It is very much a judgment call on the part of a crown attorney to look at the situation. It really becomes, to use the comment, a smell test first. Does something smell fishy here, something that is not proper?
However, the real determination is the court, because the court has to make the decision as to whether or not a defence is applicable or not. The court would be looking at the facts, and the facts as to what happened in the foreign country would have to be presented. The court would then interpret the basic norms of what constitutes a fair trial in Canada.
A lot of that would be governed by the principles in the Canadian Charter of Rights and Freedoms, because of course it sets out some basic principles. Those principles have been elaborated by the courts, including the Supreme Court of Canada, into more detail. A court would look at some of those fundamental principles and might say that what happened in a foreign country was not a really fair trial but a bogus trial. The court would not acknowledge that the trial happened and would not give any validity to that acquittal or that conviction. Therefore, the defence would not be applicable.