Bill C-40
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PUBLICATION OF AGREEMENTS |
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| Publication in
Canada
Gazette
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5. (1) Unless the agreement has been
published under subsection (2), an
agreement - or the provisions respecting
mutual legal assistance in criminal matters
contained in a convention or other
international agreement - must be published
in the Canada Gazette no later than 60 days
after it comes into force.
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| Publication in
Canada
Treaty Series
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(2) An agreement - or the provisions
respecting mutual legal assistance in criminal
matters contained in a convention or other
international agreement - may be published
in the Canada Treaty Series and, if so
published, the publication must be no later
than 60 days after it comes into force.
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| Judicial notice
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(3) Agreements and provisions published in
the Canada Gazette or the Canada Treaty
Series are to be judicially noticed.
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| 1995, c. 5,
par. 25(1)(v)
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100. Subsections 6(1) to (3) of the Act are
replaced by the following:
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| Administra- tive arrangements
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6. (1) If there is no agreement between
Canada and a state or entity, or the state's or
entity's name does not appear in the schedule,
the Minister of Foreign Affairs may, with the
agreement of the Minister, enter into an
administrative arrangement with the state or
entity providing for legal assistance with
respect to an investigation specified in the
arrangement relating to an act that, if
committed in Canada, would be an indictable
offence.
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| Administra- tive arrangements
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(2) If an agreement expressly states that
legal assistance may be provided with respect
to acts that do not constitute an offence within
the meaning of the agreement, the Minister of
Foreign Affairs may, in exceptional
circumstances and with the agreement of the
Minister, enter into an administrative
arrangement with the state or entity
concerned, providing for legal assistance with
respect to an investigation specified in the
arrangement relating to an act that, if
committed in Canada, would be a
contravention of an Act of Parliament or of the
legislature of a province.
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| Nature of
administra- tive arrangement
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(3) An administrative arrangement entered
into under subsection (1) or (2) may be
implemented by the Minister, pursuant to this
Act, in the same manner as an agreement.
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101. Sections 7 and 8 of the Act are
replaced by the following:
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| Functions of
Minister
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7. (1) The Minister is responsible for the
implementation of every agreement and the
administration of this Act.
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| Agreement
and Act to
apply
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(2) When a request is presented to the
Minister by a state or entity or a Canadian
competent authority, the Minister shall deal
with the request in accordance with the
relevant agreement and this Act.
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PART I |
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FOREIGN INVESTIGATIONS OR OTHER PROCEEDINGS IN RESPECT OF OFFENCES |
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Implementation |
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| Limitation -
requests under
agreements
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8. (1) If a request for mutual legal assistance
is made under an agreement, the Minister may
not give effect to the request by means of the
provisions of this Part unless the agreement
provides for mutual legal assistance with
respect to the subject-matter of the request.
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| Request by
state or entity
in schedule
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(2) If a request for mutual legal assistance
is made by a state or entity whose name
appears in the schedule, the Minister may give
effect by means of the provisions of this Part
to a request with respect to any subject-matter.
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102. (1) Subsection 9(1) of the Act is
replaced by the following:
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| Standing and
jurisdiction
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9. (1) When the Minister approves a request
of a state or entity to enforce the payment of
a fine imposed in respect of an offence by a
court of criminal jurisdiction of the state or
entity, a court in Canada has jurisdiction to
enforce the payment of the fine, and the fine
is recoverable in civil proceedings instituted
by the state or entity, as if the fine had been
imposed by a court in Canada.
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(2) Subsection 9(3) of the Act is replaced
by the following:
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| Definition of
``fine''
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(3) For the purposes of this section, ``fine''
includes any pecuniary penalty determined by
a court of criminal jurisdiction of a state or
entity to represent the value of any property,
benefit or advantage, irrespective of its
location, obtained or derived directly or
indirectly as a result of the commission of an
offence.
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103. Subsection 11(1) of the Act is
replaced by the following:
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| Approval of
request to
search or seize
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11. (1) When the Minister approves a
request of a state or entity to have a search or
a seizure carried out in Canada regarding an
offence with respect to which the state or
entity has jurisdiction, the Minister shall
provide a competent authority with any
documents or information necessary to apply
for a search warrant.
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104. (1) Paragraph 12(1)(a) of the Act is
replaced by the following:
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(2) Paragraph 12(4)(b) of the Act is
replaced by the following:
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105. The portion of paragraph 15(1)(b) of
the Act before subparagraph (i) is replaced
by the following:
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106. Section 16 of the Act is replaced by
the following:
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| Terms and
conditions
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16. No record or thing seized that has been
ordered under section 15 to be sent to the state
or entity mentioned in subsection 11(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.
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107. Subsection 17(1) of the Act is
replaced by the following:
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| Approval of
request to
obtain
evidence
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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 with respect to which the state or
entity has jurisdiction, the Minister shall
provide a competent authority with any
documents or information necessary to apply
for the order.
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108. (1) Paragraph 18(1)(a) of the Act is
replaced by the following:
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(2) Paragraph 18(2)(b) of the French
version of the Act is replaced by the
following:
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(3) Paragraphs 18(7)(b) and (c) of the Act
are replaced by the following:
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109. Subsection 19(4) of the Act is
replaced by the following:
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| Refusals
based on
foreign law
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(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.
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110. (1) Subsection 20(1) of the Act is
replaced by the following:
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| Sending
abroad
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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.
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(2) Subsection 20(3) of the Act is replaced
by the following:
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| Further
execution
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(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 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.
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111. Section 21 of the Act is replaced by
the following:
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| Terms and
conditions
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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.
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112. Subparagraph 22(b)(ii) of the Act is
replaced by the following:
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113. The Act is amended by adding the
following after section 22:
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| Approval of
request to
obtain
evidence by
video link,
etc.
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22.1 (1) If the Minister approves a request
of a state or entity to compel a person to
provide evidence or a statement, 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, regarding an offence with respect to
which the state or entity has jurisdiction, the
Minister shall provide a competent authority
with any documents or information necessary
to apply for the order.
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| Application
for order
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(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).
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| Order for
video link,
etc.
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22.2 (1) The judge may make the order if
satisfied that there are reasonable grounds to
believe that
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| Provisions of
order
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(2) An order made under subsection (1)
shall order the person
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| Order
effective
throughout
Canada
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(3) An order made under subsection (1) may
be executed anywhere in Canada.
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| Terms and
conditions of
order
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(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.
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| Variation
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(5) The judge who made the order under
subsection (1) or another judge of the same
court may vary its terms and conditions.
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| Expenses
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(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.
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| Other laws
about
witnesses to
apply
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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.
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| Contempt of
court in
Canada
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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.
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114. (1) Subsection 23(1) of the Act is
replaced by the following:
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| Arrest warrant
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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
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(2) Subsection 23(3) of the Act is replaced
by the following:
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| Order
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(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.
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115. Subsection 24(1) of the Act is
replaced by the following:
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| Approval of
transfer
request
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24. (1) When the Minister approves a
request of a state or entity to have a detained
person who is serving a term of imprisonment
in Canada transferred to the state or entity, the
Minister shall provide a competent authority
with any documents or information necessary
to apply for a transfer order.
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116. (1) Subsection 25(1) of the Act is
replaced by the following:
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| Making of
transfer order
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25. (1) If the judge to whom an application
is made under subsection 24(2) is satisfied,
having considered, among other things, any
documents filed or information given in
support of the application, that the detained
person consents to the transfer and that the
state or entity has requested the transfer for a
fixed period, the judge may make a transfer
order.
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(2) Paragraph 25(3)(c) of the Act is
replaced by the following:
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117. (1) Subsection 30(1) of the Act is
replaced by the following:
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| Approval of
loan request
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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.
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