Type of document: Prosecution Directive
Effective date: November 14, 2017

Countries often seek the assistance of other countries in gathering evidence located in foreign jurisdictions for use in domestic criminal investigations and prosecutions. This assistance is provided by way of both informal and formal information-sharing processes.

Informal information-sharing processes typically involve police services in different countries working together to investigate offences allegedly committed in one or both countries. Informal police-to-police cooperation may take place where the requested assistance does not require a formal court process in the foreign jurisdiction. This assistance may include, for example, interviewing cooperative witnesses, conducting surveillance, gathering publicly-available information, and conducting coordinated joint investigations of cross-border offences. Informal police-to-police cooperation is performed by and in the discretion of the police.

The term “Mutual Legal Assistance” refers to the formal legal process through which countries cooperate in the investigation and prosecution of criminal offences. Mutual Legal Assistance does not replace existing means of informal cooperation. Informal police-to-police cooperation remains an important mechanism for international assistance, even where Mutual Legal Assistance is legally available.

When a search warrant, summons, production order or similar legal mechanism is necessary to obtain evidence in a foreign jurisdiction, a Mutual Legal Assistance request may be made. Mutual Legal Assistance requests typically involve confidential state-to-state communications governed by treaties and protocols. Where no treaty exists, assistance may still be provided pursuant to agreement between Canada and the foreign country.

Mutual Legal Assistance may include:

  • gathering evidence, including documents and records
  • compelling witnesses to give statements or testimony
  • exchanging information and objects, such as exhibits
  • locating and identifying persons
  • transferring persons in custody
  • executing requests for search and seizure
  • serving documents
  • enforcing fines and confiscation orders.

Seeking information/evidence in a foreign country

In Ontario, requests for Mutual Legal Assistance to obtain information in a foreign country in relation to criminal (and some provincial) investigations and prosecutions are made by the Crown Law Office – Criminal to the Department of Justice Canada, with input from the investigating police force and/or the assigned Prosecutor. The ultimate determination of whether Mutual Legal Assistance will be sought from the foreign country rests with the Department of Justice Canada.

Prosecutors requesting Mutual Legal Assistance should contact the Crown Law Office – Criminal as early on in the criminal process as possible, as Mutual Legal Assistance requests involve inherent delays and may be time-consuming. As noted above, informal means of cooperation may be more efficient and appropriate in certain cases.

Responding to requests for assistance by a foreign country

Mutual Legal Assistance requests by foreign countries for information and evidence located in Canada are reviewed by the Department of Justice Canada, and, if approved, forwarded to the appropriate province or territory for execution. In Ontario, Crown Law Office – Criminal is responsible for processing these requests with the assistance of local law enforcement.

If a Prosecutor is contacted directly by a foreign state seeking assistance, she should contact Crown Law Office – Criminal immediately. Crown Law Office – Criminal will advise whether the requested assistance can be provided through informal information-sharing processes or whether a formal Mutual Legal Assistance request must be made. If a formal Mutual Legal Assistance request is required, Crown Law Office – Criminal will refer the request to the Department of Justice.