1. The territorial reach of criminal justice

The territorial reach of criminal justice is a surprisingly topical question in a globalised world. But it also has an old history. For many Centuries, a system of "capitulations" operated notably in the Ottoman Empire, allowing European subjects to remain subjected to their own national (including criminal) laws even when in the Empire. The overthrow of the capitulations became one of the cardinal goals of the "Young Turks", as of other "semi-peripheral" countries in the early XXth Century. As can be seen, exclusivity of criminal jurisdiction is often seen as central to a state's sovereignty. Today, sovereignty is the foundation of international law and it is largely accepted that states have full sovereignty in criminal matters on their territory.

Yet even now, things are not quite that simple, if only because jurisdiction is not a unitary concept. It includes prescriptive, adjudicative and enforcement dimensions which may not always overlap. Even when it comes to the same type of jurisdiction (e.g.: adjudicative), both the territorial state (wherein the crime was committed) and other states may have concurrent adjudicative jurisdiction over their nationals who commit offences abroad. A degree of concurrent jurisdiction is therefore an inevitable byproduct of the international system. If anything, the multiplicity of sovereign jurisdictions is a phenomenon that has amplified, particularly as a result of US and, to a lesser extent, EU policies, prescribing criminal law in ways that are only loosely connected to their territory.

This is an ambiguous phenomenon. On the one hand, in a globalised world behaviour that occurs abroad may have considerable impact on a state. Particularly when it comes to the regulation of the global economy, it may be difficult to think in merely territorial terms (for example, for the purposes of evaluating whether anti-competitive practices are occurring one may need to see how certain corporations organise themselves globally). There may even be something virtuous about certain states policing the behaviour of their nationals, whether paedophiles or bribers, when abroad. In addition, international law itself, notably through the notion of universal jurisdiction, clearly encourages states to exercise jurisdiction even in relation to crimes to which they have none of the traditional jurisdictional connections (i.e.: crimes that were committed neither on their territory, by or against their nationals). On the other hand, there is a risk that a state will, sometimes because of its great power, impose certain policy preferences to the rest of the world, perhaps on the basis of a merely tenuous connection to its territory.

In order to streamline judicial cooperation and ensure that criminals do not simply flee their responsibilities, a dense system of extradition exists at the international level. States cooperate on the basis of their mutual interest in enforcing their criminal law and ensuring that individuals do not abuse some of the more evident loopholes of the inter-state system. Extradition is certainly widely used today, but it does run into difficulties as a result of the rise of human rights. What if, for example, an abolitionist state is otherwise bound to extradite an individual who risks the death penalty in the requesting state? Should the extraditing state require assurances and of what kind? Here jurisdiction is involved as a result of what might happen if one sends someone to another state's territory. The approach in Canada when it comes to the death penalty is that it now incumbent upon the Executive to obtain assurances that the death penalty will not be sought, a consequence of evolutions in both Canadian and international law (see next session).

Another enduring obstacle to the exercise of criminal jurisdiction, in this context, is immunities. The international law of immunities applies to states as such, but also to certain agents of the state, notably government members, civil servants and diplomats. The degree of those immunities will vary of course, and they are in theory not supposed to be a "get out of fail free" card or a license to commit offenses. Nonetheless, they do in practice often lead to situations of impunity that are problematic for the rule of law and may cause social alarm locally and transnationally. Especially when it comes to international crimes, the supreme crimes of the international community, there has been renewed pressure to find that immunities do not apply, perhaps not even to a current head of state.

A distinct issue is the extent to which Charter guarantees apply in cases that have been partly investigated abroad. For example, can evidence be excluded because it was obtained following a search without warrant that would have been illegal in Canada. The Hape case (referred to in some of the readings below) grappled with this issue. The Supreme Court found that such searches could only be carried out by the territorial state. There was no way, in other words, that Canada could order a search in a different country and therefore that the Charter could apply as such (in that the Charter regulates searches). At the very least, searches should comply with the law of the territorial state. One could argue, for example, that a reasonable expectation of privacy is an expectation "according to the laws of the country one finds oneself in" for the purposes of Canadian law. But this probably goes too far, what if the law of that foreign country anticipates completely arbitrary searches? At the same time, the Supreme Court has held that one cannot require foreign courts to basically implement Canadian law or to create special procedures whenever they are cooperating with Canadian law enforcement authorities. This would go against the needs of comity and cooperation. In the Dela Penna decision which we will see in the investigation session, for example, the Court did not find that the recording of a conversation conducted according to different rules in the US should be excluded in Canada.


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