Ratified treaties¹

Production of pornography and child prostitution committed extraterritorially/ Extraterritorial jurisdiction/ Reference to international law to strengthen a decision based on domestic law 

A Canadian citizen challenged the jurisdiction of the Canadian courts to try him under section 7(4) of the Criminal Code for the production of pornography and child prostitution committed extra-territorially in Cambodia, the Philippines and Colombia. In dismissing the defendant’s objections, the Court considered that s. 7(4.1) could also be considered as part of customary international law in light of the number of ratifications of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography:

“It is clear (…) that s. 7(4.1) is not the only legislation enacted by a signatory to the Optional Protocol.  Some 44 countries currently have comparable legislation. In addition, as previously noted, 129 countries have ratified the Optional Protocol and accepted its implications. In my view, this strongly augers in favour of a conclusion that this legislation itself forms a part of customary international law under the universal principle in much the same way as the Crimes Against Humanity and War Crimes Act does”.²

Moreover, it noted in regard to its extraterritoriality that:

 “The extraterritoriality contemplated by s. 7(4.1) is clearly justified under the nationality principle and the universal principle, the latter in light of the Convention and the Optional Protocol, and the critical mass of international support that multi-national ratification of those treaties represents.”³

The Court also argued that:

“Canada’s clear interest in living up to its treaty commitments and in regulating the conduct of its nationals and residents abroad in the context of preventing the widespread exploitation of children is (…) sufficient to establish and maintain jurisdiction with or without a provision for consent from the foreign state.”⁴

In developing this last argument, the Court again referred to international law to “fortify” its decision based on domestic law. In particular it underlined that “in the Optional Protocol, there is no provision for consent to prosecution as between signatory nations”.⁵