (3.71), (3.72), (3.73), (3.74), (3.75)}}
@@ Line 225: / Line 225: @@
 {{Removed|(4.1), (4.11), (4.3), (5), (5.1), (6), (7), (8), (9), (10) and (11)}}
 |[{{CCCSec|7}} CCC]
-|{{NoteUp|}}
+|{{NoteUp|7|4}}
 }}
@@ Line 233: / Line 233: @@
 Section 7(2.01) imposes jurisdiction over offences under s. 322, 341,344, 380, or 434 committed outside of Canada that is "in relation to cultural property" where the accused is a citizen permanent resident or ordinarily resides in Canada.
-{{quotation1|
+{{quotation2|
 <br>
 {{Removed|(1) and (2)}}
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 {{Annotation}}
 |[{{CCCSec|7}} CCC]
-|{{NoteUp|}}
+|{{NoteUp|7|2.01|2.02}}
 }}
@@ Line 272: / Line 272: @@
 for offence committed outside of Canada by Canadian citizens or permanent residents.
-{{quotation1|
+{{quotation2|
 .<br>...<br>
 ; Offence in relation to sexual offences against children
@@ Line 289: / Line 289: @@
 |[{{CCCSec|7}} CCC]
-|{{NoteUp|}}
+|{{NoteUp|7|4.1|4.3}}
 }}
@@ Line 305: / Line 305: @@
 ===Terrorism Offences===
-{{quotation1|
+{{quotation2|
 . <br>...<br>
 ; Nuclear terrorism offence committed outside Canada
@@ Line 360: / Line 360: @@
 {{Annotation}}
 |[{{CCCSec|7}} CCC]
-|{{NoteUp|}}
+|{{NoteUp|7|2.21|3.73|3.74|3.75}}
 }}
 ===Hostage Taking===
-{{quotation1|
+{{quotation2|
 .<br>...<br>
 ; Offence of hostage taking
@@ Line 382: / Line 382: @@
 (3.2) to (3.6) [Repealed, {{LegHistory10s|2013, c. 13}}, s. 3]
 |[{{CCCSec|7}} CCC]
-|{{NoteUp|}}
+|{{NoteUp|7|3.1}}
 }}
 ===Human Trafficking===
 {{seealso|Trafficking in Persons (Offence)}}
-{{quotation1|
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@@ Line 396: / Line 396: @@
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 |[{{CCCSec|7}} CCC]
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@@ Line 404: / Line 404: @@
 {{seealso|Definitions of Parties, Persons, Places and Organizations#Internationally Protected Persons}}
-{{quotation1|
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 ; Offence against internationally protected person
@@ Line 424: / Line 424: @@
 {{LegHistory10s|2014, c. 25}}, s. 3.
 |[{{CCCSec|7}} CCC]
-|{{NoteUp|}}
+|{{NoteUp|7|3}}
 }}
@@ Line 432: / Line 432: @@
 Section 7(3.71) relates to offence against United Nations or associated personnel.
-{{quotation1|
+{{quotation2|
 <br>...<br>
 ; Offence against United Nations or associated personnel
@@ Line 449: / Line 449: @@
 {{Annotation}}
 |[{{CCCSec|7}} CCC]
-|{{NoteUp|}}
+|{{NoteUp|7|3.71}}
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 Section 7(3.72) relates to offence involving explosive or other lethal device.
-{{quotation1|
+{{quotation2|
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 ; Offence involving explosive or other lethal device
@@ Line 472: / Line 472: @@
 {{Annotation}}
 |[{{CCCSec|7}} CCC]
-|{{NoteUp|}}
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@@ Line 479: / Line 479: @@
 ===Torture===
-{{quotation1|
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@@ Line 502: / Line 502: @@
 Any extra-territorial jurisdiction conveyed by s. 7 in relation to a non-citizen must only be applied with the consent of the Attorney General of Canada.
-{{quotation1|
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 s. 7<br>...<br>
 ; If accused not Canadian citizen
@@ Line 509: / Line 509: @@
 R.S., {{LegHistory80s|1985, c. C-46}}, s. 7; R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 5, c. 10 (3rd Supp.), s. 1, c. 30 (3rd Supp.), s. 1, c. 1 (4th Supp.), s. 18(F); {{LegHistory90s|1992, c. 1}}, ss. 58, 60(F); 1993, c. 7, s. 1; 1995, c. 5, s. 25; {{LegHistory90s|1997, c. 16}}, s. 1; {{LegHistory90s|1999, c. 35}}, s. 11; {{LegHistory00s|2000, c. 24}}, s. 42; {{LegHistory00s|2001, c. 27}}, s. 244, c. 41, ss. 3, 126; {{LegHistory00s|2002, c. 13}}, s. 3; {{LegHistory00s|2004, c. 12}}, s. 1; {{LegHistory00s|2005, c. 40}}, s. 2; {{LegHistory10s|2012, c. 1}}, s. 10, c. 15, s. 1; 2013, c. 9, s. 2, c. 13, s. 3; {{LegHistory10s|2014, c. 25}}, s. 3.
 |[{{CCCSec|7}} CCC]
-|{{NoteUp|}}
+|{{NoteUp|7|7}}
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@@ Line 529: / Line 529: @@
 ==Applicable Forum for Section 7 Jurisdiction Offences==
-{{quotation1|
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@@ Line 561: / Line 561: @@
 {{Annotation}}
 |[{{CCCSec|7}} CCC]
-|{{NoteUp|}}
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 ==Evidence==
-{{quotation1|
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@@ Line 593: / Line 593: @@
 {{LegHistory10s|2019, c. 25}}, s. 4.
 |[{{CCCSec|7}} CCC]
-|{{NoteUp|}}
+|{{NoteUp|7|10|11}}
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 ==Attendance at Trial==
-{{quotation1|
+{{quotation2|
 ; Appearance of accused at trial
 .3 For greater certainty, the provisions of this Act relating to
@@ Line 607: / Line 607: @@
 {{Annotation}}
 |[{{CCCSec|481.3}} CCC]
-|{{NoteUp|}}
+|{{NoteUp|481.3}}
 }}