The long arm of Canadian law could reach to the lunar surface as the government seeks to warn Canadian astronauts that if they commit crimes on the moon, they will still face criminal charges.
The proposed change to the code that would include crimes committed on the moon sits deep within the 443-page budget implementation bill that was tabled in the House of Commons on Tuesday.
The penal code already takes into account astronauts who may commit crimes during a space flight to the International Space Station. Any such crime committed there is considered to have been committed in Canada.
But with Canada being part of the Lunar Gateway project, which also includes a planned trip to the moon, the federal government has moved to amend the Criminal Code to incorporate these new space destinations.
Canadian on the way to the moon
In the Budget Implementation Act, under the subtitle Lunar Gateway — Canadian crew members, the amendment reads as follows:
“A Canadian crew member who, during spaceflight, commits an act or omission outside Canada which, if committed in Canada, would constitute an indictable offense shall be deemed to have committed that act or this omission in Canada.”
This, according to the amendment, includes any act or omission committed on the Lunar Gateway, while in transit to or from the Lunar Gateway, or on the surface of the Moon.
Canada is committed to participating in Lunar Gateway, an orbiting space platform supported by NASA. Indeed, the 2022 federal budget notes that the 2019 budget announced an investment of $1.9 billion over 24 years to build and operate Canadarm 3 for the project.
In December 2020, the Canadian Space Agency (CSA) and NASA signed a treaty confirming Canada’s participation in the Lunar Gateway. He also confirmed that a Canadian will be part of the Artemis II mission, the first crewed mission to the Moon since 1972.
It is in anticipation of these missions that the federal government wants to amend the criminal code to include the potential crimes that could take place.
The question of potential crimes committed in space arose in 2019 when NASA investigated what was called the first alleged crime in space. Astronaut Anne McClain, on a six-month mission aboard the International Space Station, has been accused by her ex-husband, Summer Worden, of inappropriately accessing bank statements from space. McClain was later cleared and Worden was charged with making false statements to federal authorities.
But the case raised potential issues related to space law. As the case made headlines, Ram Jakhu, a professor at McGill University’s Institute of Air and Space Law, writes that the investigation served as an “urgent wake-up call” to establish new legal rules of extraterritorial law.
With the expected exponential growth of space activities, it can reasonably be expected that the number of future space crimes will increase in the future, he wrote. These could range from “murders in space, to the hijacking of a space transportation vehicle and the detonation of a nuclear device in space”.
“It would be logical and imperative that such rules be the same for all space humans, regardless of whether they hold different Earth nationalities.”
International space law
There are five international treaties governing activities in space, but the 1967 Outer Space Treaty, ratified by Canada and more than 100 other countries, is the most relevant when it comes to dealing with alleged crimes in space, wrote Danielle Ireland-Piper, Associate Professor of Constitutional and International Law at Bond University in Australia.
“As to the question of who prosecutes space crimes, the short answer is that a space criminal would generally be subject to the law of the country of which he is a citizen, or the country on which the registered spacecraft the crime was committed. “, Ireland-Piper wrote in a 2019 article for The Conversation.
The International Space Station has its own intergovernmental agreement which states that “Canada, the European Partner States, Japan, Russia and the United States may exercise criminal jurisdiction over personnel in or over any flight element who are their respective nationals.”
But if the victim of a crime on the ISS was a citizen of another partner country, the criminal law of that other country would apply, Irleand-Piper wrote. And if a crime took place in a partner country’s section of the space station, its criminal law may apply.
Holocaust denial law part of budget bill
That the federal budget would even focus on issues related to potential crimes in space might seem odd, but it’s just one of many proposals included this year that wouldn’t necessarily be associated with budget spending.
For example, the budget also includes a proposal to amend the Criminal Code to make it a crime to publicly deny or minimize the Holocaust.
It also proposes to introduce amendments to the Corrections and Conditional Release Act that will prohibit the Correctional Service of Canada from using a controversial form of confinement known as a “dry cell”, where inmates suspected of carrying prohibited items in their bodies are subject to 24-hour light and surveillance surveillance and deprived of access to running water.
In addition, Budget 2022 proposes to amend the Judges Act, the Federal Courts Act and the Tax Court of Canada Act to add 24 new superior court positions.
Daniel Béland, director of the McGill Institute for the Study of Canada, said the inclusion of such provisions has become more common, with budget documents becoming larger and larger as governments use the document to also show their position on a variety of issues.
“There is a lot in these documents that is, I would say, rhetoric or context. And it’s not really about saying we’re going to spend this or that.”
While the changes have to be done separately, Béland said, including it in the budget is “saying what it is and where it’s going.”
“So it’s more simply about expressing their intention to do something.”