Mutual Legal Assistance in Criminal Matters Act (R.S.C., 1985, c. 30 (4th Supp.))

Appeal

Marginal note:Appeal on question of law

35 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.

PART IIAdmissibility in Canada of Evidence Obtained Abroad Pursuant to an Agreement

Marginal note:Foreign records

• 36 (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.

• Marginal note:Probative value

  (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.

Marginal note:Foreign things

37 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.

Marginal note:Status of certificate

• 38 (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.

• Marginal note:Notice

  (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.

Marginal note:Service abroad

39 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.

PART IIIImplementation of Agreements in Canada

Special Authorization to Come Into Canada

Marginal note:Special authorization

• 40 (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.

• Marginal note:Variation of authorization

  (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.

• Marginal note:Non-compliance with conditions of authorization

  (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.

Marginal note:Safe conduct

• 41 (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.

• Marginal note:Limitation

  (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.

Detention in Canada

Marginal note:Detention of transferred person

• 42 (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.

• Marginal note:Paramountcy of detention order

  (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.

• Marginal note:Variation of detention order

  (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.

Determination of the Validity of Refusals

Marginal note:Powers of judge

43 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.

Privilege for Foreign Records

Marginal note:Privilege

• 44 (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.

• Marginal note:Privilege

  (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.

PART IVConsequential Amendments and Coming into Force

Criminal Code

45 [Amendment]

Crown Liability Act

46 [Amendment]

Immigration Act

47 and 48 [Amendments]

Coming into Force

Marginal note:Coming into force

Footnote ^*49 This Act or any provision thereof shall come into force on a day or days to be fixed by proclamation.

• Return to footnote ^*[Note: Act in force October 1, 1988, see SI/88-199.]