The “Passive- Aggressive” Nature Of Sections 6(2) and 7 – Committing Crimes Outside of Canada: Episode Ten of the Ideablawg Podcast on the Criminal Code of Canada – Text Version

Up to now, the sections in the Criminal Code have been fairly benign – either informational, as in the section 2 definitions, or procedural like the section 5 exemption for the Canadian Forces. Although sections 6(2) and 7 are also procedural in aspect, they are, what I would call, “passive-aggressive” sections.

What do I mean by “passive-aggressive?” These sections, instead of providing information to help us apply the Code, are in some sense giving us a “mini-Code” regarding offences committed outside of Canada. In one breath these sections take away a category of offences and in another they seem to create them.

Let’s look at the passive side of this equation or the section, which takes away offences – section 6(2). I will remind you, and invite you to read or listen to my previous podcast on section 6(1), which discusses why the heading for section 6 is Presumption Of Innocence. I argued, in my section 6(1) podcast, that the section does not actually focus on innocence but on punishment. I will now further suggest that this argument is supported by section 6(2), which does not read as a presumption of innocence section but as a prohibition. Section 6(2) reads as follows:

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 of Canada.

So this section is prohibiting, in quite a terse manner, our criminal justice system from trying a person for an offence committed in another country. But it is not an absolute prohibition as it has those limiting words “subject to this Act or any other Act of Parliament,” meaning that other sections in the Code can supersede this prohibition as well as other sections in other federal Acts. Indeed, the first exception that comes to mind is the Crimes Against Humanity and War Crimes Act, which is a federal piece of legislation that takes jurisdiction of any person who “commits outside of Canada genocide, a crime against humanity, or a war crime.” The second exception, which comes to mind, is found within the Code itself and is section 7.

Now, let’s look at this “aggressive” section 7, which seems to create offences. It is a lengthy section and although it is entitled Offences Committed On Aircraft, I would suggest it is a section covering much more than simple airspace and does make certain illegal activities committed outside of Canada an offence inside Canada. For the sake of brevity I will not be quoting this whole section. It covers eight and a half pages in my Martin’s Criminal Code, not including the newest amendment of the section on nuclear terrorism. Instead, I will make general comments on the section to give you a sense of its breadth, its weight, and just how broad an exception this section is to section 6(2).

Where section 6(2) is passive, section 7 is on the move, and where it is going is anywhere outside of Canada where an aircraft flies, where navigation is concerned, where ships go, where an oil platform may be drilling, where a space craft may blast off to, where a Canadian astronaut may be sleeping while in space, where nuclear material may be found, where cultural property may be transported, anywhere a public service employee may be committing offences, and where any Canadian commits a crime in accordance with various sections under the Code. The Criminal Code truly has global reach despite its seemingly passive section 6(2).

Of course, section 7 has been amended many times over the years to include all these various scenarios and is therefore a much newer section than section 6(2). Our world has become smaller through ease of travel and this section reflects that reality. But it also reflects a real desire of the federal government to keep jurisdiction over Canadian citizens and the illegal acts they may commit and the further desire of the government to keep tabs on individuals who may be plotting against Canada while outside of Canada. So why the misleading title for the section – Offences Committed On Aircraft? Well, there are many references in this section to aircraft, particularly relating to acts of sabotage or hijacking of a Canadian aircraft outside of Canada. Originally, before the “war on terror,” the section was mostly about aircraft, in response to the high profile hijacking cases of the late 1960s to early 1970s. Then, as the ways and means of committing offences outside of Canada became more varied and as our international obligations to combat these crimes became more pressing, the section was re-shaped and amended as it appears now.

The concept of Canada’s international obligations driving change to the section is seen in the references to these obligations within section 7, such as the Convention for the Protection of Cultural Property in the Event of Armed Conflict. Thus, this section is not just about domestic Canadian criminal law but also about international criminal law. The interplay between Canadian criminal law and international criminal law is complicated. It raises issues of jurisdiction over the offence and over the person, which is what section 7 is all about – ensuring that Canada has the jurisdiction or authority to prosecute certain crimes found in the Criminal Code, which may relate to other federal acts, which have an international aspect to them, such as the Aeronautics Act or, as previously mentioned, the Crimes Against Humanity and War Crimes Act.

Although the section may give Canada the authority to prosecute certain crimes committed outside of Canada, in some cases there may a dual authority, where there are crimes against humanity, to try the case at the International Criminal Court or ICC at The Hague. The International Criminal Court was established pursuant to the Rome Statute, which was adopted by 120 countries in 1998, in response to the seemingly endless international atrocities, which sadly did not stop at the International Military Tribunal at Nuremberg but continued into Rwanda and the former Yugoslavia. Before 1998, these crimes against humanity were prosecuted internationally by an ad hoc court such as the International Criminal Tribunal for Rwanda. As an aside, I had the honour of hearing Senator Romeo Dallaire speak of his role and Canada’s role in the Rwanda disaster. His speech was truly inspirational and a reminder that we do have true “Canadian Heroes.” As another aside, we should be equally proud of Canada’s role in the prosecution of those individuals responsible for the genocide as former Supreme Court of Canada Justice, Louise Arbour, was the Chief Prosecutor in the International Criminal Tribunals for the former Yugoslavia and for Rwanda.

However, these specially constituted tribunals were not seen as enough of a response and hence the Rome Statute and the establishment of the ICC. The ICC has not been without controversy. The international community is not a homogeneous one and the perspectives run wide and deep. For instance, the recent prosecution of the President of Kenya, Uhuru Muigai Kenyatta, has been ongoing since 2010 and has still not advanced to the point of trial, partly due to the devastating terrorist mall attack in Kenya and partly through the efforts of Kenyatta himself. The trial is scheduled to commence February 5, 2014 but his prosecution has brought calls of bias against the ICC. A quick review of the active cases at the ICC reveals why: all 8 situations involve African countries. Thus the critics suggest there is an obvious country bias. The ICC has taken this suggestion so seriously that the court even has an online ICC Forum debating the issue.

Canada, according to a federal government website, contributed to the development of the ICC and is a signatory of the Rome Statute. Canada was the 18^th country to sign the treaty and soon thereafter, in accordance with their obligations under the statute, Canada enacted in 2000 the Crimes Against Humanity and War Crimes Act. On behalf of the WEOG or the Western European and others Group of States, Canadian Judge Philippe Kirsch, who was heavily involved in the creation and implementation of the court, sat on the ICC from 2003 to 2009. There is presently no Judge from Canada on the Court. There is however a Canadian presence on the prosecutorial team with James Stewart as the Deputy Prosecutor. I have been on the opposing side to James Stewart when he was an appellate Crown in the Ontario Crown Law office and found him to be a formidable yet honourable adversary.

There is of course more to section 7 than I have time to discuss in a podcast/blog but I hope I left you curious enough to explore some of these issues. The bottom-line is that far from the isolationist bent of section 6, the Criminal Code is truly reflective of Canada’s international interests and obligations. In this way, therefore, the Criminal Code truly becomes a mirror of our “plugged-in” society as the global perspective becomes more and more important to all of us.