Domestic police, prosecutors and courts must operate within the confines of their territorial jurisdiction, but criminal behaviour knows no borders. Consequently, states have developed legal tools to deal with cases where one or more elements of a crime – such as location, the accused, evidence or proceeds – go beyond those borders.
To enforce domestic criminal laws outside their borders, states may choose to unilaterally assert jurisdiction beyond their borders through their own legislation. The most common and widely recognized basis for asserting this extraterritorial jurisdiction is the territorial principle. This principle extends to international crimes in which the essential constituent element is committed inside the asserting state’s territory. In other circumstances, states may assert jurisdiction where offences are committed beyond national borders but have a significant or substantial connection in terms of national interest. Canada has often used these principles to justify the extraterritorial application of its criminal laws.
However, extraterritorial jurisdiction is difficult to exercise without international cooperation. As such, various mechanisms exist to facilitate interstate cooperation in order to repress transnational crime. Through extradition, under certain conditions, one state may surrender a person to another state, either for a trial or for enforcement of a sentence. In Canada, the government must take into account this individual’s human rights during the extradition process. Over the last decade, controversial extradition cases have led legal experts to call on the Government of Canada to reform the Extradition Act of 1999 to make sure this condition is respected.
Mutual legal assistance also allows judicial systems to coordinate their respective processes, including for sharing evidence, transferring detained individuals and enforcing sentences. In recent years, a new generation of cross-border agreements has been developed to facilitate electronic data transfer as part of transnational criminal investigations.
Read the full text of the HillStudy: International Dimensions of Domestic Criminal Law: Extraterritoriality and Extradition
By Laura Barnett and Philippe A. Gagnon, Library of Parliament
Categories: Executive summary, Government, Parliament and politics, International affairs and defence, Law, justice and rights