¹ According to para. 401 of the Restatement of the Law Third, Foreign Relations Law of the United States, (1987), vol. 1, at 232 [hereinafter Restatement of the Law Third], jurisdiction to prescribe, to adjudicate and to enforce is defined as follows:

§401 . Categories of Jurisdiction

Under international law, a State is subject to limitations on

• (a)

  (a) jurisdiction to prescribe, i.e., to make its law applicable to the activities, relations, or status of persons, or the interests of persons in things, whether by legislation, by executive act or order, by administrative rule or regulation, or by determination of a court;

• (b)

  (b) jurisdiction to adjudicate, i.e., to subject persons or things to the process of its courts or administrative tribunals, whether in civil or in criminal proceedings, whether or not the State is a party to the proceedings;

• (c)

  (c) jurisdiction to enforce, i.e., to induce or compel compliance or to punish non-compliance with its laws or regulations, whether through the courts or by use of executive, administrative, police, or other nonjudicial action.

With respect to jurisdiction, the Restatement of the Law Third contains rules that are accepted by Canada. See also Restatement of the Law Third, paras. 402 and 404.

² Also called cyberspace. Another description of this word is all media used to transmit information, either digitally or electronically.

³ The Internet operates by taking data, which may be an email message, a web page, a sound clip, or a video stream, and breaking it up into separate packets and sending them along different available routes to a destination computer. See How the Internet Works, Global Internet Project, which is available at <http://www.gip.org/gip7.htm>. In general, see Jackson, D. and Taylor, T. L., The Internet Handbook for Canadian Lawyers (3rd ed., 2000)Google Scholar; Chissick, M. and Kelman, A., Electronic Commerce Law and Practice (2nd ed., 2000)Google Scholar; Robbins, J. D., Advising e Business (2001)Google Scholar; Sookman, B. B., Computer, Internet and Electronic Commerce Law (1991).Google Scholar

⁴ The Worldwide Web, which is a component of the Internet, is a collection of documents containing text, visual images, and audio clips, that is accessible from every Internet site in the world. It is used as a method of organizing information distributed across the Internet. The information on a web page resides on a computer until it is accessed by a reader. Hyperlinks are highlighted text or images that, when selected by a user, permit the user to view another related web document.

⁵ American Library Association v. Pataki, 969 F. Supp. 160 (S.D.N.Y 1997), at 170. See also Reno v. American Civil Liberties Union, 117 S. Ct. 2329, at 2334–35 ( 1997), aff’ing American Civil Liberties Union v. Reno, 929 F. Supp. 84, at 830 et seq. (E.D. Pa. 1996), Pro-C Ltd. v. Computer City Inc. (2000), 7 C.P.R. (4th) 193 (Ont. S.C.J.), rev’d, (2001) 55 O.R. (3d) 577 (C.A.) [hereinafter Computer City].

⁶ Individuals can establish a link with the Internet by using a computer permanently connected to a computer network that is directly or indirectly connected to the Internet or by using a personal computer with a modem to connect over the telephone to a larger computer or computer network that is directly or indirectly connected to the Internet.

⁷ The author, who is also called the content provider, may not be the owner of the website or its operator.

⁸ The website is an Internet address, which enables users to exchange digital content with a particular host. The user, as a web-surfer, uses a web browser (for example, Microsoft’s Internet Explorer or Netscape Navigator), which incorporates the web’s pointer standard or universal resource locator (URL) to find a particular website. It has been held that a domain name is not property and lacks physical existence. It is not located where it is registered: Easthaven v. Nutrisystem Com.Inc. (2001), 55 O.R. (3d) 334 (S.C.J.) [hereinafter Easthaven], which is discussed throughout this article.

⁹ A web page is a “hypertext” document created using hypertext markup language.

¹⁰ A website operator may be employed by the website author/owner to update the website. Note that bulletin boards may be used for posting messages.

¹¹ For example, digital signatures.

¹² In Europe, this legislation was created pursuant to EC Directive 95/46 on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, 1995, O.J.L. 281/31, esp. ch. IV, arts. 25–26, which took effect on October 24, 1998: see Swire, P. P., “Of Elephants, Mice and Privacy: International Choice of Law and the Internet” (1998) 32 Int. Lawyer 991 Google Scholar; Franklin, C., ed., Business Guide to Privacy and Data Protection Legislation (1996).Google Scholar

¹³ Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, especially ss. 4–10 and Schedule I, as amended by S.C. 2001, c. 41. In Québec, see an Act Respecting the Protection of Personal Information in the Private Sector, R.S.Q. c. P-39.1 and an Act to Establish a Legal Framework for Information Technology, S.Q. 2001, c. 32. See also Uniform Law Conference of Canada, Electronic Data Interchange, Proceedings (1993), 198 at 203.

¹⁴ Restatement of the Law Third, supra note 1.

¹⁵ TheCristina, [1938] A.C. 485, at 496 (H.L.).

¹⁶ See Steamship Lotus (Francev Turkey) (1927), P.C.I.J. Series A. no. 10 at 23 [hereinafter Lotus]: “the courts of many countries, even of countries which have given their criminal legislation a strictly territorial character, interpret criminal law in the sense that offences, the authors of which at the moment of commission are in the territory of another State, are nevertheless to be regarded as having been committed in the national territory, if one of the constituent elements of the offence, and more especially its effects have taken place there.” The territorial principle was applied in Québec (Procureur Général) v. Hyperinfo Canada Inc. (2001 ), QCCQ, which is available at <http://www.canlii.org/qc/jug/qccq/ 2001/ 2001qccq12076.html> [hereinafter Hyperinfo].

¹⁷ Akehurst, M., “Jurisdiction in International Law” (1973) 46 Br. Y.B. Int’l. L. 146 at 198.Google Scholar

¹⁸ See Restatement of the Law Third, supra note 1 at para. 403.

¹⁹ A.D.C. Menthe, Jurisdiction in Cyberspace: A Theory of International Spaces” (1997–8) 4 Mich. Telecommunications and Technology L. Rev. 69, suggests that since the power to control the Internet has only the most tenuous connection to physical location, nationality would work better as a general principle in cyberspace, which is akin to a sovereignless region, such as the high seas or Antartica, where jurisdiction to prescribe cannot be based on territoriality (at 93 et seq.)

²⁰ See Security of Information Act, R.S.C. 1985, c. O-5 as amended, s. 3; Anti-Terrorism Act, S.C. 2001, c. 41, amending the Criminal Code, R.S.C. 1985, c. C-46, s. 83.01.

²¹ See Restatement of the Law Third, supra note 1 at para. 403.

²² Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), [1970] I.C.J. Rep. 3, at 105.

²³ Lotus, supra note 16 at 19.

²⁴ Kindred, H. M. et al., International Law Chiefly as Interpreted and Applied in Canada (6^thed., 2000), at 165 Google Scholar et seq. Also Williams, S. A. and de Mestral, A. L. C., An Introduction to International Law (2^nd ed., 1987), at 25 et seq.Google Scholar

²⁵ Macdonald, R. St. J., “The Relationship between International Law and Domestic Law in Canada,” in Macdonald, , Morris, , and Johnston, , eds., Canadian Perspectives on International Law and Organization (1974), at 88.Google Scholar

²⁶ Constitution Act, 1867 (U.K.), 30 and 31 Vict., c. 3 as amended.

²⁷ Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Charter].

²⁸ Croftv. Dumphy, [1933] A.C. 156, at 167; see also Statute ofWestminster, 1931, s. 3, R.S.C. 1985, Appendix II, no. 27.

²⁹ See sections 92, 92A, 93, and 95 of Constitution Act, supra note 26. See also Hogg, P., Constitutional Law of Canada (4th student edition, 1996), ch. 13.3Google Scholar and Tassé, R. and Faille, M., “Online Consumer Protection in Canada: The Problem of Regulatory Jurisdiction” (2000) 2 Internet and E Commerce Law in Canada 41.Google Scholar

³⁰ LadoreHyperinfoev. Bennett, [1939] A.C. 468, [1939] 3 D.L.R. 1.

³¹ See section 91 of the Constitution Act, supra note 26. For instance, criminal law, intellectual property, works and undertakings beyond the province, regulation of trade and commerce, and legislation “for the peace, order and good government of Canada in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces.”

³² For example, Re Ottawa-Carleton Regional Transit Commission (1983), 44 O.R. (2d) 560 (C.A.).

³³ Constitution Act, supra note 26, s. 92( 10)(a): Local Works and Undertakings other than “other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province.” See Toronto v. Bell Telephone Co., [1905] A.C. 52; Capital Cities Communications v. C.R.T.C., [ 1978] 2 S.C.R. 141.

³⁴ See, for example, Communications, Energy and Paperworkers Union of Canada and CITY-TV, CHUM et al., [1999] CIRBD no. 22 (inter-provincial undertaking).

³⁵ Charter, supra note 27. Section 2(b) provides as follows: “Everyone has the following fundamental freedoms: (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication,” “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (s.1) [emphasis added]. See also ss. 7 to 15 on legal rights and equality rights. See also Hogg, supra note 29 at ch. 34.

³⁶ Section 32.

³⁷ Morguard Investments Ltd. v. DeSavoye, [1990] 3 S.C.R. 1077, 76 D.L.R. (4^th) 256, 52 B.C.L.R. (2d) 160, [1992] 2 W.W.R. 217, 46 C.P.C. (2d) 1, 122 N.R. 81 [hereinafter Morguard]; Amchem Products Inc. v. B.C. (W.C.B.), [1993] 1 S.C.R. 897 [hereinafter Amchem Products]; Hunt v. T. & N. plc, [1993] 4 S.C.R. 289 [hereinafter Hunt]; Tolofson v. Jensen; Lucas v. Gagnon ( 1994), 100 B.C.L.R. ( 2d) 1, [1994] 3 S.C.R. 1022, [1995] 1 W.W.R. 609 [hereinafter Tolofson].

³⁸ Hunt, supra note 37 at 326–7. In general, see Edinger, , “The Constitutionalization of the Conflict of Laws” (1995) 25 Can Bus. J. 38.Google Scholar

³⁹ Morguard, supra note 37 at 1108.

⁴⁰ Ibid. See also WIC Premium Television Ltd. v. General Instrument Corp. (1999), 1 C.P.R. (4th) 467, aff’d., (2000), 8 C.P.R. (4th) 1 (Alta. C.A.) [hereinafter WIC Premium Television].

⁴¹ Hunt, supra note 37.

⁴² Morguard, supra note 37 at 1103.

⁴³ Ibid. at 1107.

⁴⁴ Ibid.

⁴⁵ Ibid. at 1108.

⁴⁶ Hunt, supra note 37 at 325.

⁴⁷ See, for instance, United States of America v. Ivey (1995),16 O.R. (3d) 533 (Gen. Div.) aff’d (1996), 30 O.R. (3d) 370 (C.A.), leave to appeal to S.C.C. refused, [1997] 2 S.C.R. x [hereinafter Ivey].

⁴⁸ For an earlier analysis, see Gosnell, C., “Jurisdiction on the Net: Defining Place in Cyberspace” (1998) 29 Can. Bus. L.J. 344.Google Scholar

⁴⁹ Criminal Code, supra note 20.

⁵⁰ Libman v. R., [1985] 2 S.C.R. 178 (soliciting US residents by telephone), which was applied in Hyperinfo, supra note 16.

⁵¹ Criminal Code, supra note 20 at s. 46(3) . This section is also extraterritorial in scope.

⁵² See La Ligue contre le Racisme et l’Antisémitisme v. Yahoo! Inc., November 20, 2000, which can be accessed at <www.cdt.org/speech/international/001120yahoofrance.pdf>, where a French court ruled that Yahoo must block French users from accessing its US-based online auction sale of Nazi memorabilia in violation of French criminal law. However, in Yahoo Inc. v. La Ligue contre le Racisme et l’Antisémitisme, 169 F. Supp. 2d 1181 (N.D. Cal., 2001), the US District Court refused to defer to the injunctive order of the French court.

⁵³ See, for example, In the Matter of World Stock Exchange et al., Alberta Securities Commission, February 15, 2000.

⁵⁴ Criminal Code, supra note 20 at ss. 201–9.

⁵⁵ See, for instance, ibid. at ss. 204, 207, and 207.1 (operation of casinos on international cruise ships, which are Canadian or in Canadian waters) and the Civil Code of Quebec, Article 2629. See also An Act Respecting Lotteries, Publicity Contests and Amusement Machines, R.S.Q. c. L-6. In Ontario, see Gaming Control Act, 1992, S.O. 1992, c. 24 as amended; Ontario Casino Corporation Act, 1993, S.O. 1993, c. 25, s. 24 as amended, which repealed the Gaming Act, R.S.O. 1990, c. G.2; Alcohol and Gaming Regulation and Public Protection Act, S.O. 1996, c. 26; Ontario Lottery Corporation Act, R.S.O. 1990, c. O.25 as amended; Ontario Lottery and Gaming Corporation Act, S.O. 1999, c. 12, which has repealed and replaced the Ontario Casino Corporation Act and the Ontario Lottery Corporation Act, as amended in 1992, see Schedule L, s. 20. See also Reference Re: Earth Furure Lottery, 2002 PESCAD 8 (P.E.I.) (server located in Prince Edward Island, Canada). For gambling in general, see J.-G. Castel, Gambling Control Law in Ontario (2001).

⁵⁶ 3D virtual casino complete with the sights and sounds of a real casino. A virtual casino is the equivalent of placing a slot machine in every house that has a personal computer!

⁵⁷ In the United States, see State of Minnesota v. Granite Gate Resorts Inc. and Kerry Rogers, 1996 W.L. 767432 (D. Minn. 1996), aff’d 568 N.W. 2d 715 (Minn. Ct.App., 1997).

⁵⁸ Report on Gaming Legislation and Regulation in British Columbia, Januar y 1999, which is available at <www.gov.bc.ca/publicinfo/publications/gamingpolicy/paper/95.htm>.

⁵⁹ See Criminal Code, supra note 20 at s. 465 ( 1 )(c) and (d) and 465 (3) and (4).

⁶⁰ See ibid. at s. 21 (2).

⁶¹ See ibid. at ss. 206(4) and 207(3)(b).

⁶² Place of logging-on being Toronto.

⁶³ Country where the author/owner of the site accepts the bet and pays the winnings, if any.

⁶⁴ “Everyone who buys, takes or receives a lot, ticket or other device mentioned in subsection (1) is guilty of an offence punishable on summary conviction.” See also Criminal Code, supra note 20 at section 207(3)(b) on participation in lottery scheme not authorized by section 207 (1) and (2).

⁶⁵ Williams, S. A. and Castel, J.-G., Canadian Criminal Law, International and Transnational Aspects (1981), at 71 et seq.Google Scholar; Castel, J.-G., Extraterritoriality in International Trade (1988), at 10 et seq.; People v. World Interactive Gaming Corp.,Google Scholar New York S.C. ( 1999), N.Y Misc. Lexis 425 (criminal offence in New York as a result of Internet gambling with offshore gaming merchants).

⁶⁶ See also Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17, as amended by the Anti-Terrorism Act, S.C. 2001, c. 41 to cover terrorist activities and terrorist groups. See also Rider, B. A. K. and Nakajima, C. V., Anti Money Laundering Guide (2000).Google Scholar

⁶⁷ Criminal Code, supra note 20 at s. 163.1 (it includes distribution, sale, and possession). See also sections 163 of the Criminal Code (corrupting morals), 172.1 (luring), and, as an example, R. v. Hurtubise (1996), B.C.S.C.; a summary can be found in Canadian Abridgments (2^nd ed., 1997), vol. R9B, Supp. 2237 (B.C.S.C. 1996) [herinafter Hurtubise]; R. v. Lowes, [ 1998] 5 W.W.R. 147 (Man.P.C.); R. v. Weir, [1998] 8W.W.R. 228 (Alta.Q.B.). Both sections are subject to section 2(b) of the Charter, supra note 27. See R v. Butler, [1992] 1 S.C.R. 452.

⁶⁸ Criminal Code, supra note 20 at ss. 318–20.

⁶⁹ Ibid. at ss. 298–301. R v. Barret (2000), 46 W.C.B. (2d) 368 (Ont.S.C.J.).

⁷⁰ See R. v. Metro News Ltd. (1986), 32 D.L.R. (4^th) 321 (Ont.C.A.), leave to appeal to S.C.C. refused, at 321; Hurtubise, supra note 67.

⁷¹ Canada (Human Rights Commission) v. Canadian Liberty Net, [1996] 1 F.C. 804 (C.A.).

⁷² Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626, at 670.

⁷³ Note that a person in Canada causes material to be communicated for the purpose of section 13(1) (hate) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, if that person effectively controls the content of the material posted on a website even if it is maintained outside Canada: Zundel v. Canada (Attorney General), [1999] 4 F.C. 298 (F.C.T.D.) and Zundel v. Canada (Attorney General) (1998), 157F.T.R. 59 (F.C.T.D.).

⁷⁴ See Annual Report 2000-1: Proposal for an International Convention on Cyber Crime and Terrorism, Center for International Security and Cooperation, Stanford University, 2000; and the Council of Europe Convention on Cybercrime, Budapest, 2001, which can be accessed at <http://conventions.coe.int./treaty/EN/Project/ Finalcybercrime.htm>.

⁷⁵ Cesare, K., “Prosecuting Computer Virus Authors: The Need for an Adequate and Immediate International Solution” (2001) 14 Transnat’l Lawyer 135.Google Scholar

⁷⁶ Anti-Terrorism Act, S.C. 2001 , c. 41 . In the United States, the Patriot Act of 2001, P.L. 107–56, which, in section 814, deals specifically with the deterrence and prevention of cyber-terrorism by amending US Code, Title 18, s. 1030(a)(5). See also section 1030(e)(8), which defines damage as “any impairment to the integrity or availability of data, a program, a system or information.” This provision covers acts of cyber-terrorism designed to disable a protected computer, which is deined as one that is used exclusively by a inancial institution or the US government or, if not used exclusively, where the conduct constituting the offence affects them, or the computer is used in interstate or international commerce and communication, no matter where it is located, if the use affects such commerce and communication (s. 1030(e)(2)).

⁷⁷ Criminal Code, supra note 20 at section 83.01(1) on terrorist activity, para. (a). The act refers to the Convention for the Suppression of Unlawful Seizure of Aircraft, which was done at The Hague on December 16, 1970, 860 U.N.T.S. 105; the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, which was done in Montreal on September 23, 1971, 974 U.N.T.S. 177; the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, which was adopted by the General Assembly of the United Nations on December 14, 1973, 1977 Can. T.S. no. 43; the International Convention against the Taking of Hostages, which was adopted by the General Assembly of the United Nations on December 17, 1979, 18 I.L.M. 1456; the Convention on the Physical Protection of Nuclear Material, which was adopted in Vienna on 3 March 1980; the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, which is supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, which was done in Montreal on February 24, 1988, 27 I.L.M. 627; the Convention for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, which was done in Rome on March 10, 1988, 27 I.L.M. 685; the International Convention for the Suppression of Terrorist Bombings, which was adopted by the General Assembly of the United Nations on December 15, 1977; UN Doc. A/RES/52/164; and the International Convention for the Suppression of Terrorist Financing, which was adopted by the General Assembly of the United Nations on December 9, 1999, 39 I.L.M. 270.

⁷⁸ Criminal Code, supra note 20 at section 83.01 (1)(b).

⁷⁹ “Every one who, directly or indirectly, wilfully and without lawful justification or excuse, provides or collects property intending that it be used or knowing that it will be used, in whole or in part, in order to carry out

• (a)

  (a) an act or omission that constitutes an offence referred to in subpara-graphs (a)(i) to (ix) of the definition of “terrorist activity” in subsection 83.01 (1), or

• (b)

  (b) any other act or omission intended to cause death or serious bodily harm to a civilian or to any other person not taking an active part in the hostilities in a situation of armed conflict, if the purpose of that act or omission, by its nature or context, is to intimidate the public, or to compel a government or an international organization to do or refrain from doing any act,

is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10years.” See also ss. 83.03 and 83.04.

⁸⁰ Formerly the Proceeds of Crime (Money Laundering) Act, S.C. 2000, c. 17.

⁸¹ International Convention for the Suppression of Terrorist Financing, supra note 77.

⁸² Formerly the Oficial Secrets Act , R.S.C. 1985, c. 0-5 as amended.

⁸³ Ibid. at section 3(2).

⁸⁴ Charter of the United Nations, 26 June 1945, Can. T.S. 1945 No. 7, 59 Stat. 1031, 145 U.K.F.S. 805, art. 2(7).

⁸⁵ See, for example, Security Council Resolutions 1368, Sept. 12, 2001, 1373, Sept. 28, 2001, and 1377, Nov. 12, 2001.

⁸⁶ Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.), as amended.

⁸⁷ For example, the Treaty between the Government of Canada and the Government of the United States of America on Mutual Legal Assistance in Criminal Matters, dated March 18, 1985, in force January 14, 1990, Can. T.S. no 19, esp. arts. II (scope), XVI (search and seizure), and XVII (proceeds of crime).

⁸⁸ Sections 17–23.

⁸⁹ Sections 36–9. What about searching databases or hard drives located abroad or checking suspicious websites? Does violation of sovereignty require acting on the territory of the violated state? See Wilske, S. and Shiller, T., “International Jurisdiction in Cyberspace: Which State May Regulate the Internet?” (1997) 50 Fed. Comm. L.J. 117 Google Scholar (especially (C)Jurisdiction to Enforce).

⁹⁰ Section 9.

⁹¹ Extradition Act, S.C. 1999, c. 18, as amended, especially section 3.

⁹² For example, the Treaty of Extradition between Canada and the United States of America and its protocols, CTS 1991/37.

⁹³ Castel, J.-G., Canadian Conflict of Laws (4^th ed., 1997),Google Scholar at para. 95, and Huntington v. Attrill, [1893] A.C. 150 (P.C.). However, see Ivey, supra note 47.

⁹⁴ Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4^th Supp.).

⁹⁵ See the recognition and enforcement of foreign and sister-provinces judgments.

⁹⁶ Mutual Legal Assistance in Criminal Matters Act, supra note 94 at s. 9(3).

⁹⁷ Rosencrantz v. Union Contractors Ltd. and Thornton (1960), 32 D.L.R. (2d) 473 (B.C.S.C.).

⁹⁸ In general, see Williams, S. A. and Castel, J.-G., Canadian Criminal Law, International and Transnational Aspects (1981), at 436 et seq Google Scholar.

⁹⁹ Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, ss. 2-9 as amended and Schedule I. Sections 31 et seq. (electronic documents) provide for the use of electronic alternatives where federal laws contemplate the use of paper to record or communicate information or transactions (s. 32). In Québec, see an Act Respecting the Protection of Personal Information in the Private Sector, R.S.Q. c. P-39.1 and an Act to Establish a Legal Framework for Information Technology, S.Q. 2001, c. 32. See also Uniform Law Conference of Canada, 1993 Proceedings 198, Appendix G, Electronic Data Interchange.

¹⁰⁰ See Morguard, supra note 37; Hunt, supra note 37; and Craig Broadcast Systems Inc. v. Frank N. Magid Associates Inc. (1998), 124 Man. R. (2d) 252 (C.A.) (real and substantial connection between the defendant and the forum province of a kind that makes it reasonable to infer that he or she had voluntarily submitted himself or herself to the risk of litigation in its courts); WIC Premium Television, supra note 40.

¹⁰¹ Old North State Brewing Co. v. Newlands Services Inc. (1998), 58 B.C.L.R. (3d) 144 (C.A.) [hereinafter Old North State Brewing Co.].

¹⁰² Easthaven, supra note 8.

¹⁰³ Ibid. at 341.

¹⁰⁴ Panavision International L.P. v. Toppen, 141 F. 3d 1316 (9^th Cir. 1998) [hereinafter Panavision International].

¹⁰⁵ Ibid. at 1320.

¹⁰⁶ However, see Dennis v. Salvation Army Grace General Hospital Board (1996), 153 N.S.R. (2d) 211 (S.C.) (where the Chambers judge seemed to believe that the residence of the plaintiff met the constitutional standard), rev’d. 156 N.S.R. (2d) 372, 14 C.P.C. (4^th) 207 (C.A.), which reversed the stay that had been granted on grounds of forum non conveniens; and Black, Comment on Dennis v. Salvation Army Grace General Hospital Board at 14 C.P.C. (4^th) 222.

¹⁰⁷ MacDonald v. Lasnier (1994), 21 O.R. (3d) 177 (Gen.Div.); Duncan (Litigation Guardian of) v. Neptune Corp. (2001), 53 O.R. (3d) 754 (S.C.J.) (damage sustained in Ontario) [hereinafter Duncan].

¹⁰⁸ Oakley v. Barry (1998), 158 D.L.R. (4^th) 679 (N.S.C.A.). Note that international law requires contacts between the defendant and the forum province, which may be more exacting than those necessary in domestic cases. In the United States, see Born, G. B., “Relections on Judicial Jurisdiction in International Cases” (1987) 17 Ga. J. Int’l. & Comp. L. 1, at 33Google Scholar and Asahi Metal Indus. Co. Ltd. v. Superior Ct. of California, 480 U.S. 102, at 115 (1987).

¹⁰⁹ For example, Alberta, Alberta Rules of Court, r. 23; Ontario, Rules of Civil Procedure, r. 17; British Columbia, Rules of Court, r. 13.

¹¹⁰ See English Common Law Procedure Act of 1852 (U.K.), 15 & 16 Vict., c. 76, ss. 18 and 19.

¹¹¹ Northern Sales Co. v. Government Trading Corp. of Iran (1991), 81 D.L.R. (4th) 316, at 321 (B.C.C.A.). See also Cook v. Parcel, Mauro, Hultin & Spaanstra, P.C. (1996), 136 D.L.R. (4th) 414; aff’d (1997), 143 D.L.R. (4^th) 213 (B.C.C.A.), leave to appeal refused (1997), 147 D.L.R. (4th) viii (S.C.C.); Tortel Communication Inc. v. SuntelInc. (1994), 120 D.L.R. (4th) 100, [1995] 1 W.W.R. 457 (Man. C.A.) [hereinafter Tortel]; Janke v. Budd Canada Inc. (1994), 28 C.P.C. (3d) 42 (Man. Q.B.); aff’d (1994), 31 C.P.C. (3d) 1 (C.A.); Olde v. Capital Publishing Ltd. Partnership (1996), 64 A.C.W.S. (3d) 1138 (Ont. Gen. Div).

¹¹² Alberta, Alberta Rules of Court, r. 30; and Newfoundland, Rules of the Supreme Court, r. O.XI.

¹¹³ However, plaintiffs need not satisfy the court by proving the case as they would at trial: Cdn. Commercial Bank v. McLaughlan (1989), 38 C.P.C. (2d) 23, 70 Alta. L.R. (2d) 370 (Q.B.); Kearney’s Estate v. Bell Helicopter Textron Inc. (1988), 74 Nfld. & P.E.I.R. 138 (Nfld. C.A.); Molnlycke A.B. v. Kimberly-Clark of Canada Ltd. (1991), 47 F.T.R. 161, 36 C.P.R. (3d) 493 (C.A.); Muzak Corp. v. Composers Authors & Publishers Assn. ofCanada Ltd., [1953] 2 S.C.R. 182.

¹¹⁴ For example, British Columbia, Manitoba, New Brunswick, Ontario, and Saskatchewan. “Originating process” includes a counterclaim against a person who is not already a party to the main action: Henry Grethel Apparel Inc. v. H.A. Imports of Canada Ltd. (1990), 42 C.P.C. (2d) 260 (Ont. M.C.). According to the 1998 Federal Court Rules, r. 137(1): a plaintiff may serve a defendant with the statement of claim ex juris without leave.

¹¹⁵ For example, British Columbia, Rules of Court, r. 13(3) and (4); Ratcliffev. Maj (1989), 39 C.P.C. (2d) 261 (B.C.S.C.); Ontario, Rules of Civil Procedure, r. 17.03; Upper Lakes Shipping Ltd. v. FosterYeoman Ltd. (1992), 12 C.P.C. (3d) 31 (Ont. Gen. Div.); aff’d. (1993), 14 O.R. (3d) 548; National Bank of Canada v. Chance (1996), 65 A.C.W.S. (3d) 577 (Ont. Gen. Div.); Tortel, 1995, supra note 111.

¹¹⁶ Rules of Civil Procedure, r. 10.07.

¹¹⁷ McCulloch v. J.P.W. Investments Inc. (1992), 68 B.C.L.R. (2d) 382, [1995] 5 W.W.R. 650 (S.C.). See also Ell v. Con-Pro Industries Ltd. and Kowalski (1992), 11 B.C.A.C. 174 (C.A.); Canadian International Marketing Distributing Ltd. v. Nitsuko Ltd. (1990), 68 D.L.R. (4^th) 318 (B.C.C.A.); and Tortel, supra note 111.

¹¹⁸ See Quest Vitamin Supplies Ltd. v. Hassam (1992), 79 B.C.L.R. (2d) 85 (B.C.S.C.); Cool v. Parcel, Mauro, Hultin & Spaanstra, P.C. (1996), 136 D.L.R. (4^th) 414, at 423 (B.C.S.C.); aff’d (1997), 143 D.L.R. (4^th) 213 (C.A.).

¹¹⁹ See Easthaven, supra note 8.

¹²⁰ Frymer v. Brettschneider (1994), 19 O.R. (3d) 60 (C.A.). See also Rudder v. Microsoft Corp. (1999), 47 C.C.L.T. (2d) 168 (Ont. S.C.J.) [hereinafter Rudder].

¹²¹ Easthaven, supra note 8; Kitakufev. Oloya, [ 1998] O.J. No. 2537 (Gen. Div.). Note that the routine use of e-mail may contribute to a finding of personal jurisdiction. In general, see Bachand, F. et al., “Jurisdiction and the Internet. Are Traditional Rules Enough?” which can be accessed at <http://www.law.ualberta.ca/ alri/ulc/current/ejurisd.htm>..>Google Scholar

¹²² Zippo Mfg. Co. v. Zippo Dot Com Inc., 952 F. Supp. 1119, at 1124 (W.D . Pa. 1997), which is quoted in Braintech, Inc. v. Kostiuk (1999), 171 D.L.R. (4^th) 46, 120 B.C.C.A. 1 (C.A.), leave to appeal refused, [1999] S.C.C.A. no.236 (S.C.C.) [hereinafter Braintech] (foreign judgment: the jurisdiction of the foreign court in a case involving defamation on an internet bulletin board) . See also Panavision International, supra note 104, with respect to jurisdictional tests: general and specific and Geist, M., “Is There a There There? Towards Greater Certainty for Internet Jurisdiction” (2001) 16 Berkeley Tech. L. J. 1345.Google Scholar

¹²³ Cybersell, Inc. v. Cybersell, Inc., 180 F.3d 414 (9th Cir. 1997).

¹²⁴ Panavision International, supra note 104 at 1321, citing Ziegler v. Indian River County, 64 F. 3d 470 (9^th Cir. 1995) and Calder v. Jones, 465 U.S. 783 (1984) [hereinafter Calder].

¹²⁵ Easthaven, supra note 8. In the United States, see America Online Inc. v. Chih-Hsien Huang, 106 F. Supp. 2d 848 (E.D. Va. 2000).

¹²⁶ Global Jurisdiction Issues Created by the Internet, report of the ABA Jurisdiction in Cyberspace Project, London, 2000, s. 2.2.

¹²⁷ For example, in Alberta, Alberta Rules of Court, r. 30(c); in Ontario, Rules of Civil Procedure, r. 17.02 (p).

¹²⁸ For example, in Ontario, Rules of Civil Procedure, r. 17.02(f); in Saskatchewan, Rules of Court, r. 31 (1)(f).

¹²⁹ For example, in British Columbia, Rules of Court, r. 13(8) and (9).

¹³⁰ In “click wrap contracts.” See Rudder, supra note 120 (forum selection clause valid; terms of agreement not analogous to “fine print” in written contract).

¹³¹ Castel, supra note 93 at para. 452.

¹³² For example, Alberta, Alberta Rules of Court, r. 30(g); Ontario, Rules of Civil Procedure, r. 17.02 (f)(iv).

¹³³ For example, British Columbia, Rules of Court, r. 13(1)(h); Ontario, Rules of Civil Procedure, r. 17.02 (g).

¹³⁴ See Gutnik v. DowJones & Company Inc., [2001] V.S.C. 305 (Vict. S.C.) [hereinafter Gutnik] (publication where paid subscribers to interactive service were located).

¹³⁵ For example, Ontario, Rules of Civil Procedure, r. 17.02(h); Duncan, supra note 107.

¹³⁶ For example, Ontario, Rules of Civil Procedure, r. 17.02 (h).

¹³⁷ In the United States, see, for example, Calder, supra note 124 (effects test); Edias Software International L.L.C. v. Basis International Ltd. (1996), 947 F. Supp. 413 (D.C. Ariz.).

¹³⁸ See WIC Premium Television, 2000, supra note 40; Desktop Technologies, Inc. v. Color-Works Reproduction & Design Inc. 1999 U.S. Dist. Lexis 1934 (E.D. Pa. 1999). Note that caching, which allows for greater eficiency in the transmission of information on the network by maintaining redundant copies close to those who access the information, could amount to copyright infringement.

¹³⁹ Copyright Act, R.S.C. 1985, c. C-42 as amended.

¹⁴⁰ SOCAN v. Canadian Association of Internet Providers et al., 2002 FCA 166, paras. 163–92 (Issue 5), rev’g in part Tariff 22 (1999), 1 C.P.R. (4th) 417, esp. at 459–60.

¹⁴¹ Computer City, supra note 5: a passive website cannot constitute a use in association with wares because no transfer is possible through that medium. The Court of Appeal stated: “It is much more sensible to apply tort principles to accommodate new technologies than to distort statutory trademark rights,” at para. 16.

¹⁴² Tele-Direct (Publications) v. Canadian Business Online Inc. (1998), 83 C.P.R. (3d) 34 (F.C.T.D.).

¹⁴³ Bell Actimedia Inc. v. Puzo (1999), 2 C.P.R. (4^th) 289 (F.C.T.D.).

¹⁴⁴ Civil Code of Quebec, Article 3148 (2).

¹⁴⁵ Ibid. at Article 3148(3).

¹⁴⁶ See Morales Moving and Storagev. Chatigny-Britton, [1996] R.D.J. 14 (C.A.).

¹⁴⁷ Civil Code of Quebec, Article 3148(3).

¹⁴⁸ Ibid.

¹⁴⁹ Ibid. at Article 3148(4).

¹⁵⁰ Ibid. at Article 3148(5).

¹⁵¹ Ibid. at Article 3148, final para.

¹⁵² Ibid. at Article 3148(1), and Investor Group Inc. v. Hudson, [1999] R.J.Q. 599 (S.C.) which relied on Article 68(1) of the Code of Civil Procedure to the same effect. See also Article 3134 of the Civil Code of Quebec.

¹⁵³ Morguard, supra note 37;and Hunt, supra note 37.

¹⁵⁴ Civil Code of Quebec, Article 3149.

¹⁵⁵ Castel, supra note 93 at para. 449.

¹⁵⁶ However, see Rudder, supra note 120, where such a clause was upheld.

¹⁵⁷ Castel, supra note 93 at para. 450.

¹⁵⁸ Ibid. at para. 452.

¹⁵⁹ Consumer Protection Act, R.S.Q., P-40.1 as amended.

¹⁶⁰ Note, however, that if Québec law is applicable, a gambler, as the losing party who is an adult of sound mind, may not recover the sums paid unless there was fraud or trickery: Article 2630 of the Civil Code of Quebec. In addition, if not expressly authorized by law, the contract would be invalid: Article 2629 of the Civil Code of Quebec.

¹⁶¹ See Goldstein, G. and Groffier, E., Droit international privé, Théorie générale, vol. 1 (1998), para. 114, at 263 Google Scholar; and Civil Code of Quebec, Article 3117, para. 2.

¹⁶² It is assumed that the gaming merchant has its establishment in a jurisdiction where gaming is legal and under license.

¹⁶³ Civil Code of Quebec, Article 3081; and Auerbach v. Resorts International Hotels Inc., [1992] R.J.Q. 302 (C.A.) [hereinafter Auerbach].

¹⁶⁴ Arab Bank Corporation v. Wightman et al., 21 January 1997 (C.C.) J.E. 97–306, [1996] R.J.Q. 1715 (C.S.); and G. Goldstein (1997), 76 Rev. Bar. Can. 449.

¹⁶⁵ Auerback, supra note 163.

¹⁶⁶ With respect to contracts of employment concluded online, see Article 3118 of the Civil Code of Quebec:

¹⁶⁷ United Nations Convention on Contracts for the International Sale of Goods, C.T.S. 1992/2.

¹⁶⁸ See Castel, supra note 93 at para. 488.

¹⁶⁹ Tolofson, supra note 37.

¹⁷⁰ See Hanlanv. Sernesky (1997), 35 O.R. (3d) 603 (Gen. Div.), aff’d (1998), 38 O.R. (3d) 479 (C.A.). Comp. Wongv. Lee (2002), 58 O.R. (3d) 398 (C.A.).

¹⁷¹ Reform Party of Canada v. Western Union Insurance Co. (1999), 3 C.P.R. (4^th) 289 (B.C.S.C.), where the website had been visited by 137 users.

¹⁷² Gutnick, supra note 134 (by analogy to jurisdiction).

¹⁷³ In the United States, see Cubby Inc. v. Compuservev Inc., 776 F. Supp. 135 (S.D.N.Y 1991) and comp. Godfrey v. Demon Internet Ltd., [1999] 4 All E.R. 342, [2001] Q.B. 201 (U.K.Q.B.D.).

¹⁷⁴ For example, Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C-18.1 as amended, s. 27.

¹⁷⁵ Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393.

¹⁷⁶ Civil Code of Quebec, Article 3126, para. 2.

¹⁷⁷ Ibid. at Article 2630.

¹⁷⁸ Ibid. at Article 3128.

¹⁷⁹ For the infringement of trademark in Canada via the Internet, see Computer City, supra note 5.

¹⁸⁰ Tolofson, supra note 37.

¹⁸¹ Morguard, supra note 37.

¹⁸² Hunt, supra note 37.

¹⁸³ In Amchem Products, supra note 37, Justice John Sopinka, speaking for the court, adopted the following deinition of comity found in the judgment of the US Supreme Court in Hilton v. Guyot (1895), 159 U.S. 113:

See also Mosesv Shore Boat Builders Ltd., [1994] 1 W.W.R. 112 (B.C.C.A.), where the Court of Appeal listed a wide variety of factors to be considered when deciding whether or not the action had a real and substantial connection with BC, for example, the place where the cause of action arose, the respective residences of the parties, whether the defendant conducted business in British Columbia, and so on (at 124).

¹⁸⁴ See Bealsv. Saldanha, [2001 ] O.J. No. 3586 (C.A.) rev’ing (1998), 42 O.R. (3d) 127 (Gen. Div.), leave to appeal to the S.C.C. granted [hereinafter Beals].

¹⁸⁵ Braintech, supra note 122. See also Old North State Brewing Co., supra note 101.

¹⁸⁶ Braintech, supra note 122 at 60–2 (D.L.R.). Compare with Gutnik, supra note 134.

¹⁸⁷ See Civil Code of Quebec, Articles 3155 (1), 3164, 3165, and 3168.

¹⁸⁸ Morguard, supra note 37; and Hunt, supra note 37.

¹⁸⁹ This has been called the mirror principle. See Glenn, H. P., Droit international privé in La Réforme du Code Civil (1993), vol. 3, 769–71, paras. 116–18.Google Scholar

¹⁹⁰ Civil Code of Quebec, Articles 3134 and 3140.

¹⁹¹ Ibid. at Article 3135. Cortas Canning and Refrigerating Co. v. Suidan Bros. Inc./ Suidan Frères Inc., [1999] R.J.Q. 1227 (S.C.) [hereinafter Cortas Canning].

¹⁹² Civil Code of Quebec, Article 3168(5).

¹⁹³ See Cortas Canning, supra note 191.

¹⁹⁴ Civil Code of Quebec, Article 3156.

¹⁹⁵ Racketeer Influenced and Corrupt Organization Act, (RICO), 18 U.S.C., s. 1961 et seq.

¹⁹⁶ Ibid. at s. 1964 (c).

¹⁹⁷ By analogy to Article 3079 of the Civil Code of Quebec, which allows Québec courts to apply foreign laws of immediate application.

¹⁹⁸ See Ivey, supra note 47; U.S.A. v. Levy (1999), 45 O.R. (3d) 129.

¹⁹⁹ Note that in Cortas Canning, supra note 191 at 1239–41, in an obiter dicta, the Québec Superior Court was of the opinion that a foreign judgment rendered by default for an amount so disproportionate with amounts rendered in similar situations in Québec, could be said not to be in conformity with public order as understood in international relations. In Beals, supra note 184, a Florida default judgment based on private law which granted punitive damages to the plaintiffs was held enforceable in Ontario.

²⁰⁰ For example, International Commercial Arbitration Act, R.S.O. 1990, c. I.9.

²⁰¹ United Nations Foreign Arbitral Awards Convention Act, R.S.C. 1985, c. 16 (2^nd supp.); Commercial Arbitration Act, R.S.C. 1985, c. 17 (2^nd supp.) as amended.

²⁰² New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, (1959) 330 U.N.T.S. 38.

²⁰³ UNCITRAL Model Law on International Commercial Arbitration, (1985) 24 I.L.M. 1302.

²⁰⁴ Code of Civil Procedure, L.R.Q. 1977, c. C-25 as am.

²⁰⁵ Ibid. at Article 948.

²⁰⁶ A preliminary draft convention adopted by the Special Commission in October 1999 and revised in June 2001. It is available online at <http://hcch.net/doc/ jdgm2001draft-e.doc>. See Articles 6-10. See also Preliminary Document no. 12, Summary of Discussions on Electronic Commerce and International Jurisdiction, Ottawa, February 28 to March 1, 2000, by C. Kessedjian (2000), and Preliminary Document no. 17, The Impact of the Internet on the Judgments Project: Thoughts for the Future by A. Haines (2002), which are available at <http://www.hcch.net/e/workprog/jdgm.html>.

²⁰⁷ For instance, codes of conduct for multinational corporations have not been enforced very successfully due to their private nature.

²⁰⁸ Clickwrap licence agreements. However, see Rudder, supra note 120. Note that in Specht v. Netscape Communications Corp., 150 F. Supp. 2d (S.D.N.Y 2001), the US Federal District Court for the Southern District of New York held that Netscape’s “smart Download” end-user licence agreement was not enforceable because the users who downloaded the software were not required to assent to the licence agreement. Thus, browse wrap agreements commonly used on many websites may not be enforceable in the absence of an unambiguous act of assent.

²⁰⁹ Unidroit or UNCITRAL are the proper agencies for preparing such uniform laws. For minimalist legislation, see, for example, UN Model Law on Electronic Commerce, 1996, which is available at <http://www.uncitral.org/en-index. htm>; 1999 Uniform Law Commission of Canada, Uniform Electronic Commerce Act, 1999 Proceedings 380; US Uniform Electronic Transactions Act, 1999, which is available at <http://www.law.upenn.edu/library/ulc/ulc.htm>. These model laws are not comprehensive and do not address private international law issues. However, in the field of contracts, they indicate the time and place of sending and receipt of electronic documents (Can. Uniform Law, s. 23).

²¹⁰ See Johnson, D. R. and Post, D., “Law and Borders: The Rise of Law in Cyberspace” (1996) 48 Stanford L. Rev. 1367 at 1387 et seq.CrossRefGoogle Scholar