What is the test for double criminality?
Ontario, Canada
The following excerpt is from Germany (Federal Republic) v. Schreiber, 2004 CanLII 93326 (ON SC):
Double criminality is conduct based. The courts of both countries, in this case Germany and Canada, deal with the offence under their own law. Each must determine whether, under the law that applies domestically to the conduct of the accused/fugitive, the facts support the charge. Neither applies foreign law. See, McVey (Re): McVey v. United States of America, above, at pp. 21-22 per La Forest J.
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