International & Transnational Criminal Law

New Issue of Transnational Criminal Law Review Published

 

I am very pleased to announce the publication of Volume 2, Issue 1 of Transnational Criminal Law Review, a fully-peer reviewed open-access journal of which I am co-editor. This newest publication is a special issue on the proposal for the founding of an International Anti-Corruption Court (IACC), a matter on which I have been occupied myself for a while. Editorial duties were handled by my co-editors Cecily Rose (Leiden University) and Sara Wharton (Faculty of Law, University of Windsor).

Here is a table of contents (with links):

Vol. 2 No. 1 (2023): Symposium on the Proposal to Create an International Anti-Corruption Court

Published: 25-09-2023

Articles

• Introduction to Symposium on the Proposal to Create an International Anti-Corruption Court

  Cecily Rose

  •  PDF

• The Proposal for an International Anti-Corruption Court: What Law Should the Court Apply?

  Anton Moiseienko

  •  PDF

• Evidentiary Aspects of an International Anti-Corruption Court

  Kathrin Betz

  •  PDF

• Prosecuting Corruption Crimes before an International Court: Whither Immunity Rules?

  Rosanne van Alebeek

  •  PDF

• Recovering Assets at an International Anti-Corruption CourtCautionary Tales from Rome, The Hague, and the Field

  Daley J. Birkett

  •  PDF

• Corporate Liability within the IACC FrameworkA Proposal for Enhanced Corporate Accountability

  Hannah Harris

  •  PDF

Book Reviews

• Book Review: Flavia Staiano, Transnational Organized CrimeChallenging International Law Principles on State Jurisdiction

  Roger S Clark

Canadian Parliamentary Committee Proposes Extradition Reform

 

Earlier this month, the Canadian House of Commons Standing Committee on Justice and Human Rights issued its long-awaited report, Reforming Canada's Extradition System. Technically speaking, the report was the result of a couple of weeks of hearings that were held by the Committee earlier this year. However, it is safe to view the report as also representing a breakthrough on the part of a coalition of advocacy voices in Canada (of which I am one) that has, for years, been pointing out serious problems with Canada's extradition law and practice and advocating for reform.

During the hearings the Committee heard from a number of members of this coalition, including my friends and colleagues Alex Neve, Professor Joanna Harrington, Don Bayne (counsel for Hassan Diab), Tim McSorley and UK extradition expert Anand Doobay. I have set out the Committee's recommendations below, but the best way to sum it up is that the various concerns raised by critics of Canada's extradition system were heard, understood and digested by the Committee members. Most tellingly, they have recommended that the government "undertake comprehensive reform of the Extradition Act as soon as possible and consider making changes to the extradition process, not requiring legislation, in the interim, in order to avoid further injustices in extradition proceedings."

Most gratifying was the fact that the Committee gave consideration to the Halifax Proposals for Extradition Law Reform, a law reform proposal generated by the Halifax Colloquium on Extradition Law Reform, which I chaired in 2018. Quite a number of our recommendations were picked up by the Committee members, who saw clearly the profound problems relating to fairness and justice in this country's extradition process--demonstrated most compellingly by the Hassan Diab case.

The question now is quite simple: what will Justice Canada do with this report? A unanimous set of committee recommendations, endorsed by all of the parties represented in Parliament, and speaking to pressing justice issues, surely cannot be ignored. The case for law reform has never been clearer, and it is time that the government acted.

Here is the Committee's list of recommendations:

RECOMMENDATION 1
That the Government of Canada commission an independent review of all
extradition treaties and identify partners with a history of serious human
rights violations.

RECOMMENDATION 2
That the Government of Canada modernize outdated treaties and withdraw
from treaties with partners that seriously contravene international human
rights standards.

RECOMMENDATION 3
That the Government of Canada examine whether domestic extradition law
and processes adequately reflect international standards.

RECOMMENDATION 4
That the Department of Justice’s International Assistance Group receive the
training it needs so that it can conduct gender-based analysis plus in the course
of its duties.

 

RECOMMENDATION 5
That the Extradition Act be amended to add the risk of torture as grounds to
deny an extradition request for a person sought.

RECOMMENDATION 6
That the Extradition Act be amended to require the Government of Canada to
negotiate diplomatic assurances with partner countries when there is a
potential risk of torture following extradition, and that Canadian courts be
authorized to order the Government of Canada to negotiate such assurances.

RECOMMENDATION 7
That the Department of Justice collaborate closely with the Department of
Foreign Affairs to negotiate diplomatic assurances, and that the Department of
Justice also participate in the follow-up to ensure that extradition partners in
fact adhere to these conditions.

RECOMMENDATION 8
That the Extradition Act be amended to give Canadian courts, in the case of
abuse of process by a partner state, the power to refuse to order the
detention, thereby halting the extradition process.

RECOMMENDATION 9
That the Extradition Act be amended to lower the required threshold to rebut
the presumption of reliability of the extradition partner’s record of the case at
the committal hearing.

RECOMMENDATION 10
That section 33 of the Extradition Act be amended to enshrine an obligation for
a partner state to undertake the holding of the trial of a person sought for
extradition within a year of the surrender to the foreign state.

RECOMMENDATION 11
That the Extradition Act be amended to add a legal obligation for the
Department of Justice to disclose to the person sought for extradition any
exculpatory evidence in its possession or that it knows of that could
compromise or weaken the request of the partner state.

RECOMMENDATION 12
That the Extradition Act be amended to introduce a “forum bar” rule, which
would allow individuals committed for extradition to file a request before a
Canadian court of law so that their prosecution be held in Canada, when a
significant portion of the offence is committed in Canada and when it is in the
interest of justice to prosecute here.

RECOMMENDATION 13
That the Extradition Act be amended to introduce a “human rights bar” rule,
which would allow individuals sought for extradition to submit evidence to be
considered at the committal hearing if they believe that the requesting partner
state is seeking prosecution for reasons that are incompatible with human
rights law, and upon such finding by the judge, that the person’s discharge
be ordered.

RECOMMENDATION 14
That the Extradition Act be amended to give the extradition judge a greater
role relative to that of the Minister of Justice, particularly by granting Canadian
courts the power to rule on the fairness of the extradition order, taking into
account the situation of the person sought and the extradition partner’s
respect for human rights.

RECOMMENDATION 15
That the Extradition Act be amended to expand the scope of section 44(1)(b)
and include the criterion of a sufficient causal connection in regard to assessing
prohibited grounds of discrimination.

RECOMMENDATION 16
That the Extradition Act be amended to expand the list of enumerated grounds
under section 44(1)(b) to include gender identity and gender expression, to
reflect the language of the Canadian Human Rights Act.

RECOMMENDATION 17
That the Extradition Act be amended to include, in the list of reasons for
refusal to extradite, the presence of a major disparity between Canadian
sentencing and sentencing in the partner state.

RECOMMENDATION 18
That, within six months of the end of each fiscal year, the Department of
Justice publish on its website all data, statistics and internal policies, with the
exception of confidential information, in order to ensure that the extradition
process is transparent and that the public is better informed on the subject.

RECOMMENDATION 19
That the Government of Canada issue an annual report to Parliament on the
implementation of the Extradition Act, which would include, but not be limited
to, the number of extradition requests submitted to Canada, the country that
submitted them, the alleged offences, whether the person to be extradited is a
Canadian citizen or a permanent resident, and the diplomatic assurances
provided by the partner country.

RECOMMENDATION 20
That the Government of Canada undertake comprehensive reform of the
Extradition Act as soon as possible and consider making changes to the
extradition process not requiring legislation, in the interim, in order to avoid
further injustices in extradition proceedings.

Anti-Corruption Law: Having a Moment

 

This week I had the privilege of attending a conference entitled "Measuring Grand Corruption and Reducing Its Power," held by the American Academy of Arts & Sciences in Cambridge, MA. The conference brought together anti-corruption experts from a variety of disciplines and countries, for intense 2.5-day deliberations on best measures to combat "grand corruption," defined as "the abuse of high-level power that benefits the few at the expense of the many and causes serious and widespread harm to individuals and society" (Transparency International, “Grand Corruption,” online: https://www.transparency.org/en/corruptionary/grand-corruption). A collection of papers arising from the conference will be published by Routledge next year.

The conference looked at a variety of topics related to anti-corruption, including how to measure corruption and domestic civil and criminal measures taken to combat it (such as unexplained wealth orders (UWOs)). A main topic was the proposal for an International Anti-Corruption Court (IACC), put forward by Integrity Initiatives International and currently being championed by Canada, the Netherlands and Ecuador. Judge Mark Wolf, head of III and original proponent of the IACC, was in attendance at the conference and we had a stimulating discussion about the proposal. It is also being promoted by the Canadian Task Force Against Global Corruption, of which I am a member.

Anti-corruption generally, and measures to combat grand corruption in particular, are currently a matter of priority in an increasing number of states and international organizations, in no small part because of recognition that corruption is either at the heart of, or an aggravator of, many other global problems, including problems with trade, global warming and the stability of developing states. 

Here is a recent piece by White & Case that evaluates a proposed anti-corruption directive for the EU and compares it to US and UK law. An interesting component (to me, anyway) is the explicit consideration of corruption offences that cross borders, or in the more technical language, that use "extended territorial jurisdiction."

Canada Releases New Anti-Money Laundering/Terrorist Finance Strategy

 

The federal government (via the Dept of Finance) has just released Canada's Anti-Money Laundering and Anti-Terrorist Financing Regime Strategy 2023-2026. It is a reasonably brief survey of the current legal frameworks under which this "regime" operates, with some information about the current state of play domestically and internationally. It sets out four "Priority Actions" toward improving the regime:

• Increasing operational effectiveness
• Addressing legislative and regulatory gaps
• Improving regime governance and coordination
• Contributing to international community efforts to combat ML/TF

 

Various developments are canvassed, including the new federal corporate transparency registry and the report of the Cullen Commission. Regarding the Financial Crimes Agency the government suggested was going to be set up, it comments:

In Budget 2022 the government announced its intention to establish a new Canada Financial Crimes Agency, which will bolster Canada's ability to quickly respond to complex and fast-moving cases of financial crime as its lead enforcement agency in this area. The Budget provided $2 million to Public Safety Canada in 2022-23 to undertake initial work to develop and design the new agency. A portion of this funding is being used to establish a dedicated project team of policy and operational experts housed within Public Safety Canada's Financial Crime Coordination Centre (FC3) to examine the legislative, operational and jurisdictional landscape in Canada in order to develop recommendations on the agency's mandate, priorities and authorities. The remaining funding is being used to engage financial crime and other experts through professionally contracted services, providing an independent assessment of international best practices to complement the efforts of the dedicated project team throughout the Canada Financial Crimes Agency development and design process.

New FATF Report on Money Laundering, Art & Antiquities

 

I recently came across (by way of this article on White & Case's website) a new report from the FATF, entitled "Money Laundering and Terrorist Financing in the Art and Antiquities Market." It is a 40-page report (plus appendices) that appears to give a solid overview of this often-obscure topic, including discussions of money laundering vulnerabilities, the role of both organized crime groups and terrorist organizations, and recommendations for best practices.

From the website:

The market of [sic] art, antiquities and other cultural objects has attracted criminals, organised crime groups and terrorists to launder proceeds of crime and fund their activities. Criminals seek to exploit the sector’s history of privacy and the use of third-party intermediaries while terrorist groups can use cultural objects from areas where they are active to finance their operations.

The vast majority of market participants do not have a connection to illicit activities, but there are risks associated with these markets and many jurisdictions do not have sufficient awareness and understanding of them. This results in a lack of investigative resources and expertise, and difficulties with pursuing cross-border investigations.

The report includes a list of risk indicators that can help public and private sector entities identify suspicious activities in the art and antiquities markets, and also highlights the importance of rapidly identifying and tracing cultural objects involved in money laundering or terrorist financing.

The report includes some good practices that countries have taken to address the challenges they face, including the establishment of specialised units and access to relevant databases and cooperation with experts and archaeologists to help identify, trace, investigate and repatriate cultural objects.

New Issue of Transnational Criminal Law Review

 

I'm very pleased to announce the publication of Volume 1, issue 2 of Transnational Criminal Law Review, a fully peer-reviewed open access journal of which I am co-editor. We have a great lineup of material this issue:

• Roger Clark, "The Concept of International Criminal Law and Its Relationship With Transnational Criminal Law and Conflict of Laws"
• Robert J. Currie, "Admissibility of Hearsay Gathered Under MLAT: A Tempest in Canada" [given my editorial role in the journal it is important to note that editing of this article was handled by my colleague Neil Boister and it was subject to double-blind external peer review, as all of our articles are]
• Mohamed Elewa Badar & Noelle Higgins, "The Challenges of Addressing Transnational Maritime Organized Crimes: A Review of Current Law and Practice in Djibouti"
• Richard Burchill, "Counter-Terrorism Update"
• Chat Nguyen, "Regional Report: Southeast Asia/China/Pacific"
• Michael Nesbitt, "Book Review: The Practice and Problems of Transnational Counter-Terrorism by Flona De Londras"

 

I would also call your attention to our current Call For Papers, Volume 2 Issue 2

 

 

Jurisdiction in Cross-Border Cybercrime Cases

 

I am a faculty member of the Law & Technology Institute at the Schulich School of Law. The Institute has recently started up a LinkedIn blog and I am pleased to be the author of the first blog post. It is entitled "When Cybercrime Spills Over Borders, Can Canada Respond?" and it can be found here.

 

*If you think this is a transparent attempt to drive traffic to the Institute blog, then you are very astute.

New Journal: Transnational Criminal Law Review

 

UPDATE: you can read our first issue, here:

https://ojs.uwindsor.ca/index.php/nlj/issue/current

 

I am very pleased to be one of the founding co-editors of a brand-new, open-access and fully-peer reviewed journal, the Transnational Criminal Law Review. Please see our launch announcement, below!

-----------------------------------------------------

The Founding Board of Editors are pleased to announce the launch of the Transnational Criminal Law Review (TCLR). The TCLR is an open access journal, available free to all here, that welcomes submissions that deal with all aspects of legal responses to transnational crime. The journal seeks to promote scholarship in this relatively under-studied field of law, and to serve as a forum that can bring together academic research as well as those interested in the study of legal responses to transnational crime. Submissions may cover procedural as well as substantive aspects of transnational criminal law, which spans a wide range of areas such as transnational organized crime, terrorism, cybercrime, drug trafficking, money laundering, corruption, and migrant smuggling (for further details see About the Journal). The TCLR welcomes submissions that are written from legal doctrinal, theoretical, critical, and interdisciplinary perspectives.

The TCLR will be published twice yearly, and will target an audience of legal scholars, criminologists, and social scientists, as well as legal practitioners, policymakers, and students. The journal will publish full length academic articles (subject to double-blind peer review) and shorter pieces such as case comments, book reviews, and reports on new developments in the field.

Behind the scenes, the TCLR is the work of a founding board of editors, comprised of Neil Boister (University of Canterbury), Robert Currie (Dalhousie University), Masha Fedorova (Radboud University), Sabine Gless (Basel University), Cecily Rose (Leiden University), and Sara Wharton (University of Windsor). The board is supported by a number of regional rapporteurs, who will help to keep readers up-to-date on legal developments around the globe.

Interested in submitting to or receiving updates about the journal? Please register here in order to receive occasional announcements with information about the latest issue or to begin the submission process.

CALL FOR PAPERS

The journal currently welcomes submissions on all aspects of transnational criminal law for Volume 1, Issue 2. For more information on submitting to the TCLR, see here.

Cullen Commission Releases Long-Awaited Report on BC Money Laundering

 

As has been widely reported, the Commission of Inquiry Into Money Laundering in British Columbia, led by BC Supreme Court Justice Austin Cullen, has released its long-awaited report into the scope and significant issues relating to money laundering in this Canadian province. As readers will know, this is the latest set of findings on money laundering and associated criminal activity in BC, presaged as it was by two reports by Dr. Peter German (as well as a couple of others) that authoritatively exposed what was going on.

Commissioned by BC Attorney General David Eby, the Cullen report is the result of 133 days of public hearings that heard the testimony of over 200 witnesses. And it is a blockbuster; Cullen estimates that the amount of money laundered through BC annually can be reasonably estimated to be in the billions, and that over successive years the growth of the problem was known to authorities, yet insufficient efforts were made to address it.

I will not try to summarize the report here, as it runs over 1800 pages. Even the list of Justice Cullen's 101 Recommendations, which you can find here, is 16 pages long. However, it is certain (or at least hoped!) that these findings will be influential in the formulation of policing and prosecutorial strategies regarding financial crime and money laundering for some time to come.

If you want to read a solid journalistic account of the historical backdrop, I can recommend Sam Cooper's book Wilful Blindness.

Supreme Court of Canada Strikes Down Life Without Parole - Implications for Extradition?

 

Today the Supreme Court of Canada issued its decision in R. v. Bissonnette, which was a constitutional challenge to a section of Canada's Criminal Code that allowed for the imposition of "stacked" life sentences. The mandatory sentence for first degree murder in Canada is life without a possibility of parole for 25 years, but s. 745.51 allowed for these periods of parole ineligibility to be imposed consecutively; so a person convicted of two first-degree murders would not be eligible for parole for 50 years, a conviction for three would see parole ineligibility for 75 years, and so on. As the Court's judgment pointed out, the minimum prison sentence imposed under the section is 50 years without parole, and given that a sentence of this length completely impairs a person's re-entry into society, this is essentially a sentence of "life without parole."

I will leave detailed commentary for others, but the main point here is that the Court unanimously (in a period when they are often divided) struck down this provision as unconstitutional, specifically because it breaches the protection against cruel and unusual punishment in s. 12 of the Canadian Charter of Rights and Freedoms. The Court's judgment, written by Chief Justice Wagner, unambiguously holds that such a punishment is violative of the most basic standards of human rights law and the law of criminal sanction. From early in the judgment:

A sentence of imprisonment for life without a realistic possibility of parole is intrinsically incompatible with human dignity. Such a sentence is degrading insofar as it negates, in advance and irreversibly, the penological objective of rehabilitation. This objective is intimately linked to human dignity in that it conveys the conviction that every individual is capable of repenting and re‑entering society. This conclusion that a sentence of imprisonment for life without a realistic possibility of parole is incompatible with human dignity is not only reinforced by the effects that such a sentence may have on all offenders on whom it is imposed, but also finds support in international and comparative law. (para. 8)

It is notable as well that the Court made its finding of invalidity retroactive to the moment the provision was brought in, which will have implications for the (very few) offenders who are currently imprisoned under this regime.

For my purposes here, the interesting point is the effect that this ruling will have on Canada's extradition law (I have blogged about this here). On a number of occasions, Canadian courts have been content to allow the government to extradite offenders to face a sentence of life without parole in a foreign state (always, I believe, the U.S.). It would seem logical -- in fact, inevitable -- that this practice should stop immediately; the International Assistance Group (Justice Canada's specialized department that conducts extradition cases) should immediately advise all of Canada's extradition partners that we will no longer extradite to face a sentence of this sort. It is worthwhile recalling that in 2001 the Court ruled that extradition to face the death penalty was a breach of the Charter, given that Canada and much of the world had abolished it. A similar logic should prevail here.

It is highly arguable that all such extraditions were unconstitutional to begin with, despite the court findings, but to date the SCC has not weighed in on whether extradition to face life without parole complies with the Charter. With any luck, Justice Canada will face directly the point that life without parole is completely inimical to contemporary human rights standards, and change their practices now. Surely this point should not have to be litigated.