Libman v. The Queen

Libman v. The Queen
Collection
Supreme Court Judgments
Date
1985-10-10
Report
[1985] 2 SCR 178
Case number
18381
Judges
Dickson, Robert George Brian; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 18381
Decision Content
Libman v. The Queen, [1985] 2 S.C.R. 178
Murray A. Libman Appellant;
and
Her Majesty The Queen Respondent.
File No.: 18381.
1985: February 2; 1985: October 10.
Present: Dickson C.J. and McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest JJ.
on appeal from the court of appeal of ontario
Criminal law ‑‑ Jurisdiction ‑‑ Territoriality ‑‑ Charges of fraud and conspiracy to commit fraud ‑‑ Toronto‑based telephone sales scheme involving Central American mining shares ‑‑ Calls directed at U.S. residents ‑‑ Follow up from and monies sent to Central America ‑‑ Portion of proceeds brought back to Canada ‑‑ Whether or not jurisdiction to try in Canada ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 5(2), 423(1)(d).
Appellant was committed for trial on seven counts of fraud and one count of conspiracy to commit fraud arising out of the conduct of his Toronto telephone sales solicitation room. Pursuant to appellant's directions, telephone sales personnel telephoned U.S. residents and attempted to induce them to buy shares in two Central American mining companies. Promotional material was mailed from Central America. The sales personnel were directed to make material misrepresentations with respect to their identity, to where they were telephoning from, and to the quality and value of the shares they were selling. As a result of these misrepresentations, a large number of U.S. residents were induced to buy virtually valueless shares in the two mining companies. Their money was sent to Central America, where appellant received his share to take back to Toronto. The accused, by motion, sought to have the committal for trial quashed on the ground that the alleged offences occurred outside Canada, but the motion was refused. An appeal to the Ontario Court of Appeal was dismissed.
Held: The appeal should be dismissed.
The counts of fraud on which appellant stood charged could be properly prosecuted in Canada and nothing in the requirements of international comity dictated that Canada not exercise jurisdiction. The conspiracy count could be proceeded with as the fraudulent activities occurred in Canada.
In considering whether a criminal transaction falls outside territorial jurisdiction, account must be taken of all the relevant facts that took place in Canada giving this country an interest in prosecuting the offence and of whether or not anything in those facts offended against international comity. 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 Canada. Sufficient activities preparatory to this fraudulent scheme occurred in Canada to warrant a court's holding that the offence took place in Canada: the scheme was devised here and the whole operation that made it function, including the directing minds and the telephone solicitation, was situated here. The fact that cases where the victims would be harmed outside the country would be caught made no difference. If an accused were prosecuted for the same offence in more than one country, any injustice could be obviated by the pleas of autrefois acquit or autrefois convict. No issue of comity was involved. The interests of other countries are not served by allowing criminals based in this country to prey on their citizens.
Cases Cited
R. v. Brixton Prison Governor, Ex parte Rush, [1969] 1 All E.R. 316; Re Chapman (1970), 5 C.C.C. 46; Board of Trade v. Owen, [1957] A.C. 602; Treacy v. Director of Public Prosecutions, [1971] A.C. 537; Director of Public Prosecutions v. Doot, [1973] A.C. 807, considered; R. v. Martin, [1956] 2 All E.R. 86; The Lotus (1927), P.C.I.J., Ser. A., No. 10; R. v. Keyn (1876), 2 Ex. D. 63; Macleod v. Attorney‑General for New South Wales, [1891] A.C. 455; R. v. Holmes (1883), 12 Q.B.D. 23; R. v. Jacobi and Hiller (1881), 46 L.T.R. 595n; R. v. Nillins (1884), 53 L.J.Q.B. (N.S.) M.C. 157; R. v. Godfrey, [1923] 1 K.B. 24; R. v. Peters (1886), 16 Q.B.D. 636; R. v. Ellis, [1899] 1 Q.B. 230; R. v. Stoddart (1909), 2 Cr. App. R. 217; R. v. Mackenzie and Higginson (1910), 6 Cr. App. R. 64; R. v. Robert Millar (Contractors) Ltd.; R. v. Millar, [1970] 2 Q.B. 54; R. v. Baxter, [1972] 1 Q.B. 1; R. v. Lyle (1924), 18 Cr. App. R. 59; R. v. Cox, [1968] 1 All E.R. 410; R. v. Harden, [1962] 1 All E.R. 286; Athanassiadis v. Government of Greece, [1969] 3 All E.R. 293; R. v. Tirado (1974), 59 Cr. App. R. 80; R. v. Governor of Pentonville Prison, Ex parte Khubchandani (1980), 71 Cr. App. R. 241; R. v. Wall, [1974] 1 W.L.R. 930; Secretary of State for Trade v. Markus, [1976] A.C. 35; Croft v. Dunphy, [1933] A.C. 156; R. v. Blythe (1895), 1 C.C.C. 263; Re Gertie Johnson (1904), 8 C.C.C. 243; R. v. Wettman (1894), 1 C.C.C. 287; R. v. Walkem (1908), 14 C.C.C. 122; In Re Criminal Code Sections Relating to Bigamy (1897), 27 S.C.R. 461; United States of America v. Novick (1960), 128 C.C.C. 319; R. v. Bachrack (1913), 21 C.C.C. 257; Ecrement v. Cusson and Connolly (1919), 33 C.C.C. 135, aff'd. (1920), 30 Que. K.B. 55; Shulman v. The King (1946), 2 C.R. 153; Re Brisbois (1962), 133 C.C.C. 188; Re Devlin, [1964] 3 C.C.C. 228; Re Hanes and The Queen (1982), 69 C.C.C. (2d) 420; R. v. Selkirk, [1965] 2 C.C.C. 353; R. v. Trudel, Ex parte Horbas and Myhaluk, [1969] 3 C.C.C. 95; R. v. W. McKenzie Securities Ltd., [1966] 4 C.C.C. 29; R. v. Olan, [1978] 2 S.C.R. 1175; Burrows v. Jemino (1726), 2 Strange 733, 93 E.R. 815; R. v. Roche (1775), 1 Leach 134, 168 E.R. 169; R. v. Azzopardi (1843), 2 Mood. 288, 169 E.R. 115; R. v. Aughet (1918), 13 Cr. App. R. 101; Bolduc v. Attorney General of Quebec, [1982] 1 S.C.R. 573, referred to.
Statutes and Regulations Cited
Bankruptcy Act, 1883 (U.K.), 46 & 47 Vict., c. 52.
Crimes Act 1961, 1961 (N.Z.), No. 43, s. 7.
Criminal Code, R.S.C. 1970, c. C‑34, ss. 5(2), 423(1)(d), (3).
Fugitive Offenders Act 1967, 1967 (U.K.), c. 68.
Securities Act, R.S.M. 1954, c. 237.
Statute of Westminster, 1931, R.S.C. 1970, App. II, No. 26.
Authors Cited
American Law Institute. Model Penal Code (Proposed Official Draft), Philadelphia, American Law Institute, 1962.
Canada. Law Reform Commission of Canada. Extraterritorial Jurisdiction (Working Paper 37), Ottawa, Minister of Supply and Services, 1984.
Canada. Law Reform Commission of Canada. Our Criminal Law (Report 3), Ottawa, Minister of Supply and Services, 1979.
England. The Law Commission. Report on the Territorial and Extraterritorial Extent of the Criminal Law (Law Com. 91), in Law Commission Reports, collected edition (unabridged), Abington, Oxford, Professional Books Ltd., 1978.
Hall, Lynden. " ‘Territorial’ Jurisdiction and the Criminal Law," [1972] Crim. L.R. 276, 276‑287.
Williams, Glanville. "Venue and the Ambit of Criminal Law" (1965), 81 L.Q.R. 276, 276‑288, 395‑421, 518‑538.
Williams, Sharon A. and J.‑G. Castel. Canadian Criminal Law, International and Transnational Aspects, Toronto, Butterworths, 1981.
APPEAL from a judgment of the Ontario Court of Appeal (1984), 8 C.C.C. (3d) 351n, dismissing an appeal from a judgment of Osler J. (1983), 6 C.C.C. (3d) 284, dismissing an application to quash the committal order for trial made by Kerr P.C.J. Appeal dismissed.
Symon Zucker, for the appellant.
John Pearson, for the respondent.
The judgment of the Court was delivered by
1. La Forest J.‑‑The appellant, Murray A. Libman, was committed for trial on seven counts of fraud and one count of conspiracy to commit fraud. Some of the activities on which these charges are based occurred outside Canada, and the accused sought, by motion, to have the committal quashed on the ground that the alleged offences occurred outside Canada, but the motion was refused. An appeal to the Ontario Court of Appeal was dismissed. Mr. Libman then sought and was granted leave to appeal to this Court.
Facts
2. The parties agreed to the following facts for the purposes of this appeal.
3. During the period covered by the informations, Mr. Libman operated a telephone sales solicitation room (or "boiler room") at 43 Menin Road in Toronto, where a number of individuals were employed as telephone sales personnel. Pursuant to Mr. Libman's directions the sales personnel telephoned United States residents and attempted to induce them to purchase shares in two companies, Hebilla Mining Corporation and Claravella Corporation, which purported to be engaged in gold mining in Costa Rica. In addition to the telephone representations, the United States residents also received promotional material which was mailed from Panama City, Panama and San José, Costa Rica by associates of Mr. Libman.
4. The telephone sales personnel, on the direction of Mr. Libman, made material misrepresentations with respect to their identity, where they were telephoning from, and the quality and value of the shares they were selling. As a result of these misrepresentations, a large number of United States residents were induced to purchase shares in the two mining companies. There was some evidence tendered at the preliminary inquiry from which it could be inferred that these shares were virtually worthless.
5. The United States residents who agreed to purchase shares were told by the telephone sales personnel to send their money to offices operated by Mr. Libman's associates in either San José, Costa Rica or Panama City, Panama. There was evidence tendered that Mr. Libman went to a location outside Canada, usually Costa Rica or Panama, to meet with his associates and receive his share of the proceeds of the sale of the shares. Mr. Libman then brought this money back to Toronto and distributed a portion of it to his sales personnel. There was also evidence tendered at the preliminary inquiry with respect to the wire transfer of monies from Panama City to Mr. Libman in Toronto.
Major Issues on Appeal
6. The basic point raised by the appellant was that the deprivation of the victim was an essential element, indeed, the essential element or grava‑ men, of the offence of fraud, and that any deprivation suffered by the purchasers of the shares in the present case had occurred outside Canada. The alleged offences could, therefore, not be prosecuted in Canada.
7. This point of view involves selecting one ingredient of an offence as its essential ingredient and holding that the offence occurred where the portion of the transaction constituting that ingredient took place. On this issue counsel for the appellant principally relied on R. v. Brixton Prison Governor, Ex parte Rush, [1969] 1 All E.R. 316, a decision of an English divisional court on facts substantially similar to the present case.
8. For its part, the Crown relied on Re Chapman (1970), 5 C.C.C. 46, a decision of the Ontario Court of Appeal which is also similar to the present case except that the proceeds of the sale were originally received by the accused in Canada and not in a foreign country. But the Crown also argued the case on the broader ground that the offences had been substantially committed in Canada, the fraudulent scheme having been devised and operated here and the proceeds accruing from it having been received by Mr. Libman in Canada as contemplated by the scheme.
9. The conspiracy charge was dealt with by Kerr J. who committed the accused to trial under s. 423(1)(d), which applies to conspiracies to commit a criminal offence in Canada, and not under s. 423(3) which expressly deals with conspiracies entered into in Canada to commit a crime outside Canada. The latter provision was enacted after some of the acts charged occurred, and in any event it was not relied on. Counsel for the defence, therefore, argued that s. 423(1)(d) applied only to conspiracies entered into in Canada to commit a substantive offence here which, if his argument that the gravamen of the substantive offence occurred abroad is accepted, was not the case here. For this proposition he also relied on Board of Trade v. Owen, [1957] A.C. 602, where the House of Lords held that a conspiracy in England to do a wrongful act abroad was not subject to prosecution in England.
General Considerations
10. Transnational offences of the kind in question here have been dealt with in a rather confusing fashion, probably because they are not of a type individual courts are called upon to deal with frequently. Accordingly, it will be useful to examine the legal background on a broad basis as the argument of the Crown rather invites us to do.
11. The primary basis of criminal jurisdiction is territorial. The reasons for this are obvious. States ordinarily have little interest in prohibiting activities that occur abroad and they are, as well, hesitant to incur the displeasure of other states by indiscriminate attempts to control activities that take place wholly within the boundaries of those other countries; see R. v. Martin, [1956] 2 All E.R. 86, at p. 92. It is, however, permissible under international law to exercise jurisdiction on other bases. For example, states have long exercised jurisdiction over ships that fly their flags and over their nationals abroad. As well, along with other types of protective measures, states increasingly exercise jurisdiction over criminal behaviour in other states that has harmful consequences within their own territory or jurisdiction; see The Lotus (1927), P.C.I.J., Ser. A., No. 10. It follows from this that the same criminal act may occasionally be subject to prosecution in more than one country, a matter to which I shall refer from time to time.
The English Legal Background
12. So far as this country is concerned, the English legal background necessarily sets the stage for our own experience. However, in this area there have been differences in emphasis so it is useful to deal with the experience in the two countries separately, beginning with the English.
13. Great Britain probably followed the territorial principle more stringently than other states. This was probably owing to its insular position, but it must also be remembered that most of the common law crimes, other than murder, tended by their nature to be territorially confined. Theft is an example. The early British cases, mostly dealing with murder, do not provide much assistance as the discussion in Board of Trade v. Owen, supra, demonstrates. And though the cases on venue, which involve the question of which court in England has competence to deal with prosecutions for acts committed in several countries within England, are helpful, they involve, as Lord Diplock noted in Treacy v. Director of Public Prosecutions, [1971] A.C. 537, at p. 559, other considerations including the fact that jurors were originally drawn from those who were more likely to know the facts alleged to constitute the crime; see also Director of Public Prosecutions v. Doot, [1973] A.C. 807, per Lord Salmon, at p. 834. I have, therefore, generally ignored the venue cases cited to us.
14. It took some time before English criminal law became sufficiently developed to deal with more sophisticated methods of getting the gullible or unwary to part with their property, by means of false pretenses for example. And it was later still, in the late 19th century following the organization of postal, telegraph and telephone systems that the practitioners of this gentle art of persuasion were able to extend their talents to the international plane. It is at this stage that the English experience really becomes relevant.
15. At this point it should be noted that Parliament seldom adverted to territorial considerations in defining criminal offences. It was rather the courts that confined criminal offences within the realm, sometimes by reference to international comity. It would have been possible, indeed probably more logical as Cockburn C.J. explained in R. v. Keyn (1876), 2 Ex. D. 63, at p. 233, to say that where different elements of an offence take place in two countries, the offence occurs beyond the territorial ambit of either country. But while there were occasional strong expressions of the territorial principle, particularly in earlier times (see Macleod v. Attorney‑General for New South Wales, [1891] A.C. 455, per Lord Halsbury at p. 458), the courts never followed logic that far. It would have permitted a too easy means of avoiding criminal sanctions. But once it is decided that transnational crimes must come within the jurisdiction of one state, then on what basis should one take or refuse jurisdiction?
16. The cases reveal several possibilities, of which I mention a few. One is to assume that jurisdiction lies in the country where the act is planned or initiated. Other possibilities include the place where the impact of an offence is felt, where it is initiated, where it is completed, or again where the gravamen, or essential element of the offence took place. It is also possible to maintain that any country where a substantial or any part of the chain of events constituting an offence takes place may take jurisdiction.
17. Though counsel for Mr. Libman argued that exclusive jurisdiction belongs to the country where the gravamen of the offence took place or where it was completed, a review of the English authorities does not really support that position. What it shows is that the courts have taken different stances at different times and the general result, as several writers have stated, is one of doctrinal confusion, a confusion compounded by the fact that the discussion often focuses on the specific offence charged, a discussion made more complicated by the further fact that some offences are aimed at the act committed and others at the result of that act.
18. The early cases were certainly not concerned with the place of impact of the crime or where the deprivation of the victim took place, or, for that matter, where the crime was completed. Rather, the courts seem to have weighed the various factors connecting the crime to the place where the charges were laid. Thus in R. v. Holmes (1883), 12 Q.B.D. 23, a case that bears some resemblance to the present, the accused wrote and posted a letter at Nottingham addressed to one Gobet in France that contained a false pretence by which Gobet was fraudulently induced to transmit a draft to the accused which the latter then cashed in Nottingham. The Court of Crown Cases Reserved had no difficulty in holding that the offence could be prosecuted in Nottingham where the letter was mailed and the proceeds arising out of the false pretence were paid. Lord Coleridge C.J., at p. 24, thought both ingredients of the offence, the false pretence and the receipt of the money took place there. Interestingly, he went on to suggest that one ingredient taking place in Nottingham would have been sufficient to give the court jurisdiction there.
19. Certainly, about the same time, the cases of R. v. Jacobi and Hiller (1881), 46 L.T.R. 595n, and R. v. Nillins (1884), 53 L.J.Q.B. (N.S.) M.C. 157, (which are remarkably similar to one another) made it clear that a crime could be prosecuted where its impact was felt by the victim; see also R. v. Godfrey, [1923] 1 K.B. 24. In Nillins, the accused sent letters containing false pretences from Southampton, England to a person in Hamburg, Germany, who then transferred goods to agents of the accused in Germany. The accused also sent his victims forged cheques there. In extradition proceedings, the court held he could be surrendered to Germany on the ground that the crime was committed there. In arriving at this conclusion the court, as in the Holmes case, appears to have weighed the factors that substantially connected the crime to the place seeking to prosecute him. Cave J. had this to say at p. M.C. 158:
... it cannot be seriously contended that he did not commit the crime in Germany; he procured the goods there, he uttered the forged notes there, and, further, they were delivered to the merchant of the port or his agent, and upon these the goods were delivered to his order at Hamburg.
20. Taken together, these cases indicate that it might be possible to charge an accused in two different countries, as Lord Coleridge suggests in Holmes. He made this suggestion even more explicit in giving the judgment of the Court of Crown Cases Reserved in the rather similar case of R. v. Peters (1886), 16 Q.B.D. 636. There the accused, an undischarged bankrupt, had, without informing the purchaser as required by the Bankruptcy Act, 1883 bought a horse from a farmer in Ireland for £‑22, the farmer to deliver it, at the direction of the accused on board a steamer at Larne in Ireland. This transaction was effected by means of a letter posted by the accused in Newcastle, England. The court, over Manisty J.'s dissent on the ground that property had passed when the horse was delivered to the carrier in Ireland, held that the offence could be prosecuted in Newcastle. Lord Coleridge's remarks justifying this holding are reminiscent of those of Cave J. in Holmes. He said at p. 639:
... the credit was obtained (assuming it to have been obtained at all) in Newcastle. The prisoner lived there; he wrote to the vendor thence; he received an answer there; he ordered the horse to be sent there; he received it there.
21. In sum, what the courts in these cases appear to have been doing, in determining whether a crime should be prosecuted in a particular area, was to consider the substantial links that connected the crime to that jurisdiction. They do not deny, as their holdings and Lord Coleridge's remarks attest, that there may be sufficient links to different jurisdictions to justify proceedings in more than one place.
22. Before leaving these cases, it is interesting to note that the last of them, Peters, bears a considerable resemblance to the present case. There, the communication came from England (here Canada) and property technically passed in Ireland (here, probably the United States, though possibly Costa Rica or Panama), but the benefit from the transaction was received by the accused in the country where the communication originated.
23. R. v. Ellis, [1899] 1 Q.B. 230, in the Court of Crown Cases Reserved, though not inconsistent with the cases already discussed, reveals an approach that is more supportive than they are of the theory advanced by appellant's counsel. There the major judgments seek to identify the gist or gravamen of the offence as revealed from its definition and hold that the offence was committed where the acts constituting its gist or gravamen occurred. In that case, Ellis who carried on business in Durham, England, obtained goods on credit there on the basis of false representations he had made to the supplier of the goods at the latter's place of business in Glasgow, Scotland, which was treated for the purpose of the case as a foreign country. He was convicted of the charge of obtaining goods by false pretences in Durham, the judges generally appearing to think the gist of the offence was the obtaining of the goods, and not the false pretences. Bruce J. however, gave voice to another theory which also supports the appellant's position. In his view, the offence could properly be dealt with where it was completed, i.e., Durham, notwithstanding that some of its ingredients might have occurred entirely outside the jurisdiction.
24. The "completion of the offence" theory was also used by the Court of Criminal Appeal in the case of R. v. Stoddart (1909), 2 Cr. App. R. 217, but on facts that were somewhat the reverse of those in Ellis. There postal orders obtained by false pretences were mailed in England and received by the defendant's agent abroad. The court concluded that the English criminal courts had jurisdiction, holding that the offence was complete when the letters containing the postal orders were mailed, an approach consistent with cases holding that a contract is complete when the acceptance of an offer is mailed.
25. Application of either the gist of the offence test or the completion of the offence test has the effect of limiting the courts' jurisdiction in criminal matters to a single location, namely, where the essential element of the offence occurred or where it was completed. Such a result does not appear to have occurred in the few cases reported over the next fifty years. In some cases the courts were able to avoid any limiting effect by creating the notion of continuity of offences. Thus in R. v. Mackenzie and Higginson (1910), 6 Cr. App. R. 64, the accused Mackenzie was accused of procuring a girl to have sexual intercourse with Higginson. Everything in the nature of procuring occurred in Scotland but the intercourse took place in London. The court concluded that the offence of procuring is continuous and since a part of the procuration occurred in England, the court had jurisdiction. This approach has continued to be applied in more recent cases; see R. v. Robert Millar (Contractors) Ltd.; R. v. Millar, [1970] 2 Q.B. 54 (C.A.); Treacy v. Director of Public Prosecutions, supra; R. v. Baxter, [1972] 1 Q.B. 1 (C.A.); Director of Public Prosecutions v. Doot, supra.
26. Occasionally, the courts sought refuge in the definition of the offence. Thus in R. v. Lyle (1924), 18 Cr. App. R. 59, the accused was charged with causing the proceeds of a cheque to be converted to his own use. The offence began in Accra on the Gold Coast but was not completed until the proceeds were paid to him in London. This approach has also been followed recently in the cases cited in the last paragraph.
27. Whether the courts during this period seriously intended to depart from the rationale in the early cases like Nillins, Holmes, and Peters it is difficult to say. The cases we have discussed were really not inconsistent with them and interestingly in Lyle the Court of Criminal Appeal clearly contemplated that the accused could have been charged with some of the offences both in London and in Accra. However that may be, it is clear that later, during the 1960's, the English courts did take seriously the notion that an offence could take place at one single locus, whether that was where the offence was completed or where the gist, gravamen or essential element of the offence took place. This approach was also encouraged by the views of a respected academic, Professor Glanville Williams; see "Venue and the Ambit of Criminal Law" (1965), 81 L.Q.R. 276, 276‑288, 395‑421, 518 et seq.
28. Discussion of this period may conveniently begin with the House of Lords' decision in Board of Trade v. Owen, supra, in 1957, although as I will attempt to explain that case is frequently misunderstood and is clearly inconsistent with any theory that an offence takes place where the gravamen or gist of the offence occurs. In that case, the accused were convicted of conspiring in London to defraud an export control department of the Federal Republic of Germany by causing the department to grant licences to export certain metals from Germany by fraudulently representing to the department that the metals would be supplied to Irish manufacturers, the accused well knowing that they would in fact be exported to Eastern Bloc countries. The conviction was, however, quashed by the Court of Criminal Appeal and a further appeal from this decision to the House of Lords was dismissed.
29. In considering that case, it should first be underlined that the conspiracy charged was a common law conspiracy. It involved an agreement in England to commit a crime or to effect an unlawful purpose abroad. It should also be noted that the House, at p. 622, viewed the evidence as showing "that the [false] representations were in fact made in Germany and the licence was issued there". Lord Tucker, who gave the major judgment, carefully distinguished that situation from the conviction for conspiracy to utter forged documents in count 5, which was not appealed, under which he noted, again at p. 622, that "the crime designed to be committed was the uttering of a forged document in this country with intent to defraud, it being immaterial whether the person or persons to be defrauded were in Germany or elsewhere".
30. In coming to its conclusion, the House of Lords expressly stated that it was not departing from the long established view that the gist of the offence of conspiracy was the agreement, which in that case had clearly been effected in England. The rationale of the decision is that the Law Lords simply did not wish to extend the courts' jurisdiction over criminal acts by the technique of conspiracy, which they described as "an already indeterminate field". That offence, it was noted, was devised as a means of preserving the Queen's peace within the realm by preventing the commission of an offence even before it reached the stage of an attempt. The fact that the object of the agreement was to take place outside the realm was, therefore, not irrelevant. The Law Lords left open the question whether a different conclusion might be warranted if the conspiracy resulted in some harmful effect in England, an approach soon adopted by the Court of Appeal in R. v. Cox, [1968] 1 All E.R. 410, and in later cases.
31. Whether the policy underlying the Owen case is sound and whether it accords with the Canadian position, I need not for the moment examine. Suffice it to say that it has nothing to do with the mechanical exercise of determining where the gist or gravamen of the offence took place. Indeed, as I noted, the House of Lords held there was no jurisdiction to try the offence in the English courts despite its express finding that the agreement constituting the gravamen of the offence took place in England.
32. Nonetheless in R. v. Harden, [1962] 1 All E.R. 286, the Court of Criminal Appeal again resorted to the expedient of determining where the acts constituting the gist of the offence had taken place and where the criminal act had been completed in determining the question of jurisdiction. There the accused carried on a business in Eastbourne, England of selling refrigerators, many of which were sold on hire‑purchase terms. To assist in financing the sales he made an arrangement with a finance company for what he called discounting of the hire purchase agreements, i.e., he would assign the agreements to the finance company for the sum owing less the company charges. These amounts were paid, in accordance with the contract between them, by a cheque posted in Jersey made payable to a company controlled by the accused. From time to time the accused forwarded a fictitious hire purchase agreement to the finance company, as a result of which the accused was ultimately charged in England with obtaining money by false pretences. The court held, following Ellis, that he could not be convicted because the gist of the offence, which was the obtaining of the money, was completed in Jersey. The contract between the parties made it clear that the parties intended that property in the cheque passed on posting.
33. The correctness of this case was later doubted by Lord Diplock in the House of Lords in Treacy v. Director of Public Prosecutions, supra, even though the House itself had used similar reasoning shortly before in an extradition case, though it had there held the court had jurisdiction; see Athanassiadis v. Government of Greece, [1969] 3 All E.R. 293. Later still the Court of Appeal in R. v. Tirado (1974), 59 Cr. App. R. 80, carefully confined Harden to its own facts, i.e., to cases where the parties have agreed to the place where delivery is to be made. But that situation must rank as a classic instance of the fallacy of transplanting a category to an inappropriate area. The fact that the parties decide that the posting of a letter shall mark the beginning of the contract has nothing to do with the policies that should guide a court in exercising criminal jurisdiction over a transnational transaction. Harden has, it is true, been followed recently but that was simply on the basis of stare decisis; see R. v. Governor of Pentonville Prison, Ex parte Khubchandani (1980), 71 Cr. App. R. 241 (Div. Ct.) On the basis of subsequent cases to be examined later, it seems clear that only the coup de grâce now remains to be administered.
34. I have elaborated on the treatment of Harden because it was heavily relied on, along with Ellis, Owen and Cox, supra, in R. v. Brixton Prison Governor, Ex parte Rush, supra, which forms the cornerstone of the appellant's case. There Canada sought to obtain the surrender of the accused from Great Britain under the English Fugitive Offenders Act 1967 for a number of offences based on facts on all fours with the present case, and, indeed, including some of the same participants. There, too, the "boiler room" was in Ontario and the people defrauded were United States residents who were invited to send their cheques for the stocks to Panama or Nassau. The charge discussed in the case is one of conspiracy to obtain goods by false pretences. The court refused to surrender the accused on that count since in its view the crime did not take place in Canada even though the cheques were obtained from the victims of the fraud either when they posted them in the United States or, at the latest, when they were received in Panama or Nassau at which point the indictable offence ended. What then happened to the cheques, the court continued, was neither here nor there.
35. I shall have more to say about the Rush case later. For the moment, I shall confine myself to a discussion of the more recent English cases, which clearly indicate that the type of reasoning in Rush and Harden no longer finds favour in the English courts.
36. The first of these cases is Treacy v. Director of Public Prosecutions, supra, decided by the House of Lords in 1971. There the accused in England posted a letter written by him to a woman in West Germany in which he demanded money or face exposure of her private life. He was charged with blackmail in England, i.e., with making an unwarranted demand with menaces. He objected to the court's jurisdiction, but the objection was overruled. On appeal to the Court of Appeal, John Stephenson J., giving the judgment of the court, held that the English courts had jurisdiction to try the offence, the demand having been first made when the letter was posted. He added, at p. 543, that the appellant might also be triable in Germany because "it may be right to regard the demand as continuing until it is received". A majority of the House of Lords agreed that blackmail was committed when the letter was posted but found it unnecessary to decide whether the demand could be considered as continuing until the letter was received. Lord Reid and Lord Morris of Borth‑y‑Gest, however, dissented on the ground that the offence was not completed until the letter was received.
37. Lord Diplock agreed with the majority but also decided the case on broader grounds. In his view, if the facts alleged and proved constitute the offence charged, the only reason (the technicalities of venue being jurisdictional and long ago abolished) for refusing to convict was to be found in the international rules of comity which it must be presumed Parliament did not intend to break. But he interpreted comity narrowly to attempts to regulate conduct abroad and not in the United Kingdom. As he put it, at p. 561:
It would be an unjustifiable interference with the sovereignty of other nations over the conduct of persons in their own territories if we were to punish persons for conduct which did not take place in the United Kingdom and had no harmful consequences there. But I see no reason in comity for requiring any wider limitation than that upon the exercise by Parliament of its legislative power in the field of criminal law.
In particular he noted that comity did not prevent Parliament from prohibiting conduct in England that has consequences abroad. Nor did it give immunity to persons abroad for conduct there that has harmful consequences in England. He continued at pp. 561‑62:
There is no rule of comity to prevent Parliament from prohibiting under pain of punishment persons who are present in the United Kingdom, and so owe local obedience to our law, from doing physical acts in England, notwithstanding that the consequences of those acts take effect outside the United Kingdom. Indeed, where the prohibited acts are of a kind calculated to cause harm to private individuals it would savour of chauvinism rather than comity to treat them as excusable merely on the ground that the victim was not in the United Kingdom itself but in some other state.
Nor, as the converse of this, can I see any reason in comity to prevent Parliament from rendering liable to punishment, if they subsequently come to England, persons who have done outside the United Kingdom physical acts which have had harmful consequences upon victims in England. The state is under a correlative duty to those who owe obedience to its laws to protect their interests and one of the purposes of criminal law is to afford such protection by deterring by threat of punishment conduct by other persons which is calculated to harm those interests. Comity gives no right to a state to insist that any person may with impunity do physical acts in its own territory which have harmful consequences to persons within the territory of another state. It may be under no obligation in comity to punish those acts itself, but it has no ground for complaint in international law if the state in which the harmful consequences had their effect punishes, when they do enter its territories, persons who did such acts.
See also his remarks at pp. 564‑65.
38. Lord Diplock's approach was soon followed by the Court of Appeal, Criminal Division, in R. v. Baxter, supra. There the accused who was resident in Northern Ireland posted letters there addressed to football pool promoters in England falsely claiming that he had correctly forecast the results of football matches and was entitled to winnings. He was charged with attempting to obtain property by deception, but he pleaded that the attempt was completed when the letters were posted in Northern Ireland and in consequence that the attempt was not committed within the jurisdiction of the English courts. The Court of Appeal, however, held that the attempt was a continuing one, and adopted the following ruling of the recorder at p. 11:
The conclusion to which I have come is that the attempts in this case were of a continuing nature. Whenever the defendant posted one of his fraudulent letters in Northern Ireland he set in motion a train of events for which he was solely responsible, the transportation of the letter to Liverpool and its delivery to and reading by the addressee. The reality of the situation is that the misrepresentations were designed to be made in England and were made there by the defendant's use of the post. Whether or not these offences are also triable in Northern Ireland, I am of the opinion they are triable here.
39. The technique of continuing offence was again employed by the House of Lords in Director of Public Prosecutions v. Doot, supra, in 1973 to uphold jurisdiction in the English courts in respect of a conspiracy entered into by aliens abroad to import drugs into England for ultimate shipment to the United States, the drugs having pursuant to the agreement been imported in England. Though the crime could be said to have been complete at the moment of agreement, it was held that the agreement continued while it was being consummated in England. While this appears to ha