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The Double Criminality Rule Revisited

Published online by Cambridge University Press:  04 July 2014

Sharon A. Williams
Sharon A. Williams
Affiliation:
Professor of Public International Law and International Criminal Law, Osgoode Hall Law School, Canada.
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Extract

Extradition law and process is the complex vehicle for the return by one state of accused or convicted fugitives from the criminal justice of another state. From an international law perspective, it is for the most part, a treaty matter bearing on the rights and duties of states and the emphasis is on inter-state cooperation, reciprocity and mutuality of obligations. However, it is also part of the domestic criminal law process and as the result will be the potential or actual deprivation of the liberty or even the life of the fugitive, if the requesting state retains the death penalty, today extradition is seen as necessarily protecting the human rights of the fugitive.

The focus of this article is on the protection given to the fugitive by the double or dual criminahty rule under the extradition law of Canada. Two major issues will be analyzed. Firstly, whether the crime for which the extradition request is made by the foreign state is an extraditable crime meeting the requirement of double criminality and secondly, whether the extradition judge in Canada is mandated to inquire into and seek evidence of the foreign criminal law.

Type
Articles
Information
Israel Law Review , Volume 27 , Issue 1-2 , Winter–Spring 1993 , pp. 297 - 309
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1993

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References

1 Bassiouni, M. C., International Extradition and World Public Order (Leyden, Sijthoff, 1974) 314.Google Scholar

2 See the Extradition Act, R.S.C. 1985 c. E-23. Hereinafter “Extradition Act”. It should be noted that the rendition of fugitives from Canada to reciprocating states in the Commonweath scheme under the Fugitive Offenders Act, R.S.C. 1985 c. F-32 will not be addressed. This is a separate process with no treaties required and no list of renditable offences appended to the statute, premised upon the historical connection of the member states and the belief at the inception of the scheme towards the end of the nineteenth century that the formal safeguards and rigidity of extradition with “foreign” states was not necessary or appropriate. There is in the Canadian Fugitive Offenders Act no list of extraditable offences and no provision for double criminality. This is to be contrasted with the enactment by several other Commonwealth countries, including the United Kingdom, of new legislation that provides for the same safeguards for the fugitive as extradition such as double criminality. It is suggested that Canada's rendition process should be brought into line in this regard. See for more detail Williams, Sharon A., “The Double Criminality Rule and Extradition: A Comparative Analysis” (1991) 15 Nova L. R. 582, 584, 618–623.Google Scholar

3 Shearer, I., Extradition in International Law (Manchester U.P., 1971) 137–141.Google Scholar See also Karle, , “Some Problems Concerning the Application of the European Convention on Extradition”, in Legal Aspects of Extradition Among European States (1970) 51Google Scholar, and H. Schulz, “The Principles of the Traditional Law of Extradition”, in ibid., at 7, 12–13.

4 Oppenheim, L., International Law (8th ed., 1955) 701.Google Scholar

5 Booth, H. V. E. Hartley, British Extradition Law and Procedure (1980) 50Google Scholar, citing O'Higgins, , British and Irish Extradition Law and Practice (1961) (unpublished Ph. D. thesis).Google Scholar See also Brabyn, , “Exceptional Accusation Cases under the Extradition Acts 1870 to 1935” [1987] Crim. L. R. 796, at 797 n. 7.Google Scholar

6 290 U.S. 276 (1923).

7 [1992] 3 S.C.R. 475, hereinafter “McVey II”.

8 [1991] 1 S.C.R. 861, 865.

9 Supra n. 7, at 508. This was also the position in R. v. Parisien, [1988] 1 S.C.R. 950. But see I. Shearer, supra n. 3, at 138: “The rule seems to be universally established by practice, however, that it could without much doubt be regarded as a customary rule of international law should the question ever arise as a result of some chance omission in the wording of a treaty”. This does not seem to gel with actual state practice as evidenced in the case law. See also In re Assarsson, 687 F. 2d 1157 (8th Cir. 1982); In re Assarsson, 635 P. 2d 1237 (7th Cir. 1980).

10 Bassiouni, supra, n. 1, at 322. There has been considerable debate as to the two potential ways to interpret double criminality. The in concreto, or objective, approach looks to the exact labelling of the offence and its constituent elements. See (1970) 41 R. Int. Dr. Pen. 12 for resolutions adopted by the 1969 10th Congress of the International Association of Penal Law, which indicates a preference for the in concreto approach. The in abstracto, or subjective, approach looks to the actual criminal nature of the act without undue preponderance on the label and full identity of the elements in the states. See Wyngaert, C. van den, “Double Criminality as a Requirement to Jurisdiction” in Jareborg, N., ed., Double Criminality Studies in International Law (1989) 43Google Scholar for an example of preference for the in abstracto approach.

11 1989 Can. T. S. No. 36.

12 1987 Can. T.S. No. 14.

13 1991 Can. T.S. No. 32.

14 1990 Can. T.S. No. 36.

15 1976 Can. T. S. No. 3 as amended by Protocol 1991 Can. T.S. No. 37. Hereinafter “1976 Extradition Treaty”.

16 Fiscal offences that are not extraditable at present under “list” treaties unless specifically provided for in treaties are a case in point Note, however, that the exception, even in “list” treaties was eroded by the House of Lords in R. v. Chief Metropolitan Magistrate, ex parte Secretary of State for the Home Department, [1988] 1 W.L.R. 1204 (H.L.).

17 [1976] 1 S.C.R. 219. See also In re Brisbois (1962), 133 C.C.C. 188 (Ont H.C.) and Virginia v. Cohen, [1973] F.C. 622.

18 (1984) 15 C.C.C. 3d 16.

19 United States v. Caro-Payan, Ont. D.C., Feb. 18, 1988 (umeported).

20 (1988), 40 C.C.C. 3d, 548.

21 Ibid.

22 Ibid., at 553.

23 Supra n. 17.

24 supra n. 18.

25 See Hartley Booth, supra n. 6, at 60, where he states that the extradition court cannot become a tribunal of foreign law. See also R. v. Governor of Pentonville Prison ex parte Elliott, [1975] Crim. L.R. 516 and R. v. Governor of Pentonville Prison ex parte Narang, [1978] A.C. 247.

26 Supra n. 7, at 512.

27 Supra n. 18, at 28.

28 Supra n. 20. In In re Osgoshi, No. CC891575 (British Columbia Supreme Court, Nov. 3, 1989) (unreported) a similar line of reasoning was adopted.

29 Forest, G. V. La, Extradition To and From Canada (2nd ed., 1977) 42.Google Scholar

30 Supra n. 19.

31 (Ont. D.C. January 1986) (unreported).

32 supra n. 19.

33 [1984] 2 All E.R. 84 (H.L).

34 [1984] 2 All E.R. 570 (H.L.).

35 Supra n. 19.

36 Williams, supra n. 2, at 608.

37 See R.S.C. 1985 c. C.-46, ss. 366 and 321.

38 (1989), 33 B.C.L.R. 2d 28.

39 Ibid., at 30.

40 Supra n. 33.

41 Supra n. 34.

42 Supra n. 19.

43 E.g., Art. XII of the 1976 Canada-United States Extradition Treaty.

44 (1988), 30 B.C.L.R. 2d 197. See in accord the dissenting judgment of Justice Sopinka in the Supreme Court of Canada. For cases dealing with offences under United States' laws such as the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§1961–1968 (1970) and the Continuing Criminal Enterprise Act (CCE), 21 U.S.C. §848(b) (1970) see Sudor v. United States (1981), 39 N.R. 433; Riley v. Commonwealth (1985), 60 A.LJ.R. 106 (Austl.) and Hagerman v. United States (1988), 44 C.C.C. 3d 157.

45 Supra n. 7, at 535.

46 [1987] 3 W.L.R. 365, 390–91. (H.L.)

47 Supra n. 7.

48 Ibid.

49 [1987] 1 S.C.R. 536.

50 [1987] 1 S.C.R. 500, 515.

51 [1991] 2 A. C. 64, 82 (H.L.).

52 Supra n. 50, at 516.

53 Supra n. 7, at 528. He notes the exception of political offences that may be expressly assigned to the judge.

54 Ibid.

55 (1983), 79 Cr. App. R. 1.

56 Ibid., at 11. He also notes the exception of offences of a political character.

57 Supra n. 51, at 91.