Foreign Warrants: Difference between revisions
m Text replacement - "CCC] }}" to "CCC] |{{NoteUp|}} }}" |
No edit summary |
||
| Line 3: | Line 3: | ||
==Judicial Authorizations Coming from Outside of the Province== | ==Judicial Authorizations Coming from Outside of the Province== | ||
{{seealso|Out of Province Arrest Warrants}} | {{seealso|Out of Province Arrest Warrants}} | ||
{{ | {{quotation2|<s> | ||
; Execution in another province | ; Execution in another province | ||
487.03 (1) If a warrant is issued under section 487.01, 487.05 or 492.1 or subsection 492.2(1) in one province, a judge or justice, as the case may be, in another province may, on application, endorse the warrant if it may reasonably be expected that it is to be executed in the other province and that its execution would require entry into or on the property of any person, or would require that an order be made under section 487.02 with respect to any person, in that province. | 487.03 (1) If a warrant is issued under section 487.01, 487.05 or 492.1 or subsection 492.2(1) in one province, a judge or justice, as the case may be, in another province may, on application, endorse the warrant if it may reasonably be expected that it is to be executed in the other province and that its execution would require entry into or on the property of any person, or would require that an order be made under section 487.02 with respect to any person, in that province. | ||
| Line 16: | Line 16: | ||
[Repealed, {{LegHistory10s|2019, c. 25}}, s. 196] | [Repealed, {{LegHistory10s|2019, c. 25}}, s. 196] | ||
|[{{CCCSec|487.03}} CCC] | |[{{CCCSec|487.03}} CCC] | ||
|{{NoteUp|}} | |{{NoteUp|487.03|1|1.1}} | ||
}} | }} | ||
| Line 60: | Line 60: | ||
===Electronic Records Held in US=== | ===Electronic Records Held in US=== | ||
{{ | {{quotation0| | ||
; 18 U.S. Code § 2703 - Required disclosure of customer communications or records | ; 18 U.S. Code § 2703 - Required disclosure of customer communications or records | ||
Revision as of 12:12, 5 May 2020
Judicial Authorizations Coming from Outside of the Province
- Execution in another province
487.03 (1) If a warrant is issued under section 487.01, 487.05 or 492.1 or subsection 492.2(1) in one province, a judge or justice, as the case may be, in another province may, on application, endorse the warrant if it may reasonably be expected that it is to be executed in the other province and that its execution would require entry into or on the property of any person, or would require that an order be made under section 487.02 with respect to any person, in that province.
- Endorsement
(1.1) The endorsement may be made on the original of the warrant or on a copy of the warrant that is transmitted by any means of telecommunication and, once endorsed, the warrant has the same force in the other province as though it had originally been issued there.[Repealed, 2019, c. 25, s. 196]
(2) [Repealed, 2007, c. 22, s. 7]
1993, c. 40, s. 15; 1995, c. 27, s. 1; 2000, c. 10, s. 13; 2007, c. 22, s. 7; 2008, c. 18, s. 12.
Judicial Authorizations Coming from Outside of Canada
Sections 10 to 16 of the The Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.) (MLACMA) govern the use of foreign search warrants applicable to matters within the jurisdiction of Canada.
- Purpose
The purpose of the MLACMA is to implement the various treaties and arrangements on mutual legal assistance. It sets out a procedure to help treaty partners detect and investigate crime.[1]
- ↑
Belgium v. Suthanthiran, 2017 ONCA 343 (CanLII), per Watt JA, at paras 48 to 50
Judicial Authorizations for Foreign Evidence
There is no recognized authority for a provincial judge or superior court justice to order the production of electronic records held exclusively in another country.[1]
- Treaty with United States
The Mutual Legal Assistance in Criminal Matters Treaty concerns requests either party for assistance in:[2]
- Serve documents upon a person (Article XI)
- Subpoena a witness to testify (Article XII)
- Transfer a person in custody (Article XV)
- Search and Seizure (XVI)
- Notification, Collection and Forfeiture in relation to Proceeds of Crime (Article XVII)
The terms of the MLAT are permissive and is not the only mechanism for obtaining evidence from a different jurisdiction.[3]
- No Standing to Challenge Foreign Warrants
Any judicial authorization issued by a foreign court cannot be challenged under s. 8 of the Charter.[4]
- ↑
Eg. Police File No. 2016-32834 (Re), 2016 BCPC 359 (CanLII), per Brecknell J
cf. Brecknell v British Columbia (Attorney General), 2018 BCCA 5 (CanLII), per Harris JA
- ↑ see Treaty Between the Government of Canada and the Government of the United States of America on Mutual Legal Assistance in Criminal Matters E101638 - CTS 1990 No.19
- ↑ R v Dorsay, 2006 BCCA 117 (CanLII), per Rowles JA
- ↑ R v Souvannarath, 2017 NSSC 107 (CanLII), per Roskinski J
Electronic Records Held in US
- 18 U.S. Code § 2703 - Required disclosure of customer communications or records
- (a)Contents of Wire or Electronic Communications in Electronic Storage.—
A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction. A governmental entity may require the disclosure by a provider of electronic communications services of the contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for more than one hundred and eighty days by the means available under subsection (b) of this section.
- (b)Contents of Wire or Electronic Communications in a Remote Computing Service.—
- (1) A governmental entity may require a provider of remote computing service to disclose the contents of any wire or electronic communication to which this paragraph is made applicable by paragraph (2) of this subsection—
- (A) without required notice to the subscriber or customer, if the governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction; or
- (B) with prior notice from the governmental entity to the subscriber or customer if the governmental entity—
- (i) uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena; or
- (ii) obtains a court order for such disclosure under subsection (d) of this section;
- except that delayed notice may be given pursuant to section 2705 of this title.
- (2) Paragraph (1) is applicable with respect to any wire or electronic communication that is held or maintained on that service—
- (A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such remote computing service; and
- (B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing.
- (c)Records Concerning Electronic Communication Service or Remote Computing Service.—
- (1) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity—
- (A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction;
- (B) obtains a court order for such disclosure under subsection (d) of this section;
- (C) has the consent of the subscriber or customer to such disclosure;
- (D) submits a formal written request relevant to a law enforcement investigation concerning telemarketing fraud for the name, address, and place of business of a subscriber or customer of such provider, which subscriber or customer is engaged in telemarketing (as such term is defined in section 2325 of this title); or
- (E) seeks information under paragraph (2).
- (2) A provider of electronic communication service or remote computing service shall disclose to a governmental entity the—
- (A) name;
- (B) address;
- (C) local and long distance telephone connection records, or records of session times and durations;
- (D) length of service (including start date) and types of service utilized;
- (E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and
- (F) means and source of payment for such service (including any credit card or bank account number),
of a subscriber to or customer of such service when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (1).
- (3) A governmental entity receiving records or information under this subsection is not required to provide notice to a subscriber or customer.
- (d)Requirements for Court Order.—
A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. In the case of a State governmental authority, such a court order shall not issue if prohibited by the law of such State. A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider.
Information Sharing
Police have a common law authority to share investigative information with other investigative organizations locally or internationally.[1]
- ↑ Wakeling v United States of America, [2014] 3 SCR 549, 2014 SCC 72 (CanLII), per Moldaver J