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Closing the Accountability Gap: Extraterritorial Criminal Jurisdiction and Canada’s Fentanyl Crisis
By Patrick Diotte
1. Introduction – Canada’s Fentanyl Crisis
Canada’s opioid crisis, driven by fentanyl and other toxic substances in the illegal drug supply, has resulted in 53,308 apparent opioid-related deaths between January 2016 and June 2025. From July 2024 to June 2025, an average of 17 lives were lost daily.
The crisis involves important transnational elements. The Interim Report by the Commissioner of Canada’s Fight Against Fentanyl (June 2025) highlights how fentanyl reaches Canada through the illegal importation of finished drug products and precursor chemicals. Many of these precursors are manufactured abroad, particularly in China, before being acquired and synthesized into fentanyl by organized crime groups in North America. Countries such as the United States and Mexico serve as major transshipment hubs, and most large seizures in Canada are tied to domestic production that relies on illegally imported or diverted precursor materials.
Under pressure from the United States, the Canadian government has taken steps to curb the illicit fentanyl trade through targeted law enforcement initiatives, like Operation Blizzard, and legislative reform, specifically the Strong Borders Act (Bill C-2), introduced in June 2025. Since the introduction of C-2, the Strengthening Canada’s Immigration System and Borders Act (C-12) has been proposed as a streamlined successor to Bill C-2. C-12, introduced in October 2025, is currently under consideration in committee in the Senate. It seeks to implement the most urgent border security, drug enforcement, and immigration reform from C-2 while deferring more controversial provisions, and it now functions as the primary legislative vehicle for Canada’s border security reform agenda. However, despite its comprehensive approach, the Act does not extend Canada’s criminal jurisdiction beyond its borders. This leaves a persistent gap in holding fentanyl and precursor suppliers accountable when their actions cause harm within Canada.
Despite the ongoing crisis, there has been relatively limited scholarly and public policy analysis in Canada specifically addressing extraterritorial jurisdiction in the context of the fentanyl crisis. However, Canadian scholars have examined extraterritorial jurisdiction more broadly within the legal framework governing transnational crime. Among the most prominent contributors are Professors Robert Currie and Stephen Coughlan. Their work has emphasized that although Parliament has clear authority to legislate extraterritorially, Canada has exercised this power cautiously and selectively. Extraterritorial jurisdiction has generally been treated as an exception rather than a go-to enforcement tool. This restrained approach, grounded in international agreements and principles of territoriality and comity, means that Canadian criminal law remains primarily territorially bounded even as modern criminal activity increasingly operates across borders.
This paper argues for a rethinking of Canada’s longstanding approach. It contends that Canada should adopt narrowly tailored, extraterritorial criminal jurisdiction over individuals who manufacture, traffic, or supply fentanyl and unregulated precursors destined for Canada’s illegal market. Prosecuting major suppliers beyond national borders would address accountability gaps that perpetuate the opioid crisis. It would strengthen Canada’s international credibility as a committed partner in combating transnational drug trafficking, enable Canadian authorities to prosecute their own nationals rather than relying on foreign enforcement, preserve the constitutional and procedural protections afforded under Canadian law for accused persons, and position Canada as a more capable and assertive actor in confronting a crisis that originates beyond its borders but causes profound domestic harm. For a more effective, holistic approach, such a measure should complement, not replace, evidence-based domestic harm-reduction and regulatory strategies.
The paper first outlines the legal foundations of Canada’s existing jurisdictional framework. It examines potential structures for extraterritorial prosecutions under the Criminal Code (Code) and the Controlled Drugs and Substances Act (CDSA). It then evaluates barriers to such prosecutions, including international diplomatic obstacles and legal challenges.
2. Legal Foundations of Canada’s Existing Jurisdictional Framework
Currently, if a Canadian commits a drug offence entirely outside Canada without a “real and substantial” link to Canada, Canadian authorities cannot prosecute the offence under domestic law. The “real and substantial” test was first introduced by the Supreme Court of Canada (SCC) in R. v. Libman in 1985. To address this gap, it is necessary to examine the legal basis for Canada’s extraterritorial criminal jurisdiction.
A. Territorial Principle in Canadian Criminal Law
Under section 6(2) of the Code, Courts in Canada have jurisdiction over criminal matters committed within Canada. Section 6 recognizes that the “primary basis of criminal jurisdiction is territorial.”
In addition to Parliament’s authority to create offences for conduct outside Canada, Courts have recognized limited circumstances for extending jurisdiction beyond territorial boundaries. The Libman test holds that Canadian courts may try an offence if a “real and substantial link” exists between the offence and Canada. The principle of comity in international law requires that a state assume jurisdiction only if such a link is present. A “significant portion” of the offence should occur in Canada.
The CDSA does not contain explicit extraterritorial provisions in its core offence sections, so the common law and s. 6(2) of the Code (presumption against extraterritoriality) are relevant. In such cases, courts turn to the Libman test to determine if Canadian jurisdiction is proper. The case of R v. Doiron is an early example of the Libman test applied to a transnational drug importation case. The New Brunswick Court of Appeal upheld jurisdiction. It found a real and substantial link between the offence and Canada based on the accused’s actions in Ontario and New Brunswick. The Court concluded that Canada had a legitimate interest in prosecuting the accused and could do so without offending international comity.
In effect, unless Parliament has explicitly authorized otherwise or a “real and substantial link” is established, Canadian courts cannot prosecute conduct that occurs wholly abroad. The territorial principle is therefore the rule, while extraterritorial jurisdiction remains the exception.
For example, if a Canadian national in an organized crime group participates in manufacturing and exporting fentanyl from a clandestine laboratory in Mexico or the United States, and all activities occur entirely abroad, Canada lacks jurisdiction to prosecute that individual. Prosecution is possible only if a “real and substantial” connection to Canada can be established. However, this threshold is difficult to meet when narcotics do not transit through Canada, no conspiratorial acts occur domestically, and harm does not manifest within Canadian territory immediately or tangibly, particularly given the dynamic, entrepreneurial and global nature of today’s synthetic drug market.
B. Current Extraterritorial Jurisdiction
There are three general statutory approaches to creating exceptions to the general rule of territorial jurisdiction under section 6(2) of the Code.
First, extraterritorial jurisdiction can be expressly built into the wording of an offence. For example, section 74(2) of the Code provides that “Everyone who commits piracy while in or out of Canada is guilty of an indictable offence and liable to imprisonment for life,” thereby extending jurisdiction beyond Canada’s borders.
Second, extraterritorial jurisdiction may be attached to an existing domestic offence through a specific jurisdiction clause. Many such exceptions appear in section 7 of the Code, including, for instance, section 7(4.1), which extends jurisdiction to certain sexual offences against children committed abroad.
Finally, the Code also includes conspiracy provisions that capture extraterritorial conduct. Sections 465(1)(a), (3), and (4) explicitly address conspiracy charges where either the agreement or the object of the conspiracy involves conduct occurring outside Canada.
Despite these targeted statutory extensions and limited common law options, Canada currently lacks a legislative mechanism to prosecute individuals who manufacture, traffic, or supply fentanyl and precursor chemicals abroad with the intent or knowledge that these substances will enter the Canadian illegal market. Without such a provision, foreign suppliers and manufacturers who exploit jurisdictional boundaries remain immune from Canadian prosecution, even when their actions foreseeably contribute to domestic overdoses, fuel organized crime, and undermine public health and safety in Canada. This leaves Canada toothless and reliant on other nations for prosecutions, which may not recognize individual rights like those enshrined in Canada’s Charter of Rights and Freedoms.
C. Toward an Extraterritorial Framework for Fentanyl-Related Offences
A narrowly tailored extraterritorial provision should be incorporated into the Code or the CDSA to criminalize conduct outside Canada when it is intended or reasonably expected to result in illicit fentanyl or its unregulated precursors entering the Canadian market. This approach would mirror targeted provisions already in place for terrorism, human trafficking, and sexual offences against children.
A proposed clause might read:
Notwithstanding anything in this Act or any other Act, everyone who, outside Canada, commits an act or omission that if committed in Canada would be an offence against sections 5 to 7.1 of the CDSA shall be deemed to commit that act or omission in Canada if the person who commits the act or omission is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act.
Like other section 7 offences, prosecutions would proceed only with the consent of the Attorney General of Canada. This caveat ensures that diplomatic sensitivities are managed and promotes prosecutorial restraint. To allow for flexibility as new synthetic variants emerge, the clause could be accompanied by regulations designating which fentanyl analogues or precursor chemicals fall within its scope.
This approach preserves international comity and avoids conflicts of sovereignty by declining to extend criminal jurisdiction to foreign nationals or entities. At the same time, it ensures that Canadian citizens who contribute to the global fentanyl trade cannot escape accountability simply by operating from abroad. Instead of relying on foreign prosecutions, which depend on extradition and often fall outside Canada’s control, this model would allow Canadian authorities to address Canadian offenders directly within our own legal system and, in doing so, enhance Canada’s credibility in the fight to combat the fentanyl crisis.
D. Comparative Model: Australia’s Embedded Extraterritorial Drug Jurisdiction
Australia’s experience shows that such an approach is neither unprecedented nor impractical. Unlike Canada, where extraterritorial jurisdiction is treated as exceptional and typically requires explicit statutory authorization, Australia incorporates extended geographical jurisdiction directly into its federal criminal law.
Part 9.1 of Australia’s Criminal Code Act 1995 (Cth) governs serious drug offences, including trafficking, manufacturing, and import/export. Section 300.3 of that Part specifies that these offences are subject to section 15.2 (Extended Geographical Jurisdiction – Category B). Under s. 15.2, a person may be prosecuted for conduct occurring wholly outside Australia where any of several jurisdictional connecting factors exist, including:
1. The conduct occurs wholly or partly in Australia or on an Australian ship or aircraft;
2. The conduct occurs wholly abroad but produces a result in Australia;
3. The accused is an Australian citizen, resident, or incorporated entity; or
4. The accused commits an ancillary offence (such as conspiracy or aiding/abetting) abroad in relation to a primary offence with an intended or actual result in Australia.
This model enables Australia to prosecute transnational drug activity, like precursor trafficking or offshore manufacturing, when harmful consequences are experienced domestically. Once an offence is designated as subject to Category B jurisdiction, no further amendment is required to address conduct abroad. Extraterritoriality is an inherent feature of the legislative structure rather than an exception.
The Australian framework shows that extraterritorial drug jurisdiction can be incorporated directly into a national criminal code without undermining comity. For Canada, it provides a clear example of how a carefully designed, citizenship-based model could be implemented to address the current gap in our criminal law.
3. Practical and Legal Barriers
It has been suggested that there are four observable motivations for acting extraterritorially: (1) to regulate extraterritorial conduct with a strong connection to Canada; (2) to control the “public face” of Canada; (3) to avoid lawless territory; and (4) to implement international agreements regarding particular offences. Given the ubiquity, transnational structure, and catastrophic domestic impact of the synthetic-opioid crisis, each of these rationales could justify a Code provision targeting fentanyl and precursor-chemical activity abroad. Notably, international law does not constrain such an approach. The United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988) expressly permits Parties to assume various forms of extraterritorial jurisdiction, including nationality jurisdiction. This further shows that Canada’s current restraint reflects a policy choice rather than a legal limitation.
Although the jurisdictional motivations are clear, the practical viability of such a measure is more complex. Even if Parliament enacted a narrowly tailored extraterritorial fentanyl or precursor offence, its impact would be limited by a deeper structural issue: Canada’s criminal law toolkit is not aligned with the realities of modern transnational organized crime. Legislative authority alone is insufficient; without modernized investigative, evidentiary, and diplomatic tools, extraterritorial jurisdiction risks becoming a paper tiger rather than an effective mechanism of accountability.
1. International and Diplomatic Hurdles
Extraterritorial prosecutions must navigate the constraints imposed by international law and diplomatic realities. Canada cannot enforce its laws abroad without meaningful cooperation from foreign states.
The arrest and ongoing prosecution of Canadian alleged drug kingpin Ryan Wedding and his associates, several of whom are Canadian citizens, illustrates this dynamic. Following his arrest and extradition in January 2026, Wedding has been charged with a series of offences linked to his alleged role as leader of a transnational drug trafficking network working with Mexico’s Sinaloa Cartel to transport hundreds of kilograms of cocaine from Colombia through Mexico to the U.S. and Canada. Before Wedding’s arrest, several Canadians who were allegedly involved in the criminal drug trafficking network were also arrested in November 2025. That the case is being led by U.S. agencies, supported by arrests, sanctions, and international coordination, highlights the extent to which effective enforcement against transnational actors is contingent on the investigative capacity and political will of foreign partners. When alleged conduct unfolds in jurisdictions that are unwilling, unable, or strategically disinclined to cooperate, the prospects for Canadian extraterritorial enforcement diminish sharply.
Diplomatic sensitivities increase when foreign actors, including state-linked suppliers, are involved in criminal networks. This essentially makes cooperation contingent on broader geopolitical considerations. China illustrates this challenge acutely: according to a 2024 investigation by the U.S. House Select Committee on the Chinese Communist Party (CCP), China is “the ultimate geographic source of the fentanyl crisis,” with companies in China producing “nearly all illicit fentanyl precursors” used in global markets. The investigation also found that the Chinese government has subsidized the export of illegal fentanyl materials, awarded grants to companies trafficking synthetic narcotics, maintained ownership stakes in firms tied to drug trafficking, and failed to prosecute known manufacturers. It further concluded that the People’s Republic of China (PRC) allows the open sale of fentanyl precursors on heavily monitored domestic platforms, selectively censors drug-related content only when aimed at China’s domestic market, and strategically benefits from the rise of CCP-linked money-laundering networks.
These findings show that geopolitical realities can impede the effectiveness of Canadian extraterritorial criminal provisions, especially when key supply-chain nodes are in states whose strategic interests diverge from Canada’s public health and law enforcement objectives.
1. Legal Challenges
Even with a tailored extraterritorial offence, significant legal barriers would remain. Canada’s evidentiary regime and the strict delay ceilings under R. v. Jordan, in particular, directly undermine the feasibility of complex, transnational prosecutions. Together, they create practical limits on Canada’s ability to convert intelligence into admissible evidence and to bring lengthy international investigations to trial within constitutionally required timelines.
A) Evidentiary Challenges and the Intelligence-to-Evidence (I2E) Problem
Cross-border drug prosecutions are complex and rely heavily on intelligence gathered through foreign partners and sensitive means. However, Canada’s legal framework provides no reliable mechanism for converting intelligence into admissible courtroom evidence. The Stinchcombe disclosure regime requires the Crown to disclose all relevant information to the Defence, which could expose sources, methods, or classified relationships. As Professor Craig Forcese has documented, this unpredictability creates the intelligence-to-evidence (I2E) dilemma: CSIS and other agencies cannot determine in advance what will fall within the “likely relevant” disclosure zone, resulting in under-sharing and systemic barriers to the building of complex prosecutions.
While the I2E dilemma is often framed in the context of national security, its impacts in transnational drug prosecutions may arise less from any general unwillingness of foreign partners to share intelligence, and more from their justified concern that Canada’s comparatively broad disclosure regime under Stinchcome could expose investigative techniques, ongoing operations, and intelligence networks over the course of a trial.
Where sensitive material engages section 38 of the Canada Evidence Act, the Crown may seek to protect intelligence through non-disclosure orders or, in theory, an Attorney General certificate. Yet invoking section 38 carries high costs: the process is protracted, the Prosecution cannot use any information withheld, and if the Federal Court orders non-disclosure of material essential to the defence, the trial judge may be compelled to stay the proceedings on fairness grounds. In this way, the very mechanisms designed to safeguard intelligence can ultimately jeopardize the prosecution's viability.
Thus, even in cases like those allegedly involved in the Wedding criminal enterprise, a Canadian prosecution would face substantial evidentiary obstacles. Even if a “real and substantial connection” could be established to ground Canadian territorial jurisdiction, the evidentiary foundation may originate with U.S. agencies such as the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), or the National Security Agency (NSA). These agencies collect intelligence using highly classified methods and are often unwilling to disclose to foreign regimes. If the Crown sought to rely on this intelligence in a Canadian proceeding, it would immediately trigger Stinchcombe disclosure obligations and the uncertainties of the s. 38 process, which provides only a limited and fragile form of public-interest immunity.
In practice, the most probative evidence, like foreign wiretaps, covert surveillance, confidential informant reporting, encrypted-network penetration, or sensitive financial intelligence, would either be withheld by U.S. partners or, if withheld through s. 38, could render the trial unfair and vulnerable to a stay. As a result, the sophisticated, intelligence-rich investigations required to dismantle large transnational fentanyl networks are also the cases least able to withstand Canada’s evidentiary and disclosure constraints.
B) Jordan Delay Ceilings and the Fragility of Transnational Prosecutions
The strict presumptive ceilings imposed in R. v. Jordan would likely pose a significant barrier to prosecuting extraterritorial fentanyl offences. The Jordan framework imposes hard limits of 18-months in Provincial Court and 30-months in Superior Court, after which delay is presumed unreasonable, and a stay of proceedings is required unless the Crown can rebut the presumption by establishing “exceptional circumstances.” That threshold is both high and narrowly defined: exceptional circumstances must be reasonably unforeseeable or unavoidable and must be delays the Crown could not reasonably have mitigated.
Extraterritorial fentanyl prosecutions can require lengthy Mutual Legal Assistance Treaty (MLAT) requests, coordination with foreign jurisdictions, and cross-border investigative steps. These processes are inherently slow, often unpredictable, and largely outside the Crown’s control. As a result, prosecutors likely face a structural dilemma: pursuing a transnational fentanyl file carries a significant risk that the case will collapse due to delay, despite the seriousness of the conduct. The practical consequence is that ceilings imposed by Jordan function as an upstream deterrent, which, in turn, influences charging decisions and resource allocation. Crowns may be reluctant to advance cases that are almost certain to exceed the ceiling and for which rebutting the presumption is unlikely.
The Public Prosecution Service of Canada’s 2024–25 Annual Report confirms this systemic vulnerability. In its five-year analysis of drug prosecutions, the PPSC identifies three primary reasons why files with charges of trafficking, production, importation, and exportation are stayed or withdrawn. One is that “the prosecution cannot be completed within the required reasonable time according to the timeline prescribed by the Supreme Court of Canada in Jordan.” Delay is not hypothetical; it is a documented, recurring cause of prosecutorial collapse in serious drug cases. Combined with the additional delays in international fentanyl investigations, the Jordan ceilings create a structural risk that complex extraterritorial prosecutions will fail before reaching trial.
5. Conclusion
Canada’s fentanyl crisis is driven by supply chains that operate far beyond its borders, while its criminal jurisdiction remains largely confined within them. As shown in this paper, the territorial presumption in s. 6(2), the limitations of the Libman framework, and the absence of any CDSA provision addressing extraterritorial conduct create a clear accountability gap. Canadians who manufacture or supply fentanyl abroad may evade prosecution even when their actions contribute to domestic harm.
The recurring extradition of Canadian nationals to the United States on major drug-trafficking charges illustrates this gap. In many such cases, Canadians are alleged to have participated in large-scale fentanyl or cocaine networks based in the United States, Mexico, or overseas. Yet Canadian authorities are unlikely to be able to lay comparable charges because virtually all conduct criminalized under the CDSA occurred extraterritorially. Without an identifiable act or omission in Canada, and without Parliament having created extraterritorial offences for fentanyl manufacturing, trafficking, or precursor supply, Canadian courts lack jurisdiction under s. 6(2). The Libman “real and substantial link” test offers little practical assistance where the conspiracy is formed abroad, the drugs move abroad, and the harm felt in Canada is impossible to prove or link to the accused. As a result, Canadians involved in foreign-based fentanyl supply chains are typically prosecuted in the United States, not because their conduct is less harmful domestically, but because the U.S. possesses the tools that Canada does not.
A narrowly tailored extraterritorial offence could help close this gap by enabling Canada to prosecute its own nationals who intentionally contribute to the domestic fentanyl market from abroad. It would allow Canada to act in cases like the Wedding criminal enterprise, where multiple Canadians allegedly played central roles in a transnational trafficking network, rather than relying entirely on U.S. prosecutions.
Significant challenges would remain. Intelligence-driven investigations strain Canada’s evidentiary regime, trigger the intelligence-to-evidence dilemma, and are vulnerable to Jordan delay ceilings. Diplomatic realities further limit enforcement, especially where cooperation from key jurisdictions is uncertain or may be strategically withheld.
As Canadian scholars have observed, Canada has historically exercised its authority to legislate extraterritorially cautiously. Such jurisdiction has been treated as an exception rather than a routine, go-to enforcement tool. Rethinking this approach in the specific context of the fentanyl crisis would allow Canada to prosecute its own nationals who contribute to domestic harm from abroad and strengthen its international credibility as a serious partner in combating transnational drug trafficking, all while upholding constitutional protections afforded under Canadian law for accused persons.
Extraterritorial jurisdiction is not a standalone solution. But as part of a broader response, including harm reduction, treatment, regulation, and modernized investigative tools, a targeted extraterritorial offence would provide Canada with a missing and increasingly necessary mechanism to address a crisis that transcends borders but devastates communities at home.
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About the Author:
Patrick Diotte is a third-year J.D. candidate at Queen’s University in Kingston, Ontario. He held the position of Editorial Intern with the PKI Global Justice Journal during the 2025-26 academic year. He holds a Bachelor of Arts (Honours) in History and a Master of Arts in War Studies from the Royal Military College of Canada (RMCC). Patrick is enrolled in the Military Legal Training Program (MLTP) with the Canadian Armed Forces. Before joining the Office of the Judge Advocate General (JAG), he served as an Intelligence Officer with both the Canadian Special Operations Forces Command and the Canadian Army. His military service includes an operational deployment to Iraq in 2021 as a Task Force Intelligence Officer under Operation IMPACT, as well as participation in numerous domestic and international exercises. While completing his undergraduate studies, Patrick interned at the Embassy of Canada in Washington, D.C.