Taking of evidence

Canada

Canada - Mutual Legal Assistance in Criminal Matters Act 1985 (2015) EN/FR

Mutual Legal Assistance in Criminal Matters Act

International Criminal Court

17. (1) When the Minister approves a request of a state or entity to obtain, by means of an order of a judge, evidence regarding an offence, the Minister shall provide a competent authority with any documents or information necessary to apply for the order.

(2) The competent authority who is provided with the documents or information shall apply ex parte for an order for the gathering of evidence to a judge of the province in which the competent authority believes part or all of the evidence may be found.

18. (1) A judge to whom an application is made under subsection 17(2) may make an order for the gathering of evidence, where he is satisfied that there are reasonable grounds to believe that

(a) an offence has been committed; and

(b) evidence of the commission of the offence or information that may reveal the whereabouts of a person who is suspected of having committed the offence will be found in Canada.

(2) An order made under subsection (1) must provide for the manner in which the evidence is to be obtained in order to give effect to the request mentioned in subsection 17(1) and may

(a) order the examination, on oath or otherwise, of a person named therein, order the person to attend at the place fixed by the person designated under paragraph (c) for the examination and to remain in attendance until he is excused by the person so designated, order the person so named, where appropriate, to make a copy of a record or to make a record from data and to bring the copy or record with him, and order the person so named to bring with him any record or thing in his possession or control, in order to produce them to the person before whom the examination takes place;

(b) order a person named therein to make a copy of a record or to make a record from data and to produce the copy or record to the person designated under paragraph (c), order the person to produce any record or thing in his possession or control to the person so designated and provide, where appropriate, for any affidavit or certificate that, pursuant to the request, is to accompany any copy, record or thing so produced;

(c) designate a person before whom the examination referred to in paragraph (a) is to take place or to whom the copies, records, things, affidavits and certificates mentioned in paragraph (b) are to be produced; and

(d) order a person named in it to answer any question and to produce any record or thing to the person designated under paragraph (c) in accordance with the laws of evidence and procedure in the state or entity that presented the request.

(3) For greater certainty, under paragraph (2)(c), a judge who makes an order under subsection (1) may designate himself or herself -- either alone or with another person, including another judge -- or may designate another person, including another judge.

(4) An order made under subsection (1) may be executed anywhere in Canada.

(5) An order made under subsection (1) may include any terms or conditions that the judge considers desirable, including those relating to the protection of the interests of the person named therein and of third parties.

(6) The judge who made the order under subsection (1) or another judge of the same court may vary its terms and conditions.

(7) A person named in an order made under subsection (1) may refuse to answer any question or to produce a record or thing to the person designated under paragraph (2)(c) if

(a) answering the question or producing the record or thing would disclose information that is protected by the Canadian law of non-disclosure of information or privilege;

(b) requiring the person to answer the question or to produce the record or thing would constitute a breach of a privilege recognized by a law in force in the state or entity that presented the request; or

(c) answering the question or producing the record or thing would constitute the commission by the person of an offence against a law in force in the state or entity that presented the request.

(8) If a person refuses to answer a question or to produce a record or thing, the person designated under paragraph (2)(c)

(a) may, if he or she is a judge of a Canadian or foreign court, make immediate rulings on any objections or issues within his or her jurisdiction; or

(b) shall, in any other case, continue the examination and ask any other question or request the production of any other record or thing mentioned in the order.

(9) A person named in an order made under subsection (1) who, under subsection (7), refuses to answer one or more questions or to produce certain records or things shall, within seven days, give to the person designated under paragraph (2)(c), unless that person has already ruled on the objection under paragraph (8)(a), a detailed statement in writing of the reasons on which the person bases the refusal to answer each question that the person refuses to answer or to produce each record or thing that the person refuses to produce.

(10) A person named in an order made under subsection (1) is entitled to be paid the travel and living expenses to which the person would be entitled if the person were required to attend as a witness before the judge who made the order.

19. (1) A person designated pursuant to paragraph 18(2)(c) in an order made under subsection 18(1) shall make a report to the judge who made the order or another judge of the same court, accompanied by

(a) a transcript of every examination held pursuant to the order;

(b) a general description of every record or thing produced to the person pursuant to the order and, if
the judge so requires, a record or thing itself; and

(c) a copy of every statement given under subsection 18(9) of the reasons for a refusal to answer any question or to produce any record or thing.

(2) The person designated pursuant to paragraph 18(2)(c) shall send a copy of the report to the Minister forthwith after it is made.

(3) If any reasons contained in a statement given under subsection 18(9) are based on the Canadian law of non-disclosure of information or privilege, a judge to whom a report is made shall determine whether those reasons are well-founded, and, if the judge determines that they are, that determination shall be mentioned in any order that the judge makes under section 20, but if the judge determines that they are not, the judge shall order that the person named in the order made under subsection 18(1) answer the questions or produce the records or things.

(4) A copy of every statement given under subsection 18(9) that contains reasons that purport to be based on a law that applies to the state or entity shall be appended to any order that the judge makes under section 20.

20. (1) A judge to whom a report is made under subsection 19(1) may order that there be sent to the state or entity the report and any record or thing produced, as well as a copy of the order accompanied by a copy of any statement given under subsection 18(9) that contains reasons that purport to be based on a law that applies to the state or entity, as well as any determination of the judge made under subsection 19(3) that the reasons contained in a statement given under subsection 18(9) are well-founded.

(2) An order made under subsection (1) may include any terms or conditions that the judge considers desirable, after having considered any representations of the Minister, the competent authority, the person who produced any record or thing to the person designated under paragraph 18(2)(c) and any person who claims to have an interest in any record or thing so produced, including terms and conditions

(a) necessary to give effect to the request mentioned in subsection 17(1);

(b) with respect to the preservation and return to Canada of any record or thing so produced; and

(c) with respect to the protection of the interests of third parties.

(3) The execution of an order made under subsection 18(1) that was not completely executed because of a refusal, by reason of a law that applies to the state or entity, to answer one or more questions or to produce certain records or things to the person designated under paragraph 18(2)(c) may be continued, unless a ruling has already been made on the objection under paragraph 18(8)(a), if a court of the state or entity or a person designated by the state or entity determines that the reasons are not well-founded and the state or entity so advises the Minister.

(4) No person named in an order made under subsection 18(1) whose reasons for refusing to answer a question or to produce a record or thing are determined, in accordance with subsection (3), not to be well-founded, or whose objection has been ruled against under paragraph 18(8)(a), shall, during the continued execution of the order or ruling, refuse to answer that question or to produce that record or thing to the person designated under paragraph 18(2)(c), except with the permission of the judge who made the order or ruling or another judge of the same court.

21. No record or thing that has been ordered under section 20 to be sent to the state or entity mentioned in subsection 17(1) shall be so sent until the Minister is satisfied that the state or entity has agreed to comply with any terms or conditions imposed in respect of the sending abroad of the record or thing.

22. (1) A person named in an order made under subsection 18(1) commits a contempt of court if the person refuses to answer a question or to produce a record or thing to the person designated under paragraph 18(2)(c) after a judge has ruled against the objection under paragraph 18(8)(a).

(2) If no ruling has been made under paragraph 18(8)(a), a person named in an order made under subsection 18(1) commits a contempt of court if the person refuses to answer a question or to produce a record or thing to the person designated under paragraph 18(2)(c)

(a) without giving the detailed statement required by subsection 18(9); or

(b) if the person so named was already asked the same question or requested to produce the same record or thing and the reasons on which that person based the earlier refusal were determined not to be well-founded by

(i) a judge, if the reasons were based on the Canadian law of non-disclosure of information or privilege, or

(ii) a court of the state or entity or by a person designated by the state or entity, if the reasons were based on a law that applies to the state or entity.

22.1 (1) If the Minister approves a request of a state or entity to compel a person to provide evidence or a statement regarding an offence by means of technology that permits the virtual presence of the person in the territory over which the state or entity has jurisdiction, or that permits the parties and the court to hear and examine the witness, the Minister shall provide a competent authority with any documents or information necessary to apply for the order.

(2) The competent authority who is provided with the documents or information shall apply ex parte to a judge of the province in which the person may be found for an order for the taking of the evidence or statement from the person under subsection (1).

22.2 (1) The judge may make the order if satisfied that there are reasonable grounds to believe that

(a) an offence has been committed; and

(b) the state or entity believes that the person's evidence or statement would be relevant to the investigation or prosecution of the offence.

(2) An order made under subsection (1) shall order the person

(a) to attend at the place fixed by the judge for the taking of the evidence or statement by means of the technology and to remain in attendance until the person is excused by the authorities of the state or entity;

(b) to answer any questions put to the person by the authorities of the state or entity or by any person authorized by those authorities, in accordance with the law that applies to the state or entity;

(c) to make a copy of a record or to make a record from data and to bring the copy or record, when appropriate; and

(d) to bring any record or thing in his or her possession or control, when appropriate, in order to show it to the authorities by means of the technology.

(3) An order made under subsection (1) may be executed anywhere in Canada.

(4) An order made under subsection (1) may include any terms or conditions that the judge considers desirable, including those relating to the protection of the interests of the person named in it and of third parties.

(5) The judge who made the order under subsection (1) or another judge of the same court may vary its terms and conditions.

(6) A person named in an order made under subsection (1) is entitled to be paid the travel and living expenses to which the person would be entitled if the person were required to attend as a witness before the judge who made the order.

22.3 For greater certainty, when a witness gives evidence or a statement pursuant to an order made under section 22.2, the evidence or statement shall be given as though the witness were physically before the court or tribunal outside Canada, for the purposes of the laws relating to evidence and procedure but only to the extent that giving the evidence would not disclose information otherwise protected by the Canadian law of non-disclosure of information or privilege.

22.4 When a witness gives evidence under section 22.2, the Canadian law relating to contempt of court applies with respect to a refusal by the person to answer a question or to produce a record or thing as ordered by the judge under that section.

23. (1) The judge who made the order under subsection 18(1) or section 22.2 or another judge of the same court may issue a warrant for the arrest of the person named in the order where the judge is satisfied, on an information in writing and under oath, that

(a) the person did not attend or remain in attendance as required by the order or is about to abscond;

(b) the order was personally served on the person; and

(c) in the case of an order made under subsection 18(1), the person is likely to give material evidence and, in the case of an order under section 22.2, the state or entity believes that the testimony of the person would be relevant to the prosecution of the offence.

(2) A warrant issued under subsection (1) may be executed anywhere in Canada by any peace officer.

(3) A peace officer who arrests a person in execution of a warrant issued under subsection (1) shall, without delay, bring the person or cause the person to be brought before the judge who issued the warrant or another judge of the same court who may, to ensure compliance with the order made under subsection 18(1) or section 22.2, order that the person be detained in custody or released on recognizance, with or without sureties.

(4) A person who is arrested in execution of a warrant issued under subsection (1) is entitled to receive, on request, a copy of the information on which the warrant was issued.

23.1 (1) When the Minister approves a request of a state or entity to examine a place or site in Canada regarding an offence, including by means of the exhumation and examination of a grave, the Minister shall provide a competent authority with any documents or information necessary to apply for an order.

(2) The competent authority that is provided with the documents or information shall apply ex parte for an order for the examination of a place or site to a judge of the province in which the place or site is located.

(3) An order may include any terms or conditions that the judge considers desirable, including those relating to the time and manner of its execution, and a requirement for notice.

Mutual Legal Assistance in Criminal Matters Act

International Criminal Court

Lending Exhibits

30. (1) When the Minister approves the request of a state or entity to have an exhibit that was admitted in evidence in a proceeding in respect of an offence in a court in Canada lent to the state or entity, the Minister shall provide a competent authority with any documents or information necessary to apply for a loan order.

(2) After having given reasonable notice to the attorney general of the province where the exhibit sought to be lent to the state or entity mentioned in subsection (1) is located and to the parties to the proceeding, the competent authority who is provided with the documents or information shall apply for a loan order to the court that has possession of the exhibit.

(3) An application made under subsection (2) must

(a) contain a description of the exhibit requested to be lent;

(b) designate a person or class of persons to whom the exhibit is sought to be given;

(c) state the reasons for the request, as well as contain a description of any tests that are sought to be performed on the exhibit and a statement of the place where the tests will be performed;

(d) state the place or places to which the exhibit is sought to be removed; and

(e) specify a period of time at or before the expiration of which the exhibit is to be returned.

31. (1) If the court to which an application is made under subsection 30(2) is satisfied that the state or entity has requested the loan for a fixed period and has agreed to comply with the terms and conditions that the court proposes to include in any loan order, the court may, after having considered any representations of the persons to whom notice of the application was given in accordance with subsection 30(2), make a loan order.

(2) A loan order made under subsection (1) must

(a) contain a description of the exhibit;

(b) order the person who has possession of the exhibit to give it to a person designated in the order or who is a member of a class of persons so designated;

(c) contain a description of any tests thereby authorized to be performed on the exhibit, as well as a statement of the place where the tests must be performed;

(d) fix the place or places to which the exhibit may be removed; and

(e) fix the period of time at or before the expiration of which the exhibit must be returned.

(3) A loan order made under subsection (1) may include any terms or conditions that the court making it considers desirable, including those relating to the preservation of the exhibit.

32. A court that made a loan order may vary its terms and conditions.

33. A copy of a loan order and of an order varying it shall be delivered by the competent authority who applied for the order to the Minister and to the person who had possession of the exhibit when the loan order was made.

34. The burden of proving that an exhibit lent to a state or entity pursuant to a loan order made under subsection 31(1) and returned to Canada is not in the same condition as it was when the loan order was made or that it was tampered with after the loan order was made is on the party who makes that allegation and, in the absence of that proof, the exhibit is deemed to have been continuously in the possession of the court that made the loan order.

Rome Statute

Article 93 Other forms of cooperation

1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:

(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;