INTRODUCTION AND BRIEF DESCRIPTION

Section 7(3.72) of the Criminal Code of Canada states that if an individual commits an offence outside of Canada that would also be considered an offence in Canada, they can still be charged if certain conditions are met.

SECTION WORDING

7(3.72) Notwithstanding anything in this Act or any other Act, every one who, outside Canada, commits an act or omission 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 431.2 is deemed to commit that act or omission in Canada if (a) the act or omission is committed on a ship that is registered or licensed, or for which an identification number has been issued, under any Act of Parliament; (b) the act or omission is committed on an aircraft (i) registered in Canada under regulations made under the Aeronautics Act, (ii) leased without crew and operated by a person who is qualified under regulations made under the Aeronautics Act to be registered as owner of an aircraft in Canada under those regulations, or (iii) operated for or on behalf of the Government of Canada; (c) the person who commits the act or omission (i) is a Canadian citizen, or (ii) is not a citizen of any state and ordinarily resides in Canada; (d) the person who commits the act or omission is, after the commission of the act or omission, present in Canada; (e) the act or omission is committed against a Canadian citizen; (f) the act or omission is committed with intent to compel the Government of Canada or of a province to do or refrain from doing any act; or (g) the act or omission is committed against a Canadian government or public facility located outside Canada.

EXPLANATION

Section 7(3.72) of the Criminal Code of Canada provides special jurisdiction over certain offences committed outside of Canada. This provision enables Canadian authorities to prosecute Canadian citizens, non-citizens resident in Canada, or anyone committing certain specified offences against Canadian citizens, certain Canadian facilities or assets, or with the intent to compel the Canadian government to do or refrain from doing certain acts, even if the act was committed outside of Canada. This section applies to seven specific situations: an act or omission committed on a ship registered under any Act of Parliament, an act or omission committed on an aircraft registered in Canada, an act or omission committed by a Canadian citizen, an act or omission committed against a Canadian citizen, an act or omission committed with the intent to compel the Government of Canada or a province to do or refrain from doing an act, an act or omission committed against a Canadian government or public facility located outside Canada, or an act or omission committed by a non-citizen resident in Canada. In essence, this section extends Canadian criminal law jurisdiction beyond Canadian borders for certain offences to ensure that individuals cannot commit certain illegal acts outside of Canada and evade prosecution simply by being outside the country. Overall, this section is designed to uphold the principles of justice and ensure that justice is served even when wrongdoing occurs outside of Canada.

COMMENTARY

Section 7(3.72) of the Criminal Code of Canada is an important provision that deals with the extraterritorial applicability of Canadian criminal law. It addresses the scenario where a person commits an act or omission outside Canada that would constitute an offence under section 431.2 of the Code if committed in Canada. Section 431.2 deals with the offence of hijacking an aircraft, endangering the safety of aircraft, and other related offences. The provision deems that such an act or omission is committed in Canada if certain conditions are met. These conditions include the act being committed on a registered or licensed ship, on a Canadian-registered aircraft, or by a Canadian citizen or a resident of Canada without citizenship who commits the act while present in Canada or against a Canadian citizen or government facility outside Canada. The provision also covers acts committed with the intent to compel the Government of Canada to do or refrain from doing anything. The extraterritorial application of criminal law is a complex and controversial area of law. On the one hand, it can be seen as necessary to protect national security and prevent harm to Canadians and Canadian interests abroad. On the other hand, it can infringe on the sovereignty of other countries and raise questions of double jeopardy and conflicting legal systems. Section 7(3.72) attempts to strike a balance between these interests by limiting the extraterritorial application of Canadian criminal law to certain situations that have a Canadian connection. For example, it requires that the act be committed on a Canadian-registered ship or aircraft, or by a Canadian citizen or resident of Canada. It also requires that the act be against a Canadian citizen or government facility, or committed with the intent to compel the Government of Canada. However, even with these limitations, there are still potential issues with the extraterritorial application of Canadian criminal law. For example, it may be difficult to enforce Canadian law in other countries, and there may be conflicts with the legal systems of those countries. Additionally, there may be concerns about the fairness of using Canadian law to prosecute individuals who are not Canadian and who may not have been aware that their actions would be illegal under Canadian law. Overall, section 7(3.72) is an important provision that aims to balance the interests of protecting national security and preventing harm to Canadians, with the need to respect the sovereignty of other countries and ensure the fairness of the legal process. However, the application of Canadian criminal law outside Canada remains a complex and controversial area that requires careful consideration and analysis.

STRATEGY

Section 7(3.72) of the Criminal Code of Canada is a provision of extraterritorial jurisdiction, which empowers Canadian authorities to prosecute individuals who commit certain offenses outside the country, but whose actions have a Canadian nexus. This provision has significant implications for Canadian law enforcement and national security agencies, as well as for Canadian stakeholders such as businesses, NGOs, and individuals who operate overseas or interact with foreign entities. Accordingly, there are several strategic considerations that should be taken into account when dealing with this section of the Criminal Code of Canada, such as: 1. Understanding the scope and limits of the provision: Section 7(3.72) applies only to particular offenses that involve Canadian ships, aircraft, citizens, or government facilities. Therefore, it is important to have a clear understanding of what conduct falls within the scope of this provision, how it relates to other Canadian and foreign laws, and what the evidentiary requirements are for proving such conduct in court. It is also important to recognize the limits of this provision, such as its lack of extraterritorial jurisdiction over offenses committed solely by non-Canadians outside Canada. 2. Liaising with foreign partners: Since many offenses that fall within the purview of Section 7(3.72) occur outside Canada, it is essential to establish cooperative relationships with foreign law enforcement and intelligence agencies, as well as with international organizations that deal with transnational crime and terrorism. This may involve sharing information, conducting joint investigations, and coordinating prosecutions. Such cooperation can help to overcome jurisdictional barriers, enhance intelligence-gathering and analysis, and improve the chances of successful prosecutions. 3. Conducting risk assessments: For Canadian organizations and individuals that operate or travel overseas, it is important to conduct risk assessments that take into account the potential for criminal or terrorist activity that could trigger the application of Section 7(3.72). Such assessments should consider factors such as the nature of the activities, the locations and security environments, the local legal and cultural contexts, and the risk mitigation measures that can be taken. They should also involve consultation with relevant Canadian and foreign authorities, as well as with legal and security experts. 4. Developing compliance programs: Canadian companies and NGOs that operate overseas should consider developing compliance programs that address the specific risks and regulatory requirements related to Section 7(3.72). Such programs should include policies, procedures, and training that promote ethical conduct, prevent violations of Canadian law, and ensure that employees and agents understand their responsibilities and the consequences of non-compliance. They should also provide for internal reporting and investigation mechanisms, as well as for audits and reviews of the effectiveness of the compliance program. 5. Engaging in public awareness and advocacy: Given the potential impact of Section 7(3.72) on the rights and interests of Canadian citizens, companies, and NGOs, it is also important to engage in public awareness and advocacy efforts that promote transparency, accountability, and due process in the application of this provision. This may involve educating the public about the risks and benefits of extraterritorial jurisdiction, advocating for reforms or clarifications of the law, and providing legal assistance and advocacy to those affected by its provisions. In implementing these strategies, it is important to balance the need to protect Canadian interests and citizens with the respect for international law, norms, and human rights. The application of Section 7(3.72) requires careful consideration of the legal, diplomatic, operational, and ethical implications, as well as of the potential unintended consequences. Therefore, it is advisable to seek expert advice and to involve relevant stakeholders in the planning and execution of any actions taken under this provision.

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