The jurisdiction of Canadian criminal courts for acts committed abroad
The principle of territoriality is privileged under Canadian law. Article 6(2) of the Canadian Criminal Code 1 provides that “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.”
When there is a link between Canada and the alleged offense, provided the activity takes place largely outside of Canada but that much of the offense is committed in Canada, it is possible to establish a “real and substantial connection” 2 with Canada, such that Canada has jurisdiction to prosecute. In establishing such a link, the court must examine the facts which occur in Canada – at corporate headquarters, for example, in the case of a Canadian business operating outside of Canada. In addition, the court must determine whether Canada’s exercise of extraterritorial jurisdiction may be poorly received by the international community.
The principles of active personality (under which Canadian courts have jurisdiction over all Canadian nationals who commit an offense, regardless of where the offense occurs) and passive personality (under which Canadian courts have jurisdiction in cases where Canadian nationals have been victims of an offence, regardless of where the offense occurs) are rarely used. They are used, however, for the most serious international crimes including:
- Terrorist crimes prohibited by international conventions; 3
- War crimes and crimes against humanity 4 and treason. 5
Canada uses the principle of universal jurisdiction in a measured manner. According to Article 7(3.71) of the Canadian Criminal Code, 6 any person who commits an act or omission constituting an international war crime or crime against humanity and a violation of Canadian law at the time of the act or omission will be regarded as having committed the act or omission in Canada if:
At the time,
- He or she was a Canadian citizen or Canadian public or military employee;
- He or she was a citizen or public or military employee of a country participating in armed conflict against Canada; or
- The victim was a Canadian citizen or a national of a state allied in armed conflict with Canada or
- If at the time of the act or omission, and in accordance with international law, Canada could exercise jurisdiction over the person on the basis of his or her presence on Canadian soil, and if after the time of the act or omission, the person is present on Canadian soil.
In order to meet the conditions for universal jurisdiction the allegations must focus on one of the two abovementioned crimes, there must be a violation of Canadian law and in addition, the party involved must fall under one of the two categories above.
Based on the Rome Statute of the International Criminal Court, Canada has fully incorporated the three crimes of conventional and customary international law – genocide, crimes against humanity and war crimes – in its national legislation by adopting the Law on Crimes Against Humanity and War Crimes. 7
The applicability of that law to corporations is a subject of discussion, particularly due to inadequate definitions of the crimes legal persons can commit under international law.
Under Canadian law, complicity in the Commission of genocide, a war crime or crime against humanity is itself a crime. Thus, Articles 4(1.1.) and 6(1.1.) of the Law on Crimes Against Humanity and War Crimes stipulate that “every person is guilty of an indictable offence who commits (a) genocide; (b) a crime against humanity; or (c) a war crime” and “is an accessory after the fact in relation to, or counsels in relation to, an offence.”
Some believe that the Special economic Measures Act (SeMA) could potentially be used to penalise companies that commit human rights violations abroad. The SeMA authorises the Cabinet to implement the decisions, resolutions or recommendations of international organisations of which Canada is a member, in order to adopt economic measures against another state if an international organisation requests it.
The Canadian government, however, has interpreted SeMA as authorising the adoption of such measures only on the request of an international body.
Lastly, under Article 11 of the Canadian Charter of Rights and Freedoms:
“Any person charged with an offence has the right […] not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognised by the community of nations.”
The scope of this right’s application has not been delineated in practice, but could allow for the prosecutions of corporations in Canada for violations of international law.