Criminal Code of Canada - section 477.2(2) - Consent of Attorney General of Canada

section 477.2(2)

INTRODUCTION AND BRIEF DESCRIPTION

Consent of the Attorney General of Canada is required for proceedings involving non-Canadian citizens accused of committing offences on board foreign-registered ships.

SECTION WORDING

477.2(2) No proceedings in respect of which courts have jurisdiction by virtue only of paragraph 477.1(a) or (b) shall be continued unless the consent of the Attorney General of Canada is obtained not later than eight days after the proceedings are commenced, if the accused is not a Canadian citizen and the offence is alleged to have been committed on board any ship registered outside Canada.

EXPLANATION

Section 477.2(2) of the Canadian Criminal Code sets out the requirement for obtaining the consent of the Attorney General of Canada for criminal proceedings that take place with respect to individuals who are not Canadian citizens and are alleged to have committed an offence on board a ship registered outside Canada. This provision limits the jurisdiction of Canadian courts to only those cases where the accused is a non-citizen and the offence took place on a foreign-registered ship, thereby preventing a potential jurisdictional clash with the flag state of the vessel. This provision is in line with Canada's obligations under international law, which generally recognizes that a flag state has primary jurisdiction over offences committed on board its vessels. As such, if an alleged offence took place on a foreign-flagged vessel, it would be appropriate for the flag state to have primary jurisdiction over the matter. This provision ensures that Canadian courts do not interfere with the jurisdiction of foreign courts in these instances, and that the Attorney General of Canada has the opportunity to assess the facts and circumstances surrounding the alleged offence before deciding whether to grant consent for proceedings to continue. In summary, Section 477.2(2) aims to balance Canada's obligation to respect the jurisdiction of the flag state over offences committed on board foreign-registered ships and the need for Canada to prosecute crimes committed on these vessels. This provision ensures that appropriate measures are taken to prevent jurisdictional clashes while preserving Canada's ability to bring justice to victims of crimes committed on foreign-flagged ships.

COMMENTARY

Section 477.2(2) of the Criminal Code of Canada has been a subject of controversy and debate amongst legal practitioners and scholars. The section stipulates that proceedings over which courts have jurisdiction only by virtue of paragraph 477.1(a) or (b) cannot proceed unless the consent of the Attorney General of Canada is obtained within eight days from the commencement of the proceedings, if the accused is not a Canadian citizen and the offense is alleged to have been committed on board a ship registered outside Canada. This section is significant because it represents the Canadian government's attempt to extend its jurisdiction beyond its borders, especially in cases of crimes committed on foreign ships. By requiring the Attorney General's consent and setting a strict time frame within which to obtain the consent, the section imposes an additional layer of scrutiny on the proceedings before they can continue. The provision is aimed at protecting foreign nationals from being unfairly subjected to Canadian laws, particularly if they are accused of violating laws while on foreign vessels on the high seas. It is also a way for the Canadian government to maintain its national sovereignty and uphold its legal obligations under international law. However, the provision raises several concerns. One of these is the practical difficulty of obtaining the Attorney General's consent within the eight-day period, especially in cases where the accused is not a Canadian citizen, and there are legal or evidentiary issues that require an extended period of time to be resolved. Another concern is that the provision may be viewed as a breach of the sovereignty of the state whose ship is involved in the offense. It could potentially lead to diplomatic tensions and legal disputes between the Canadian government and other states, thereby undermining Canada's relationships with them. Furthermore, the provision could be perceived as a violation of due process principles, specifically the right of every accused person to a fair trial. By imposing an additional layer of scrutiny before proceedings can even commence, the provision could lead to the delay of justice, thereby putting the rights of the accused at risk. In conclusion, Section 477.2(2) of the Criminal Code of Canada is a well-intended provision aimed at protecting the sovereignty of states and ensuring that foreign nationals are not unfairly subjected to Canadian laws. However, it raises concerns about practical difficulties, diplomatic tensions, and due process rights that need to be addressed. As such, there is a need for a critical review of this provision to ensure that it strikes the right balance between protecting Canada's legal interests and maintaining good international relations.

STRATEGY

Section 477.2(2) of the Criminal Code of Canada imposes a unique requirement that can significantly impact the outcome of a criminal proceeding. Essentially, this provision requires that any proceedings initiated under paragraph 477.1(a) or (b) of the Code, which only confers jurisdiction on Canadian courts over offences committed on board foreign-registered ships by non-Canadian citizens, cannot proceed without the consent of the Attorney General of Canada. This requirement is not only mandatory but time-sensitive, as the consent must be obtained within eight days of the proceedings' commencement. Given the critical nature of this provision, defendants and their legal counsel must be strategic in their approach to ensure that their rights are protected. One significant strategic consideration is the identification of the time frame for complying with the provision and ensuring that all the necessary documents and evidence are available to present a compelling case for the Attorney General's consent. Timing is especially crucial in providing sufficient time to gather evidence and prepare the case for presentation efficiently. Moreover, in some situations, it may be prudent to engage the Attorney General's office early in the process, to ensure that the facts of the case, legal precedents, and public policy considerations are presented to the Attorney General's satisfaction. This proactive approach is especially important when dealing with sensitive cases that raise issues of national security or involve international relations. Early engagement may also reduce the likelihood of delays and long-term legal battles that can cost both parties time and resources. In addition to being timely in seeking consent, defendants and their legal counsel must identify strategic arguments that support obtaining the Attorney General's consent. This could include presenting legal precedents or policy arguments to demonstrate how the facts and legal issues of the case support a decision in the client's favour. In other cases, it may be necessary to assemble a team of experts in law, policy and practical enforcement to provide sufficient weight to the client's arguments. Another significant consideration in dealing with Section 477.2(2) of the Criminal Code of Canada is the potential for negotiating a plea bargain or other mutually beneficial agreement. Such an agreement may be in the best interest of the parties involved, as it may avoid the lengthy litigation process and potential unfavourable outcome and reduce the penalties applied to the defendant. Such negotiated outcomes rarely happen unless the defendant and legal counsel have made significant efforts to gather all the available evidence, and engage in effective communication to reach an agreement. To maximize the chances of obtaining the Attorney General's consent and achieving a favourable outcome, legal counsel and their clients must work together to craft an effective strategy based on the facts and circumstances of the case. This approach should be informed by precedents, legal principles, and policy considerations, demonstrating the defendant's innocence or guiding the charges toward favourable penalties. Finally, both the defendant and their legal counsel should remain vigilant throughout the proceedings and ensure that all deadlines are met and the case is presented in the best possible way to secure an expedient outcome.