Mutual Legal Assistance in Criminal Matters Act

Contents

1Short title#

This Act may be cited as the Mutual Legal Assistance in Criminal Matters Act.

2Definitions#

(1)In this Act,

agreement means

(a)a treaty, convention or other international agreement that is in force, to which Canada is a party and that contains a provision respecting mutual legal assistance in criminal matters, or

(b)to the extent of their application to criminal investigations or prosecutions and except for the purposes of Parts II and III of this Act, the Convention on Mutual Administrative Assistance in Tax Matters, concluded at Strasbourg on January 25, 1988, as amended from time to time by a protocol or other international instrument, as ratified by Canada, or a comprehensive tax information exchange agreement that has effect and to which Canada is a party or a tax treaty, as defined in subsection 248(1) of the Income Tax Act; (accord)

competent authority means the Attorney General of Canada, the attorney general of a province or any person or authority with responsibility in Canada for the investigation or prosecution of offences; (autorité compétente)

data means representations, including signs, signals or symbols, that are capable of being understood by an individual or processed by a computer system or other device; (données)

foreign state [Repealed, 1999, c. 18, s. 97]

International Criminal Court means the International Criminal Court as defined in subsection 2(1) of the Crimes Against Humanity and War Crimes Act; (Cour pénale internationale)

judge means

(a)in Ontario, a judge of the Superior Court of Justice,

(a.1)in Prince Edward Island, a judge of the trial division of the Supreme Court,

(b)in Quebec, a judge of the Superior Court,

(c)in New Brunswick, Manitoba, Alberta and Saskatchewan, a judge of the Court of Queen’s Bench, and

(d)in Nova Scotia, British Columbia, Newfoundland, Yukon and the Northwest Territories, a judge of the Supreme Court, and in Nunavut, a judge of the Nunavut Court of Justice; (juge)

Minister means the Minister of Justice; (ministre)

offence means an offence within the meaning of the relevant agreement; (infraction)

record means a medium on which data is registered or marked; (document)

request means a request for assistance presented pursuant to an agreement; (demande)

state or entity means

(a)a state, a province, state or political subdivision of the state, or a colony, dependency, possession, protectorate, condominium, trust territory or any territory falling under the jurisdiction of the state, that is a party to an agreement with Canada,

(b)an international criminal court or tribunal, the name of which appears in the schedule, or

(c)a supranational body with responsibility for investigating or prosecuting criminal matters that is named in the schedule or that is a party to an agreement with Canada. (État ou entité)

treaty [Repealed, 1999, c. 18, s. 97]

(2)[Repealed, 1999, c. 18, s. 97] (repealed)

3Inconsistency of Acts#

(1)In the event of any inconsistency between the provisions of this Act and the provisions of another Act of Parliament, other than the provisions of an Act prohibiting the disclosure of information or prohibiting its disclosure except under certain conditions, the provisions of this Act prevail to the extent of the inconsistency.

(2)Nothing in this Act or an agreement shall be construed so as to abrogate or derogate from an arrangement or practice respecting cooperation between a Canadian competent authority and a foreign or international authority or organization.

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Schedule

4Designation#

(1)The following are designated as states or entities for the purposes of this Act:

(a)international criminal courts and tribunals that are named in the schedule; and

(b)supranational bodies with responsibility for investigating or prosecuting criminal matters that are named in the schedule.

(2)The Minister of Foreign Affairs may, with the agreement of the Minister, by order, add to the schedule the name of any international criminal court or tribunal and of any supranational body with responsibility for investigating or prosecuting criminal matters or delete any name from the schedule.

Publication of Agreements

5Publication in Canada Gazette#

(1)Unless the agreement has been published under subsection (2), an agreement referred to in paragraph (a) of the definition agreement in subsection 2(1) — 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.

(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.

(3)Agreements and provisions published in the Canada Gazette or the Canada Treaty Series are to be judicially noticed.

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Administrative Arrangements

6Administrative arrangements if no agreement#

(1)If there is no agreement between Canada and a state or entity, or if the name of an international criminal court or tribunal or of a supranational body with responsibility for investigating or prosecuting criminal matters 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, international criminal court or tribunal or supranational body 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.

(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.

(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.

(4)An administrative arrangement entered into under subsection (1) or (2) has force and effect only for such period not exceeding six months as is specified therein and with respect to the type of legal assistance that is specified therein.

(5)Sections 4 and 5 do not apply in respect of an administrative arrangement entered into under subsection (1) or (2).

(6)In any legal or other proceeding, an administrative arrangement entered into under subsection (1) or (2) and purporting to be signed by the Minister of Foreign Affairs or by a person designated by the Minister of Foreign Affairs is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and proof that it is what it purports to be.

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Functions of the Minister

7Functions of Minister#

(1)The Minister is responsible for the implementation of every agreement referred to in paragraph (a) of the definition agreement in subsection 2(1) and for the administration of this Act.

(2)When a request is made to the Minister under an agreement referred to in paragraph (a) of the definition agreement in subsection 2(1) by a state or entity or a Canadian competent authority, the Minister shall deal with the request in accordance with the agreement and this Act.

(3)When a request made by a state or entity under an agreement referred to in paragraph (b) of the definition agreement in subsection 2(1) is presented to the Minister by the Minister of National Revenue, the Minister shall deal with the request in accordance with the agreement and this Act.

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Part I · Foreign Investigations or Other Proceedings in Respect of Offences

Implementation

8Limitation — requests under agreements#

(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 assistance with respect to the subject-matter of the request.

(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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Fines

9Standing and jurisdiction#

(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.

(2)No proceedings under subsection (1) shall be instituted more than five years after the fine was imposed.

(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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International Criminal Court

9.1Orders for restraint or seizure#

(1)When a request is presented to the Minister by the International Criminal Court for the enforcement of an order for the restraint or seizure of proceeds of crime, the Minister may authorize the Attorney General of Canada to make arrangements for the enforcement of the order.

(2)On receipt of an authorization, the Attorney General of Canada may file a copy of the order with the superior court of criminal jurisdiction of the province in which property that is the subject of the order is believed to be located.

(3)On being filed, the order may be enforced as if it were a warrant issued under subsection 462.32(1) or 462.321(1) of the Criminal Code or an order made under subsection 462.33(3) of that Act.

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9.2Orders of reparation or forfeiture or imposing fines#

(1)When a request is presented to the Minister by the International Criminal Court for the enforcement of an order of reparation or forfeiture, or an order imposing a fine, the Minister may authorize the Attorney General of Canada to make arrangements for the enforcement of the order.

(2)On receipt of an authorization, the Attorney General of Canada may file a copy of the order with the superior court of criminal jurisdiction of

(a)the province in which property that is the subject of the order is believed to be located; or

(b)the province in which some or all of the property available to satisfy the order is believed to be located.

On being filed, the order shall be entered as a judgment of that court.

(3)Before filing an order referred to in subsection (1), the Attorney General of Canada must be satisfied that

(a)a person has been convicted of an offence within the jurisdiction of the International Criminal Court; and

(b)the conviction and the order are not subject to further appeal.

(4)An order has, from the date it is filed under subsection (2), the same effect as if it had been

(a)in the case of an order of reparation, an order under section 738 of the Criminal Code;

(b)in the case of an order of forfeiture, an order under subsection 462.37(1) or 462.38(2) of that Act; and

(c)in the case of an order imposing a fine, a fine imposed under section 734 of that Act.

(5)Subject to any orders made under subsection (8), proceeds from the enforcement of orders filed under this section shall be paid into the Crimes Against Humanity Fund established under section 30 of the Crimes Against Humanity and War Crimes Act.

(6)When an order is filed under subsection (2), a copy of any amendments made to the order may be filed in the same way as the order, and the amendments do not, for the purpose of this Act, have effect until they are registered.

(7)When an order has been filed under subsection (2), it shall not be executed before notice in accordance with subsection 462.41(2) of the Criminal Code has been given to every person who, in the opinion of the court, appears to have a valid interest in the property.

(8)Subsection 462.41(3) and section 462.42 of the Criminal Code apply, with any modifications that the circumstances require, in respect of a person who claims an interest in the property.

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Foreign Orders for Restraint, Seizure and Forfeiture of Property in Canada

9.3Orders for restraint or seizure#

(1)When a written request is presented to the Minister by a state or entity, other than the International Criminal Court referred to in section 9.1, for the enforcement of an order for the restraint or seizure of property situated in Canada issued by a court of criminal jurisdiction of the state or entity, the Minister may authorize the Attorney General of Canada or an attorney general of a province to make arrangements for the enforcement of the order.

(2)On receipt of an authorization, the Attorney General of Canada or an attorney general of a province may file a copy of the order with the superior court of criminal jurisdiction of the province in which the property that is the subject of the order is believed to be located. On being filed, the order shall be entered as a judgment of that court and may be executed anywhere in Canada.

(3)Before filing an order, the Attorney General of Canada or an attorney general of a province must be satisfied that

(a)the person has been charged with an offence within the jurisdiction of the state or entity; and

(b)the offence would be an indictable offence if it were committed in Canada.

(4)On being filed,

(a)an order for the seizure of proceeds of crime may be enforced as if it were a warrant issued under subsection 462.32(1) or 462.321(1) of the Criminal Code;

(b)an order for the restraint of proceeds of crime may be enforced as if it were an order made under subsection 462.33(3) of the Criminal Code;

(c)an order for the seizure of offence-related property may be enforced as if it were a warrant issued under subsection 487(1) of the Criminal Code, subsection 11(1) of the Controlled Drugs and Substances Act or subsection 87(1) of the Cannabis Act, as the case may be; and

(d)an order for the restraint of offence-related property may be enforced as if it were an order made under subsection 490.8(3) of the Criminal Code, subsection 14(3) of the Controlled Drugs and Substances Act or subsection 91(3) of the Cannabis Act, as the case may be.

(5)When an order is filed under subsection (2), a copy of any amendments made to the order may be filed in the same way as the order, and the amendments do not, for the purpose of this Act, have effect until they are registered.

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9.4Orders of forfeiture#

(1)When a written request is presented to the Minister by a state or entity, other than the International Criminal Court referred to in section 9.1, for the enforcement of an order of forfeiture of property situated in Canada issued by a court of criminal jurisdiction of the state or entity, the Minister may authorize the Attorney General of Canada or an attorney general of a province to make arrangements for the enforcement of the order.

(2)The Minister shall refuse the request if he or she

(a)has reasonable grounds to believe that the request has been made for the purpose of punishing a person by reason of their race, sex, sexual orientation, religion, nationality, ethnic origin, language, colour, age, mental or physical disability or political opinion;

(b)is of the opinion that enforcement of the order would prejudice an ongoing proceeding or investigation;

(c)is of the opinion that enforcement of the order would impose an excessive burden on the resources of federal, provincial or territorial authorities;

(d)is of the opinion that enforcement of the order might prejudice Canada’s security, national interest or sovereignty; or

(e)is of the opinion that refusal of the request is in the public interest.

(3)On receipt of an authorization, the Attorney General of Canada or an attorney general of a province may file a copy of the order with the superior court of criminal jurisdiction of the province in which all or part of the property that is the subject of the order is believed to be located. On being filed, the order shall be entered as a judgment of that court and may be executed anywhere in Canada.

(4)An order that is filed under subsection (3) by an attorney general of a province is deemed to be filed by the Attorney General of Canada.

(5)Before filing an order, the Attorney General of Canada or an attorney general of a province must be satisfied that

(a)the person has been convicted of an offence within the jurisdiction of the state or entity;

(b)the offence would be an indictable offence if it were committed in Canada; and

(c)the conviction and the order are not subject to further appeal.

(6)From the date it is filed under subsection (3), subject to subsection (4),

(a)an order of forfeiture of proceeds of crime has the same effect as if it were an order under subsection 462.37(1) or 462.38(2) of the Criminal Code; and

(b)an order for the forfeiture of offence-related property has the same effect as if it were an order under subsection 490.1(1) or 490.2(2) of the Criminal Code, subsection 16(1) or 17(2) of the Controlled Drugs and Substances Act or subsection 94(1) or 95(2) of the Cannabis Act, as the case may be.

(7)When an order is filed under subsection (3), a copy of any amendments made to the order may be filed in the same way as the order, and the amendments do not, for the purpose of this Act, have effect until they are registered.

(8)When an order has been filed under subsection (3),

(a)an order of forfeiture of proceeds of crime shall not be executed before notice in accordance with subsection 462.41(2) of the Criminal Code has been given to any person who, in the opinion of the court, appears to have a valid interest in the property; and

(b)an order of forfeiture of offence-related property shall not be executed before

(i)notice in accordance with subsection 490.41(2) of the Criminal Code, subsection 19.1(2) of the Controlled Drugs and Substances Act or subsection 98(2) of the Cannabis Act has been given to any person who resides in a dwelling-house that is offence-related property and who is a member of the immediate family of the person charged with or convicted of the offence in relation to which property would be forfeited, and

(ii)notice in accordance with subsection 490.4(2) of the Criminal Code, subsection 19(2) of the Controlled Drugs and Substances Act or subsection 97(2) of the Cannabis Act has been given to any person who, in the opinion of the court, appears to have a valid interest in the property.

(9)Subsection 462.41(3) and section 462.42 of the Criminal Code apply, with any modifications that the circumstances require, to a person who claims an interest in proceeds of crime, and subsections 490.4(3) and 490.41(3) and section 490.5 of the Criminal Code, subsections 19(3) and 20(4) of the Controlled Drugs and Substances Act and subsections 97(3) and 99(4) of the Cannabis Act apply, with any modifications that the circumstances require, to a person who claims an interest in offence-related property.

(10)A person who is convicted of an offence in relation to which an order of forfeiture is issued by a court of criminal jurisdiction of a state or entity is deemed to be a person referred to in paragraph 462.41(3)(a) or 462.42(1)(a) of the Criminal Code.

(11)The provisions of the Seized Property Management Act apply in respect of all property forfeited under this section.

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Search and Seizure

10Application of Criminal Code#

The Criminal Code applies, with any modifications that the circumstances require, in respect of a search or a seizure under this Act, except to the extent that the Criminal Code is inconsistent with this Act.^note

11Approval of request for investigative measures#

(1)When the Minister approves a request of a state or entity to have a search or a seizure, or the use of any device or investigative technique or other procedure or the doing of any other thing to be described in a warrant, carried out regarding an offence, the Minister shall provide a competent authority with any documents or information necessary to apply for a search warrant or other warrant.

(2)The competent authority who is provided with the documents or information shall apply ex parte for a search warrant or other warrant to a judge of the province in which the competent authority believes that evidence may be found.

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12Issuance of search warrant#

(1)A judge of a province to whom an application is made under subsection 11(2) may issue a search warrant authorizing a peace officer named therein to execute it anywhere in the province, where the judge is satisfied by statements under oath that there are reasonable grounds to believe that

(a)an offence has been committed;

(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 a building, receptacle or place in the province; and

(c)it would not, in the circumstances, be appropriate to make an order under subsection 18(1).

(1.1)The judge may, in addition to or instead of a peace officer, authorize the Commissioner of Competition appointed under subsection 7(1) of the Competition Act or his or her authorized representative named in the warrant to execute the search warrant, in which case the Commissioner or his or her representative, as the case may be, has, in relation to the warrant, all of the powers and duties that are set out for a peace officer in this section and sections 13 and 14.

(2)A judge who issues a search warrant under subsection (1) may subject the execution of the warrant to any conditions that the judge considers desirable, including conditions relating to the time or manner of its execution.

(3)A judge who issues a search warrant under subsection (1) shall fix a time and place for a hearing to consider the execution of the warrant as well as the report of the peace officer concerning its execution.

(4)A search warrant issued under subsection (1) may be in Form 5 in Part XXVIII of the Criminal Code, varied to suit the case, and must

(a)set out the time and place for the hearing mentioned in subsection (3);

(b)state that, at that hearing, an order will be sought for the sending to the state or entity of the records or things seized in execution of the warrant; and

(c)state that every person from whom a record or thing is seized in execution of the warrant and any person who claims to have an interest in a record or thing so seized has the right to make representations at the hearing before any order is made concerning the record or thing.

(5)A peace officer who executes a search warrant issued under subsection (1) shall, before entering the place or premises to be searched or as soon as practicable thereafter, give a copy of the warrant to any person who is present and appears to be in charge of the place or premises.

(6)A peace officer who, in any unoccupied place or premises, executes a search warrant issued under subsection (1) shall, on entering the place or premises or as soon as practicable thereafter, cause a copy of the warrant to be affixed in a prominent place within the place or premises.

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13Seizure of other things#

A peace officer who executes a warrant issued under section 12 may in addition seize any thing that he believes on reasonable grounds will afford evidence of, has been obtained by or used in or is intended to be used in, the commission of an offence against an Act of Parliament, and sections 489.1 to 492 of the Criminal Code apply in respect of any thing seized pursuant to this section.

13.1 #

[Repealed, 2014, c. 31, s. 38] (repealed)

14Report#

(1)A peace officer who executes a warrant issued under section 12 shall, at least five days before the time of the hearing to consider its execution, file with the court of which the judge who issued the warrant is a member a written report concerning the execution of the warrant and including a general description of the records or things seized, other than a thing seized under section 13.

(2)The peace officer shall send a copy of the report to the Minister forthwith after its filing.

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15Sending abroad#

(1)At the hearing to consider the execution of a warrant issued under section 12, after having considered any representations of the Minister, the competent authority, the person from whom a record or thing was seized in execution of the warrant and any person who claims to have an interest in the record or thing so seized, the judge who issued the warrant or another judge of the same court may

(a)where the judge is not satisfied that the warrant was executed according to its terms and conditions or where the judge is satisfied that an order should not be made under paragraph (b), order that a record or thing seized in execution of the warrant be returned to

(i)the person from whom it was seized, if possession of it by that person is lawful, or

(ii)the lawful owner or the person who is lawfully entitled to its possession, if the owner or that person is known and possession of the record or thing by the person from whom it was seized is unlawful; or

(b)in any other case, order that a record or thing seized in execution of the warrant be sent to the state or entity mentioned in subsection 11(1) and include in the order any terms and conditions that the judge considers desirable, including terms and conditions

(i)necessary to give effect to the request mentioned in that subsection,

(ii)with respect to the preservation and return to Canada of any record or thing seized, and

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

(2)At the hearing mentioned in subsection (1), the judge may require that a record or thing seized in execution of the warrant be brought before him.

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16Terms and conditions#

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.^note

16.1Other warrants#

(1)A judge of the province to whom an application is made under subsection 11(2) may, in the manner provided for by the Criminal Code, issue a warrant, other than a warrant referred to in section 12, to use any device or investigative technique or do anything described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property.

(2)Subject to subsection (3), a warrant issued under subsection (1) may be obtained, issued and executed in the manner provided for by the Criminal Code, with any necessary modifications.

(3)Subsections 12(3) and (4) and sections 14 to 16 apply in respect of a warrant issued under subsection (1) — other than a warrant issued in the manner provided for by section 492.1 or 492.2 of the Criminal Code — and prevail over any provisions of the Criminal Code that are inconsistent with them.

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16.2Sending abroad — certain warrants#

(1)If a judge referred to in subsection 16.1(1) issues a warrant in the manner provided for under section 492.1 or 492.2 of the Criminal Code, the judge must also order

(a)that the peace officer who executes the warrant send a record containing the data obtained under the warrant directly to the state or entity that made the request under subsection 11(1); or

(b)that sections 20 and 21 apply to the warrant with any necessary modifications.

(2)The peace officer who executes the warrant must

(a)make a report concerning the execution of the warrant to the judge who issued the warrant or to another judge of the same court, accompanied by a general description of the data obtained under the warrant and, if the judge requires it, a record containing the data; and

(b)send a copy of the report to the Minister without delay.

(3)If the judge makes an order under paragraph (1)(a), the peace officer must make the report to the judge and send a record containing the data to the state or entity that made the request no later than five days after the day on which all of the data is obtained under the warrant.

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Production Orders

17Approval of request to obtain evidence#

(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.

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18Evidence-gathering order#

(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.

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19Report#

(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.

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20Sending abroad#

(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.

^note

21Terms and conditions#

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.^note

22Contempt of court#

(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.

^note

22.01Application of Criminal Code#

The Criminal Code applies, with any necessary modifications, in respect of an order made under subsection 22.03(1) in the manner provided for under any of sections 487.015 to 487.018 and 487.0191 of the Criminal Code, except to the extent that that Act is inconsistent with this Act.^note

22.02Approval of request to obtain production#

(1)If the Minister approves a request of a state or entity to obtain an order under this Act made in the manner provided for under any of sections 487.015 to 487.018 of the Criminal Code to require the production of a record containing data, the Minister must provide a competent authority with any documents or information necessary to apply for the order.

(2)The competent authority must apply ex parte for an order made in the manner provided for under any of sections 487.015 to 487.018 and 487.0191 of the Criminal Code to a justice as defined in section 2 of the Criminal Code, a judge of a superior court of criminal jurisdiction as defined in that section or a judge of the Court of Quebec.

^note

22.03Production and non-disclosure orders#

(1)The justice or judge to whom the application is made may make an order in the manner provided for under any of sections 487.015 to 487.018 and 487.0191 of the Criminal Code if the conditions set out in that section have been met.

(2)An order made in the manner provided for under any of sections 487.015 to 487.018 of the Criminal Code must require that a record containing the data be given to a designated person.

^note

22.04Sending abroad#

(1)If the justice or judge makes an order in the manner provided for under any of sections 487.015 to 487.018 of the Criminal Code, the justice or judge must also order

(a)that the person designated in the order send a record containing the data directly to the state or entity that made the request under subsection 22.02(1); or

(b)that sections 20 and 21 apply to the order with any necessary modifications.

(2)The person designated in the order must

(a)make a report concerning the execution of the order to the justice or judge who made it — or to another justice for the same territorial division or another judge in the judicial district where the order was made — accompanied by a general description of the data contained in the record obtained under the order and, if the justice or judge requires it, a record containing the data; and

(b)send a copy of the report to the Minister without delay.

(3)If the justice or judge makes an order under paragraph (1)(a), the person designated in the order must make the report to the justice or judge and send a record containing the data to the state or entity that made the request no later than five days after the day on which such a record is obtained under the order.

^note

22.05Offence#

Section 487.0198 of the Criminal Code applies to everyone who is subject to an order made under subsection 22.03(1) in the manner provided for under any of sections 487.015 to 487.018 of the Criminal Code.^note

22.06Orders to gather tax information#

(1)A judge of the province to whom an application is made under subsection 17(2) with respect to an investigation or prosecution relating to an act or omission that, if it had occurred in Canada, would have constituted an offence referred to in subsection 462.48(1.1) of the Criminal Code may make an order for the gathering of the information or documents referred to in paragraph 462.48(2)(c) of that Act.

(2)Subject to subsection (3), an order made under subsection (1) may be obtained and made in accordance with subsections 462.48(1) to (5) of the Criminal Code and executed in the manner provided for in that Act, with any necessary modifications.

(3)Paragraphs 18(2)(b) and (c), subsections 18(3) to (9) and sections 19 to 22, other than paragraph 19(1)(a), apply, with any necessary modifications, in respect of an order made under subsection (1) and prevail over any provisions of the Criminal Code that are inconsistent with them.

^note

Video Link

22.1Approval of request to obtain evidence by video link, etc.#

(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).

^note

22.2Order for video link, etc.#

(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.

^note

22.3Other laws about witnesses to apply#

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.^note

22.4Contempt of court in Canada#

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.^note

Arrest Warrant

23Arrest warrant#

(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 make a release order, as defined in section 2 of the Criminal Code, the form of which may be adapted to suit the circumstances.

(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.

^note

Examination of Place or Site

23.1Approval of request for examination of place or site#

(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.

^note

Transfer of Detained Persons

24Approval of transfer request#

(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.

(2)The competent authority who is provided with the documents or information shall apply for a transfer order to a judge of the province in which the person is detained.

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

(a)state the name of the detained person;

(b)state the place of confinement of the detained person;

(c)designate a person or class of persons into whose custody the detained person is sought to be delivered;

(d)state the place to which the detained person is sought to be transferred;

(e)state the reasons why the detained person is sought to be transferred; and

(f)specify a period of time at or before the expiration of which the detained person is to be returned.

^note

25Making of transfer order#

(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.

(2)A judge to whom an application is made under subsection 24(2) may order that the detained person be brought before him so that that person may be examined with respect to the transfer.

(3)A transfer order made under subsection (1) must

(a)set out the name of the detained person and his place of confinement;

(b)order the person who has custody of the detained person to deliver him into the custody of a person who is designated in the order or who is a member of a class of persons so designated;

(c)order the person receiving the detained person into custody under paragraph (b) to take him or her to the state or entity and, on the return of the detained person to Canada, to return that person to the place of confinement where he or she was when the order was made;

(d)state the reasons for the transfer; and

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

(4)A transfer order made under subsection (1) may include any terms or conditions that the judge making it considers desirable, including those relating to the protection of the interests of the detained person.

^note

26Absence deemed imprisonment#

For the purposes of Parts I and II of the Corrections and Conditional Release Act and the Prisons and Reformatories Act, a detained person who is not in the place of confinement from which he was delivered pursuant to a transfer order shall be deemed to be in that place of confinement and to have applied himself industriously to the program of the place of confinement, as long as he remains in custody pursuant to the transfer order and is of good behaviour.^note

27Variation of transfer order#

A judge who made a transfer order or another judge of the same court may vary its terms and conditions.

28Copy of order to jailer#

A copy of a transfer order made under subsection 25(1) and of an order varying it made under section 27 shall be delivered, by the competent authority who applied for the order, to the Minister and to the person in whose custody the detained person was when the transfer order was made.

29Exception for young persons#

Sections 24 to 28 do not apply in respect of a person who, at the time the request mentioned in subsection 24(1) is presented, is a young person within the meaning of the Youth Criminal Justice Act.^note

Lending Exhibits

30Approval of loan request#

(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.

^note

31Making of loan order#

(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.

^note

32Variation of loan order#

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

33Copy of order to custodian#

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.

34Presumption of continuity#

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.^note

Appeal

35Appeal on question of law#

An appeal lies, with leave, on a question of law alone, to the court of appeal, within the meaning of section 2 of the Criminal Code, from any order or decision of a judge or a court in Canada made under this Act, if the application for leave to appeal is made to a judge of the court of appeal within fifteen days after the order or decision.^note

Part II · Admissibility in Canada of Evidence Obtained Abroad Pursuant to an Agreement

36Foreign records#

(1)In a proceeding with respect to which Parliament has jurisdiction, a record or a copy of the record and any affidavit, certificate or other statement pertaining to the record made by a person who has custody or knowledge of the record, sent to the Minister by a state or entity in accordance with a Canadian request, is not inadmissible in evidence by reason only that a statement contained in the record, copy, affidavit, certificate or other statement is hearsay or a statement of opinion.

(2)For the purpose of determining the probative value of a record or a copy of a record admitted in evidence under this Act, the trier of fact may examine the record or copy, receive evidence orally or by affidavit, or by a certificate or other statement pertaining to the record in which a person attests that the certificate or statement is made in conformity with the laws that apply to a state or entity, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the state or entity, including evidence as to the circumstances in which the data contained in the record or copy was written, stored or reproduced, and draw any reasonable inference from the form or content of the record or copy.

^note

37Foreign things#

In a proceeding with respect to which Parliament has jurisdiction, a thing and any affidavit, certificate or other statement pertaining to the thing made by a person in a state or entity as to the identity and possession of the thing from the time it was obtained until its sending to a competent authority in Canada by the state or entity in accordance with a Canadian request, are not inadmissible in evidence by reason only that the affidavit, certificate or other statement contains hearsay or a statement of opinion.^note

38Status of certificate#

(1)An affidavit, certificate or other statement mentioned in section 36 or 37 is, in the absence of evidence to the contrary, proof of the statements contained therein without proof of the signature or official character of the person appearing to have signed the affidavit, certificate or other statement.

(2)Unless the court decides otherwise, in a proceeding with respect to which Parliament has jurisdiction, no record or copy thereof, no thing and no affidavit, certificate or other statement mentioned in section 36 or 37 shall be received in evidence unless the party intending to produce it has given to the party against whom it is intended to be produced seven days notice, excluding holidays, of that intention, accompanied by a copy of the record, copy, affidavit, certificate or other statement and unless, in the case of a thing, the party intending to produce it has made it available for inspection by the party against whom it is intended to be produced during the five days following a request by that party that it be made so available.

39Service abroad#

The service of a document in the territory over which the state or entity has jurisdiction may be proved by affidavit of the person who served it.^note

Part III · Implementation of Agreements in Canada

Special Authorization to Come Into Canada

40Special authorization#

(1)The Minister may, in order to give effect to a request of a Canadian competent authority, authorize a person in a state or entity who is inadmissible under the Immigration and Refugee Protection Act to come into Canada at a place designated by the Minister and to go to and remain in a place in Canada so designated for the period of time specified by the Minister, and the Minister may make the authorization subject to any conditions that the Minister considers desirable.

(2)The Minister may vary the terms of an authorization granted under subsection (1) and, in particular, may extend the period of time during which the person is authorized to remain in a place in Canada.

(3)A person to whom an authorization is granted under subsection (1) who is found in a place in Canada other than the place designated in the authorization or in any place in Canada after the expiration of the period of time specified in the authorization or who fails to comply with some other condition of the authorization shall, for the purposes of the Immigration and Refugee Protection Act, be deemed to be a person who entered Canada as a temporary resident and remains after the period authorized for their stay.

^note

41Safe conduct#

(1)A person who is in Canada pursuant to a request to give evidence in a proceeding or to give assistance in relation to an investigation or proceeding

(a)may not be detained, prosecuted or punished in Canada for any act or omission that occurred before the person’s departure from the state or entity pursuant to the request;

(b)is not subject to civil process in respect of any act or omission that occurred before the person’s departure from the state or entity pursuant to the request; and

(c)may not be required to give evidence in any proceeding in Canada other than the proceeding to which the request relates.

(2)Subsection (1) ceases to apply to a person who is in Canada pursuant to a request when the person leaves Canada or has the opportunity to leave Canada but remains in Canada for a purpose other than fulfilling the request.

^note

Detention in Canada

42Detention of transferred person#

(1)When the Minister, in order to give effect to a request of a Canadian competent authority, authorizes a person who is detained in a state or entity to be transferred to Canada for a period of time specified by the Minister, a judge of the province to which the person is to be transferred may make an order for the detention of the person anywhere in Canada and for the return of the person to the state or entity.

(2)An order made under subsection (1) is paramount to any order made, in respect of anything that occurred before the person is transferred to Canada, by a Canadian court, a judge of a Canadian court, a Canadian justice of the peace or any other person who has power in Canada to compel the appearance of another person.

(3)The judge who made the detention order or another judge of the same court may vary its terms and conditions and, in particular, may extend the duration of the detention.

^note

Determination of the Validity of Refusals

43Powers of judge#

When a Canadian request is presented to a state or entity and a person in the state or entity refuses to answer one or more questions or to give up certain records or things by reason of a law in force in Canada, a judge may determine the validity of the refusal on application made, on reasonable notice to the person, by a Canadian competent authority.^note

Privilege for Foreign Records

44Privilege#

(1)Subject to subsection 38(2), a record sent to the Minister by a state or entity 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 of it 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 of such a record, or who has knowledge of any data 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 data that is contained in it.

^note

Part IV · Consequential Amendments and Coming into Force

Criminal Code

45 #

[Amendment]

Crown Liability Act

46 #

[Amendment]

Immigration Act

47 and 48 #

[Amendments]

Coming into Force

*49Coming into force#

This Act or any provision thereof shall come into force on a day or days to be fixed by proclamation.

Designated States or Entities (Sections 2, 4, 6 and 8)

European Public Prosecutor’s OfficeInternational Criminal CourtThe International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994, established by Resolution 955 (1994) of the Security Council of the United NationsThe International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Law Committed in the Territory of the Former Yugoslavia since 1991, established by Resolution 827 (1993) of the Security Council of the United Nations

Related provisions

— 1998, c. 30, s. 10Every proceeding commenced before the coming into force of this section and in respect of which any provision amended by sections 12 to 16 applies shall be taken up and continued under and in conformity with that amended provision without any further formality.

Federal laws of Canada reproduced under the Reproduction of Federal Law Order (SI/97-5); not the official version. Source: Justice Laws Website.