Judicial Assistance(Criminal)

• Author: International Law Group

The United States government secured a Canadian court order under the Mutual Legal Assistance in Criminal Matters Act [the Act]. It entailed the collection of evidence from five witnesses in Canada for use in the investigation of a murder alleged to have taken place in Oklahoma. The witnesses consisted of the parents of the victim's wife who had been visiting the deceased and his wife just before and after his death and the wife's brother who was also a guest during the relevant time period.

According to the U.S., the victim's wife was nearby when someone killed the victim. Significantly, the order expressly provides that "any statement or statements made by the respondents in the examination . . . cannot be used . . . directly or indirectly, to incriminate the person giving the statement or statements except in a prosecution for perjury".

The witnesses appealed the order, claiming that the similarity of language between Section 18 of the Act and in the search warrant provisions of the Canadian Criminal Code s. 487(1)(b) showed that the legislature intended that the criteria be the same. Only in this way, they argued, can Canadian law adequately protect the privacy of Canadian citizens from the compelled furnishing of evidence. The Manitoba Court of Appeal, however, disagrees and dismisses the appeals.

The Court concedes that both the Criminal Code and the Act say that there has to be "reasonable grounds" to believe that there is evidence of an offense's commission. Where the contexts and goals of the respective provisions differ, however, identity of language does not necessarily mean identity of legal criteria.

The objective of the Criminal Code is to set up a standard for seizing and securing admissible evidence as to the suspected perpetration of an offense by designated person(s). Section 18(1) of the Act, on the other hand, implements procedures set up by the 1990 Treaty between the Government of Canada and the Government of the United States of America on...