Mutual Legal Assistance

Mutual Legal Assistance

Date: May 20, 2008

SUBJECT: THE PROCEDURES GOVERNING THE COOPERATION AND MUTUAL ASSISTANCE, AS BETWEEN CANADA AND FOREIGN STATES OR ENTITIES, IN CRIMINAL LAW ENFORCEMENT MATTERS

PURPOSE:

To guide Crown prosecutors in the practice and procedures to be followed in relation to some of the mutual legal assistance matters that may arise between Canada and foreign States or entities (often the United States).

BACKGROUND:

On the basis of the principles of international and judicial comity, countries have long assisted each other in gathering evidence for use in criminal investigations and prosecutions. Historically, the primary mechanisms for such assistance were police-to-police cooperation and letters rogatory (letters submitted by a court seeking the assistance of a court in a foreign state).

In recent years, the process known as mutual legal assistance has become the primary vehicle through which countries receive and provide assistance in the gathering of evidence for use in criminal investigations and prosecutions. Nonetheless, mutual assistance does not replace existing means of cooperation, and police-to-police cooperation remains an important mechanism for assistance, particularly where information can be provided without resort to compulsory measures.

Legislation

The proper suppression, investigation, and prosecution of crime often require the cooperation of foreign investigative authorities. Recognizing this, in 1988, the Mutual Legal Assistance in Criminal Matters Act, 1988 c. 17 (hereinafter the “Act”) was proclaimed. This legislation gives Canadian courts the power to issue compulsory measures, such as search warrants and Evidence-Gathering Orders, to obtain evidence in Canada on behalf of a foreign State or entity for use in a criminal investigation and prosecution being conducted by that State or entity. The legislation only implements requests made pursuant to a treaty (bilateral or multilateral), special arrangement, or a designation under the Act.

Treaties

Since 1988, Canada has entered mutual legal assistance treaties with over 35 States [1]. While the terms obviously vary as between treaties, the treaties generally provide that authorities in Canada will provide investigative assistance the other party to the treaty, and that that party will do the same for Canada.

For instance, requests by Canada to the United States, and vice versa, for assistance in criminal investigations and prosecutions are governed by the Treaty Between the Government of Canada and the Government of the United States of America on Mutual Legal Assistance in Criminal Matters (hereinafter the “Treaty”). This treaty determines the nature and scope of, and the conditions for, investigative and legal assistance between Canada and the United State.

Pursuant to Article II of the Treaty, requested assistance may include:

  • examining objects and sites;
  • exchanging information and objects;
  • locating or identifying persons;
  • serving documents;
  • taking the evidence of persons;
  • providing documents and records;
  • transferring persons in custody; and
  • executing requests for searches and seizures.

The “Requesting State” may be denied assistance by the “Requested State” if the provisions of the Treaty are not met, or to the extent that the federal Minister of Justice or the United States Attorney General, as the case may be, determines that the request is contrary to the public interest of the Requested State.

International Assistance Group

The federal Minister of Justice is responsible for all such treaties and the International Assistance Group (IAG) of the Federal Department of Justice administers (i.e., grants or denies) each request for assistance. As with most provinces, Alberta has agreed that its Crown prosecutors will attend to all approved requests that pertain to this province. And Alberta must submit requests to the IAG when investigators or Crown prosecutors in this province wish to seek the investigative assistance of a foreign State or entity.

THE PROVINCIAL COORDINATOR OF MUTUAL LEGAL ASSISTANCE:

The Provincial Coordinator of Mutual Legal Assistance is ultimately responsible for ensuring compliance with policies and procedures relating to matters of mutual legal assistance. He or she will be the resource person for the Treaty and Act, and will be the liaison person between the federal Department of Justice, Crown prosecutors and policing agencies. More specifically, the Coordinator will be responsible for receiving and reviewing requests from the federal Department of Justice and forwarding them to either:

  • the Director of Special Prosecutions if an order of a court is required, or
  • a policing agency if no compulsory process is necessary.

The Provincial Coordinator of Mutual Legal Assistance will also receive and review all requests from policing agencies or Crown prosecutors for assistance from authorities in the United States and, once satisfied that the application complies with the Treaty and Act, will forward any such requests to the federal Department of Justice.

Finally, the Provincial Coordinator of Mutual Legal Assistance will maintain a record of the number of applications (both to and from the United States) and of each result.

SEARCH WARRANTS (SECTIONS 10-16 OF THE ACT):

When the Minster of Justice (Canada) approves a request for assistance that will require the use of an investigative technique for which there must first be issued a warrant (usually a search warrant), all necessary material must be provided to the Provincial Coordinator of Mutual Legal Assistance (s. 11(1) of the Act). The Criminal Code of Canada applies, with any necessary modifications, to search warrant applications (s. 10 of the Act).

Upon receipt of a file pertaining to such a request, the assigned Crown prosecutor must contact the Mutual Legal Assistance Coordinator for the police force with jurisdiction and will seek to have an investigator assigned to the matter.

The Crown prosecutor or investigator shall prepare the information upon which the application for the warrant will be based.

After the investigator swears to the Information to Obtain, the Crown prosecutor will attend, ex parte, before a Queen's Bench Justice in Chambers, to make the application for the search warrant (s. 11(2) of the Act).

If the application is denied, the Crown prosecutor shall report the result and reasons to the Provincial Mutual Legal Assistance Coordinator.

If the application is allowed, the Crown prosecutor will:

  • ensure that the hearing date for the return of the warrant (ss. 12(3), 15 of the Act) gives sufficient time for the investigator to execute the warrant, make his or her report, and serve this report upon all interested parties at least five days prior (s. 14 of the Act);
  • will attend at the hearing at which time it will be determined, inter alia, whether the warrant was properly executed and whether any items seized should be sent to the Requesting State and, if so, on what terms; and
  • report the results of the hearing to the Provincial Mutual Legal Assistance Coordinator.

EVIDENCE GATHERING ORDERS (SECTIONS 17-23.1 OF THE ACT):

When the Minster of Justice (Canada) approves a request to obtain, by means of a judge’s order, evidence regarding an offence, all necessary material must be provided to the Provincial Coordinator of Mutual Legal Assistance (s. 17(1) of the Act).

Upon receipt of a file pertaining to such a request, the assigned Crown prosecutor will:

  • prepare the application, supporting affidavit, and draft Evidence-Gathering Order; and
  • attend, ex parte, before a Queen's Bench Justice in Chambers, to make the application for the Evidence-Gathering Order (s. 17(2) of the Act).
  • If the application is denied, the Crown prosecutor shall report the result and reasons to the Provincial Mutual Legal Assistance Coordinator.

If the application is allowed, the Crown prosecutor will, inter alia:

  • ensure that the Evidence-Gathering Order includes terms and conditions pertaining to the preservation and return to Canada of any record or thing produced;
  • ensure that any necessary subpoenas are issued and served, and where necessary, provide conduct money for the witnesses;
  • attend the hearing and examine the witness;
  • ensure, where applicable, that an affidavit or certificate (with originals or copies of records attached) is completed; and
  • report the results of the hearing to the Provincial Mutual Legal Assistance Coordinator.

REQUESTS FOR ASSISTANCE:

It may be that a Crown prosecutor comes to the opinion that legal assistance of a foreign authority is required. Such assistance may take the form of, inter alia:

  • search warrants and other investigative techniques or procedures;
  • evidence gathering;
  • interviewing of witnesses under oath or otherwise;
  • enforcement of fines;
  • orders for the restraint of proceeds of crimes;
  • orders for the seizure of proceeds of crime;
  • orders for the forfeiture of property;
  • examination of a place or site;
  • transfers of detained persons; and
  • loaning of exhibits.

If a Crown prosecutor wishes to submit a request for assistance by way of the Act and/or Treaty, he or she must advise the responsible Chief Crown Prosecutor and the Director of Special Prosecutions. All such requests must be submitted to the IAG, as described in the federal Ministry of Justice’s policy pertaining to its administration of mutual legal assistance requests.


[1] For a complete list, see: http://www.treaty-accord.gc.ca/search-recherche.aspx?type=10&page=TLA