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War Crimes and Related Law (Canada)
Chapter 4 - Jurisdiction
(February 2008)- Overview
(a) Jurisdiction Defined
(b) WHO
(c) WHEN (and WHERE)
(d) WHERE (and WHO)
- Supervisory Offences
(a) Overview
(b) CHART
- Ancillary Offences
- Obstruction Offences
- Trial in Absentia
- Jurisdiction of the International Criminal Court
1. Overview
(a) Jurisdiction Defined
"Jurisdiction" means the range of a court's authority to fully hear and pass judgment on any given fact situation. In the case of Canadian international crimes law the jurisdiction is conditioned by: the status of the parties (WHO), the time of the events (WHEN), and the location of the events (WHERE).
These issues can be quite confusing, as the WHO, WHEN AND WHERE of offences are not subject of simple isolated rules - but rather are complex inter-dependent issues.
(b) WHO
Chapter 2 ("Parties") explains how Canadian law recognizes wider categories of defendants (ie. it allows prosecution of corporations and governments) than does the Rome Statute (which only recognizes natural persons as potential defendants).
While Canadian courts generally have jurisdiction over parties alleged to have committed crimes within Canada, whether they have jurisdiction over events occuring outside of Canada may depend on the citizenship of the defendant or the victim, or whether the defendant is ever in Canada. This is discussed more in s.1(d), below.
As well, jurisdiction of Canadian courts over potential defendants can also be conditioned by the official status that any defendant natural person might have. Diplomats and high-ranking politicians MAY (and may not) have immunity (see Ch.3: "Immunities").
(c) WHEN (and WHERE)
Jurisdiction conditioned by the time of occurence of events can be confusing. It is not (as it normally is) a simple matter of the CAHWCA creating jurisdiction for acts or omissions occuring after the CAHWCA came into force (23 October 2000).
Rather, the temporal jurisdiction of Canadian courts over international crimes is integrally intertwined with WHERE they occured. This apparently is in response to the following provisions of the Canadian Charter of Rights and Freedoms: s.11(g)
Any person charged with an offence has the right ... not to be found guilty on account of any act or omission, unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to general principles of law recognized by the community of nations; Section 11(g) provides that - generally - Canadian criminal laws cannot be retroactive in their effect unless they are enacting already recognized international law.
With the main and ancillary forms of the offences this situation is usually straightforward: when they occur IN CANADA, the normal rule applies that there can be no offence unless it occured after CAHWCA came into force on 23 October 2000 [s.4(1)(1.1)].
But with respect to crimes occuring OUTSIDE OF CANADA, the CAHWCA uses the exception contained in s.11(g) of the Charter to give the law retroactive effect for international crimes [CAHWCA s.6(1)(1.1)]. Again, with the main and ancillary offences forms of the offence this is straightforward: Canadian courts have jurisdiction over those events regardless of when they occur (ie. either BEFORE OR AFTER 23 October 2000).
However, complications can arise on these issues with the "supervisory offences" which (as noted in Ch.6: "Supervisory Offences") require the commission of "paired" offences (the supervisory AND the main) - one of which might occur in Canada and the other outside of Canada. These sometimes complex issues are explained in s.2 below, which provides a chart.
(d) WHERE (and WHO)
Generally, Canadian law only applies to events occuring within Canadian territorial boundaries: [Interpretation Act, s.8(1)]. However, the CAHWCA specifically provides for prosecution in Canadian courts of international crimes committed outside of Canada [CAHWCA s.6,7]. This is known as "universal jurisdiction".
However, where main or supervisory offences are committed outside of Canada, Canadian courts only have jurisdiction if the parties meet certain criteria [CAHWCA s.6,7(3),8]: A. AT the time the offence is alleged to have been committed, ANY of the following apply:
(i) the person was a Canadian citizen or was employed by Canada in a civilian or military capacity;
(ii) the person was a citizen of a state that was engaged in an armed conflict against Canada, or was employed in a civilian or military capacity by such a state;
(iii) the victim of the alleged offence was a Canadian citizen;
(iv) the victim of the alleged offence was a citizen of a state that was allied with Canada in an armed conflict;
OR
B. AFTER the time the offence is alleged to have been committed, the defendant is present in Canada. For purposes of court administration, the country is carved up into "territorial divisions" (which often correspond to county or other municipal boundaries). Domestic offences occuring within any given territorial division (or "venue") are prosecuted in the local court which has jurisdiction over the case. When international crimes occuring outside of Canada are prosecuted in Canadian courts, they can be prosecuted in any territorial division - or "venue" - in the country [CAHWCA s.9(1)].
2. Supervisory Offences
(a) Overview
As is explained in Ch.6, "supervisory offences" are those where "superiors" (military or civilian) fail to prevent war crimes by their subordinates. Necessarily these offences involve situations where the "main" offence is also committed. Thus "supervisory offences" require the commission of "paired" crimes by two separate parties: first the supervisory "failure" (by the military commander or the civilian "superior"), which then leads to the commission of second "main" offence (by the person under authority).
Canadian court jurisdiction over (AND the substantive law that applies to) supervisory offences vary depending on:- where the supervisory failure occured (ie. in or outside of Canada);
- where the main offence occured (ie. in or outside of Canada);
- when the supervisory failure occured (ie. before or after the CAHWCA came into force on 23 October 2000).
Further, as noted in s.1(d) "WHERE (and WHO)" (above), when supervisory offence occur outside of Canada then additional jurisdictional pre-conditions apply regarding the status of the defendant and/or victim, and/or the location of the defendant [CAHWCA s.8].
(b) CHART
The combinations of these factors can be complex, so I have used the following chart to explain them:
Canadian Court Jurisdiction: Supervisory Offences
(see Note 1)
| Supervisory Failure Location | Supervisory Failure Time (note 3) | Main Occurence Location | Canadian Court Jurisdiction? |
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| IN CANADA | BEFORE IN FORCE | IN CANADA | NO JURISDICTION |
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| IN CANADA | AFTER IN FORCE | IN CANADA | Yes: 5(1)(a)(i); 5(2)(a)(i) |
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| IN CANADA | BEFORE IN FORCE | OUTSIDE OF CANADA | NO JURISDICTION |
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| IN CANADA | AFTER IN FORCE | OUTSIDE OF CANADA | Yes: 5(1)(a)(i); 5(2)(a)(i) |
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| OUTSIDE OF CANADA | BEFORE IN FORCE | IN CANADA | NO JURISDICTION |
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| OUTSIDE OF CANADA | AFTER IN FORCE | IN CANADA | Yes: s.7(1)(a)(i); 7(2)(a)(i) |
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| OUTSIDE OF CANADA | BEFORE OR AFTER IN FORCE | OUTSIDE OF CANADA | Yes: s.7(1)(a)(ii); 7(2)(a)(ii)(note 2) |
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Note 1:
Note that Canadian courts have no jurisdiction over ANY supervisory offence that occured outside of Canada UNLESS the s.8 defendant preconditions are also met [see s.1(d): "WHERE (and WHO)", above]. These are the same preconditions that must be met before Canadian courts have juridiction over MAIN offences occuring outside of Canada.
Note 2:
In order to obtain a conviction when both the supervisory failure and the main offence occur outside of Canada, AND where the supervisory failure occurs PRIOR TO CAHWCA coming into force, the acts or omissions must constitute offences under both CAHWCA AND then-current "customary international law or conventional international law or was criminal according to the general principles of law recognized by the community of nations": s.7(5).
Note 3:
The CAHWCA is "in force" as of 23 October 2000. Under Canadian law, a law is "in force" on the expiration of the PREVIOUS DAY [Interpretation Act, s.6(1)]. Therefore any reference to "BEFORE in force" means up to and including midnite 22 October 2000, and any reference to "AFTER in force" means after midnite 22 October 2000.
3. Ancillary Offences
Described in Chapter 7: "Ancillary Offences"
are offences related to the "main" offences such as attempt, counselling, conspiracy, aiding and abetting and accessory after the fact.
Given the impact of the timing of the acts and omissions on jurisdiction (as per s.1 and 2 above), further complexities can arise with respect to ancillary offences. For instance, could a conspiracy committed before the "main" offence is a crime, still be a conspiracy? Can one "counsel" the commission of an offence in March when it is not yet an offence until October?
Generally, there can be no "attempt", "counselling", "conspiracy" or "aiding and abetting" to commit an offence until there is an offence in law. Therefore it would only be where the attempt, counselling, conspiracy or aiding/abetting is repeated AFTER the main offence comes into legal existence that the ancillary offence can have occured.
Situations of accessory-after-the-fact necessarily occur after the main offence so this issue does not arise in that case.
4. Obstruction Offences
Several "obstruction"-type offences as they relate to proceedings of the International Criminal Court are discussed in Ch.12, s.8: "The International Criminal Court: Canadian ICC Obstruction Offences".
If any of these offences - or a contempt of court offence (typically, violation of a court order) - are committed outside of Canada by a Canadian citizen, they may still be prosecuted within Canada. This also applies to the ancillary forms of these offences, being: attempt, conspiracy, counselling and accessory after-the-fact [CAHWCA s.25].
5. Trial in Absentia
The nature of international crimes necessarily gives rise to more situations involving absent defendants than domestic crimes.
Nonetheless - and subject to minor exceptions for procedural appearances by counsel or electronic hearings - it is a basic principle of Canadian law that defendants must be present throughout their trials [CCC s.650]. This principle is expressly adopted into the CAHWCA [CAHWCA s.9(2)].
Therefore in Canada there are no "trials in absentia" - even for international crimes.
6. Jurisdiction of the International Criminal Court
As noted in Ch.1: "Overview", the structure of the Rome Statute system is to locate primary prosecutorial responsibility and jurisdiction to local (ie. national) courts. The International Criminal Court at The Hague in the Netherlands can only take jurisdiction if the local court which would naturally have jurisdiction (typically the court of the defendant's nationality) is shown to be unwilling or unable to fully and properly hear and decide the case "on its merits". I call this "default jurisdiction".
This issue is explained fully in Ch.12: "The International Criminal Court". Also discussed at length in that chapter are the implications of immunity in local (ie. Canadian) law on the ICC taking default jurisdiction.
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