Greco was on probation in Ontario for a previous assault charge and was required to be of good behaviour and keep the peace for the duration. While in Cuba, Greco assaulted his companion in a jealous rage. He was convicted at trial of a breach of his probation order which he appealed, stating the court did not have the jurisdiction to convict under s. 6(2).
- Was the appellant required to comply with the terms and conditions of his probation order while outside of Canada?
- If so, does the court have jurisdiction to try the offence under s. 6(2)?
Requirement to complyEdit
Moldaver, writing for a unanimous court, held that limitations on the ability to enforce orders should not be confused with the jurisdiction of the courts at first instance; 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 the principle of territoriality. Various provisions of the Criminal Code assert jurisdiction over persons who commit certain offences outside of Canada (see ss. 7, 46(3), 57, 74, 465(4)). These provisions are necessary as without them, s. 6(2) would preclude convictions or findings of guilt for offences committed outside of Canada.
He draws a 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.
Moldaver held that all that is necessary to make an offence subject to the jurisdiction of our courts is that a significant portion of the activities constituting that offence took place in Canada. It is sufficient that there be a “real and substantial link” between an offence and this country. If only a single country has an interest in compliance with orders made by its courts then the real and substantial test is met. In the case at bar, Cuba did not exercise its jurisdiction, thus Canada can exercise its jurisdiction over Greco.
States have no right to enforce domestic law directly in another state (jurisdiction to enforce), however this does not restrict the ability of a state to bind the conduct of persons both at home and abroad (jurisdiction to prescribe).