R. v. Greco, 2001 CanLII 8608 (ON CA)
[13] To begin, I know of no rule or principle of international law that would deprive a judge of the Ontario or Superior Court of Justice of jurisdiction to make a probation order binding the conduct of a probationer both at home and abroad. To be sure, the principle of "extraterritoriality", which is defined by James R. Fox in The Dictionary of International and Comparative Law (1997), at p. 47 as the "operation of laws upon persons or rights beyond the territorial limits of the state enacting such laws", may impact on Canada's ability to enforce such orders.
[14] For example, if a probationer commits a breach of the order while abroad and fails or refuses to voluntarily return to Canada, then, absent a right of extradition or some other co-operative arrangement with the foreign state, Canada would likely be powerless to bring the offender to justice. Likewise, if the "offensive conduct" abroad is conduct that the probationer is required to engage in or refrain from under the laws of the foreign state, prosecution in Canada could well constitute an affront to the requirements of international comity and result in our courts declining jurisdiction. [1]
[15] But these limitations on the ability of the court to enforce its orders should not be confused with the jurisdiction of the court in the first instance to prescribe orders that bind the conduct of probationers both at home and abroad. In my view, the distinction is an important one and it is essential to a proper understanding of the principle of territoriality. That principle, sometimes referred to as the principle of "the sovereign equality of states", is succinctly summarized by Cory and Iacobucci JJ. at p. 17 of their majority opinion in R. v. Cook (1998), 1998 CanLII 802 (SCC), 128 C.C.C. (3d) 1 (S.C.C.): [2]
… In essence, the principle of the sovereign equality of states generally prohibits extraterritorial application of domestic law since, in most instances, the exercise of jurisdiction beyond a state's territorial limits would constitute an interference under international law with the exclusive jurisdiction of another state.
[16] The principle of territoriality is also discussed at some length by Bastarache J. in his concurring reasons in Cook. In the course of that discussion, at pp. 55 and 56, he identifies and explains the important distinction to which I have referred between "jurisdiction to enforce" and "jurisdiction to prescribe":
Any discussion of territoriality begins with the fundamental distinction between a purported enforcement of domestic law in the territory of a foreign state (jurisdiction to enforce), and an attempt to give effect in domestic law to actions, people or things outside of the territory governed by domestic law (jurisdiction to prescribe). Attempts to enforce domestic law directly in the territory of a foreign state are prohibited in all but the most exceptional circumstances. In the words of Professor Brownlie, discussing "Extra-territortorial Enforcement Measures":
The governing principle is that a state cannot take measures on the territory of another state by way of enforcement of national laws without the consent of the latter. Persons may not be arrested, a summons may not be served, police or tax investigations may not be mounted, orders for production of documents may not be executed, on the territory of another state, except under the terms of a treaty or other consent given.
See Ian Brownlie, Principles of Public International Law (4th ed. 1990), p. 307. It was in this sense that the Permanent Court of International Justice observed in The case of the S.S. "Lotus" (1927), P.C.I.J. Ser. A, No. 9, pp. 18-19:
Now the first and foremost restriction imposed by international law upon a State is that - failing the existence of a permissive rule to the contrary - it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.
But in the very next sentence, at p. 19, the International Court makes it very clear that the term "territoriality" has an entirely different meaning where a legal system merely purports to prescribe effects within its own legal system to events taking place abroad:
It does not, however, follow that international law prohibits a State from exercising a jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and their jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.
These two passages clearly illustrate the gulf that separates the principle of territoriality with regard to the jurisdiction to enforce, and territoriality as it might constrain the prescription of juridical consequences within the domestic legal system. [Emphasis added.]
[17] Although Bastarache J. was speaking only for himself and Gonthier J., I do not understand the majority to take exception with the general principles outlined in the passage above. Those principles make it clear that subject to certain limitations, a state can extend the application of its laws and the jurisdiction of its courts to persons, property and acts outside of its territory without offending against the principle of territoriality. That of course, explains the various provisions of the Criminal Code in which Canada has asserted jurisdiction over persons who commit certain offences outside of Canada. [3] Those provisions are necessary because without them, s. 6(2) of the Code would preclude convictions or findings of guilt for offences committed outside of Canada. But for present purposes, just as there is nothing in the principle of territoriality that prevents Canada from enacting laws enforceable in Canada that govern the conduct of persons outside of its territory, the principle of territoriality does not prevent courts from issuing orders, enforceable locally, that govern conduct outside of Canada.
[18] Nor does anything in the Criminal Code or any other relevant statute preclude a probation order that governs conduct outside of Canada. Manifestly, in light of s. 6(2) of the Code, the fact that probationers may be bound by the terms of their probation orders while abroad will be of no consequence if it cannot otherwise be established that the offence of breach of probation was committed in Canada. That however, is the subject of the second issue on appeal and it should not be confused with the issue at hand.
[19] In support of his position that probation orders only bind the conduct of probationers while in Canada and not elsewhere, the appellant relies on s. 733.1(2) of the Criminal Code which reads as follows:
An accused who is charged with an offence under subsection (1) [breach of probation] may be tried and punished by any court having jurisdiction to try that offence in the place where the offence is alleged to have been committed or in the place where the accused is found, is arrested or is in custody, but where the place where the accused is found, is arrested or is in custody is outside the province in which the offence is alleged to have been committed, no proceedings in respect of that offence shall be instituted in that place without the consent of the Attorney General of that province.
[20] The appellant submits that in enacting that provision, Parliament showed deference to the principle of territoriality by making it clear that probation orders are only meant to bind the conduct of probationers in Canada and not elsewhere. With respect, I disagree with that interpretation.
[21] Section 733.1(2) does not speak one way or the other to the question whether probation orders bind the conduct of probationers while abroad as well as in Canada. Rather, it speaks to what court in Canada has jurisdiction over an accused charged with breach of probation. In other words, it deals with venue, not the reach of probation orders. The first part of the provision simply reaffirms the common law principle that jurisdiction is territorial and in the case of breach of probation, an offender may be tried and punished by a court of competent jurisdiction "in the place where the offence is alleged to have been committed". The second part of the provision broadens the jurisdictional ambit by providing that offenders can be tried and punished for the offence of breach of probation by a court of competent jurisdiction in any province where they are found, arrested or in custody, with the consent of that province's Attorney General, even though the offence itself was not committed in that province.
[22] There is nothing in s. 733.1(2) to suggest that the offence is committed solely in the place where the conduct forming the breach occurred. Indeed, if anything, I read s. 733.1(2) as recognizing, at least implicitly, that the offence of breach of probation can be committed in more than one province, including the province where the order is made and the province where the conduct forming the breach occurred. For present purposes, however, suffice it to say that just as s. 6(2) of the Criminal Code is not dispositive of the issue whether probation orders bind the conduct of probationers outside of Canada, the same applies to s. 733.1(2) of the Code.
[23] It follows, in my view, that there is no basis in international or domestic law for concluding that a judge of the Ontario or Superior Court of Justice lacks the jurisdiction to issue a probation order, enforceable in Canada, that binds the conduct of probationers both at home and abroad.
[24] Nor, in my view, are there policy reasons for coming to a different conclusion. The notion that probationers are only bound by the terms and conditions of their probation orders while in Canada and that they can ignore or circumvent such orders with impunity by setting foot across the border is one that I refuse to accept. Apart from being illogical, I can see no justification for it once it is accepted that the requirements of comity remain sacrosanct and that Canadian courts will decline jurisdiction in cases where to do otherwise would result in a contravention of those requirements.
[25] Policy considerations strongly favour an interpretation that makes the order binding on probationers regardless of where they happen to be. As this case vividly demonstrates, conduct outside of Canada in breach of a probation order made in Canada can have a serious and immediate impact within Canada. The treatment, protection and safety of the victim of this assault who lives in Canada are legitimate concerns of the Canadian criminal justice system. It is entirely consistent with those concerns that persons within the reach of Canadian courts be held to account for breaching an order made in Canada.
[26] From a practical point of view, treating probation orders as if they were light bulbs that can be switched on and off depending on the location of the probationer, gives rise to logistical problems and fairness concerns. If probation orders cease to apply to probationers when they cross the border, then courts, probation officers and probationers alike would be faced with the logistical nightmare of having to keep track of the precise number of days or part days on which the order is operative and the days on which it is not. In oral argument, counsel for the appellant conceded, correctly in my view, that were a probationer only bound by a probation order when in Canada, then the clock would stop ticking and the order would cease to run when the probationer left Canada.
[27] Even more troublesome is the unfairness this would occasion to those probationers who, for legitimate work, family or treatment related reasons, are required to be outside of Canada during the period of probation. If the appellant is right, such probationers, though in complete compliance with the terms of their probation orders while outside of Canada, would nonetheless receive no credit for such periods of time and the length of their probationary period would be extended accordingly. For my part, I see no reason why compliant probationers should be prejudiced in that way.
[28] For these reasons, I am satisfied that the courts of this province have the authority to make probation orders, enforceable locally, that bind the conduct of probationers both at home and abroad. The only remaining question is whether to be effective abroad, the probation order must contain an express provision to that effect. In my view, it need not.
[29] I think that a common sense inference can and should be drawn that, subject to the requirements of comity, probation orders are meant to apply to probationers at all times wherever they might be, absent a specific term to the contrary. In this respect, I agree with Lampkin J. that a probation order is an order made in respect of a particular individual and so long as it remains in force, it attaches to that individual wherever he or she may go.
[30] The territorial reach of a probation order, like any other court order, is a matter of interpretation. The language of the order and the policies served by the order must be considered.
[31] The order in the present case contains no reference to its territorial scope. This silence provides no assistance as to the reach of the order. There is no suggestion that the question of whether the order should apply to conduct outside of Canada was canvassed when the order was made. As there is no presumption that an order applies only to conduct within Canada, the absence of any express reference in this probation order to its territorial reach is not indicative of any limitation on that reach. Certainly, there is nothing inherent in the nature of the term breached in this case (to keep the peace and be of good behaviour) that would suggest a territorial limitation.
[32] In sum, I am satisfied that the appellant was required to comply with the terms and conditions of his May 7, 1997 probation order while in Cuba. Accordingly, I would answer issue one in the affirmative.
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