WHEN (AND WHERE) IS A CRIME A CRIME?

“DOUBLE CRIMINALITY” AS A PRINCIPLE OF FUNDAMENTAL JUSTICE

Abstract

The principle of double criminality is often understood as a feature of extradition law, where it operates as a requirement that the crime for which an individual is sought for extradition by the requesting state must also be a crime in the requested state. However, it is a principle of broader application, used by many states in a variety of contexts where foreign conduct, alleged to be criminal, must be assessed against domestic criminal law. This paper examines this practice—in Canadian, foreign and international law—as a means of arguing that double criminality is a “principle of fundamental justice” (POFJ) for the purposes of s. 7 of the Canadian Charter of Rights and Freedoms. It further argues that, at the very least, it is a POFJ in the specific context of extradition law and practice.