I'm delighted to advise that Volume 3, Issue 1 of Transnational Criminal Law Review has been published. The highlight of this issue is the "Symposium on the European Arrest Warrant: Two Decades of Visions and Legal Realities." There is also a Regional Report on East/Northeast Africa. The issue (ably edited by our colleagues Masha Federova and Sabine Gless) can be found here, and the table of contents is below.
Posted at 07:52 AM | Permalink | Comments (0)
On July 25, 2024, Professor Ben Saul, who is the United Nations Special Rapporteur on the Promotion and Protection of Human Rights While Countering Terrorism, released a document entitled "Human Rights Assessment of the Draft United Nations Cybercrime Convention." The latest draft for the proposed global cybercrime convention emerged from a very fractious and multi-year set of negotiations, and is still quite controversial. Professor Saul makes what I think are some extremely compelling observations about the dangers of over-criminalization inherent in the way the substantive provisions of the draft are structured, and the ineffectiveness of the human rights "protections" as they stand in this version. I commend it to your reading.
Posted at 09:22 AM | Permalink | Comments (0)
Canada's federal government recently released its budget for 2024, and contained within it is a package of measures and mechanisms of interest to readers of this blog -- including changes to Canada's anti-money laundering and terrorism financing legislation. Some of it relates to previously-announced items like the creation of a Financial Crimes Agency, as well as changes related to trade-based money laundering.
I am marking and too busy to do a big write-up on it, but fortunately the good folks at Osler Harcourt & Harcourt LLP have done an excellent one, which you can find here.
Posted at 07:39 AM | Permalink | Comments (0)
I am delighted to belatedly announce the publication of my new edited collection, Transnational & Cross-Border Criminal Law: Canadian Perspectives (Irwin, 2023). I was lucky enough to assemble a team of specialist authors -- academics, Crowns, defence counsel, Justice Canada lawyers, civil society experts, even a military lawyer -- to write fascinating and insightful papers on front-burner topics. Here is the publisher's back cover blurb:
The time of globalization has seen an onslaught of criminal activity that crosses borders. The legal suppression and prosecution of transnational and cross-border crime raise unique and complex legal issues, and law enforcement, lawyers, and judges have struggled to keep up. Transnational & Cross-Border Criminal Law: Canadian Perspectives fills a pronounced gap in Canadian legal literature.
Written by subject matter experts, each chapter exposes and analyzes a current and pressing issue in this realm and is designed both to serve as a resource for researchers and to provide cutting-edge insight on front-burner issues. The group of authors — made up of prosecutors, defence lawyers, government counsel, academics, and civil society advocates — take on a variety of subjects, including terrorism, financial crime and corruption, jurisdiction, extradition, money laundering, trafficking, maritime enforcement, cross-border evidence-gathering, and the international transfer of prisoners. This unique collection will help to advance general understanding of one of the most pressing public policy issues of our time.
And here is the Table of Contents:
Part I: The Broad Scope of Transnational and Cross‑Border Criminal Law in Canada
Introduction: Locating Transnational and Cross-Border Criminal Law by Robert J. Currie, KC
The Internationalization of Canadian Criminal Justice Policy by Donald K. Piragoff, QC
Part II: Implementation and Influence
Courting Transnational Criminal Law in Canada by Gillian MacNeil
The Influence of Transnational Criminal Law on Refugee Law by Joseph Rikhof
Formalism and Substance in the Domestic Implementation of Transnational Criminal Law in Canada’s Anti‑terrorism Criminal Regimes by Michael Nesbitt
Part III: The Problems of Jurisdiction
Making Sense of Extraterritoriality Jurisprudence: Heuristic Pro-forum Biases and the Need for an Algorithmic Approach by Christopher Ram
An Agenda for Jurisdictional Law Reform by Christopher Ram
Canadian ISIS Fighters and Supporters and the Irony of the Khadr Exception by Leah West
What Side Do You Come From? Borders in R v Desautel by Robin Parker
Part IV: Corporate, Economic and Financial Crime, Money Laundering and Proceeds
Gatekeepers — The Lawyer Enigma by Peter M. German, KC
Tackling Money Laundering in Canada Through Beneficial Ownership Transparency by James Cohen
Harmonious Coexistence: Law and Laundering in Canada by Sanaa Ahmed
Transnational Crime, Tainted Property, and Civil Forfeiture by Michelle Gallant
Negotiating Transnational Corporate Criminality by Joanna Harrington
The Long Arm of Canadian Price-Fixing Law? Canadian Jurisdiction Over Foreign Price-Fixing Conspiracies by W. Michael G. Osborne
Part V: Commodity Crimes
International Trafficking of Cultural Property: An Overview and the Canadian Perspective by Kathryn Zedde
From Opium to Fentanyl: Drug Smuggling, Canada, and Enforcement Challenges by Stephen Schneider
Part VI. Inter-State Cooperation and Enforcement
Human Rights Considerations in Extradition by Frédéric Mégret
Disguised Extradition Through Deportation as an Abuse of Process by Jeffrey G. Johnston
Operation CARIBBE: A Case Study in Combatting Drug Trafficking on the High Seas by Amélie Aubut
The International Transfer of Sentenced Individuals to Canada: Procedure and Issues by Adelina Iftene & Olivia Genge
Canadian Orders Can Compel Production of Data Controlled by US Companies by Fraser M. Kelly
Posted at 09:11 AM | Permalink | Comments (0)
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):
Posted at 12:28 PM | Permalink | Comments (0)
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.
Posted at 02:29 PM | Permalink | Comments (0)
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."
Posted at 10:42 AM | Permalink | Comments (0)
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:
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.
Posted at 01:36 PM | Permalink | Comments (0)
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.
Posted at 11:52 AM | Permalink | Comments (0)
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:
I would also call your attention to our current Call For Papers, Volume 2 Issue 2
Posted at 08:27 AM | Permalink | Comments (0)
