Special Jurisdiction for Offences Over Water
General Principles
- Inside Canadian Territory
Offences occurring within Canadian waters may be tried within "any territorial division in Canada."[1]
- Special jurisdictions
476. For the purposes of this Act,
- (a) where an offence is committed in or on any water or on a bridge between two or more territorial divisions, the offence shall be deemed to have been committed in any of the territorial divisions;
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- (c) where an offence is committed in or on a vehicle employed in a journey, or on board a vessel employed on a navigable river, canal or inland water, the offence shall be deemed to have been committed in any territorial division through which the vehicle or vessel passed in the course of the journey or voyage on which the offence was committed, and where the center or other part of the road, or navigable river, canal or inland water on which the vehicle or vessel passed in the course of the journey or voyage is the boundary of two or more territorial divisions, the offence shall be deemed to have been committed in any of the territorial divisions;
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R.S., 1985, c. C-46, s. 476; R.S., 1985, c. 27 (1st Supp.), s. 186; 1992, c. 1, s. 58.– CCC
Any prosecution of offences occurring "in or on the territorial sea of Canada" must be done so under conditions that require the consent of the Attorney General of Canada.[2]
There are also separate arrest, entry and search and seizure powers for offences under 477.1[3]
- Offence in Canadian waters
481.1 Where an offence is committed in or on the territorial sea of Canada or any area of the sea that forms part of the internal waters of Canada, proceedings in respect thereof 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.– CCC
Outside of Territory of Canada
- Offences outside of Canada
477.1 Every person who commits an act or omission that, if it occurred in Canada, would be an offence under a federal law, within the meaning of section 2 of the Oceans Act, is deemed to have committed that act or omission in Canada if it is an act or omission
- (a) in the exclusive economic zone of Canada that
- (i) is committed by a person who is in the exclusive economic zone of Canada in connection with exploring or exploiting, conserving or managing the natural resources, whether living or non-living, of the exclusive economic zone of Canada, and
- (ii) is committed by or in relation to a person who is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act;
- (b) that is committed in a place in or above the continental shelf of Canada and that is an offence in that place by virtue of section 20 of the Oceans Act;
- (c) that is committed outside Canada on board or by means of a ship registered or licensed, or for which an identification number has been issued, pursuant to any Act of Parliament;
- (d) that is committed outside Canada in the course of hot pursuit; or
- (e) that is committed outside the territory of any state by a Canadian citizen.
1990, c. 44, s. 15; 1996, c. 31, s. 68; 2001, c. 27, s. 247.
– CCC
The term "federal law" is defined in s. 2 of the Oceans Act. It states that "federal laws includes Acts of Parliament, regulations as defined in subsection 2(1) of the Interpretation Act and any other rules of law within the jurisdiction of Parliament, but does not include laws of the Legislature of Yukon, of the Northwest Territories or for Nunavut;"
This provision lists certain circumstances where jurisdiction will be imposed on an person who commits a criminal or other federal offence that occurs outside the geographic boundaries of the provinces and territories. This captures mostly offences committed at sea.
The applicable circumstances consist of:
- certain circumstances where an offence is committed in a "exclusive economic zone of Canada";
- offences committed in or above the continental shelf;
- offences committed outside Canada on board or by means of a ship registered or licensed under an Act of Parliament;
- offences committed outside of Canada in the course of hot pursuit; or
- offences committed outside of any state by a Canadian citizen.
Definitions
- Definition of ship
477 (1) In sections 477.1 to 477.4, ship includes any description of vessel, boat or craft designed, used or capable of being used solely or partly for marine navigation, without regard to method or lack of propulsion.
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R.S., 1985, c. C-46, s. 477; 1990, c. 44, s. 15; 1996, c. 31, s. 67.– CCC
Limitations on s. 477.1 to 477.4
- Definition of ship
477 (1) ...
- Saving
(2) Nothing in sections 477.1 to 477.4 limits the operation of any other Act of Parliament or the jurisdiction that a court may exercise apart from those sections.
R.S., 1985, c. C-46, s. 477; 1990, c. 44, s. 15; 1996, c. 31, s. 67.– CCC
Fixed Platforms
Section 7(2.1) relates to offences against fixed platforms or international maritime navigation. Section 7(2.2) relates to offences against fixed platforms or navigation in the internal waters or territorial sea of another state.
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- Offences against fixed platforms or international maritime navigation
(2.1) Notwithstanding anything in this Act or any other Act, every one who commits an act or omission outside Canada against or on board a fixed platform attached to the continental shelf of any state or against or on board a ship navigating or scheduled to navigate beyond the territorial sea of any state, 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 78.1, shall be deemed to commit that act or omission in Canada if it is committed
- (a) against or on board a fixed platform attached to the continental shelf of Canada;
- (b) against or on board a ship registered or licensed, or for which an identification number has been issued, pursuant to any Act of Parliament;
- (c) by a Canadian citizen;
- (d) by a person who is not a citizen of any state and who ordinarily resides in Canada;
- (e) by a person who is, after the commission of the offence, present in Canada;
- (f) in such a way as to seize, injure or kill, or threaten to injure or kill, a Canadian citizen; or
- (g) in an attempt to compel the Government of Canada to do or refrain from doing any act.
- Offences against fixed platforms or navigation in the internal waters or territorial sea of another state
(2.2) Notwithstanding anything in this Act or any other Act, every one who commits an act or omission outside Canada against or on board a fixed platform not attached to the continental shelf of any state or against or on board a ship not navigating or scheduled to navigate beyond the territorial sea of any state, 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 78.1, shall be deemed to commit that act or omission in Canada
- (a) if it is committed as described in any of paragraphs (2.1)(b) to (g); and
- (b) if the offender is found in the territory of a state, other than the state in which the act or omission was committed, that is
- (i) a party to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome on March 10, 1988, in respect of an offence committed against or on board a ship, or
- (ii) a party to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, done at Rome on March 10, 1988, in respect of an offence committed against or on board a fixed platform.
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– CCC
"Continental Shelf of Canada"
Section 17 of the Oceans Act defines "continental shelf of Canada".
- Continental shelf of Canada
17 (1) The continental shelf of Canada is the seabed and subsoil of the submarine areas, including those of the exclusive economic zone of Canada, that extend beyond the territorial sea of Canada throughout the natural prolongation of the land territory of Canada
- (a) subject to paragraphs (b) and (c), to the outer edge of the continental margin, determined in the manner under international law that results in the maximum extent of the continental shelf of Canada, the continental margin being the submerged prolongation of the land mass of Canada consisting of the seabed and subsoil of the shelf, the slope and the rise, but not including the deep ocean floor with its oceanic ridges or its subsoil;
- (b) to a distance of 200 nautical miles from the baselines of the territorial sea of Canada where the outer edge of the continental margin does not extend up to that distance; or
- (c) in respect of a portion of the continental shelf of Canada for which geographical coordinates of points have been prescribed pursuant to subparagraph 25(a)(iii), to lines determined from the geographical coordinates of points so prescribed.
- Determination of the outer limit of the continental shelf of Canada
(2) For greater certainty, paragraphs (1)(a) and (b) apply regardless of whether regulations are made pursuant to subparagraph 25(a)(iv) prescribing geographical coordinates of points from which the outer edge of the continental margin or other outer limit of the continental shelf of Canada may be determined.
1996, c. 31, s. 17; 2015, c. 3, s. 137(E).
Consent of Attorney General
Some form of charges under s. 477.1 required
- Consent of Attorney General of Canada
477.2 (1) No proceedings in respect of an offence committed in or on the territorial sea of Canada shall be continued unless the consent of the Attorney General of Canada is obtained not later than eight days after the proceedings are commenced, if the accused is not a Canadian citizen and the offence is alleged to have been committed on board any ship registered outside Canada.
- Exception
(1.1) Subsection (1) does not apply to proceedings by way of summary conviction.
- Consent of Attorney General of Canada
(2) No proceedings in respect of which courts have jurisdiction by virtue only of paragraph 477.1(a) or (b) shall be continued unless the consent of the Attorney General of Canada is obtained not later than eight days after the proceedings are commenced, if the accused is not a Canadian citizen and the offence is alleged to have been committed on board any ship registered outside Canada.
- Consent of Attorney General of Canada
(3) No proceedings in respect of which courts have jurisdiction by virtue only of paragraph 477.1(d) or (e) shall be continued unless the consent of the Attorney General of Canada is obtained not later than eight days after the proceedings are commenced.
- Consent to be filed
(4) The consent of the Attorney General required by subsection (1), (2) or (3) must be filed with the clerk of the court in which the proceedings have been instituted.
1990, c. 44, s. 15; 1994, c. 44, s. 32; 1996, c. 31, s. 69.– CCC
Procedural Issues
477.4 (1) and (2) [Repealed, 1996, c. 31, s. 71]
- Evidence
(3) In proceedings in respect of an offence,
- (a) a certificate referred to in subsection 23(1) of the Oceans Act, or
- (b) a certificate issued by or under the authority of the Minister of Foreign Affairs containing a statement that any geographical location specified in the certificate was, at any time material to the proceedings, in an area of a fishing zone of Canada that is not within the internal waters of Canada or the territorial sea of Canada or outside the territory of any state,
is conclusive proof of the truth of the statement without proof of the signature or official character of the person appearing to have issued the certificate.
- Certificate cannot be compelled
(4) A certificate referred to in subsection (3) is admissible in evidence in proceedings referred to in that subsection but its production cannot be compelled.
1990, c. 44, s. 15; 1995, c. 5, s. 25; 1996, c. 31, s. 71.– CCC