3. Obtaining Evidence for Foreign Proceedings

This section summarizes the rules regarding the involuntary taking of evidence in Canada for use in foreign proceedings and taking of evidence outside of Canada for use in Canadian proceedings, including the role of commission evidence in such proceedings. Bilateral and multilateral treaties that facilitate the taking of evidence in trans-national civil and criminal proceedings are also summarized.

3.1 Taking Evidence in Canada for Foreign Proceedings

A party to litigation outside of Canada may require the assistance of a Canadian court to obtain evidence from witnesses in Canada for use in the foreign proceeding. The medium by which this is normally achieved is through the use of a letter of request (also known as a letter rogatory). A letter of request is a formal request by a foreign court to a judge of a Canadian superior court requesting the taking of evidence from an individual resident in Canada.

The foreign litigant first obtains the letter of request from the foreign court where the action is pending. The procedure of the foreign court will govern at that stage. The letter of request should name the witness to be examined, describe the nature of the evidence sought and indicate why the evidence of the witness is relevant and necessary.

After the foreign litigant has obtained the letter of request, the foreign litigant must then make an application to the court in the Canadian province where the witness resides for an order of that court enforcing the letter of request.

The country in which the requesting court is situated is not required to have negotiated a treaty with Canada, such as a Mutual Legal Assistance Treaty (MLAT), before the request. Rather,
co-operation with the foreign court is governed by the principle of comity of nations. A Canadian court, however, will not grant an order where to do so would offend Canadian sovereignty or is contrary to Canadian public policy.

The Evidence Act of the province in which the witness resides will generally govern the procedure by which the letter of request is enforced. The Canadian court has the discretion to order the examination of a witness or the production of a document, or both, for use in a foreign trial or for pre-trial discovery purposes, and regardless of whether the witness is a party to the foreign action or merely a person with relevant information.

3.2 Taking Foreign Evidence for Canadian Proceedings

In both civil and criminal proceedings, a Canadian court may order the appointment of a commissioner to take the evidence from a witness who is outside Canada. The transcript of the examination may then be used at the trial without the need for the witness coming to Canada.

In addition, in civil cases, Canadian courts may issue letters of request (see discussion above) asking a foreign court or other authority having jurisdiction where the witness is located to assist in compelling a witness to attend before a commissioner in the foreign jurisdiction to answer questions for pre-trial discovery.

Whether the foreign court will enforce the letter of request from the Canadian court is at the discretion of the foreign court, and would be governed by the procedural rules of that jurisdiction.

In the province of Quebec, a witness may refuse to produce a document under the Business Concerns Records Act, which provides that, subject to certain exceptions, no person shall pursuant to or under any requirement issued by any legislative, judicial or administrative authority outside Quebec, remove or cause to be removed from any place in Quebec to a place outside Quebec, any document or digest of any document relating to any business concern.

3.3 Mutual Legal Assistance in Criminal Matters Treaties

MLATs are bilateral agreements between two nations that seek to improve the efficiency of their respective laws of criminal procedure to better facilitate the prosecution of trans-national crimes. The MLAT is a key mechanism for facilitating the gathering of involuntary evidence in criminal cases, and seeks to streamline the process for the summoning of witnesses, the production of documents, and service of process. MLATs are a response to the growing trans-national nature of criminal activity.

Canada’s federal government has passed domestic legislation to facilitate MLATs. The Mutual Legal Assistance in Criminal Matters Act dictates the procedure by which foreign requests for assistance in gathering evidence are governed. Generally, for the foreign request for assistance to succeed, the country in which the court is situated must have a treaty with Canada and the request for assistance has to be approved by the federal Minister of Justice.

Where the Minister of Justice has approved the request, a competent Canadian authority (for example, the Attorney General of the province) makes the necessary application to the Superior Court of the province where the evidence is situated for an order compelling its taking.

Canada has negotiated an MLAT with the United States (Canada-U.S. MLAT). Under the Articles of the Canada-U.S. MLAT, a “central authority” of one state must make requests for assistance to the central authority of the other. The central authorities for the purposes of the Canada-U.S. MLAT are the International Affairs Group of the Department of Justice in Ottawa, and the Office of International Affairs of the Department of Justice in Washington, D.C., respectively.

3.4 Civil Procedure Conventions

Canada is not a party to the Hague Conventions on Civil Procedure, except the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil and Commercial Matters.

This is an important consideration, given the fact that many of Canada’s most important allies and trading partners, including the United States, are party to the 1970 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, which governs the procedure by which the compulsion of evidence may be facilitated for use in trans-national civil and commercial proceedings.

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