Crimes on the moon could soon be added to Canada's Criminal Code

The long arm of Canadian law could extend way out onto the lunar surface as the government seeks to put Canadian astronauts on notice that if they commit crimes on the moon, they'll still face criminal charges.

The proposed amendment to the code that would include crimes committed on the moon can be found deep inside the 443-page Budget Implementation Act that was tabled Tuesday in the House of Commons.

The Criminal Code already accounts for astronauts who may commit crimes during space flight to the International Space Station. Any such crime committed there is considered to have been committed in Canada. 

But with Canada part of the Lunar Gateway project, which also includes a planned trip to the moon, the federal government has decided to amend the Criminal Code to incorporate those new space destinations. 

Canadian heading to the moon

In the Budget Implementation Act, under the subhead Lunar Gateway — Canadian crew members, the amendment reads: 

"A Canadian crew member who, during a space flight, commits an act or omission outside Canada that if committed in Canada would constitute an indictable offence is deemed to have committed that act or omission in Canada."

That, according to the amendment, includes any act or omission committed on the Lunar Gateway, while being transported to or from the Lunar Gateway, or on the surface of the moon.

Canada has committed to participating in the Lunar Gateway, a NASA-backed orbiting space platform. Indeed, the 2022 federal budget makes note 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. It also confirmed that a Canadian will be part of the Artemis II mission, the first crewed mission to the moon since 1972. 

It's in anticipation of these missions that the federal government wants to amend the criminal code to include potential crimes that could take place.

The issue of potential crimes committed in space came up in 2019 when NASA investigated what was being characterized as the first alleged crime in space. Astronaut Anne McClain, on a six-month mission aboard the International Space Station, was accused by her estranged spouse, Summer Worden, of improperly accessing bank records from space. McClain was later cleared and Worden was charged with making false statements to federal authorities.

But the case did raise potential issues related to space law. As the case made headlines, Ram Jakhu, a professor at McGill University's Institute of Air & Space Law, wrote that the investigation had served as an "urgent wakeup call" to establish new legal rules of extra-territorial law.

With the expected exponential growth in space activities, the number of future space crimes can reasonably be expected to increase in the future, he wrote. Those could vary from "murders in space, to hijacking of a space transportation vehicle, and to detonation of a nuclear device in space."

"It would be logical and imperative that such rules are the same for all spacefaring humans, irrespective of the fact that they hold different Earthly 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, an associate professor of constitutional and international law at Australia's Bond University.

"As for the question of who prosecutes space crimes, the short answer is that a spacefaring criminal would generally be subject to the law of the country of which they are a citizen, or the country aboard whose registered spacecraft the crime was committed," Ireland-Piper wrote in a 2019 piece for The Conversation.

The International Space Station has its own intergovernmental agreement which states "Canada, the European Partner States, Japan, Russia, and the United States may exercise criminal jurisdiction over personnel in or on any flight element who are their respective nationals."

But if the victim of a crime committed on the ISS was a citizen of a different partner nation, that other nation's criminal law would apply, Irleand-Piper wrote. And if a crime took place in a partner nation's section of the space station, its criminal law may apply.

Holocaust denial proposed law part of budget bill

That the federal budget would even focus on issues related to potential crimes in space may seem odd but it's just one of several proposals included this year that would not necessarily be associated with budgetary spending.

For example, the budget also includes a proposal to amend the Criminal Code to make it a crime to publicly deny or downplay 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 "dry celling," where prisoners suspected of carrying contraband in their bodies are subjected to 24-hour lights and surveillance and deprived of access to running water.

As well, 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 inclusion of such provisions have become more commonplace, with budget documents growing larger as governments use the document to also show where they stand on a variety of issues.

"There  is a lot in these documents that is, I would say, rhetoric or background. And it's not really about just saying we'll spend on this or that."

While actually making the amendments has to be done separately, said Béland, including it in the budget is about "saying what they stand for and where they are going."

"So it's more about just stating their intention of doing something."