DATE: 20011025
DOCKET: C35784

COURT OF APPEAL FOR ONTARIO

DOHERTY, ROSENBERG and MOLDAVER JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and -

RAFFAELE GRECO

Appellant

David Harris for the appellant
Gillian Roberts for the respondent

HEARD: July 10, 2001

On appeal from the judgment of Justice Robert MacKinnon dated February 9, 2001, upholding the appellant's conviction by Justice Vibert Lampkin for breach of probation dated November 22, 1999.

MOLDAVER J.A.:

[1] The appellant Raffaele Greco appeals from his conviction on a charge of breach of probation. He seeks to have the conviction overturned and an acquittal entered for two reasons. First, he submits that he was not required to comply with the terms and conditions of his probation order while outside of Canada. Second, he argues that even if he was required to comply with his probation order while outside of Canada, s. 6(2) of the Criminal Code prevents him from being convicted because the offence was committed in Cuba, not Canada. For reasons that follow, I would not give effect to either argument and I would dismiss the appeal.

BACKGROUND FACTS

[2] On December 28, 1998, the appellant and his female companion, Trisha Smith, both residents of Ontario, travelled from Toronto to Cuba for a one-week vacation. In the early morning hours of January 4, 1999, the day of their scheduled return to Toronto, Mr. Greco viciously assaulted Ms. Smith in a fit of jealous rage. The attack left Ms. Smith with grave injuries to her face and head, including a fractured cheek bone and a deviated nose.

[3] Manifestly, the assault was serious. If committed in Canada, it would most likely have attracted a charge of aggravated assault punishable by a term of imprisonment not exceeding fourteen years. As it is, the Cuban authorities, though duly contacted by Ms. Smith, chose not to became involved. Instead, they arranged for the police in Canada to meet the appellant and Ms. Smith upon their return to Toronto later that day.

[4] After meeting with the police in Toronto, Ms. Smith was advised that the appellant could not be charged with assault in Canada because the physical attack upon her had occurred in Cuba. However, follow-up investigation revealed that as of January 4, 1999, the date of the alleged assault upon Ms. Smith in Cuba, the appellant was subject to a probation order issued by a judge of the Ontario Court of Justice on May 7, 1997 following his convictions for assault and threatening death. In accordance with s. 732.1(2)(a) of the Criminal Code, a term of that order required that the appellant keep the peace and be of good behaviour. Satisfied that his conduct in Cuba amounted to a breach of that provision, the police laid an information against the appellant on March 4, 1999, charging that:

Raffaele Greco, on or about the 4 day of January 1999, at the country of Cuba, did while bound by a probation order made by Provincial Court Regional Municipality of Peel, on the 7 day of May 1997, fail without reasonable excuse to comply with such order, to wit keep the peace and be of good behaviour, contrary to the Criminal Code of Canada 733.1(1).

[5] The Crown elected to proceed by way of summary conviction and the trial proceeded before Lampkin J. of the Ontario Court of Justice. At his trial, the appellant moved to have the charge stayed on the basis that the court lacked jurisdiction to try the offence. In a nutshell, it was his position that since the conduct forming the alleged breach of probation occurred in Cuba, a court in Ontario lacked jurisdiction to try the offence in light of s. 6(2) of the Criminal Code which reads:

6.(2) Subject to this Act or any other Act of Parliament, no person shall be convicted or discharged under section 730 of an offence committed outside Canada.

[6] On May 21, 1999, Lampkin J. dismissed the motion to stay for reasons reported at (1999) 1999 32159 (ON CJ), 136 C.C.C. (3d) 271. On November 22, 1999, following a trial on the merits, Lampkin J. found the appellant guilty as charged. His reasons for conviction are reported at (1999) 1999 18635 (ON CJ), 141 C.C.C. (3d) 36. On December 2, 1999, the appellant was sentenced to nine months imprisonment and probation for three years. In addition, a ten year prohibition order under s. 110 of the Criminal Code was imposed.

[7] The appellant appealed by way of summary conviction appeal to the Ontario Superior Court of Justice and on February 9, 2001, MacKinnon J. released written reasons reported at (2001) 2001 28397 (ON SC), 152 C.C.C. (3d) 17, dismissing his appeal from both conviction and sentence. On February 15, 2001, the appellant was granted leave to appeal against conviction to this court.

ISSUES

[8] This appeal raises the following two issues:

(1) Was the appellant required to comply with the terms and conditions of the May 7, 1997 probation order while outside of Canada?

(2) If the answer to issue one is 'yes', then, accepting that his assaultive conduct in Cuba constituted a breach of probation, did the Ontario Court of Justice have jurisdiction to try the offence and convict the appellant?

[9] Lampkin J. addressed this issue in his May 21, 1999 ruling. As his reasons indicate, he recognized that there were no authorities directly on point and that "this case is new". In the end however, it was his considered opinion that probation orders, while in force, follow probationers wherever they go:

In the old common law there was a broad division of court orders into two categories: orders in rem and orders in personam. Orders in rem were orders that were applicable against the whole world. Thus decrees of divorce which affected the status of the parties or orders of custody were said to be orders in rem. Those were orders binding on the whole world … By contrast, orders in personam were orders which affected particular individuals. Thus an order for one spouse to pay maintenance to the other was an order in personam. If the payor spouse left Canada, it may be difficult to enforce the order in the absence of some reciprocal enforcement of orders statute between Canada and that person's new country of residence. But the order is extant and is enforceable if the defaulter returns to Canada. A probation order made against a particular individual is of the nature of an order in personam. It orders the probationer to do or refrain from doing certain things. On this analysis, I agree with the Crown that a probation order, while it is in force, follows the probationer wherever he goes.

[10] In his reasons for conviction dated November 22, 1999, Lampkin J. expanded somewhat on his earlier analysis as follows:

… Ordinarily, a citizen who is not subject to the terms of a probation order need only observe the laws of a foreign country where he happens to be. But a citizen in a foreign country who is obligated to observe the terms of a probation order has a double obligation. He must (a) observe the laws of the country where he happens to be; and (b) observe the terms of the probation order. If he breaches the terms of the probation order by committing an offence under the law of Canada, then he is answerable for that breach in Canada.

Reasons of MacKinnon J. on appeal

[11] MacKinnon J. agreed with Lampkin J. that probation orders follow probationers wherever they go and that the terms and conditions of such orders must be adhered to both at home and abroad:

… Breach of probation is a crime in Canada only because it is prohibited by Canadian law. It is of consequence only to Canada as the original sentencing jurisdiction. It is an order imposed as part of a criminal sentence and is a means of maintaining control over an offender beyond the sentencing date. It is logical that the issuing court maintain jurisdiction to prosecute a breach regardless of where it was committed. The location of the committing acts may make the proof in Canada more difficult, but that is not the question. A probation order is an order in personam and follows the probationer wherever she or he goes. Probation was a component of the appellant's sentence and his sentence was not complete until he obeyed the conditions for the duration of its term. The condition to keep the peace and be of good behaviour meant that the appellant was not to violate any law of Canada for the length of the probation order. It matters not whether he is in Cuba or Germany - if he commits an offence which would be punishable in Canada he may be prosecuted for failure to keep the peace and be of good behaviour. The trial judge correctly observed that placing a person on probation requires that person to be subject to the criminal law of Canada, and that a vacationing probationer is also required to observe the local laws of the foreign state in which he finds himself. The probationer is not free to disregard local laws, but rather faces the additional burden of being subject to two sets of laws under which he must govern his conduct. This interpretation demonstrates no disrespect for the laws of Cuba.

Analysis

[12] The issue at hand is one of first impression. I know of no authority directly on point. In the end, I believe that Lampkin J. came to the correct conclusion.

[13] To begin, I know of no rule or principle of international law that would deprive a judge of the Ontario or Superior Court of Justice of jurisdiction to make a probation order binding the conduct of a probationer both at home and abroad. To be sure, the principle of "extraterritoriality", which is defined by James R. Fox in The Dictionary of International and Comparative Law (1997), at p. 47 as the "operation of laws upon persons or rights beyond the territorial limits of the state enacting such laws", may impact on Canada's ability to enforce such orders.

[14] For example, if a probationer commits a breach of the order while abroad and fails or refuses to voluntarily return to Canada, then, absent a right of extradition or some other co-operative arrangement with the foreign state, Canada would likely be powerless to bring the offender to justice. Likewise, if the "offensive conduct" abroad is conduct that the probationer is required to engage in or refrain from under the laws of the foreign state, prosecution in Canada could well constitute an affront to the requirements of international comity and result in our courts declining jurisdiction.[^1]

[15] But these limitations on the ability of the court to enforce its orders should not be confused with the jurisdiction of the court in the first instance to prescribe orders that bind the conduct of probationers both at home and abroad. In my view, the distinction is an important one and it is essential to a proper understanding of the principle of territoriality. That principle, sometimes referred to as the principle of "the sovereign equality of states", is succinctly summarized by Cory and Iacobucci JJ. at p. 17 of their majority opinion in R. v. Cook (1998), 1998 802 (SCC), 128 C.C.C. (3d) 1 (S.C.C.):[^2]

… In essence, the principle of the sovereign equality of states generally prohibits extraterritorial application of domestic law since, in most instances, the exercise of jurisdiction beyond a state's territorial limits would constitute an interference under international law with the exclusive jurisdiction of another state.

[16] The principle of territoriality is also discussed at some length by Bastarache J. in his concurring reasons in Cook. In the course of that discussion, at pp. 55 and 56, he identifies and explains the important distinction to which I have referred between "jurisdiction to enforce" and "jurisdiction to prescribe":

Any discussion of territoriality begins with the fundamental distinction between a purported enforcement of domestic law in the territory of a foreign state (jurisdiction to enforce), and an attempt to give effect in domestic law to actions, people or things outside of the territory governed by domestic law (jurisdiction to prescribe). Attempts to enforce domestic law directly in the territory of a foreign state are prohibited in all but the most exceptional circumstances. In the words of Professor Brownlie, discussing "Extra-territortorial Enforcement Measures":

The governing principle is that a state cannot take measures on the territory of another state by way of enforcement of national laws without the consent of the latter. Persons may not be arrested, a summons may not be served, police or tax investigations may not be mounted, orders for production of documents may not be executed, on the territory of another state, except under the terms of a treaty or other consent given.

See Ian Brownlie, Principles of Public International Law (4th ed. 1990), p. 307. It was in this sense that the Permanent Court of International Justice observed in The case of the S.S. "Lotus" (1927), P.C.I.J. Ser. A, No. 9, pp. 18-19:

Now the first and foremost restriction imposed by international law upon a State is that - failing the existence of a permissive rule to the contrary - it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.

But in the very next sentence, at p. 19, the International Court makes it very clear that the term "territoriality" has an entirely different meaning where a legal system merely purports to prescribe effects within its own legal system to events taking place abroad:

It does not, however, follow that international law prohibits a State from exercising a jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and their jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.

These two passages clearly illustrate the gulf that separates the principle of territoriality with regard to the jurisdiction to enforce, and territoriality as it might constrain the prescription of juridical consequences within the domestic legal system. [Emphasis added.]

[17] Although Bastarache J. was speaking only for himself and Gonthier J., I do not understand the majority to take exception with the general principles outlined in the passage above. Those principles make it clear that subject to certain limitations, a state can extend the application of its laws and the jurisdiction of its courts to persons, property and acts outside of its territory without offending against the principle of territoriality. That of course, explains the various provisions of the Criminal Code in which Canada has asserted jurisdiction over persons who commit certain offences outside of Canada.[^3] Those provisions are necessary because without them, s. 6(2) of the Code would preclude convictions or findings of guilt for offences committed outside of Canada. But for present purposes, just as there is nothing in the principle of territoriality that prevents Canada from enacting laws enforceable in Canada that govern the conduct of persons outside of its territory, the principle of territoriality does not prevent courts from issuing orders, enforceable locally, that govern conduct outside of Canada.

[18] Nor does anything in the Criminal Code or any other relevant statute preclude a probation order that governs conduct outside of Canada. Manifestly, in light of s. 6(2) of the Code, the fact that probationers may be bound by the terms of their probation orders while abroad will be of no consequence if it cannot otherwise be established that the offence of breach of probation was committed in Canada. That however, is the subject of the second issue on appeal and it should not be confused with the issue at hand.

[19] In support of his position that probation orders only bind the conduct of probationers while in Canada and not elsewhere, the appellant relies on s. 733.1(2) of the Criminal Code which reads as follows:

An accused who is charged with an offence under subsection (1) [breach of probation] may be tried and punished by any court having jurisdiction to try that offence in the place where the offence is alleged to have been committed or in the place where the accused is found, is arrested or is in custody, but where the place where the accused is found, is arrested or is in custody is outside the province in which the offence is alleged to have been committed, no proceedings in respect of that offence shall be instituted in that place without the consent of the Attorney General of that province.

[20] The appellant submits that in enacting that provision, Parliament showed deference to the principle of territoriality by making it clear that probation orders are only meant to bind the conduct of probationers in Canada and not elsewhere. With respect, I disagree with that interpretation.

[21] Section 733.1(2) does not speak one way or the other to the question whether probation orders bind the conduct of probationers while abroad as well as in Canada. Rather, it speaks to what court in Canada has jurisdiction over an accused charged with breach of probation. In other words, it deals with venue, not the reach of probation orders. The first part of the provision simply reaffirms the common law principle that jurisdiction is territorial and in the case of breach of probation, an offender may be tried and punished by a court of competent jurisdiction "in the place where the offence is alleged to have been committed". The second part of the provision broadens the jurisdictional ambit by providing that offenders can be tried and punished for the offence of breach of probation by a court of competent jurisdiction in any province where they are found, arrested or in custody, with the consent of that province's Attorney General, even though the offence itself was not committed in that province.

[22] There is nothing in s. 733.1(2) to suggest that the offence is committed solely in the place where the conduct forming the breach occurred. Indeed, if anything, I read s. 733.1(2) as recognizing, at least implicitly, that the offence of breach of probation can be committed in more than one province, including the province where the order is made and the province where the conduct forming the breach occurred. For present purposes, however, suffice it to say that just as s. 6(2) of the Criminal Code is not dispositive of the issue whether probation orders bind the conduct of probationers outside of Canada, the same applies to s. 733.1(2) of the Code.

[23] It follows, in my view, that there is no basis in international or domestic law for concluding that a judge of the Ontario or Superior Court of Justice lacks the jurisdiction to issue a probation order, enforceable in Canada, that binds the conduct of probationers both at home and abroad.

[24] Nor, in my view, are there policy reasons for coming to a different conclusion. The notion that probationers are only bound by the terms and conditions of their probation orders while in Canada and that they can ignore or circumvent such orders with impunity by setting foot across the border is one that I refuse to accept. Apart from being illogical, I can see no justification for it once it is accepted that the requirements of comity remain sacrosanct and that Canadian courts will decline jurisdiction in cases where to do otherwise would result in a contravention of those requirements.

[25] Policy considerations strongly favour an interpretation that makes the order binding on probationers regardless of where they happen to be. As this case vividly demonstrates, conduct outside of Canada in breach of a probation order made in Canada can have a serious and immediate impact within Canada. The treatment, protection and safety of the victim of this assault who lives in Canada are legitimate concerns of the Canadian criminal justice system. It is entirely consistent with those concerns that persons within the reach of Canadian courts be held to account for breaching an order made in Canada.

[26] From a practical point of view, treating probation orders as if they were light bulbs that can be switched on and off depending on the location of the probationer, gives rise to logistical problems and fairness concerns. If probation orders cease to apply to probationers when they cross the border, then courts, probation officers and probationers alike would be faced with the logistical nightmare of having to keep track of the precise number of days or part days on which the order is operative and the days on which it is not. In oral argument, counsel for the appellant conceded, correctly in my view, that were a probationer only bound by a probation order when in Canada, then the clock would stop ticking and the order would cease to run when the probationer left Canada.

[27] Even more troublesome is the unfairness this would occasion to those probationers who, for legitimate work, family or treatment related reasons, are required to be outside of Canada during the period of probation. If the appellant is right, such probationers, though in complete compliance with the terms of their probation orders while outside of Canada, would nonetheless receive no credit for such periods of time and the length of their probationary period would be extended accordingly. For my part, I see no reason why compliant probationers should be prejudiced in that way.

[28] For these reasons, I am satisfied that the courts of this province have the authority to make probation orders, enforceable locally, that bind the conduct of probationers both at home and abroad. The only remaining question is whether to be effective abroad, the probation order must contain an express provision to that effect. In my view, it need not.

[29] I think that a common sense inference can and should be drawn that, subject to the requirements of comity, probation orders are meant to apply to probationers at all times wherever they might be, absent a specific term to the contrary. In this respect, I agree with Lampkin J. that a probation order is an order made in respect of a particular individual and so long as it remains in force, it attaches to that individual wherever he or she may go.

[30] The territorial reach of a probation order, like any other court order, is a matter of interpretation. The language of the order and the policies served by the order must be considered.

[31] The order in the present case contains no reference to its territorial scope. This silence provides no assistance as to the reach of the order. There is no suggestion that the question of whether the order should apply to conduct outside of Canada was canvassed when the order was made. As there is no presumption that an order applies only to conduct within Canada, the absence of any express reference in this probation order to its territorial reach is not indicative of any limitation on that reach. Certainly, there is nothing inherent in the nature of the term breached in this case (to keep the peace and be of good behaviour) that would suggest a territorial limitation.

[32] In sum, I am satisfied that the appellant was required to comply with the terms and conditions of his May 7, 1997 probation order while in Cuba. Accordingly, I would answer issue one in the affirmative.

Issue Two: If the answer to issue one is 'yes', then, accepting that his assaultive conduct in Cuba constituted a breach of probation, did the Ontario Court of Justice have jurisdiction to try the offence and convict the appellant?

[33] The appellant submits that the Ontario Court of Justice had no jurisdiction to convict him for the offence of breach of probation because the conduct forming the breach occurred outside of Canada and s. 6(2) of the Code states that subject to Parliament legislating otherwise, no one can be convicted of an offence committed outside of Canada.

[34] Manifestly, the appellant's submission turns on whether the offence of breach of probation was or was not committed in Canada. If it was, his appeal fails; if not, it succeeds.

Reasons of Lampkin J.

[35] Lampkin J. was satisfied that the offence of breach of probation was committed in Canada. Applying the "real and substantial link" test enunciated by LaForest J. in R. v. Libman (1985), 1985 51 (SCC), 21 C.C.C. (3d) 206 at 232, he stated the following in his May 21, 1999 ruling:

The first link in the chain of events constituting the offence of breach of a probation order is to prove that there was a probation order in existence at the time of the alleged offence. Then the prosecution must proceed to prove the breach. The real and substantial link between the offence and Canada starts with the order made in Canada.

MacKinnon J.'s reasons on appeal

[36] MacKinnon J. agreed with Lampkin J. that "the Supreme Court decision in Libman governs the approach to territorial jurisdiction". He then went on to explain why in his view, the facts of this case satisfied the "real and substantial link" test identified in Libman:

The appellant was placed on probation and signed the probation order in Ontario before an Ontario court. Without that order there could be no offence. It seems clear and obvious to me that only Ontario has a "real and substantial link" to the offence. The case at bar does not raise concerns about international comity given that Cuba could not have tried the appellant for breaching a Canadian court order in the absence of reciprocal enforcement of judgment legislation. In fact, the authorities in Cuba refused to take any action with respect to the admitted behaviour of the appellant and instead encouraged the victim to deal with the matter upon her return to Canada.

Canada has a legitimate interest in prosecuting the breach in that Canada has an interest in upholding its own penal legislation. The appellant's breaching acts in Cuba as directed at Trisha Smith may or may not violate any Cuban law. However, in breaching his Ontario probation order, the appellant violated the conditions of his Canadian sentence.

It could hardly be said that it would offend international comity if the accused's breach of Canadian probation were to be prosecuted in Canada in that it is not detrimental to the interests of Cuba to prosecute the accused here in Canada for that offence. The appellant's failure to keep the peace and be of good behaviour while in Cuba resulted in direct harm to Trisha Smith while in Cuba and continuing on her return to Canada during her recovery period. His actions in failing to keep the peace, construed broadly, also bear on the integrity of the Canadian criminal justice system as perceived both at home and abroad.

It cannot be said that the charge of breach of probation in Ontario would interfere with the sovereignty of Cuba by seeking to prosecute and punish the appellant for conduct which has no connection with Ontario. An Ontario Court made the order. The order was designed to control the conduct of that Canadian who had been convicted of a violent offence in Ontario. The breaching acts were perpetrated against another Canadian citizen while the terms of the appellant's probation order continued in effect.

Analysis

[37] In Libman, supra, at p. 232, LaForest J. summarized the approach to the limits of territoriality as follows:

As I see it, 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. As it is put by modern academics, it is sufficient that there be a "real and substantial link" between an offence and this country, a test well known in public and private international law . . . [Citations omitted.]

[38] Two additional passages from that decision assist in fleshing out the meaning of the "real and substantial link" test and the factors encompassed by it. The first is found at pp. 230-31:

Starting with R. v. Ellis, [1899] 1 Q.B. 230, in England, the courts began to use another test: that an offence takes place where its gist or gravamen occurs. This approach was particularly prevalent in Canada. It is possible to explain many of the cases on this basis which, at a superficial level, may seem rational. The location of the offence according to this approach also corresponds to the place where the fruits of the wrongful scheme are obtained, so one can easily be led into thinking that is where the wrongful act takes place …

Sometimes the gist or gravamen test is associated (though the two may be looked at separately) with the "completion of the offence" or terminatory test, as in the present case, for example. This seems more prevalent in England, at least in the eyes of some academics: see, for example, Glanville Williams, supra [Professor Glanville Williams, "Venue and the Ambit of Criminal Law" (1965), 81 L.Q.R. 266. That test may have the advantage of removing criminal liability for acts that take place after the offence as defined is completed, but it also has the result of removing from consideration earlier acts constituting the offence, here the fraudulent activities alleged to have occurred in Toronto.

It also ignores the fact that the fruits of the transaction were obtained in Canada as contemplated by the scheme. Their delivery here was not accidental or irrelevant. It was an integral part of the scheme. While it may not in strictness constitute part of the offence, it is, I think, relevant in considering whether a transaction falls outside Canadian territory. For in considering that question we must, in my view, take into account all relevant facts that take place in Canada that may legitimately give this country an interest in prosecuting the offence. One must then consider whether there is anything in those facts that offends international comity… [Emphasis added.]

The second is found at p. 232:

Just what may constitute a real and substantial link in a particular case, I need not explore. There were ample links here. The outer limits of the test may, however, well be coterminous with the requirements of international comity. [Emphasis added.]

[39] In concluding, as I have, that the "real and substantial link" test has been met in this case, I begin with the observation that the requirements of comity, which LaForest J. believed might "well be coterminous" with "the outer limits of the test", are not engaged at all on the facts of this case.

[40] From the outset, the Cuban authorities made it clear that they had no interest in investigating or prosecuting the appellant for his conduct in Cuba. Moreover, to state the obvious, there is no suggestion from anyone that the appellant's violent conduct towards Ms. Smith was justified or condoned, let alone required, under Cuban law; nor is there any evidence that Cuba has ever registered a complaint with Canada over the prospect of the appellant's prosecution in Canada for the offence of breach of probation.

[41] That, of course, only makes sense. Whereas Canada has a vital interest in ensuring that orders made by Canadian courts are complied with, Cuba has no such comparable interest. Indeed, absent some form of reciprocal enforcement agreement, of which there is none here, I fail to see how Cuba would have jurisdiction to enforce the terms of a probation order made by a Canadian court even if of a mind to do so.

[42] Once it is understood that Canada is the only country that has an interest in ensuring compliance with orders made by Canadian courts, little more need be said in terms of the "real and substantial link" test. The probation order in the instant case was imposed upon the appellant by an Ontario court. It required him to keep the peace and be of good behaviour both at home and abroad. Importantly, the offence in issue arises out of a breach of that order, a factor which I consider to be crucial in the application of the "real and substantial link" test. To the extent that he breached that order, Canada alone has an interest in bringing him to justice and it may do so. The requirements of international comity do not dictate otherwise.

[43] Finally, there is no suggestion that the violent assault on Ms. Smith did not constitute a breach of the term requiring the appellant to keep the peace and be of good behaviour.

[44] Accordingly, I have no hesitation in concluding that the offence of breach of probation was committed in Ontario and that s. 6(2) of the Code therefore has no application. It follows that the Ontario Court of Justice had jurisdiction to try and to convict the appellant.

[45] The appellant was bound by the terms and conditions of his May 7, 1997 probation order when he violently assaulted Ms. Smith in Cuba. This assault amounted to a breach of the term requiring him to keep the peace and be of good behaviour. The offence was committed in Canada and there are no comity requirements that would cause a Canadian court to decline jurisdiction. Accordingly, I would dismiss the appellant's appeal from conviction.

Signed: "M.J. MOLDAVER J.A."

"I AGREE DOHERTY J.A."

"I AGREE MARC ROSENBERG J.A."

RELEASED: OCTOBER 25, 2001 "DHD"

[^1]: In Libman v. The Queen (1985), 1985 51 (SCC), 21 C.C.C. (3d) 206 at 233, LaForest J., for the court, explained that the term "comity" means "no more, nor less than 'kindly and considerate behaviour towards others'".

[^2]: At issue in Cook was whether the investigative actions of Canadian authorities on foreign soil, in connection with a crime committed in Canada and to be prosecuted in Canada, were subject to the Charter.

[^3]: See for example ss. 7, 46(3), 57, 74 and 465(4) of the Code.