About this Project

This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

For narrated lectures on various topics in national security law, please visit my 2017 "national security nutshell" series, available through iTunes.

 

For a continuing conversation on Canadian national security law and policy, please join Stephanie Carvin and me at A Podcast Called INTREPID.

 

Please also visit my archive of "secret law" in the security area.

By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

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Saturday
Jun132015

Cops without Borders: The RCMP's long anti-terror arm

The RCMP has arrested one of the alleged protagonists in the Somali kidnapping of Amanda Lindhout.  This is remarkable, for several reasons

First Real Extraterritorial Terror Case:

First, this is the first time that I am aware off -- having collected terrorism cases for the last 15 years -- that charges have been laid in relation to a terrorism offence that took place entirely outside of Canada.  This statement requires unpacking.  Police have charged the Somali accused under s.279.1 of the Criminal Code.
This creates a crime of hostage taking, and implements Canada's obligations under the international treaty on hostage taking.  That latter is a "golden oldie" anti-terror treaty.  Section 279.1 is one of the first Canadian anti-terror provisions, pre dating 9/11. Further, while the cross referencing is complicated between the s.2 definition of "terrorism offence", section 83.01 defining "terrorist activity", s. 7(3.1) giving hostage taking crimes extraterritorial reach, and s.279.1 itself, this really is a terrorism offence as defined in the Criminal Code.  It just isn't one of the complex new terror crimes created after 9/11.
Second, like most terrorism offences, but few other Criminal Code offences, hostage taking has extraterritorial reach.  That means that because of s.7(3.1), it does not matter where it takes place.  Among other things, if the perpetrator ends up in Canada, he or she can be prosecuted.
International law and extraterritoriality:
This may raise international law concerns in the minds of some.  And in fact, if Canada were attempting to assert jurisdiction entirely on the basis, simply, that the accused was arrested in Canada, this might be doubtful in international law.  Hostage taking is not a likely candidate for what is know as "universal jurisdiction" in international law, unlike things like genocide, war crimes, crimes against humanity or the even older (but in the waters off Somalia still relevant) crime of piracy.
But there are other grounds for a state to assert what is known as extraterritorial "prescriptive" jurisdiction -- the power to regulate conduct outside its borders.  One is known as the "passive personality" principle: a circumstances in which the victim of the overseas crime is a national.  Canada does not often assert extraterritorial jurisdiction on this basis, but other countries -- especially in Europe -- do.  And if Canada were ever challenged by Somalia as to how it can purport to criminalize the Lindhout hostage taking, passive personality is a likely response.
Which raises another interesting element: it is not likely Somalia would ever challenge Canada's conduct.  For one thing, there isn't really an international venue likely to have jurisdiction.  For another, Somalia barely has a government.

Fantastic evidence:
And that too is interesting.  The RCMP investigation was itself extraterritorial, but certainly very different from standard mutual legal assistance style investigations.  What this means is unclear.  Will the case be built on intercepts conducted by Communications Security Establishment, acting as a technical proxy for the RCMP?
This is legally possible, and it would surely be very interesting to see how this sort of cooperation operates, as evidence is presented in open court. In addition, perhaps the RCMP had agents in Somalia?  Perhaps even members?  The latter is hard to believe, but if there were, they deserve some serious danger pay.
All of this is to say that I can't wait to see the evidence in this case.

Coming to Ottawa:
As a last initial issue, the RCMP arrested this Somali protagonist in Ottawa. What he was doing in Ottawa and how he got here is unclear.  But this will prove an intriguing aspect of the case.  I think it's reasonable to assume, for one thing, that his presence was facilitated by the CBSA.  How else he managed to enter Canada is hard to imagine.
 
What motivated him to come is another question.  Maybe he was enticed under false pretences?  This would, however, not be entrapment -- classically, entrapment is being improperly induced to commit a crime, not a circumstance where police lure you where they can nab you.
This does not appear to be a circumstance like the famous Alvarez Machain case in the United State or the Eichmann case in Israel where the accused was bundled from a foreign street and whisked away under duress to serve trial -- that is what we used to mean by "rendition to justice" before the Bush era variant of being whisked away to be tortured.
But even if there was a forceable removal, it is not clear whether that would matter.  For the US and Israeli high courts, what mattered was the accused's presence in court, not how he got there.  How he got there in both cases was a clear violation of international law -- you can't enforce your law on the territory of another state, absent its consent.  But international law for these two decisions was a matter between states, to be decided as between states through international means, not a question that affected the court's criminal law jurisdiction.  
We don't have bang-on precedent in Canada that I can think of off the top of my head, but it would not surprise me in the least if Canadian courts were to adopt this same approach, on this particular question.  To be clear, I think courts might well entertain abuse of process claims, especially given some of the language in the Supreme Court's Hape decision.  But when it comes to rendering persons to serve justice, the real objection is that states really should prioritize formal extradition over, well, kidnapping.  On the facts of this case, I am inclined to think that such formal processes might not work well.  See above re Somalia not having much of a government. In these circumstances, forceable removal may be a less bitter bill to swallow, whatever the formal international law issues.
But this is merely theoretical, since the facts we have at present suggests that the accused arrived in Canada under his own steam.  If so, then this arrest looks squeaky clean.
Personally, I greet this announced arrest with some enthusiasm.  This is not just because of the notoriety of the crime, but also because many of us in the legal business might reasonably be excused for fearing that, in flailing about for a security silver bullet, our government has begun to abandon the criminal justice model in favour of covert, untested and potentially very problematic disruption tools.  For a very long list of reasons, my anti-terror preference is for open court criminal trials, even (and indeed especially) on complex security issues.