Judicial Assistance (Criminal)

• Author: International Law Group

There is a Treaty Between the United States and Canada on Mutual Legal Assistance in Criminal Matters (March 18, 1985, U.S.-Can., entered into force, January 4, 1990, 24 I.L.M. 1092; see 135 Cong. Rec. 25,644 (October 24, 1989)) ("MLAT"). In Article II, ¶ 1 of the MLAT, the two governments agreed to render mutual legal assistance "in all matters relating to the investigation, prosecution and suppression of offences."

As the Court describes it: "Under this Treaty, Canada makes a request for assistance by contacting the United States' 'Central Authority' under the Treaty, which is the 'the Attorney General or officials designed [sic] by him.' ... If the particular type of assistance requested requires action of a federal district court, the Attorney General and his officials utilize existing statutory authority including 28 U.S.C. Section 1782 to bring an action seeking the requested evidence or information."

"Because the Attorney General simply utilizes the preexisting statutory authority provided under 28 U.S.C. Section 1782 when satisfying treaty obligations under the MLAT, the Treaty itself is self-executing -- obviating the need for implementing legislation. ... Upon its entry into force in January 4, 1990, the MLAT became a law of this land on par with a federal statute." [Slip op. 5-6] In 2000, Canadian authorities tried to subpoena seven individuals living in the Southern District of Florida as part of an ongoing criminal investigation into a smuggling operation. Canada claims that, beginning in 1989, certain individuals have been legally exporting goods to the U.S. and then smuggling them back into Canada without paying Canadian import duties.

Based on the MLAT and 28 U.S.C. Section 1782, the U.S. petitioned the district court in February 2001 for an order appointing an Assistant U.S. Attorney (AUSA) as a "commissioner" to help the Canadian government to obtain evidence located in Florida. The following month, the district court issued the order and the appropriate subpoenas. Upon motion, however, a magistrate judge quashed the subpoenas in the belief that Section 1782 contains an implicit "foreign discoverability" requirement. In the magistrate's view, Section 1782 does not authorize federal courts to compel such testimony in the U.S. since Canadian authorities cannot domestically compel witnesses to testify at the pre-charge stage.

The U.S., on behalf of the Canadian authorities, appealed. The U.S. Court of Appeals for the Eleventh...