International Assistance Group Deskbook

Table of Contents

CHAPTER 1: EXTRADITION: PROVISIONAL ARREST

1.1 Introduction

Most of Canada’s extradition treaties provide for a request to Canada, in urgent circumstances, for the provisional arrest of a person pending an extradition hearing. Canada may request similar assistance of its extradition partners.

This chapter sets out relevant considerations for deciding whether sufficient grounds exist to seek a warrant to arrest a person in Canada. It also describes the procedure for a Canadian authority to request the arrest of a person in the territory of an extradition partner, in urgent circumstances.

Extradition treaties do not themselves create an obligation or a power to arrest in Canada. They merely define the basis on which provisional arrest may be requested. The judicial power to order provisional arrest arises under section 13 of the Extradition Act, once the Minister of Justice approves the request for provisional arrest (section 12).

Canada’s extradition treaties provide that a person arrested in Canada must be released after a specified period of time if Canada has not received a request for extradition and supporting evidence. For example, article 11 of the Canada - U.S.A. Treaty sets the limit at 60 days.

Under section 14 of the Extradition Act, a person arrested in Canada, must be discharged from custody if the request for extradition and supporting evidence are not provided within the time period set out either in the relevant extradition treaty or the Act. In addition, the person arrested must be discharged if the Minister has not issued an authority to proceed within the time period provided by the Act. The Act gives a judge the discretion to extend the time period.

1.2 Requests for Seeking Provisional Arrest of a Person in Canada

The International Assistance Group (IAG) at Headquarters is responsible for determining whether to proceed with a request for the provisional arrest of a person in Canada. To decide this issue, the IAG will consult with the requesting partnerFootnote 1 and counsel in a regional office of the Department of Justice (Regional counsel) acting on its behalf, to ensure that all relevant considerations are taken into account.

Requesting partners should send requests for provisional arrest to the IAG, which acts for the Minister in a delegated capacity. If the requesting partner contacts Regional counsel, either directly or through a local police force, Regional counsel should advise the IAG of the request as soon as possible.

Generally, requests from the United States are sent by the Office of International Affairs in Washington to the IAG. Requests from countries other than the United States are often sent by Interpol to the IAG.

In both cases, the IAG determines if the person sought is in Canada or on their way to Canada and assesses the situation. If the IAG concludes that the request for provisional arrest is justified, it sends an authority to arrest and supporting documentation to the regional office for an application to the court. Regional counsel acting for the requesting partner will apply to the judge for the provisional arrest warrant.

In deciding whether to seek a provisional arrest warrant, consideration is given to the following:

1.2.1 Factors that support seeking a provisional arrest warrant

  1. a basis to believe that the person may flee the jurisdiction or fail to appear in court if no arrest is made;
  2. previous flight from another jurisdiction;
  3. attempts by the person to keep their presence in Canada or abroad secret, or the ability to do so;
  4. the possibility that the person will compromise or otherwise adversely affect the proceedings or the investigation abroad, for example, by intimidating or harming witnesses or destroying physical evidence;
  5. the person’s involvement in crimes in Canada;
  6. the possibility that the person will carry out criminal offences in Canada;
  7. the existence of accomplices abroad or in Canada;
  8. the existence of passports, or assets in another jurisdiction;
  9. any other factor suggesting that arrest would be in the public interest.

1.2.2 Factors militating against seeking a provisional arrest warrant

  1. a basis to believe that the person will not flee and will show up for court;
  2. the likelihood that the request for extradition and supporting evidence will not be received in time, thus resulting in proceedings being terminated;
  3. the person is detained in custody in Canada in respect of another matter, and will not be released in the near future.

1.2.3 Factors which may support or militate against seeking a provisional arrest warrant, depending on the circumstances

  1. the extent of the person’s roots in the community and the likelihood of bail being granted;
  2. the seriousness of the offence covered by the request;
  3. the period for which the person may be detained under the treaty before the request for extradition and supporting evidence must be produced.

1.3 Requests by Canada for Provisional Arrest of a Person Sought by Canada

Crown counsel conducting a prosecution in Canada and seeking the provisional arrest of a person in the territory of an extradition partner, must provide to the IAG the information supporting the request. The information required is set out in the applicable treaty. The IAG reviews the request and, where appropriate, sends it to the extradition partner directly, through Interpol, or any agreed channel.

CHAPTER 2: EXTRADITION OF CANADIAN CITIZENS FOR ACTS WHICH COULD BE PROSECUTED IN CANADA

2.1 Introduction

This chapter sets out the policy on extraditing Canadian citizens for acts that could also be prosecuted in Canada.

Subsection 6(1) of the Charter of Rights and Freedoms provides that every citizen has the right to remain in Canada. However, extradition is viewed as a constitutionally acceptable limitation on this right, since crime could otherwise go unpunished. As a consequence, Canada can and does extradite its citizens.

Sometimes a request to extradite a person accused of crime concerns conduct which could be prosecuted in Canada. Such cases usually involve trans-border crime or crime with a substantial link with Canadian territory. One common example is a conspiracy where some planning and overt acts occur both on Canadian and foreign territory.

In United States of America v. Cotroni; United States of America v. El Zein Footnote 2, the Supreme Court of Canada concluded that even if there is jurisdiction to prosecute in Canada, extradition of a Canadian citizen is not unconstitutional. However, extradition could become unconstitutional if Canadian authorities failed, before extraditing the person, to determine whether prosecution in Canada was a “realistic option”.

2.2 Statement of Policy

The Minister of Justice may extradite a Canadian citizen accused of crime involving conduct that could be prosecuted in Canada as a criminal offence.

When deciding whether to prosecute an offence in Canada or to extradite the accused, the International Assistance Group (IAG) will consult with Crown counsel on behalf of the Government of Canada or, if the conduct may be prosecuted under the Criminal Code, with the provincial attorney general. The ultimate decision regarding prosecution always rests with the relevant attorney general. The following should be considered at an early stage to determine if prosecution in Canada is a realistic option:

  1. where the impact of the offence was felt or likely to have been felt;
  2. which jurisdiction has the greater interest in prosecuting the offence;
  3. which police force played the major role in the development of the case;
  4. which jurisdiction has laid charges;
  5. which jurisdiction has the most comprehensive case;
  6. which jurisdiction is ready to proceed to trial;
  7. where the evidence is located;
  8. whether the evidence is mobile;
  9. the number of accused involved and whether they can be tried in one place;
  10. in which jurisdiction most of the acts in furtherance of the crime were committed;
  11. the nationality and residence of the accused; and
  12. the severity of the sentence the accused is likely to receive in each jurisdiction.

The Minister’s decision concerning extradition will be conveyed by the IAG to the requesting partner.

CHAPTER 3: MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS

3.1 Purpose of the Policy

This policy reflects the evolving practice of the Department of Justice in relation to mutual legal assistance as it has developed over the past several years. This policy describes the role of the International Assistance Group and regional counsel in the mutual assistance process. It also is intended to ensure that mutual assistance requests are handled in a fair and consistent manner.

3.2 Introduction

3.2.1 General

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 a key 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.

3.2.2 The Mutual Legal Assistance in Criminal Matters Act and the Role of the Minister of Justice and the International Assistance Group

In 1988, Parliament enacted the Mutual Legal Assistance in Criminal Matters Act (the Act) Footnote 3. This legislation gives Canadian courts the power to issue compulsory measures, such as evidence gathering orders, search warrants and orders for videolink testimony, to obtain evidence in Canada on behalf of a foreign state for use in a criminal investigation and prosecution being conducted by that state. The legislation only implements requests made by a foreign state or entity pursuant to a treaty (bilateral or multilateral) special arrangement, or a designation under the Act.

As of April, 2014, Canada had entered into 35 bilateral Mutual Legal Assistance Treaties (MLATs) and is a signatory to several conventions through which Canada can receive and provide assistance in gathering evidence in criminal cases, by way of compulsory measures if necessary. Updated lists of the bilateral and the multi-lateral conventions, and the parties to the multi-lateral conventions are available from the IAG.

By virtue of the Act, the Minister of Justice is responsible for the administration of the Act and implementation of the treaties. In all of Canada’s treaties, the Minister of Justice is named as the Central Authority, the authority which is responsible for receiving and presenting requests for mutual legal assistance.

In 1988, the International Assistance Group (IAG) was established as part of the Department of Justice Criminal Law Branch. The IAG was established, in part, to carry out the functions assigned to the Minister of Justice as Central Authority under the Act and related treaties. On a daily basis, counsel with the IAG are responsible for the review and coordination of incoming and outgoing requests for assistance.

The mutual legal assistance process supports the investigation and prosecution of criminal offences by providing information and evidence and as such, the Minister of Justice’s responsibilities are closely akin to the prosecutorial functions of the Attorney General. Therefore, the principles which require the Attorney General to discharge his or her prosecutorial functions independently, impartially and transparently, free from bias or political motivation, are equally applicable to the responsibilities of the Minister of Justice in the area of mutual legal assistance. The process must be free from political motivation and interference or any appearance or apprehension of the same, in the handling of specific cases. Thus, while the Minister of Justice is accountable to Parliament for the overall operation of the mutual legal assistance legislation and treaties and for the operational policies, in practice, the Minister of Justice is not personally involved in the review or approval of mutual legal assistance requests received or submitted by Canada. The review of specific requests is conducted by officials within the IAG, on behalf of the Minister.

3.3 Means for Obtaining Assistance

3.3.1 Treaty Request

Canada makes and receives requests for assistance pursuant to the MLATs which are in force. The relevant treaty sets out the type of assistance available to Canada and prescribes in general terms the content of the treaty requests.

Generally, five main types of compulsory assistance are available under the various MLATs:

  • gathering of evidence, including documents, affidavits and witness testimony;
  • lending of exhibits;
  • transfers of sentenced prisoners to testify or assist in an investigation or prosecution;
  • search and seizure; and
  • the enforcement of criminal fines and confiscation orders.

Under its treaties, Canada can obtain this assistance both before and after charges are laid. Most treaties also permit Canada to obtain commission evidence. The procedures outlined in the section of this chapter on commission evidence do not require a letter of request issued by a court. Instead, Crown counsel should include a treaty request form (see Appendix A). Treaty requests will be executed in accordance with the law of the Requested State. Treaty requests are transmitted directly between the Central Authorities of the two states, as identified in the Treaty. As noted, the Minister of Justice is the Central Authority for Canada.

3.3.2 Non-Treaty Letter of Request

Canada also makes requests for assistance to foreign states or entities with which it does not have treaty relations, on the basis of the principle of international comity. The mechanism for such requests is a non-treaty letter of request. Such letters will be responded to by the foreign state, in its discretion, on the basis of the domestic law of that state. In addition, non-treaty requests may be used where Canada has a treaty with a country but the type of assistance or offence involved is not covered by the Treaty. Non-treaty requests can also be made both before and after changes are laid (see Appendix B).

3.3.3 Non-Treaty Court Issued Requests

Pursuant to section 709 of the Criminal Code, a court in Canada can issue an Order and Request seeking commission evidence in a foreign state. Requests for commission evidence in criminal matters are, by practice, transmitted on behalf of the Canadian Requesting Authority by the Minister of Justice through diplomatic channels to the foreign state.

Foreign states also make non-treaty court issued requests for assistance in criminal cases to Canada through diplomatic channels. These are generally transmitted to the Department of Justice for execution by the Department of Foreign Affairs, Trade and Development or by Interpol.

3.4 The International Assistance Group

The IAG plays a pivotal role in the administration of the Act and the treaties. The group is also responsible for reviewing and coordinating all mutual legal assistance requests, treaty and non-treaty, and can provide general advice or information on international issues in criminal cases.

3.5 Incoming Requests for Assistance

3.5.1 Review

Requests for assistance constitute confidential state-to-state communications and will be handled as such by IAG and executing counsel. All requests for assistance to Canada from a foreign state or entity are received or directed to the Director General of the IAG. The Director General assigns incoming requests to IAG counsel for review. In assigning the file the Director General will advise assigned counsel if the request appears to be sensitive, unusual or significant. The Director General will bring to the attention of the Assistant Deputy Attorney General (Litigation Branch), any such sensitive, unusual or significant incoming requests for assistance. Pursuant to general policy, the Assistant Deputy Attorney General (Litigation Branch) may inform the Deputy Minister of the request. All IAG counsel can review, approve and transmit requests for assistance that are assigned to them, subject to final approval by the Director General.

3.5.2 Treaty Requests and Requests Submitted Under Administrative Arrangement

IAG counsel will review incoming requests, made pursuant to a treaty or administrative arrangement with a view to the requirements of the relevant treaty and the Act. The request will be considered to determine if it contains sufficient specific information for its execution and if there are any circumstances which would require that the request be refused or postponed on any basis provided for in the treaty.

(a) Requiring Compulsory Measures

Where the assistance sought will require a compulsory measure in Canada, a particular concern will be whether the material provided meets the standards of the relevant Canadian legislation. For most types of orders, the Requesting Authority must show reasonable grounds to believe that an offence has been committed over which the foreign state has jurisdiction. It must also show that evidence of the commission of the offence or relevant to the location of a suspect will be found in Canada. In addition, pursuant to Memoranda of Understanding on Mutual Legal Assistance entered into with nine of the ten provinces, the designated authority within the relevant province should be consulted in relation to any treaty request seeking compulsory measures.

Where a request is approved and compulsory measures are required to execute the request, the request will be submitted to the relevant competent authority for execution, along with a Minister’s approval form. Pursuant to agreements and arrangements in place with the provinces, if the alleged offence in the foreign state is one which, had it occurred in Canada, would be prosecuted by the Attorney General of the province, the request will be submitted for execution to the designated contact for mutual assistance within the Attorney General’s office of the relevant province. In all other cases, the request will be sent to the responsible regional office of the Department of Justice. In addition, if the Attorney General’s office in the relevant province is unable to execute the request, the request will then be submitted to the relevant Regional Office of the Department of Justice for execution. In transmitting a request for execution, IAG counsel will advise the executing authority if the request appears to be sensitive, unusual or significant.

(b) Without Compulsory Measures

Requests which do not require compulsory measures may be submitted directly to Interpol Ottawa, or in some instances a government department, to obtain the information or assistance sought.

3.5.3 Court-Issued Non-Treaty Letters of Request

Court-issued non-treaty letters of requests received from foreign states are reviewed by IAG counsel to determine if the assistance sought can be provided on a voluntary basis, without resort to a court order. If so, they are generally submitted to Interpol Ottawa for execution. If not, the letters of request are reviewed for compliance with the requirements of s. 46 of the Canada Evidence Act, to determine whether an order may be sought compelling a witness to appear and provide testimony or documents. These requests are submitted to counsel in the relevant Regional Office of the Department of Justice for execution.

3.5.4 Non-Treaty Letters of Request

Non-treaty requests, which are not governed by s. 46 of the Canada Evidence Act, generally because they do not emanate from a Court, will be reviewed and submitted to Interpol Ottawa to see if the assistance sought can be provided on a voluntary basis without resort to court order.

3.5.5 Execution by Regional Counsel

As indicated, in some instances requests for assistance will be executed by counsel in the Regional Offices of the Department of Justice (Regional counsel). Regional counsel will review the request and discuss with IAG counsel any issues of concern such as the sufficiency of the request for obtaining court orders within the relevant province. The IAG counsel and Regional counsel will, as necessary, discuss questions of supplementary information needed for execution of a request. Regional counsel should consult with the IAG about any challenges to the legislation or treaties, in addition to consulting on any questions or issues that may arise in the course of the execution of a request. IAG counsel will provide advice and assistance to Regional counsel in relation to any such issues. Regional counsel should keep the IAG apprised as to the status and progress of the execution process. Once the required court order has been obtained, the request will be carried out by counsel or police authorities as appropriate.

3.6 Outgoing Requests for Assistance

3.6.1 General

All outgoing mutual legal assistance requests flow through the IAG. The relevant investigating or prosecuting authority in Canada (hereinafter “the competent authority”) should send the Director General of the IAG a draft request prepared following the format of Appendix A or B. Each request for a pre-charge investigation must contain a caution along the following lines:

This Letter of Request is made to assist an ongoing police investigation being undertaken by a Canadian investigative agency. All information contained in this request is provided from the police investigation and consists of unproved allegations which the police investigators believe merit investigation. No charges have been laid and all persons named in this letter are presumed innocent under Canadian law. All information in this request is confidential. All statements or information contained in this request must be read as a whole in the context of the investigative nature of this request.

The Team Leader of the Mutual Legal Assistance Team assigns all outgoing requests to IAG counsel for review. In assigning the file to counsel, the Team Leader of the Mutual Legal Assistance Team will advise the Director General and assigned IAG counsel if the request appears to be sensitive, unusual or significant.

All requests for assistance must, before transmittal, be submitted by IAG counsel to the Director General for approval. The Director General must bring to the attention of the Assistance Deputy Attorney General (Litigation Branch), any sensitive, unusual or significant request for assistance before it is forwarded to foreign authorities. Pursuant to general policy, the Assistant Deputy Attorney General (Litigation Branch) may inform the Deputy Minister of the request.

3.6.2 Public Prosecution Service of Canada (“PPSC”) as Competent Authority

As noted, under the Act, prosecutors are competent authorities and are entitled to submit requests for mutual legal assistance to the IAG. Prior to submitting a request for assistance to the IAG, counsel for the PPSC should review the request in view of the considerations set out below.

3.6.3 Police Requests

Police are entitled to submit requests for mutual legal assistance to the IAG, either before or after the swearing of criminal charges. However, where the request relates to an offence under investigation or charged, the prosecution of which would fall within the jurisdiction of a provincial Attorney General, and the relevant provincial Attorney General’s office has agreed to be involved in the review process, the request must be approved by the provincial Attorney General’s office before submission to the IAG. In consultation with provincial authorities, there may be exceptions to this requirement in urgent cases or special circumstances.

Similarly where a police request for assistance relates to a matter which falls within the jurisdiction of the PPSC, the request must be reviewed by PPSC counsel before submission to the IAG.

3.6.4 Review of the Request

3.6.4.1 Context

A request for assistance is a confidential communication between state authorities who are familiar with mutual assistance. The document in its entirety is intended to convey clearly to the foreign authorities the allegations under investigation or subject to prosecution and the nature of the assistance sought, in order that the foreign authorities can effectively provide the assistance.

3.6.4.2 Scope of the Review

As a result of his/her review of a request for assistance, IAG counsel should be satisfied that:

  1. in the case of a treaty request, it meets the requirements of the applicable treaty;
  2. in the case of a non-treaty request, to the extent that the relevant law of the foreign state is accessible in the circumstances, it meets the requirements of that law;
  3. the request will be clear and comprehensible to the authorities in the foreign state who will have to execute it;
  4. on the basis of the information contained in the request and any other oral or written information provided, there is a reasonable basis for the police or prosecuting authorities to believe that:
    1. the information upon which they are proceeding is reliable; and
    2. there is evidence in the foreign state relevant to the investigation or prosecution.

In performing the review, IAG counsel operates on the assumption that the competent authority has:

  1. prepared and submitted the request in good faith; and
  2. accurately and honestly described the relevant investigation or prosecution in the request.

Generally, IAG counsel will be able to satisfy himself or herself of the above requirements from a review of the material submitted by the competent authority. However, where IAG counsel is not satisfied of the elements mentioned in a) to d) above on the basis of the material submitted, IAG counsel will need to go beyond the material submitted.

Where necessary, IAG counsel should discuss with the competent authority issues such as confidentiality, time limits and translation.

3.6.4.3 Confidentiality of the Request

As noted, all requests for assistance constitute confidential state to state communications. In the case of particularly sensitive, significant or unusual requests the Director General of the IAG may require that the security classification of the document be increased. Outgoing requests for assistance should refer to and stress the need for confidentiality:

  1. confidentiality concerns should be discussed, in detail, with Canadian investigative authorities submitting the request;
  2. any applicable treaty article on confidentiality should be invoked, particularly in the case of a pre-charge or other request where confidentiality is of particular concern;
  3. where there are particular concerns about confidentiality, IAG counsel should discuss this issue with the Requesting Authority and the relevant foreign authorities before submitting the request, to determine what steps can be taken to prevent or minimize the risk of disclosure to third parties or unintended public disclosure.

Because requests can be disclosed to unintended recipients and subsequently misinterpreted, it is important that IAG counsel consider whether the request contains any statements that are inconsistent with the investigative nature of the request. IAG counsel should also satisfy themselves that the request, taken as a whole, clearly conveys that assistance is requested in the context of an investigation or of a prosecution and thus the matters outlined therein constitute allegations only.

a. Of the Materials Obtained Pursuant to a Request

The disclosure of evidence obtained pursuant to a treaty request is prohibited except in the circumstances set out in s. 44 of the Act and in the relevant treaty. Section 44 of the Act states:

44. (1) Subject to subsection 38(2), a record sent to the Minister by a foreign state in accordance with a Canadian request is privileged and no person shall disclose to anyone the record or its purport or the contents of the record or any part thereof before the record, in compliance with the conditions on which it was so sent, is made public or disclosed in the course or for the purpose of giving evidence.

(2) No person in possession of a record mentioned in subsection (1) or of a copy thereof, or who has knowledge of any information contained in the record, shall be required, in connection with any legal proceedings, to produce the record or copy or to give evidence relating to any information that is contained therein.

Similarly, with respect to non-treaty requests no evidence obtained pursuant to the request can be disclosed or used, except for the purpose of the proceedings to which the request relates.

As noted, a request for assistance is a confidential communication between state authorities who are familiar with mutual assistance. The document in its entirety is intended to convey clearly to the foreign authorities the allegations under investigation or subject to prosecution and the nature of the assistance sought, in order that the foreign authorities can effectively provide the assistance. IAG counsel will review requests with this context in mind.

In reviewing requests for assistance, IAG counsel operate on the assumption that the Requesting Authority has prepared and submitted the draft request in good faith and has described the relevant investigation or prosecution accurately and honestly in the draft request. If IAG counsel have reason to believe this assumption is incorrect, counsel will inform the Director General.

3.6.4.4 Time Limits

IAG counsel should discuss with the Requesting Authority any time limits within which the requested assistance must be provided and ensure that those are set out in the request. IAG counsel should also discuss the realistic time frame within which the assistance sought can be provided with a view to determining whether the process should be invoked.

3.6.4.5 Translation

All requests for assistance written in a language that is not an official language of the Requested State must be accompanied by a certified translation. Responsibility for the translation of the document into an official language of the Requested State rests with the Requesting Authority. In exceptional cases, the IAG will arrange for translation but the costs of any such translation will be borne by the Requesting Authority.

3.7 Appendix A

OFFICIAL REQUEST BY CANADA TO FOR TREATY ASSISTANCE (TREATY ARTICLE )

REQUEST FOR ASSISTANCE

1. Caution

All requests for assistance must contain a general caution and an abbreviated footnote caution. The suggested wording for the cautions are as follows:

a. For pre-charge cases

This Letter of Request is made to assist an ongoing police investigation being undertaken by a Canadian investigative agency. All information contained in this request is provided from the police investigation and consists of unproved allegations which the police investigators believe merit investigation. No charges have been laid and all persons named in this letter are presumed innocent under Canadian law. The consideration of charges will only take place at the conclusion of the investigation. All information in this request is confidential. All statements or information contained in this request must be read as a whole in the context of the investigative nature of this request.

All pre-charge requests must be identified as such in the request and the covering letter by the law enforcement officer submitting the request.

b. For post-charge cases

This Letter of Request is made to assist an ongoing police investigation by a Canadian investigative agency and/or to gather evidence for use in the corresponding criminal prosecution currently being conducted by the relevant Attorney-General’s Office. All information contained in this request is provided from the police investigation and consists of unproved allegations. While charges have been laid, under Canadian law, those charged are presumed innocent until proven guilty. All information in this request is confidential. All statements or information contained in this request must be read as a whole in the context of the investigation nature of this request.

2. Introduction

The (set out the name of the competent prosecuting and/or investigating competent authority e.g. PPSC, Attorney General of Ontario, Metropolitan Toronto Police Force, the RCMP, the Ontario Provincial Police) is investigating alleged violations of Canadian criminal laws, namely: (set out the offences, e.g. fraud, forgery, drug trafficking, money laundering), contrary to section(s) of the (identify the relevant legislation and provisions, e.g. s. 354 of the Criminal Code of Canada, s. 5 of the Controlled Drugs and Substances Act). These violations are alleged to have been committed by (identify as precisely as possible the subjects of the investigation or prosecution, including: name, date of birth, address, etc.)

In relation to this investigation,(identify the competent authority) requires assistance (briefly describe nature of evidence requested e.g. obtaining certified copies of documents; taking statements; obtaining telephone toll records etc.) This assistance is required because (describe, generally, why evidence is needed e.g. as evidence for use in the anticipated prosecution, to identify alleged co-conspirators, to trace the proceeds of the alleged criminal activity, etc.)

3. Summary of the law

In this section, identify and set out the full text of all provisions relevant to the offences under investigation and/or prosecution.

For example: The relevant Canadian statutory provisions are set out below.

Fraud: Section 380 of the Criminal Code of Canada states that:

Canada has jurisdiction over the offences described in this Summary of Law and the treaty between the Government of Canada and the Government of on mutual legal assistance in criminal matters applies to these offences.

4. Summary of investigation and allegations

This section should briefly describe the theory of the case, that is the nature of the investigation or proceedings and a summary of the relevant allegations.

The summary should clearly convey the investigatory nature of the request. Care should be taken to ensure that the request does not contain statements that are inconsistent with the investigatory nature of the request, in particular, statements which might erroneously suggest that conclusions or findings of guilt have been made by any Canadian authorities.

This section should include the following information:

  1. where possible, the identity, nationality and location of proposed witnesses;
  2. in the case of requests to take evidence from a person, a clear indication of whether the person is a subject of the investigation or simply a witness;
  3. in the case of requests to take evidence from a person, a clear indication of the reason the evidence is relevant to your investigation;
  4. where documentary evidence is requested, a clear indication of the relevance of the evidence sought to your investigation;
  5. when the execution of a search warrant is requested, the reason that this measure is required should be clearly conveyed; and
  6. where it is a request for the restraint of funds believed to represent proceeds of crime, ensure that the reasonable basis for believing that these funds constitute proceeds of crime is set out in the request. For instance, it is not sufficient to simply ask for the restraint of all accounts related to a person who is under investigation; the request must demonstrate a nexus between the foreign account/assets and the alleged criminal activity.

5. Request portion

The competent authority [insert name of competent authority] requires the following assistance:

This section should set out, in specific terms, exactly what is being sought including certification needs.

  • where documentary evidence is requested, to the extent possible, identify the particular documents sought (e.g. signature cards, account opening statements, etc.);
  • where necessary, set out the details of any particular procedure or requirement that ought to be followed and the reasons; e.g. if it is desired that the foreign authority authenticate/certify the copies of the bank records in accordance with the requirements of s. 30 of the Canada Evidence Act, a draft “fill-in-the-blank” affidavit/certificate for their use must be appended;
  • in the case of requests to take evidence from a person, clearly
    • describe the subject matter of the evidence or statement sought (please feel free to provide a list of specific questions); and
    • include instructions as to whether sworn or affirmed statements are required.
    • specify whether Canadian investigators/prosecutors wish to be in attendance and participate in the questioning, to the extent permitted, and set out why their attendance is necessary and/or desired.
  • if the request is for the execution of search warrants, identify precisely the location to be searched and the evidence to be seized;
  • if the request is for the transfer of a detained prisoner, it should clearly identify the prisoner’s place of incarceration, provide some detail about the sentence being served, identify any security concerns, set out the logistics of the prisoner’s entry and exit from Canada and specify the length of the prisoner’s stay in order that the Minister of Justice can prepare the Ministerial approval for entry into Canada required under the Immigration Act.

In making the request, allow for the time required both in Canada and the foreign State to arrange the logistics of transfer and obtain the necessary orders, e.g. 4-5 weeks notice. In setting out the anticipated time frame for the prisoner’s attendance in Canada, please keep in mind the exigencies of the trial process and give yourself a little leeway: altering the return date creates the need for new Ministerial approvals in Canada and new authorizations for absences in some foreign jurisdictions. As well, keep in mind that the foreign State must be provided with the prisoner’s written consent; this should accompany the request. Please note that young offenders cannot be transferred.

  1. where the restraint of assets is sought, the request must be restricted to asking for the restraint of assets demonstrated (....with respect to which there is a reasonable basis to believe,...) to represent the proceeds of crime;
  2. where the request is for real evidence, specify if any analysis will be done and specify commitment, if any, to returning the evidence;
  3. if the request if for a foreign State to lend exhibits from their judicial proceedings, provide as much detail as possible concerning the current location of the exhibits (e.g. the address of the courthouse or police station) and the proceedings in which they were used (e.g. court file number).

6. Time Constraints

Identify any time limit within which compliance with the request is desired and the reason for the time constraints. If there are limitation periods, set out the precise dates and indicate this in the cover letter.

7. Confidentiality

The need and the reasons for confidentiality should be expressly set out.

All requests for assistance to and from Canada are confidential State-to-State communications. However, practically speaking, it is recognized that the process of executing the request in the foreign country may require its disclosure. For instance, a copy of the request may be filed in open court in support of an application to gather evidence or the request may be provided to those from whom evidence is requested. Particularly sensitive requests should be identified when submitted to the International Assistance Group, so that confidentiality concerns can be discussed.

8. Contact Names

In order to expedite the execution of your request, include the names and contact numbers for key Canadian and foreign law enforcement/prosecution authorities familiar with the file. Counsel’s name and contact number should be included in the event the foreign authority wishes clarification or additional information.

Dated at Ottawa, Ontario, this of

3.8 Appendix B

LETTER OF REQUEST BY CANADA TO THE COMPETENT AUTHORITY OF

REQUEST FOR ASSISTANCE

1. Caution

All requests for assistance must contain a general caution and an abbreviated footnote caution. The suggested wording for the cautions are as follows:

a. For pre-charge cases

This Letter of Request is made to assist an ongoing police investigation being undertaken by a Canadian investigative agency. All information contained in this request is provided from the police investigation and consists of unproved allegations which the police investigators believe merit investigation. No charges have been laid and all persons named in this letter are presumed innocent under Canadian law. The consideration of charges will only take place at the conclusion of the investigation. All information in this request is confidential. All statements or information contained in this request must be read as a whole in the context of the investigative nature of this request.

All pre-charge requests must be identified as such in the request and the covering letter by the law enforcement officer submitting the request.

b. For post-charge cases

This Letter of Request is made to assist an ongoing police investigation by a Canadian investigative agency and/or to gather evidence for use in the corresponding criminal prosecution currently being conducted by the relevant Attorney General’s Office. All information contained in this request is provided from the police investigation and consists of unproved allegations. While charges have been laid under Canadian law those charged are presumed innocent until proven guilty. All information in this request is confidential. All statements or information contained in this request must be read as a whole in the context of the investigative nature of this request.

2. Introduction

The (set out the name of the competent prosecuting and/or investigating competent authority, e.g. PPSC, Attorney General of Ontario, Metropolitan Toronto Police Force, the RCMP, the Ontario Provincial Police) is investigating alleged violations of Canadian criminal laws, namely: (set out the offences, e.g. fraud, forgery, drug trafficking, money laundering), contrary to section(s) of the (identify the relevant legislation and provisions, e.g. s. 354 of the Criminal Code of Canada, s. 5 of the Controlled Drugs and Substances Act). These violations are alleged to have been committed by (identify as precisely as possible the subjects of the investigation or prosecution, including: name, date of birth, address, etc.)

3. Assurance

On behalf of the Government of Canada, I give the assurance to the Competent Legal Authority of that:

  1. In similar criminal investigations or prosecutions Canada will extend to reciprocal cooperation and is ready and willing to render assistance to in accordance with the law of Canada Footnote 4; and
  2. All information, documentation or other evidence provided to Canada by the Competent Legal Authority of is requested solely for use in relation to the investigation or prosecution of alleged violations of Canadian criminal law by (name of suspects) described in this request.

In relation to this investigation, (identify the competent authority) requires assistance (briefly describe nature of evidence requested, e.g. obtaining certified copies of documents; taking statements; obtaining telephone toll records). This assistance is required because (describe, generally, why evidence is needed, e.g. as evidence for use in the anticipated prosecution, to identify alleged co-conspirators, to trace the proceeds of the alleged criminal activity).

4. Summary of the Law

In this section, identify and set out the full text of all relevant provisions under investigation and/or prosecution

e.g. The relevant Canadian statutory provisions are set out below.

Fraud: Section 380 of the Criminal Code of Canada states that:

5. Summary of Investigation and Allegations

This section should briefly describe the theory of the case, that is the nature of the investigation or proceedings and a summary of the relevant allegations.

The summary should clearly convey the investigatory nature of the request. Care should be taken to ensure that the request does not contain statements that are inconsistent with the investigatory nature of the request, in particular, statements which might erroneously suggest that conclusions or findings of guilt have been made by any Canadian authorities.

This section should include the following information:

  1. where possible, the identity, nationality and location of proposed witnesses;
  2. in the case of requests to take evidence from a person, a clear indication of whether the person is a subject of the investigation or simply a witness;
  3. in the case of requests to take evidence from a person, a clear indication of the reason the evidence is relevant to the investigation;
  4. where documentary evidence is requested, a clear indication of the relevance of the evidence sought to the investigation;
  5. when the execution of a search warrant is requested, the reason that this measure is required should be clearly conveyed; and
  6. if the request is for the restraint of funds believed to represent proceeds of crime, ensure that the reasonable basis for believing that these funds constitute proceeds of crime is set out in the request. For instance, it is not sufficient to simply ask for the restraint of all accounts related to a person who is under investigation; the request must demonstrate a nexus between the foreign account/assets and the alleged criminal activity.

6. Request Portion

The competent authority [ insert name of competent authority] requires the following assistance:

This section should set out, in specific terms, exactly what is being sought, including certification needs.

  1. where documentary evidence is requested, to the extent possible, identify the particular documents sought (e.g. signature cards, account opening statements, etc.);
  2. where necessary, set out the details of any particular procedure or requirement that ought to be followed and the reasons, e.g. if it is desired that the foreign authority authenticate/certify the copies of the bank records in accordance with the requirements of s. 30 of the Canada Evidence Act, a draft “fill-in-the-blank” affidavit/certificate for their use must be appended;
  3. in the case of requests to take evidence from a person, clearly
    • describe the subject matter of the evidence or statement sought (please feel free to provide a list of specific questions); and
    • include instructions as to whether sworn or affirmed statements are required.
    • specify whether Canadian investigators/prosecutors wish to be in attendance and participate in the questioning, to the extent permitted, and set out why their attendance is necessary and/or desired.
  4. if the request is to have search warrants executed, identify precisely the location to be searched and the evidence to be seized;
  5. where the restraint of assets is sought, the request must be restricted to asking for the restraint of assets demonstrated (....with respect to which there is a reasonable basis to believe,...) to represent the proceeds of crime;
  6. where the request is for real evidence, specify if any analysis will be done and specify commitment, if any, to returning the evidence.

7. Time Constraints

Identify any time limit within which compliance with the request is desired and the reason for the time constraints. If there are limitation periods, set out the precise dates and indicate this in the cover letter.

8. Confidentiality

The need and the reasons for confidentiality should be expressly set out.

All requests for assistance to and from Canada are confidential State-to-State communications. However, practically speaking, it is recognized that the process of executing the request in the foreign country may require its disclosure. For instance, a copy of the request may be filed in open court in support of an application to gather evidence or the request may be provided to those from whom evidence is requested. Particularly sensitive requests should be identified when submitted to the International Assistance Group, so that confidentiality concerns can be discussed.

9. Contact Names

In order to expedite the execution of your request, include the names and contact numbers for key Canadian and foreign law enforcement/prosecution authorities familiar with the file. Counsel’s name and contact number should be included in the event the foreign authority wishes clarification or additional information.

Dated at Ottawa, Ontario, this of

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