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The amendment buried in the 2022 federal budget bill extends Canadian criminal jurisdiction to space
Publication date:
April 30, 2022 • 12 minutes ago • 3 minutes ago • Join the conversation Space Falcon 9 rocket taking off from Cape Canaveral, Florida, June 28, 2015. Photo: BRUCE WEAVER / AFP / Getty Images
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Buried deep in Canada’s 2022 federal budget implementation legislation is an amendment to the Penal Code that would explicitly extend Canadian criminal jurisdiction to space.
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“A member of a Canadian crew who, during a space flight, commits an act or omission outside Canada which, if committed in Canada, would constitute a criminal offense, shall be deemed to have committed that act or omission in Canada,” reads the measure included in the bill. C-19, the 443-page document implementing the provisions of the 2022 federal budget.
In principle, the amendment means that if a Canadian commits a crime while in space, he will be handcuffed when he returns.
It also probably means that right now Canadians can kill and rob anything they want, as long as they do it in orbit.
The technical lawlessness of space is a problem that has been identified by lawyers for some time. The problem came to the fore in 2019, when an American astronaut serving on the International Space Station was accused of committing the first space crime in history.
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Astronaut Anne McClain has been accused by her estranged husband, Summer Warden, of illegally using an ISS computer to access Warden’s online bank records – which Warden claims is a form of identity theft. The allegations were later found to be untrue, and Warden is now accused of lying to US investigators.
Since 1985, nine Canadians have been in space on missions sponsored by the Canadian Space Agency. These include Julie Payet, Canada’s recently resigned governor-general, and Chris Hadfield, whose command of the International Space Station in 2013 turned him into a kind of astronaut celebrity.
All nine astronauts were highly trained civil servants, bound by a network of professional and international standards designed to keep them under control.
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When it comes to the International Space Station, criminal jurisdiction is bound by the 1998 Treaty establishing the structure to which Canada has signed.
Article 22 of the contract states that everyone on board the station is subject to the criminal jurisdiction of his country. But even then, a gray area remains scattered in the event that an astronaut commits a crime against an astronaut from another country. In this case, the treaty simply advises the parties to the two astronauts to discuss their “respective prosecutorial interests.”
But the legal framework for space is changing as it becomes increasingly populated with private space travelers. Earlier this month, Canadian businessman Mark Patti was aboard Axiom Mission 1, the first all-private manned mission to the International Space Station.
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Canadian businessman Mark Patti in his office with a model of the spacecraft SpaceX in Montreal. Photo by THE CANADIAN PRESS / Paul Chiason
If Patty had committed any crimes while on the International Space Station, he would simply have been charged by Canada under the ISS Treaty of 1998. However, if the crime was committed aboard the SpaceX Crew Dragon capsule carrying Patty to the station, the scene could potentially be prepared for a jurisdictional nightmare.
Canada has, in fact, been involved in a legal scenario of this kind before, although it includes the legally ambiguous jurisdiction of the iceberg, not space.
In 1970, a U.S. citizen living in a research station aboard a floating ice roof shot dead a fellow researcher to death over a dispute over a stolen bottle of homemade wine. Both the accused and the victim are US citizens living in an American facility, but the iceberg was on Canadian territory at the time of the crime.
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Canada eventually relinquished jurisdiction over the case, but the case frightened US authorities to pass a 1984 law criminalizing its citizens if the alleged crime was committed “outside the jurisdiction of any nation.” .
The amendment to the Penal Code, included in the 2022 budget, was made specifically to prepare for Canada’s participation in the Lunar Gateway, a NASA mission to establish a permanent space station in lunar orbit. Ottawa had previously boasted that their participation in the mission would mean that Canada would become only the second nation in history to send one of its citizens out of Earth orbit.
The amendment explicitly states that the Canadian criminal court will apply to the lunar station itself and any “means of transport” to the station. And just in case “on the surface of the moon.”
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