Criminal Code of Canada - section 7(3.2) - Offences involving nuclear material

section 7(3.2)

INTRODUCTION AND BRIEF DESCRIPTION

This section establishes that certain criminal acts related to nuclear material committed outside of Canada will be deemed to have been committed in Canada if certain conditions are met.

SECTION WORDING

7(3.2) Notwithstanding anything in this Act or any other Act, where (a) a person, outside Canada, receives, has in his possession, uses, transfers the possession of, sends or delivers to any person, transports, alters, disposes of, disperses or abandons nuclear material and thereby (i) causes or is likely to cause the death of, or serious bodily harm to, any person, or (ii) causes or is likely to cause serious damage to, or destruction of, property, and (b) the act or omission described in paragraph (a) would, if committed in Canada, be an offence against this Act, that person shall be deemed to commit that act or omission in Canada if paragraph (3.5)(a), (b) or (c) applies in respect of the act or omission. (3.2) Notwithstanding anything in this Act or any other Act, where (a) a person, outside Canada, receives, has in his possession, uses, transfers the possession of, sends or delivers to any person, transports, alters, disposes of, disperses or abandons nuclear material and thereby (i) causes or is likely to cause the death of, or serious bodily harm to, any person, or (ii) causes or is likely to cause serious damage to, or destruction of, property, and (b) the act or omission described in paragraph (a) would, if committed in Canada, be an offence against this Act, that person shall be deemed to commit that act or omission in Canada if paragraph (3.5)(a), (b) or (c) applies in respect of the act or omission. Idem (3.3) Notwithstanding anything in this Act or any other Act, every one who, outside Canada, commits an act or omission that if committed in Canada would constitute (a) a conspiracy or an attempt to commit, (b) being an accessory after the fact in relation to, or (c) counselling in relation to, an act or omission that is an offence by virtue of subsection (3.2) shall be deemed to commit the act or omission in Canada if paragraph (3.5)(a), (b) or (c) applies in respect of the act or omission. (3.4) Notwithstanding anything in this Act or any other Act, every one who, outside Canada, commits an act or omission that if committed in Canada would constitute an offence against, a conspiracy or an attempt to commit or being an accessory after the fact in relation to an offence against, or any counselling in relation to an offence against, (a) section 334, 341, 344 or 380 or paragraph 362(1)(a) in relation to nuclear material, (b) section 346 in respect of a threat to commit an offence against section 334 or 344 in relation to nuclear material, (c) section 423 in relation to a demand for nuclear material, or (d) paragraph 264.1(1)(a) or (b) in respect of a threat to use nuclear material shall be deemed to commit that act or omission in Canada if paragraph (3.5)(a), (b) or (c) applies in respect of the act or omission. (3.5) For the purposes of subsections (3.2) to (3.4), a person shall be deemed to commit an act or omission in Canada if (a) the act or omission is committed on a ship that is registered or licensed, or for which an identification number has been issued, pursuant to any Act of Parliament; (b) the act or omission is committed on an aircraft (i) registered in Canada under regulations made under the Aeronautics Act, or (ii) leased without crew and operated by a person who is qualified under regulations made under the Aeronautics Act to be registered as owner of an aircraft in Canada under those regulations; or (c) the person who commits the act or omission is a Canadian citizen or is, after the act or omission has been committed, present in Canada.

EXPLANATION

Section 7(3.2) of the Criminal Code of Canada addresses the issue of criminal acts committed outside of Canada, but which would be considered offenses if committed within Canadian borders. Specifically, the section deals with the possession, use, alteration, transport, disposal, dispersion, or abandonment of nuclear material, which can cause serious bodily harm or death to individuals, or damage to property. If a person commits these acts outside of Canada, and if the same acts would be considered a criminal offense if committed in Canada, the individual will be deemed to have committed the offense in Canada if certain criteria are met. Paragraphs (3.3) and (3.4) of the section further clarify that individuals who commit offenses outside of Canada that would be deemed criminal offenses if committed in Canada, whether as a result of being an accessory to the offense, conspiring or attempting to commit the offense, or counseling others in relation to the offense, will also be subject to the same legal consequences as if the offense occurred in Canada. Ultimately, the section provides the Canadian legal system with jurisdiction over individuals who commit serious criminal acts involving nuclear material, whether these acts occur within the country or outside its borders, ensuring that those responsible for such offenses are brought to justice.

COMMENTARY

Section 7(3.2) of the Criminal Code of Canada is a provision that deals with the criminalization of certain acts committed outside of Canada, which would otherwise be considered offences if committed within the country. Specifically, the provision applies to individuals who receive, possess, use, transfer, send, deliver, transport, alter, dispose of, disperse, or abandon nuclear material outside of Canada, causing or likely to cause death, serious bodily harm, or significant property damage. This provision creates an extended jurisdictional reach for Canadian law enforcement authorities. It allows for the prosecution of people located outside of Canada who have committed these types of offences, as if they had committed them within the country. This is significant because it enables Canadian law enforcement to prevent and investigate potential instances of nuclear terrorism, as well as to hold those responsible accountable for their actions. However, it is important to note that this provision only applies in specific circumstances. In order for an individual to be deemed to have committed an offence within Canada, one of the following conditions must be met: the individual commits the act or omission on a registered or licensed ship, or on a Canadian registered aircraft; the individual who committed the act or omission is a Canadian citizen; or the individual is present in Canada after the act or omission has been committed. Moreover, this provision is not without criticism. Some have argued that it infringes upon international laws and may be viewed as an unwarranted expansion of Canadian jurisdiction. It is also recognized that the provision may be difficult to enforce in practice, given the international nature of the offences it seeks to address. Nevertheless, the provisions of this section demonstrate the Canadian government's commitment to combatting acts of nuclear terrorism and protecting its citizens from potential harm. It highlights the importance of international cooperation in the fight against terrorism, while simultaneously recognizing the urgency and potential severity of nuclear terrorism. Overall, while there may be legitimate questions about the scope and effectiveness of Section 7(3.2), it is an important tool in the fight to prevent nuclear terrorism and uphold the rule of law.

STRATEGY

Section 7(3.2) of the Criminal Code of Canada addresses situations where a person commits an offence outside Canada that would be considered a criminal offence in Canada if committed within its borders. One strategy for dealing with this section is to focus on prevention by preventing the occurrence of such acts outside Canada. This can be achieved through international cooperation and coordination among countries to prevent the proliferation of nuclear weapons and material. The United Nations Security Council Resolution 1540 provides a framework for preventing the proliferation of nuclear weapons and materials to non-state actors and establishes a mechanism for reporting actions taken by countries to prevent such proliferation. By implementing this resolution, countries can enhance their ability to prevent the commission of an offence outside their borders. Another strategy is to enhance investigative and enforcement capabilities to enable the prosecution of offenders. Law enforcement agencies can work together with their international counterparts to gather evidence and build a case against offenders. This requires a strong legal framework that allows for the prosecution of offences committed outside Canada. The Mutual Legal Assistance in Criminal Matters Act provides a mechanism for requesting and obtaining assistance from foreign authorities in criminal matters. The use of technological tools can also be employed to prevent and detect the commission of offences under section 7(3.2). For instance, advanced radiation detection equipment can be deployed at entry points to detect the presence of radioactive material. In addition, intelligence gathering and surveillance can be enhanced to monitor and track the movements of individuals and groups suspected of engaging in nuclear proliferation activities. In conclusion, section 7(3.2) of the Criminal Code of Canada presents a complex legal landscape for dealing with offences committed outside Canada. However, by employing a combination of preventive, investigative, and enforcement strategies, countries can effectively address the commission of these offences and prevent the catastrophic consequences that could result from the use of nuclear weapons or materials by non-state actors.