¹ Study after study has documented distressing incidents of violence associated with Canadian mining companies around the world. A 2009 study commissioned by an industry association (the Prospectors and Developers Association of Canada) to provide a statistical report of incidents involving Canadian mining and exploration companies in developing countries for the previous ten years found that Canadian companies were by far the worst offenders in human and environmental rights abuses around the world. See Canadian Centre for the Study of Resource Conflicts, Corporate Social Responsibility: Movements and Footprints of Canadian Mining and Exploration Firms in the Developing World (October 2009), online: <http://caid.ca/CSRRep2009.pdf>. A 2016 study conducted by the Justice and Corporate Accountability Project covering the period 2000–15, albeit focused on Latin America, reached similar conclusions and added that the documented incidents “appear[ed] to be the tip of the iceberg.” Justice and Corporate Accountability Project, The Canada Brand: Violence and Canadian Mining Companies in Latin America (24 October 2016) at 5, online: <https://justiceprojectdotorg1.files.wordpress.com/2016/11/canada-brand-report-version-2-2016-11-20.pdf>. A 2014 report prepared for the Inter-American Commission on Human Rights on the impact of Canadian mining in Latin America stated that Canadian mining operations in Latin America have serious adverse environmental and human rights impacts on local communities. Working Group on Mining and Human Rights in Latin America, The Impact of Canadian Mining in Latin America and Canada’s Responsibility: Executive Summary of the Report Submitted to the Inter-American Commission on Human Rights (2014) at 6, online: <http://www.dplf.org/sites/default/files/report_canadian_mining_executive_summary.pdf>.

² Recherches Internationales Québec v Cambior Inc, [1998] QJ No 2554 (dismissed on the grounds of forum non conveniens); Yassin v Green Park International Inc, 2010 QCCA 1455 (CanLII) (dismissed on the grounds of forum non conveniens); Piedra v Copper Mesa Mining Corporation, 2011 ONCA 191 (CanLII) (dismissed for failure to disclose a reasonable cause of action); Anvil Mining Ltd v Canadian Association against Impunity, 500-09-021701-115 (24 January 2012) (dismissed for lack of jurisdiction).

³ Choc v Hudbay Minerals Inc, 2013 ONSC 1414 (CanLII); Araya v Nevsun Resources Ltd, 2016 BCSC 1856 (CanLII).

⁴ Garcia v Tahoe Resources Inc, 2017 BCCA 39 (CanLII) (originally dismissed on the grounds of forum non conveniens (2015 BCSC 2045 (CanLII))).

⁵ Chevron Corp v Yaiguaje, [2015] 3 SCR 69.

⁶ John Ruggie, Protect, Respect and Remedy: A Framework for Business and Human Rights, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises, Human Rights Council, UN Doc A/HRC/8/5 (7 April 2008) at 7, para 27; 27, paras 102–03, online: <https://documents-dds-ny.un.org/doc/UNDOC/GEN/G08/128/61/PDF/G0812861.pdf?OpenElement> (observing that “considerable numbers of individuals whose human rights are impacted by corporations, lack access to any functioning mechanism that could provide remedy”).

⁷ Working Group on Mining and Human Rights in Latin America, supra note 1 at 5.

⁸ Ibid at 8.

⁹ See United Nations Human Rights Committee, Concluding Observations on the Sixth Periodic Report of Canada, UN Doc CCPR/C/CAN/6, 13 August 2015, online: <http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhskswUHe1nBHTSwwEsgdxQHJBoKwgsS0jmHCTV%2FFsa7OKzz9yna94OOqLeAavwpMzCD5oTanJ2C2rbU%2F0kxdos%2BXCyn4OFm3xDYg3CouE4uXS>.

¹⁰ See EarthRights International, Mining Watch Canada and Human Rights and Education Centre, Report to the UN Committee on the Elimination of Discrimination Against Women, 65^th Session (October 2016) at 8, online: <http://miningwatch.ca/sites/default/files/eri_hrc_mwc_cedaw_committee_report_october_3_2016.pdf>.

¹¹ Ibid at 8–9. The doctrine of forum non conveniens allows a court to decline to adjudicate a dispute it is ordinarily competent to adjudicate on the ground that there is a more appropriate forum for adjudication elsewhere. See Amchem Products Inc v British Columbia (Workers Compensation Board), [1993] 1 SCR 897. For a discussion of how the doctrine may be reformulated to reduce the risk of cases not being heard at all, see Chilenye Nwapi, “Re-evaluating the Doctrine of Forum Non Conveniens in Canada” (2013) 34 Windsor Rev Legal & Social Issues 59.

¹² Ibid at 31. For a discussion of the litigation associated with these incidents in Canada, see Chilenye Nwapi, “Resource Extraction in the Courtroom: The Significance of Choc v Hudbay Minerals Inc for Transnational Justice in Canada” (2014) Asper Rev Intl Business & Trade L 121 [Nwapi, “Resource Extraction in the Courtroom”].

¹³ Alien Tort Statute, 28 USC § 1350 (1988).

¹⁴ See Christine AE Bakker, “Universal Jurisdiction of Spanish Courts over Genocide in Tibet: Can It Work?” (2006) 4 J Intl Criminal Justice 595; Macedo, Stephen, “Introduction” in Macedo, Stephen, ed, Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under International Law (Philadelphia: University of Pennsylvania Press, 2004) 1;Google Scholar Luc Reydams, “Belgium’s Firs Application of Universal Jurisdiction: The Butare Four Cases” (2003) 1 J Intl Criminal Justice 406.

¹⁵ The United States is a trailblazer in this area through its enactment and enforcement of the Foreign Corrupt Practices Act, 15 USC §78dd-1 (1977), enacted to criminalize corporate bribery of foreign government officials. Canada has also stepped up its enforcement of the Corruption of Foreign Public Officials Act, SC 1998, c 34 [CFPOA].

¹⁶ Ruggie, supra note 6 at 7, para 19. See also Simons, Penelope & Macklin, Audrey, The Governance Gap: Extractive Industries, Human Rights, and the Home State Advantage (Oxford: Routledge, 2014);CrossRefGoogle Scholar Brownlie, Ian, Principles of Public International Law, 5th ed (Oxford: Oxford University Press, 1998) at 284;Google Scholar Scheinin, Martin, “Monitoring Human Rights Obligations and the Fight against Terrorism: Whose Obligations and Monitored How?” in Afredsson, Gudmundur et al, eds, International Human Rights Monitoring Mechanisms: Essays in Honour of Jacob Th Möller, 2d rev ed (Leiden: Martinus Nijhoff, 2009) 418.Google Scholar And see the decisions in Trail Smelter Arbitration (US v Canada), 1941, reprinted in 3 UNRIAA (1938), para 144; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] ICJ Rep 226, para 29; Velasquez Rodrigues Case, Inter-American Court of Human Rights (Decision and Judgments), Series C, No 4 (1988).

¹⁷ Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 3 [Rome Statute]. See J Kyriakakis, “Australian Prosecution of Corporations for International Crimes: The Potential of the Commonwealth Criminal Code” (2007) 5 JICJ 809.

¹⁸ Nwapi, “Resource Extraction in the Courtroom,” supra note 12.

¹⁹ CFPOA, supra note 15 at s 5.

²⁰ Currie and Coughlan have emphasized that “Canadian criminal law is replete with unexercised abilities” and that “Parliament’s ability to legislate extraterritorially far outstrips the willingness Parliament has shown in the past to actually use that ability.” Robert J Currie & Stephen Coughlan, “Extraterritorial Criminal Jurisdiction: Bigger Picture or Smaller Frame?” (2007) 11:2 Can Criminal L Rev 142.

²¹ R v Libman, [1985] 2 SCR 178 [Libman].

²² Crimes against Humanity and War Crimes Act, SC 2000, c 24 [CAHWC Act].

²³ Criminal Code, RSC 1985, c C-46 [Criminal Code]. The aforementioned civil society coalition report stated, without any analysis, that Canada can prosecute its corporations involved in human rights abuses overseas under the CAHWC Act and the Criminal Code. EarthRights International et al, supra note 10 at 9. This article will provide a detailed analysis of these statutes to support that position.

²⁴ Due, in part, to space constraints, this article does not consider the substantive bases of corporate criminal liability in Canada. A fruitful discussion of the issue requires a separate study. The likely liability theories, however, are conspiracy, aiding and abetting, joint criminal enterprise, counselling, and criminal negligence.

²⁵ John Ruggie, Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, UN Doc E/CN.4/2006/97 (2006), para 25, online: <http://hrlibrary.umn.edu/business/RuggieReport2006.html>.

²⁶ Madelaine Drohan, Regulating Canadian Mining Companies Abroad, Policy Brief no 7, Centre for International Policy Studies, University of Ottawa (January 2010) at 1, online: <http://www.cips-cepi.ca/wp-content/uploads/2015/01/CIPS_PolicyBrief_Drohan_Jan2010-1.pdf>.

²⁷ Santiego Ortega Arango, “Canadian Mining Companies Subject of Worldwide Protests,” CBC News (3 April 2013), online: <http://www.cbc.ca/news/world/canadian-mining-companies-subject-of-worldwide-protests-1.1368155>.

²⁸ Geoffrey York, “Claims of Sexual Abuses in Tanzania Blow to Barrick Gold,” Globe and Mail (30 May 2011), online: <http://www.theglobeandmail.com/news/world/claims-of-sexual-abuses-in-tanzania-blow-to-barrick-gold/article598557/>.

²⁹ MiningWatch Canada, “Barrick Once Again Ignores Human Rights Victims: Peaceful Protest Planned at Porgera Mine in Papua New Guinea” (23 June 2016), online: <http://miningwatch.ca/news/2016/6/23/barrick-once-again-ignores-human-rights-victims-peaceful-protest-planned-porgera-mine>.

³⁰ See Simons & Macklin, supra note 16.

³¹ Jonathon Clough, “Not-So-Innocents Abroad: Corporate Criminal Liability for Human Rights Abuses” (2005) 11:1 Austl J Hum Rts 5.

³² Patrick Macklem, “Corporate Accountability under International Law: The Misguided Quest for Universal Jurisdiction” (2005) 7:4 Intl L Forum du droit international 281.

³³ Craig Forcese, “Deterring ‘Militarized Commerce’: The Prospects of Liability for ‘Privatized’ Human Rights Abuses” (2000) 31 Ottawa L Rev 173.

³⁴ Ibid.

³⁵ Canadian Lawyers for International Human Rights, Backgrounder: Options Available to the Government of Canada in Responding to Canadian Corporate Complicity with Human Rights Abuses (2000) at 5–6, online: <http://aix1.uottawa.ca/∼cforcese/other/complicity.pdf>.

³⁶ Nwapi, “Resource Extraction in the Courtroom,” supra note 12 at 127.

³⁷ Ibid at 127–28.

³⁸ Naomi Roht-Arriaza, “Combating Impunity: Some Thoughts on the Way Forward” (1996) 59:4 Law & Contemp Probs 93.

³⁹ David Kilgour, “Canada’s Role in the World: New Opportunities for a Changing Global Environment” (Keynote speech delivered at the opening event of International Month, Mount St Vincent University, Halifax, Nova Scotia, 1 November 2005) at 1–2, online: <http://www.david-kilgour.com/mp/Canada%27s%20Role%20in%20the%20World.htm>.

⁴⁰ British North America Act, 1867 (UK), 30–31 Vict, c 3.

⁴¹ Statute of Westminster, 1931 (UK), 22 & 23 Geo V, c 4, s 2.

⁴² Statute of Westminster, 22 George V, c 4 (UK) (11 December 1931).

⁴³ In R v Blythe (1895), 1 CCC 263 (BCCA), for instance, an accused had by letters written in British Columbia induced an under-sixteen-year-old girl to leave the State of Washington where she lived with her parents to come to stay with him in British Columbia. He was acquitted on a charge of abduction on the ground that the abduction took place in the State of Washington and not in British Columbia. See also Re Gertie Johnson (1904), 8 CCC 243 (BCSC); R v Wettman (1894), 1 CCC 287 (Ont HC); R v Walkem (1908), 14 CCC 122 (BCCA); In Re Criminal Code Sections Relating to Bigamy, [1897] 27 SCR 461.

⁴⁴ Symon Zucker, “Extraterritoriality and Canadian Criminal Law” (1975) 17 Crim LQ 146 at 149 (citing such cases as Hodge v The Queen, (1883) 9 App Cas 117; A-G BC v A-G Can (1937), 67 CCC 193, [1937] 1 DLR 688; Liquidators of the Maritime Bank of Commerce v Receiver-General of New Brunswick, [1892] AC 437).

⁴⁵ Zucker, supra note 44.

⁴⁶ Re Bigamy Section of the Criminal Code (1897), 1 CCC 172, 27 SCR 461. All the judges were of the view that Parliament had no power to legislate extraterritorially. See Zucker, supra note 44.

⁴⁷ The Ship “North” v the King, [1906] 37 SCR 385.

⁴⁸ Zucker, supra note 44 at 150.

⁴⁹ Croft v Dunphy (1932), 59 CCC 141 [Croft].

⁵⁰ Customs Act, RSC 1927, c-42.

⁵¹ Croft, supra note 49 at 144.

⁵² Ibid at 162. See also SD Sharma, “Applicability of the Doctrine of Extraterritoriality to Legislation by the Indian Legislature” (1946) 28:3 J Comp Legislation & Intl L 91 at 92 (noting that as the ship seized was Canadian, no question of any violation of international law arose).

⁵³ Croft, supra note 49 at 166; Sharma, supra note 52 at 92–93.

⁵⁴ See, eg, Terry v The Queen, [1996] 2 SCR 207 at 215; Society of Composers, Authors & Music Publishers of Canada v Canadian Ass’n of Internet Providers, [2004] 2 SCR 42; R v Hape, [2007] 2 SCR 292. For an analysis of situations where Canadian courts have exercised extraterritorial criminal jurisdiction, see Currie & Coughlan, supra note 20 at 153–64.

⁵⁵ Society of Composers, Authors & Music Publishers of Canada v Canadian Association of Internet Providers, [2004] 2 SCR 427, paras 54, 55. See also R v Klassen, [2009] BCWLD 2045, para 80.

⁵⁶ Libman, supra note 21.

⁵⁷ Ibid, para 7.

⁵⁸ Ibid, para 11.

⁵⁹ Ibid, para 17. He noted the existence of different theories of jurisdiction in transnational cases, namely the place of initiation theory (where the crime was initiated or planned), the gist or gravamen of the offence theory (R v Ellis, [1899] 1 QB 230), the completion of the offence theory (where the offence was committed: R v Stoddart (1909), 2 Cr App R 217), the effects theory (where the crimes impact was felt by the victim: R v Jacobi and Hiller (1881), 46 LTR 595; R v Nillins (1884), 53 LJQB (NS) MC 157), and the continuing offence theory (where the offence is continuous: R v Mackenzie and Higginson (1910), 6 Cr App R 64). Libman, supra note 21, paras 17–25.

⁶⁰ Ibid, para 42.

⁶¹ Ibid, para 21.

⁶² Ibid, para 59.

⁶³ DPP v Doot, [1973] AC 807 (HL) [Doot].

⁶⁴ Ibid at 831–34.

⁶⁵ Ibid, para 67.

⁶⁶ Ibid, para 71.

⁶⁷ Ibid, para 74.

⁶⁸ Ibid (noting that Parliament has “seldom adverted to territorial considerations in finding criminal offences”). Morgan has questioned why the courts should take a greater interest than Parliament in imposing territorial restraints on itself. Edward M Morgan, “Criminal Process, International Law, and Extraterritorial Crime” (1988) 38 UTLJ 245 at 270.

⁶⁹ Ibid, para 72.

⁷⁰ See Forcese, supra note 33 at 173; Benjamin Perrin, “Taking a Vacation from the Law? Extraterritorial Criminal Jurisdiction and Section 7(4.1) of the Criminal Code” (2009) 13 Can Crim LR at 194 (arguing that Libman is well suited to adjudicatory jurisdiction based on the territoriality principle but ill-suited for addressing extraterritorial claims).

⁷¹ R v Klassen, 2008 BCSC 1762, para 73.

⁷² R v OB (1997), 116 CCC (3d) 189 (cited in Forcese, supra note 33 at 188).

⁷³ Ibid at 192 [emphasis added].

⁷⁴ R v Hammerbeck (1993), 45 RFL (3d) 265 [Hammerbeck].

⁷⁵ Re Bigelow and The Queen (1982), 69 CCC (2d) 204 (Ont CA) [emphasis added].

⁷⁶ Hammerbeck, supra note 74, para 22.

⁷⁷ Re Ouellette and the Queen (1998), 126 CCC (3d) 219.

⁷⁸ Ibid at 228–29.

⁷⁹ Neil Campbell & William Rowley, “Jurisdiction and Litigation Developments in Canadian Competition Law” (Revised and updated version of materials prepared for the Forty-Fifth Annual Antitrust Institute of the Practising Law Institute, 6 October 2004) at 3, online: <http://www.mcmillan.ca/Files/JuristicationalLitigationDevelopments.pdf>.

⁸⁰ R v Treacy, [1971] AC 537 [Treacy].

⁸¹ Libman, supra note 21, para 37.

⁸² Ibid. La Forest J cited several other English decisions that followed Treacy, including R v Baxter, [1972] 1 QB 1 (CA); Doot, supra note 63; R v Wall, [1974] 1 WLR 930 (CA); Secretary of State for Trade v Markus, [1976] AC 35 (HL).

⁸³ Libman, supra note 21 at para 50 (citing Re Brisbois (1962), 133 CCC 188 (Ont HC); Re Devlin (1964), 3 CCC 228 (Ont Co Ct)).

⁸⁴ Liangsiriprasert v United States, [1991] 1 AC 225 [Liangsiriprasert].

⁸⁵ Ibid at 251.

⁸⁶ Ibid.

⁸⁷ Attorney-General v Yeung Sun-shun, [1987] HKLR 987 at 998. Blackmore has noted that this case laid the groundwork for the decision in Liangsiriprasert. Joshua DA Blackmore, “The Jurisdictional Problem of the Extraterritorial Conspiracy” (2006) 17 Criminal L Forum 77.

⁸⁸ R v Naini, [1999] 2 Cr App R 398.

⁸⁹ Ibid at 399.

⁹⁰ Blackmore regards the assumption of jurisdiction in this case as an assertion of the protective principle. Blackmore, supra note 87 at 79. This is questionable. First, nothing in the court’s language suggested that the court was applying the protective principle. Second, there was no national security issue involved, nor were vital economic interests of the United Kingdom as a state, or the United Kingdom’s territorial integrity or other governmental interests, affected. For the protective principle, as we know it, to be engaged, the attack must be directed against the state and not merely against private citizens of the state. What the protective principle seeks to protect are state interests, not individual interests. The decision may equally not be regarded as a manifestation of the passive personality principle as it was not the English nationality of the victims that actually triggered English court jurisdiction. Rather, it was the fact that the fraudulent conspiracy was directed at residents of England — who no doubt would mostly be and were English nationals — although those who eventually fell prey to the conspiracy happened to reside outside England at the time.

⁹¹ Christopher L Blakesley, “A Conceptual Framework for Extradition and Jurisdiction over Extraterritorial Crimes” (1984) 4 Utah L Rev 685. This may be contrasted with the French approach that insists on the existence of actual effect within French territory for jurisdiction to lie. Ibid at 697.

⁹² Ibid at 723.

⁹³ Black’s Law Dictionary, 9th ed (St Paul, MN: Thomson Reuters, 2009).

⁹⁴ Shulman v The King (1946), 2 CR 153 (Que CA).

⁹⁵ Liangsiriprasert, supra note 84 at 251.

⁹⁶ R v Backrack (1913), 21 CCC 257 at 265.

⁹⁷ Libman, supra note 21, para 48.

⁹⁸ The principle of potential connection should be limited to cases where the conspirators positively intended to carry the conspiracy into effect in the state seeking to assert jurisdiction, and not include cases where the state was not the target of the conspirators, but the impact of the conspired conduct would be felt if the conspiracy is carried out. Asserting jurisdiction in the latter case would be exorbitant.

⁹⁹ Canadian Oxford Dictionary, 2d ed (Don Mills, ON: Oxford University Press, 2004).

¹⁰⁰ Black’s Law Dictionary, supra note 93.

¹⁰¹ The section provides: “Everyone who, while in a place outside Canada, conspires with anyone to do anything referred to in subsection (1) [that is, with respect to conspiracy to commit murder and other indictable offences as well as offences punishable on summary conviction] in Canada shall be deemed to have conspired in Canada to do that thing.”

¹⁰² One such case is Re Hanes and the Queen (1982), 69 CCC (2d) 420 (Ont HC). See Libman, supra note 21, para 50.

¹⁰³ In R v Trudel, Ex parte Horbas and Myhaluk (1969), 3 CCC 95, the accused were charged with conspiracy to forge documents. The alleged conspiracy was made outside Manitoba. The only element that engaged Manitoba was the receipt of false documents in Manitoba by the accused. The court dismissed the view that the principles applicable to the place of formation of civil contracts applied to the determination of the situs of a crime. In deciding whether Manitoba had jurisdiction, it noted “the fact that some criminal acts are of a continuing character and may rightly be deemed to occur in more than one jurisdiction.” Although this was an interprovincial case, its reasoning is still relevant to international cases. See also R v W McKenzie Securities Ltd (1966), 4 CCC 29.

¹⁰⁴ CAHWC Act, supra note 22, s 6(3).

¹⁰⁵ Ibid.

¹⁰⁶ Ibid.

¹⁰⁷ Criminal Code, supra note 23.

¹⁰⁸ Rosenberg, Morris, “Canadian Legislation against Crimes against Humanity and War Crimes” in The Changing Face of International Criminal Law: Selected Papers (Vancouver: International Centre for Criminal Law Reform and Criminal Justice policy, 2002) 233.Google Scholar

¹⁰⁹ Trial in absentia is permitted under the Special Tribunal for Lebanon. See Wayne Jordash & Tim Parker, “Trials in Absentia at the Special Tribunal for Lebanon: Incompatibility with International Human Rights Law” (2010) 8 J Intl Criminal L 487. However, it is prohibited under the Statute of the International Criminal Tribunal for the Former Yugoslavia, 25 May 1993, 32 ILM 1159 (1993), Art 21; Statute of the International Criminal Tribunal for Rwanda 1994, 33 ILM 1598 (1994), Art 20.

¹¹⁰ R v Munyaneza, 2009 QCCS 2201.

¹¹¹ R v Munyaneza, 2014 QCCA 906 (CanLII) [Munyaneza (QCCA)].

¹¹² There is only one other CAHWC Act trial, which ended in acquittal. R v Jacques Mungwarere, 2013 ONCS 4594 (CanLII).

¹¹³ Munyaneza (QCCA), supra note 111, paras 15–16. The basis for the appellant’s argument is that the alleged acts were committed in the context of a non-international armed conflict, whereas the Criminal Code, as it stood at the time (s 7(3.76)), defined war crimes as crimes committed in the context of an international armed conflict.

¹¹⁴ Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

¹¹⁵ Munyaneza (QCCA), supra note 111, para 33.

¹¹⁶ Ibid at 49–55. The court’s reasoning appears to be that if international law has already recognized an act as a crime, Parliament can permit such act to be prosecuted in Canada without first criminalizing it domestically. The court admitted that the Act is retroactive but only in its effect.

¹¹⁷ Sixty-six witnesses — thirty for the prosecution and thirty-six for the defence — were heard. For an analysis of the case, see Fannie Lafontaine, “Canada’s Crime against Humanity and War Crimes Act on Trial” (2010) 8 JICJ 269 at 271.

¹¹⁸ Ibid.

¹¹⁹ Rome Statute, supra note 17, s 25(1).

¹²⁰ The relationship between the Act and the Criminal Code is also articulated in the Interpretation Act, RSC 1985, c 1-21, whose s 34(2) provides: “[A]ll the provisions of the Criminal Code relating to indictable offences apply to indictable offences created by an enactment.”

¹²¹ CAHWC Act, supra note 22, ss 4, 6.

¹²² Interpretation Act, RSC 1985, c 1-21.

¹²³ W Cory Wanless, “Corporate Liability for International Crimes under Canada’s Crimes against Humanity and War Crimes Act” (2009) 7 J Intl Criminal Justice 210.

¹²⁴ Smith, Stone & Knight Ltd v Birmingham (City), [1939] 4 All ER 116.

¹²⁵ Canadian Business Corporations Act, RSC 1985, c C-44.

¹²⁶ Bolduc v Attorney General of Quebec, [1982] 1 SCR 573 at 578.

¹²⁷ Ibid at 580–81.

¹²⁸ Forcese, supra note 33 at 197.

¹²⁹ Section 465(1) has four paragraphs — (a) to (d). Only para (a) relates to murder. Para (b) relates to conspiracy to prosecute a person for an offence one knows that person did not commit; para (c) relates to conspiracy to commit an indictable offence other than that provided in paragraph (b); and para (d) relates to a conspiracy to commit an offence punishable on summary conviction; subsection (4) covers the entire subsection (1) and is not limited to paragraph (a).

¹³⁰ R v Lai and Lau (1985), 24 CCC (3d) 237, (1985) CanLII 665 (BCCA) (cited to CanLII).

¹³¹ Ibid at para 10.

¹³² Convention on the Rights of the Child, 20 November 1989, 28 ILM 1148 (1989). For a discussion of s 7(4.1) of the Criminal Code, see generally Perrin, supra note 70.

¹³³ Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954, 249 UNTS 216.

¹³⁴ Eg, s 7(1), dealing with offences on an aircraft requires either that the aircraft is registered in Canada or the person operating the aircraft is qualified to be registered as owner of an aircraft registered in Canada or that the flight terminated in Canada.

¹³⁵ Eg, s 7(2.01), dealing with offences committed in relation to cultural property requires that the offender be either a Canadian citizen or an ordinary resident of Canada (if he or she is not a citizen of any state) or a permanent resident of Canada.

¹³⁶ Eg, s 7(3.73), dealing with offences related to the financing of terrorism provides that “[n]otwithstanding 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 … is deemed to commit the act or omission.”

¹³⁷ Eg, s 7(2.1)(e), dealing with offences relating to international maritime navigation allows the prosecution of a person who, after committing the offence, is found in Canada (regardless of where it is committed).

¹³⁸ Libman, supra note 21, para 74.

¹³⁹ Bhadauria v Board of Governors of Seneca College of Applied Arts and Technology, [1981] 2 SCR 181 [Bhadauria].

¹⁴⁰ Human Rights Code, RSO 1990, c H19.

¹⁴¹ Bhadauria, supra note 139 at 189.

¹⁴² However, s 800(3) of the Criminal Code, supra note 23, gives a summary conviction court the power to proceed with the trial of an organization in absentia where proof of service of the criminal summons on the organization can be shown. Also, s 803(2) of the Criminal Code gives a summary conviction court power to proceed in absentia against an accused who fails to appear for the trial or for the resumption of the trial after an adjournment after they have been duly notified of the trial. In other words, the court would already have assumed personal jurisdiction over the accused before trial in absentia can commence.

¹⁴³ Criminal Code, supra note 23, s 509(2).

¹⁴⁴ Ibid, s 703.2.

¹⁴⁵ Schulman v the Queen (1975), 58 DLR (3d) 586 [Schulman].

¹⁴⁶ Ibid at 591.

¹⁴⁷ R v RJ Reynolds Tobacco (Delaware) (2004), 182 CCC (3d) 126 [Reynolds Tobacco].

¹⁴⁸ Provincial Offences Act, RSO 1990, c P-33, s 26(4).

¹⁴⁹ Reynolds Tobacco, supra note 147, para 55.

¹⁵⁰ D Martin Low, “International Cartel Enforcement: Issues of Canadian Jurisdiction” (Paper presented at the Canadian Bar Association Annual Fall Conference on Competition Law, Ottawa, 23–24 September 2004) at 13–14, online: <http://www.mcmillan.ca/Files/DMLow_CBA%202004%20Fall%20Conference%20paper_Extraterritorial%20jurisdiction.pdf>.

¹⁵¹ Treaty between the Government of Canada and the Government of the United States on Mutual Legal Assistance in Criminal Matters, 1990, CTS 1990/19.

¹⁵² Low, supra note 150; D Martin Low, “Cartel Enforcement, Immunity and Jurisdiction: Some Recent Canadian Developments” (Paper presented at the International Bar Association Communications and Competition Law Conference, Rome, Italy, 17–18 May 2004) at 1–22, online: <http://www.mcmillan.ca/Files/Cartel%20Enforcement%20Immunity%20and%20Jurisdiction_Some%20Recent%20Canadian%20Developments_Low_0504.pdf>.

¹⁵³ Ibid.

¹⁵⁴ R v Filinov (1993), 82 CCC (3d) 516 (Ont Ct (Gen Div)).

¹⁵⁵ Low, supra note 150 at 15.

¹⁵⁶ Santa Marina Shipping Co v Lunham & Moore Ltd (1978), 18 OR (2d) 315 (applying the Ontario Rules of Civil Procedure, RRO 1990).

¹⁵⁷ Competition Bureau Canada, Thomas Liquidation Inc Fined $130,000 for One Count of Misleading Advertising under the Competition Act, Press Release (7 February 1995), cited in J William Rowley, D Martin Low & Omar K Wakil, Increasing the Bite behind the Bark: Extradition in Antitrust Cases (April 2007) at 4, online: <http://www.mcmillan.ca/Files/WRowley_MLow_OWakil_Extradition_in_Antitrust_Cases.pdf>.

¹⁵⁸ Competition Act, RSC 1985, c C-34.

¹⁵⁹ Rowley, Low & Wakil, supra note 157.

¹⁶⁰ Perrin, supra note 69 at 194.

¹⁶¹ Treacy, supra note 80 and accompanying text.

¹⁶² Doot, supra note 63.

¹⁶³ Libman, supra note 21, para 77.

¹⁶⁴ Ibid, para 77.

¹⁶⁵ Perrin, supra note 69 at 194–95.

¹⁶⁶ R v Finta, [1994] 1 SCR 701, para 84.

¹⁶⁷ R v Spencer, [1985] 2 SCR 278.

¹⁶⁸ Ibid at 283 [emphasis added] (quoting the words of the US Supreme Court in Hilton v Guyot, 159 US 113, 163–64 (1895)).

¹⁶⁹ Hirst, Michael, Jurisdiction and the Ambit of Criminal Law (Oxford: Oxford University Press, 2003) at 34.CrossRefGoogle Scholar

¹⁷⁰ Ibid at 35.

¹⁷¹ Perrin, supra note 69 at 195.

¹⁷² Libman, supra note 21, para 76.

¹⁷³ R v Cook, [1998] 2 SCR 597 at 667–68 [Cook].

¹⁷⁴ Forcese, supra note 33 at 188.

¹⁷⁵ Libman, supra note 21, para 67.

¹⁷⁶ Ibid, para 50.

¹⁷⁷ Ibid at 229.

¹⁷⁸ Treacy, supra note 80 at 564.

¹⁷⁹ Cook, supra note 173 at 669.

¹⁸⁰ Ibid.

¹⁸¹ Attorney-General v Yeung Sun-shun, [1987] HKLR 987 at 998. Blackmore has noted that this case laid the groundwork for the decision in Liangsiriprasert. Joshua DA Blackmore, “The Jurisdictional Problem of the Extraterritorial Conspiracy” (2006) 17 Criminal L Forum 71 at 77.

¹⁸² Tesco Supermarkets Ltd v Nattrass, [1972] AC 153 at 171 (UK).

¹⁸³ See Canadian Dredge & Dock Co v The Queen, [1985] 1 SCR 662 at 628.

¹⁸⁴ Rhone (The) v Peter AB Widener (The), [1993] 1 SCR 497 at 521 [Rhone].

¹⁸⁵ Ibid.

¹⁸⁶ Darcy L MacPherson, “Extending Corporate Criminal Liability: Some Thoughts on Bill C-45” (2004) 30:3 Man LJ 253 at 255.

¹⁸⁷ Gerry Ferguson, “Corruption and Corporate Criminal Liability,” International Centre for Criminal Law Reform and Criminal Justice Policy (undated) at 6–7, online: <http://icclr.law.ubc.ca/sites/icclr.law.ubc.ca/files/publications/pdfs/FergusonG.PDF>.

¹⁸⁸ D Hanna, “Corporate Criminal Liability” (1989) 31 Criminal LQ 452 at 464.

¹⁸⁹ MacPherson, supra note 186.

¹⁹⁰ Todd Archibald, Kenneth Jull & Kent Roach, “The Changed Face of Corporate Criminal Liability” (2004) 48 Crim LQ 367 at 368 [Archibald, Jull & Roach, “The Changed Face”].

¹⁹¹ Rhone, supra note 184.

¹⁹² Ferguson, supra note 187 at 14.

¹⁹³ Criminal Code, supra note 23, s 2.

¹⁹⁴ Department of Justice Canada, Criminal Liability of Organizations: A Plain Language Guide to Bill C-45 (undated) at 4, online: <http://www.justice.gc.ca/eng/rp-pr/other-autre/c45/c45.pdf>.

¹⁹⁵ Criminal Code, supra note 23, s 22.2.

¹⁹⁶ Ibid, s 2.

¹⁹⁷ Department of Justice Canada, supra note 194 at 5.

¹⁹⁸ Todd Archibald, Ken Jull & Kent Roach, “Critical Developments in Corporate Criminal Liability: Senior Officers, Wilful Blindness, and Agents in Foreign Jurisdictions” (2013) 60 Criminal L Quarterly 92 [Archibald, Jull & Roach, “Critical Developments”] (citing R v Pe’troles Global Inc, 2012 QCCQ 5749 (CQ), para 75).

¹⁹⁹ Archibald, Jull & Roach, “The Changed Face,” supra note 190.

²⁰⁰ R v Metron Construction Corporation, 2013 ONCA 541, paras 59–60 (CanLII). See also James Gobert, “Corporate Criminality: Four Models of Fault” (1994) 14 Legal Studies 395.

²⁰¹ R v Metron Construction Corporation, 2012 ONCJ 506, para 7 (CanLII). It must be noted, however, that the question of whether the site supervisor qualified as a senior officer was not contested in the case. For a review of the case and its potential implications, see Archibald, Jull & Roach, “Critical Developments,” supra note 198 at 106–11.

²⁰² R v Briscoe, [2010] 1 SCR 411, 2010 SCC 13, para 21 (CanLII).

²⁰³ This provision, however, does not seem to have altered the old law since the concept of innocent agent is well known in the common law. See MacPherson, supra note 186 at 261.

²⁰⁴ Dragatsi, Hélène, Criminal Liability of Canadian Corporations for International Crimes (Toronto: Carswell, 2011) at 158.Google Scholar

²⁰⁵ R v Dunlop and Sylvester, [1979] 2 SCR 881 at 898.

²⁰⁶ TFE Industries Inc v R, 2009 NBCA 39, para 3 (CanLII).

²⁰⁷ R v Chan (2003), 178 CCC (3d) 269, para 69.

²⁰⁸ Criminal Code, supra note 23, s 9(a) prohibits the recognition of common law crimes. This means that no one shall be convicted of a crime that is not a creature of statute.

²⁰⁹ United States of America v Dynar, [1997] 2 SCR 462, para 169.

²¹⁰ R v Dungey (1979), 51 CCC (2d) 86 at 98–99 (per Dubin JA) [Dungey].

²¹¹ R v Déry, [2006] 2 SCR 669, para 47.

²¹² Criminal Code, supra note 23, s 24(1): “Everyone who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence. (2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.”

²¹³ Dungey, supra note 210 at 99.