GOVN 540

JOHN ALAN SUTHERLAND

DR. PAUL KELLOGG

JANUARY 30TH, 2011

CANADAS EXTRATERRITORIAL ENFORCEMENT OF CHILD SEX CRIME LAWS

How to deal with child sexual abuse is a domestic issue in every country. It is also has an international side which flows from the effects of globalization; involves global governance by numerous international organizations; measures the reach of extraterritorial powers of national states; potentially infringes on the sovereignty of other states; and involves the protection of the human rights of the most vulnerable segment of our worlds population. International bodies in the mid 1990s (Children)started to discuss and declare that the worldwide sexual abuse of children was a widespread problem that needed to be tackled by the world community. While recognizing that each society has its own domestic sexual abuse of children the international problem had by then reached major proportions in third world underdeveloped poor countries. The major reason for this dramatic rise in child sexual abuse there was the influx of so called sex tourists from developed nations. These individuals and organizations were finding it difficult to carry on their crimes of abusing children in their own communities because of the effective policing of their activities, strong enforcement of child sexual abuse laws and severe penalties being handed down by the courts for these acts. As a result these sex tourists were seeking victims and locales for sexual acts with children which acts could be filmed and spread worldwide to customers, many of whom are pedophiles in our own community. The third world countries offered safe areas to conduct this type of activity because laws there against this abuse, if existing, were rarely enforced because these countries and their citizens needed the foreign currency these activities brought. Parents who lived in poverty with more children than they could support were often anxious to earn dollars from selling the services of their children to foreigners whether consciously or unconsciously knowing that these would be sexual in nature.

The governments in these poor countries were powerless to prevent this type of abuse being carried on within their borders. The perpetrators were foreign nationals who could return to their own communities without being prosecuted or penalized. However before countries like Canada and the United States became involved in the prosecution of these sex tourists the domestic attitudes had to change from one of ignoring child sexual abuse to one of treating sexual acts between adults and children as criminal activity which must be openly prosecuted and punished. Fifty years ago most child pornography involving sexual abuse of children was done and produced on tape , film and dvds outside of North America and smuggled into Canada and the United States. Then the pornography industry in North America saw the domestic demand, decided to improve the product and began to mass produce it in the United States and to a lesser degree in Canada. Courts were not as stringent in cracking down on child pornography in the era of the liberal 1960s. Courts were often more concerned with defining obscenity and literary content of photographic and video media. Societal sexual mores tended to overlook the abuse factor involved in the production of child pornography. Advertising continued to portray the ideal of femininity as the infantilized woman (Rush 71). Men are attracted to a woman who has the helplessness of a child and our society either makes the child look like a woman or the woman look like a child. (Rush 71). Sexual abuse of children in North American society at one point went so far to include the forcing into performing sex acts for the pornography industry by parents (Rush). Even sects of some religions approve and in fact encourage mating between younger females and older males in order to provide more children. North American society approves of the Playboy image of sex between young females and older males and celebrities are constantly taking second and third wives with the women younger each time. Advertisers for department stores regularly

pictures young girls modelling demure briefs and sensuous thongs in widely distributed flyers. Hollywood Films such as Taxi Driver portray young girls as prostitutes pandering to paedophilic interests. Los Angeles police statistics claim that thirty thousand children are sexually exploited in Los Angeles every year (Rush 78). In 1970 in the United States the National Commission on Obscenity appointed by President Nixon failed to find that pornography was a causative factor in crime or that it was a matter of public concern (Rush 79). Until very recently there seemed to be a conscious or unconscious determination to tolerate male sexual interest in children (Rush 80). However with the rise in the feminist movement legislatures were forced to make laws against child sexual exploitation and police forces were given greater powers to enforce these laws. The Internet and world Wide Web not only brought a flood of pornography into every home it also allowed law enforcement agencies the ability to track down and charge producers and buyers of child sexual pornography. This greater pursuit of domestic child sex abusers forced the industry to search abroad as previously mentioned. As well international pressure to control the sexual exploitation of children worldwide in turn brought demands on national governments in the United States and Canada to tighten their own laws to protect children in these countries from sexual abuse. The World Congress against the Commercial Sexual Exploitation of Children meeting in Stockholm in 1996 defined commercial sexual exploitation of children as sexual abuse by an adult and remuneration in cash or kind to the child or a third person amounted to coercion and violence against children and amounted to forced labour and a contemporary form of slavery (Nations). However not all abuse is of a commercial nature. In addition to the involvement of the United Nations organizations such as UNICEF and ECPAT (End Prostitution, child Pornography and Trafficking of Children for Sexual Purposes) have become committed to end child sexual

abuse. As indicated it is difficult to deal with the underlying cause of international sexual abuse which is extreme poverty in 3rd world countries. Parents in poor countries willing to sell their child into prostitution and falsely led to believe that the child will be placed in a legitimate job is one of the major factors. While escape from abusive family situations is found in our domestic communities, poor countries have additional reasons such as the vulnerability of children orphaned by war or AIDS and the desire for material wealth (Breckenridge 411). The same Congress issued a declaration and agenda for action to criminalize all forms of the sexual exploitation of children and to condemn and penalize all offenders (Nations). The same was reaffirmed at a Second Congress in 2001. The preamble was to form a global partnership between governments, non-government organizations and other concerned organizations and individuals worldwide (Nations). The agenda was a document of international consensus rather than a legally binding instrument of international law (Ferens 16). The UN Optional Protocol to the Convention on the Rights of the Child (UN Optional Protocol) was entered into force in January of 2002 and ratified by 67 countries including Canada. Article 1 reads Each party shall ensure that as a minimum the following acts and activities are fully covered under its criminal or penal law whether such offences are committed domestically or transnationally or on an individual or organized basis (UN Optional Protocol). These include offering a child for sexual exploitation, offering or procuring a child for child prostitution and producing, distributing, disseminating ,importing etc. child pornography. Article 4(2) authorizes states to pass extraterritorial legislation to take such measures as may be necessary to establish jurisdiction over offences set out in article 1 where the alleged offender or the victim is a national or habitual resident of the state making the law. Canada by ratifying the protocol has undertaken to be bound by it. Failure of Canada and other developed nations to

establish extraterritorial legislation would be contrary to the treatys purpose of preventing child sex tourism and other forms of child sexual exploitation (Ferens 17). Has Canada done its job and fulfilled the obligations under the protocol? In 1997 Canada passed legislation under Bill C-27 that extraterritorially extended the Criminal code to enable the prosecution of Canadian citizens and permanent residents for a number of crimes against children in foreign jurisdictions. Initially in order to prosecute the legislation required a request from the country in which the offence occurred. That was dropped in 1999. Under section 7 (4.1) of the Criminal Code a number of sexual exploitation offences are deemed to have been committed in Canada when the offence is committed in another jurisdiction . These include sexual interference, sexual exploitation and making, distributing, selling or possessing child pornography and obtaining or communicating for the purpose of obtaining for consideration the sexual services of someone under 18 years of age. This amended law has been challenged in court most recently in 2008 in the Supreme Court of British Columbia (Regina v. Klassen). The accused applied to have charges against him ruled ultra vires i.e. outside of the power of the government of Canada to pass. He was charged with 35 offences involving sexual abuse of children ranging from sexual interference , invitation to sexual touching, making child pornography being a householder permitting sexual activity and obtaining sexual services with a person under 18. All of these offences were alleged to have occurred outside of Canada in third world countries such as Columbia, Cambodia and the Philippines. The court first referred to the reasons behind legislating s7(4.1) as a response to a significant international consensus favouring the need for measures to be undertaken to protect children from induced, coerced or otherwise unlawful sexual activity or practices or exploitative use in pornographic performances and materials (8). Then the court referred to Canadas

ratification of the protocol (UN Optional Protocol) which contemplates the enactment of extraterritorial legislation in furtherance of the protection of children. The court referred to the protocol which expressed the world as being deeply concerned at the widespread and continuing practice of sex tourism, to which children are especially vulnerable, as it directly promotes the sale of children, child prostitution and child pornography (8). The issue as to whether having made the decision to actively pursue these perpetrators upon their return Canada has the power under international law to successfully try and prosecute them in Canadian courts given the principles of territorial and jurisdictional integrity of nations represented by the notion of sovereignty? What can Canada as a matter of domestic and international law do and what has it done? What extraterritorial jurisdiction do we say we have and how does that fit in with what other states would agree we have? While the importance of state sovereignty is often said to have been eroded by 20th century developments in international law, the exercise of jurisdiction by states still reflects the classical Westphalian distinction between those matters within a states borders and those outside them. States have full jurisdiction over everything within their own territories. Any exercise of prescriptive jurisdiction (also called legislative or substantive jurisdiction) on matters outside a states territory is extraterritorial (Coughlan 32). This exercise of extraterritorial prescriptive jurisdiction is not necessarily contrary to international law. But it is subject to the limitation that it cannot interfere with the rights of other states (10). Ultimately the British Columbia Supreme Court ruled that the law was within the power of parliament to make based on two grounds of international law. Firstly Canada was not attempting to enforce its law within a foreign state but was trying to control its own nationals or those habitually living in Canada under the nationality principle (Currie 146-148). Further

Canada has the right to pass such legislation under the Universal Principle which in its broadest accepted form allows states to exercise criminal jurisdiction over any individual regardless of nationality who commits certain crimes in any geographical location (Currie). Neither of these require a real and substantial link between Canada and the alleged wrongdoing to justify even the prescriptive jurisdiction to legislate. More than one state may exercise jurisdiction over an individual criminal act , a situation called concurrent jurisdiction. In any event the accused pleaded guilty so no higher court was forced to rule on the issues. As more charges are laid under this legislation and prosecutions proceed it will be of interest to see whether any actual convictions can be obtained if the accused elects to proceed to trial. An accused is still entitled to confront his or her accusers in court and in the absence of any media evidence showing the commission of these crimes it is unlikely complainants from third world countries will be willing to testify. The effectiveness of the law is that sex tourists will proceed cautiously, if at all, in committing their crimes abroad. the threat of prosecution may be a sufficient deterrent.

Works Cited
Breckenridge, K.D. "Justice Beyond Borders: A Comparison of Australian and U.S. Child-Sex Tourism Laws." Pacific Rim and Policy Journal (13) (APRIL 2004): 405-412. Children, World Conference against the Commercial Sexual Exploitation of. 1996. Coughlan, S et al. "Global Reach, Local Grasp: constructing Extraterritorial Jurisdiction in the Age of Globalization." C.J.L.T. (2007): 29-32. Currie, Robert and Coughlan, Stephen. "Extraterritorial Criminal Jurisdiction: Bigger or Smaller Frame?" Canadian Criminal Law Review (2003): 141-208. Ferens, Melissa. "An Evaluation of Canada's Child Sex Tourism Legislation Under International Law." INTERNATIONAL LAW, UNIVERSITY OF MANITOBA, FACULTY OF LAW 6 DECEMBER 2004: 1-32. Nations, United. "Report of the World Congress on the Commercial Sexual Exploitation of Children." Stockholm: United Nations, 1996. Regina v. Klassen. No. 24292. The Supreme Court of British Columbia. 19 12 2008. Rush, Florence. CHILD PORNOGRAPHY; in TAKE BACK THE NIGHT: WOMEN ON PORNOGRAPHY. NEW YORK: William Morrow and Co. Inc., 1980. "UN Optional Protocol." 25 MAY 2000. Committee on the Rights of the Child. 2 DECEMBER 2004 <HTTP:www.unhchr.ch/html/menu2/6/crc/treatries/opsc.htm>.