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Why Retain Our Firm to Fight a Mutual Legal Assistance Treaty Request?

The firm's Principal Barrister Gordon S. Campbell served as MLAT counsel in the Federal Prosecution Service of the Department of Justice Canada, and has published three books dealing with the subject. In addition to his law degrees, he  holds a degree in International Relations (Trinity College, University of Toronto), served with Global Affairs Canada, and collaborated with the UN, World Bank, OECD and APEC, giving the firm a strong background in the ins and out of international diplomatic requests for evidence gathering, and how to fight them. 

What is Mutual Legal Assistance?

Mutual legal assistance usually involves a foreign country asking for Canada's help in gathering evidence inside Canada concerning foreign crimes. Foreign law enforcement authorities have no jurisdiction to exercise police powers inside Canada, but a foreign country may have its own jurisdiction to prosecute offences committed by Canadians, which partly took place within Canada, or where evidence is located in Canada. If there is reason to believe there is evidence of those offences located in Canada, that foreign country might make a request pursuant to a Mutual Legal Assistance Treaty (MLAT) for Canada's help. 

If the MLAT request is granted, foreign investigators might travel to Canada to assist with gathering of the evidence, but Canadian law enforcement officials would be in charge of the process which could involve search warrants, wiretaps, statement taking, or most any technique local investigators could use to investigate Canadian crimes. 

A MLAT request is time consuming and complex for the requesting country, as the usual route is for foreign police to ask their Attorney General to ask their Minister of Foreign Affairs to ask Canada's Minister of Foreign Affairs who would ask Canada's Attorney General for help.

Sometimes there are much simpler direct police to police requests for information and investigation that bypass the formal MLAT route if nothing being requested would violate a person's privacy rights and thus require judicial authorization.

Why Challenge Mutual Legal Assistance?

A MLAT request could be based on ill-conceived or improper motives within a foreign investigative authority, and even if properly framed could amass all manner of private information in your control in Canada. Once that information leaves Canada, you would be stuck fighting out its use in a foreign court, not in Canadian courts which would no longer have jurisdiction over it. 

Most importantly, MLATs can be precursors to extradition requests, where you could be arrested and detained in Canada pending being shipping almost anywhere in the world for trial. And once you’ve left Canada, it could be hard to get out of whatever country has demanded your extradition. Thus stopping the evidence gathering may be the best way to stop the extradition.

How to Challenge Mutual Legal Assistance?

MLAT requests are very difficult to challenge, because they don't require the same complex technical requirements to be met as is the case for Extradition. MLAT is more a political than a legal process. However, ways to go after a MLAT request include bringing a court application before a superior court to stop the granting of permission to investigate, or stop the exporting of the fruits of an investigation. 

When to Challenge Mutual Legal Assistance?

Likely the greatest difficulty in challenging a MLAT request is that the target of an investigation might not find out about the MLAT until it's too late, with the information already gathered and sent out of Canada. But at other times if the target is subject to a search warrant because of the MLAT, he'll have direct notice of what's going on. 

MLAT challenges need to happen very quickly as information might be seized and sent outside Canada by the following day. Some kind of emergency application to a superior court will need to be brought prior to the conclusion of the evidence gathering and its export, or there will be no point in making the challenge. Claims of solicitor-client privilege, if they have some plausible basis in reality, might slow the transmission of information long enough for a court to make a determination on the merits of the request.