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References
Rom. Criminal Code, 1968, art. 6,cited in Michael Akehurst,Jurisdiction in International Law, 46 Brit. Y.B. Int’l L. 145, 164 (1972).
Treaty for the Mutual Surrender of Fugitive Criminals, 1893, G. Brit.-Rom., Brit. T.S. 1894/14, S.C. 1894, p. lxiv (Can.). The treaty was brought into force again in Canada after World War II. Can. T.S. 1947/6.
As noted inInternational Law, Chiefly as Interpreted and Applied in Canada 43 (Hugh M. Kindred et al. eds., 5th ed. 1993) [hereinafter Kindred et al.,International Law], the Criminal Code, R.S.C. 1985, ch. C-46, § 6(2)(as amended) (Can.), states: "Subject to this Act or any other Act of Parliament, no person shall be convicted or discharged under section 736 of an offence committed outside Canada." The Criminal Code of Canada extends the jurisdictional claim to cases that are recognized in international law, mainly under conventional law, such as interference with navigation and fixed platforms, hijacking of international aircraft, piracy, and interference with nuclear materials ("Canadian" ship, air carrier, or accused, or presence in territory). Extraterritorial jurisdiction may also be asserted in the case of hostage-taking or torture where the victim is Canadian and in the case of crimes against humanity or war crimes. In addition, recent case law has interpreted Canadian jurisdictional practice fairly broadly to extend to a "meaningful contact" with the state wishing to exercise jurisdiction. Libman v. R., 21 D.L.R.4th 174, 21 C.C.C.3d 206 (Can. 1985).
Extradition Act, R.S.C. 1985, ch. E-23, as amended by S.C. 1992, ch. 13 (Can.), to allow an individual whose extradition is being sought to appeal to the provincial Court of Appeal the decision by the extradition hearing judge and to seek judicial review of the ministerial decision to surrender.
Extradition Act,supra note 5, pt. I;Re McVey, 97 D.L.R.4th 193, 198–99 (Can. 1992) (La Forest, J.) (citations omitted): [U]nder customary international law states have no obligation to surrender fugitives from justice to other states. To create such obligation, it is necessary to enter into treaties…. … At common law, the executive had no power to extradite criminals. Nor would a treaty obligation undertaken by Canada alone authorize the executive to do so. A treaty does not alter the law of the land. A statute is required to implement it. From the standpoint of domestic law, therefore, extradition is a creature of statute….
In 1970 the Canadian government’s official position was that it had "no comment" to make on the status of Taiwan vis-à-vis mainland China. This official position has not altered. L.C. Green,Representation versus Membership: The Chinese Precedent in the United Nations, 10 Can. Y.B. Int’l L. 102, 378–39 (1972). Canada and China have, however, signed an agreement to cooperate on criminal law matters. Treaty on Mutual Legal Assistance in Criminal Matters, July 1994, Can.-China, 33 Can. Y.B. Int’l L. 411 (1995). The question of Taiwan’s status is the focus of international attention again, following Hong Kong’s reversion to China and the applications of both Taiwan and China to join the World Trade Organization. Although the United States formally recognizes China, on March 30, 1997, the U.S. House Speaker warned that if China attacked Taiwan, the United States would intervene militarily. Seth Faison,Gingrich Warns China That U.S. Would Step in to Defend Taiwan, N.Y. Times, Mar. 31, 1997, at A1,available in LEXIS, News Library, US File.
Anne W. La Forest,La Forest’s Extradition to and from Canada 49 (3d ed. 1991).
Id. at 240.
China (Republic) v. Roumania, 139 D.L.R.4th 179 (N.S. Sup. Ct. 1996) (Can.). There was also a further preliminary point regarding evidence going to Romania prior to the hearing. Canada (Attorney General) v. China (Republic), 113 C.C.C.3d 470 (N.S. C.A. 1996) (Can.).
Romania (State) v. Cheng, 114 C.C.C.3d 289 (N.S. Sup. Ct. 1997) (Can.) (MacDonald, J.).
Romania (State) v. Cheng, 147 D.L.R.4th 298 (N.S. C.A. 1997) (Can.).
Extradition Act,supra note 5, § 19.8, as amended by S.C. 1992, ch. 13 (Can.), provides that the Court of Appeal may either set aside the discharge order, order a new hearing, order the committal, or dismiss the appeal.
Although the minister’s role is written in permissive terms (‘may’), the minister may refuse to surrender only where he or she determines that the offense is a political one, the proceedings are being taken to punish the offender for a political offense, or the foreign state does not intend to make a request for surrender.Id. § 22.
Scott L. Malcolmson,The Unquiet Ship, New Yorker, Jan. 20, 1997, at 72.
S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10.
Later France enacted legislation to provide for passive personality jurisdiction as a response to terrorism. Law No. 75-624 of July 11, 1975, J.O., July 13, 1975, p. 7219 (Fr.) (amending Code of Criminal Procedure art. 689).
Apr. 29, 1958, 450 U.N.T.S. 582 (entered into force Sept. 30, 1962).
Opened for signature Dec. 10, 1982, 21 I.L.M. 1261 (entered into force Nov. 16, 1994).
While some may debate the theoretical soundness of this approach, or whether in fact this is the best approach, certainty is a necessary component of international commercial activity. Jurisdiction is based on the idea that ‘a ship which bears a nation’s flag is to be treated as part of the territory of that nation.’ 10Halsbury’s Laws of England 321 (3d ed. 1954). Although notions of ‘floating territory’ have now largely been discarded, the ship is considered to be within the territorial jurisdiction of the flag state.
The conventions also recognize several exceptions to flag state primary: preventing the transport of slaves, piracy, traffic in narcotics, and unauthorized broadcasting.
Extradition Act,supra note 5, § 2;accord Extradition Act, 1989, ch. 33 (U.K.).
Seesupra note 4 and accompanying text. For criticism of the territorial approach, see F.A. Mann,The Doctrine of Jurisdiction in International Law, 111 Recueil des Cours—Académie de Droit International 1 (1964); Christopher Blakesley,A Conceptual Framework for Extradition and Jurisdiction over Extraterritorial Crimes, 4 Utah L. Rev. 685 (1984).
The Charter of Rights and Freedoms provides a check on extradition inasmuch as its protections take precedence over conflicting provisions of either the Extradition Act or the applicable extradition treaty. Can. Const. (Constitution Act, 1982) pt. I, § 52; Canada v. Schmidt, [1987] 1 S.C.R. 500, 518 (Can.) (La Forest, J.) (‘There can be no doubt that the actions undertaken by the Government of Canada in extradition … are subject to scrutiny under the Charter ….’);see also Extradition Act,supra note 5, § 3.
In R. v. Governor of Brixton Prison,ex parte Minervini, [1959] 1 Q.B. 155 (1958) (Eng.), an Italian crew member was alleged to have murdered another crew member on board a Norwegian flag vessel. The prisoner was held in Britain pending extradition to Norway under an 1873 extradition treaty that dealt with crimes in the parties’ respective territories and included as an extraditable offense ‘assault[] on board a ship on the high seas, with intent to destroy life or to do grievous bodily harm.’ Since at the time of the incident the vessel was approximately six days out of a British port, the accused argued that the alleged event had not occurred within the territory of Norway, and that under the treaty ‘territory’ meant geographical territory as opposed to jurisdiction. The court concluded, after considering the extradition treaty, that jurisdiction and territory were the same in the context of vessels and that ‘it matters not in this case whether the ship was in the middle of the North Sea, in the territorial waters of Norway or of this country or of any other power. The Norwegian Government had jurisdiction, and that is sufficient to enable these proceedings to be brought.’Id. at 163.
McVey, 97 D.L.R.4th at 196 (La Forest, J.).
Id. at 248 (Sopinka, J.).
United States v. Lépine, 111 D.L.R.4th 31 (Can. 1994).
Id. at 35.
Id. at 40 (La Forest, J.). Seesupra note 4.
Lépine, 111 D.L.R.4th at 35 (citation omitted).
Id. at 37 (citingMcVey). Query whether this is then not a matter for the requested state either.
Id. at 40.
Id. at 43–44 (Sopinka, J.). Seesupra note 26.
Libman v. R., 21 D.L.R.4th 174, 21 C.C.C.3d 206 (Can. 1985). Seesupra note 4.
Judge MacDonald expressly refrained from considering arguments based on either double criminality or the Charter of Rights and Freedoms.
Seesupra note 12.
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The quoted language was taken from an editorial in the Globe and Mail (Toronto), Mar. 21, 1997, at A2, discussing the case examined in this essay.
B.A. (hons.), University of Victoria 1978; LL.B., Dalhousie Law School 1984; Ph.D., University of Sydney 1989. This essay was prepared while I was a Visiting Lansdowne Professor at the University of Victoria Law School, Victoria, British Columbia, Canada. The support of both universities is gratefully acknowledged.
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McConnell, M. “Forward this cargo to Taiwan”: Canadian extradition law and practice relating to crime on the high seas. Crim Law Forum 8, 335–351 (1997). https://doi.org/10.1007/BF02677789
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DOI: https://doi.org/10.1007/BF02677789