Mandats étrangers

Cette page a été mise à jour ou révisée de manière substantielle pour la dernière fois janvier 2020. (Rev. # 12154)

• < Fouilles, perquisitions et saisies

Autorisations judiciaires venant de l'extérieur de la province

Exécution dans une autre province

487.03 (1) Dans le cas où un mandat est délivré dans une province donnée en vertu des articles 487.01, 487.05 ou 492.1 ou du paragraphe 492.2(1), un juge, ou un juge de paix, selon le cas, d’une autre province peut, sur demande, viser le mandat s’il est raisonnable de croire que son exécution se fera dans cette autre province et qu’il sera nécessaire de pénétrer dans une propriété privée située dans cette autre province ou de rendre une ordonnance en vertu de l’article 487.02 à l’égard d’une personne s’y trouvant.

Note marginale :Visa

(1.1) Le visa est apposé sur l’original du mandat ou sur une copie transmise à l’aide d’un moyen de télécommunication et une fois visé, le mandat est exécutoire dans l’autre province.

(2) [Abrogé, 2007, ch. 22, art. 7]

1993, ch. 40, art. 151995, ch. 27, art. 12000, ch. 10, art. 132007, ch. 22, art. 72008, ch. 18, art. 12  [Repealed, 2019, c. 25, s. 196]

– CCC (CanLII), (Jus.)

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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.

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.

Treaty with United States

The Mutual Legal Assistance in Criminal Matters Treaty concerns requests either party for assistance in:

• 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.

"Offence"

Article I...
"Offence" means

for Canada, an offence created by a law of Parliament that may be prosecuted upon indictment, or an offence created by the Legislature of a Province specified in the Annex;

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The treaty defines applicable offences as those that may be prosecuted by indictment, which would include hybrid offences before election is made. Summary offences are not available subject matters for the MLAT process.

Applicable Provincial Offences

The only provincial offences are the following:

• securities;
• wildlife protection;
• environmental protections; and
• consumer protection.

Accordingly, offences including occupational health and safety offences, would not be a valid basis to make a request under the MLAT. The same would go for investigations pursuant to a provincial enquiry would not be able to avail of the MLAT process.

No Standing to Challenge Foreign Warrants

Any judicial authorization issued by a foreign court cannot be challenged under s. 8 of the Charter.

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.

– 18 USC 2703

Information Sharing

Police have a common law authority to share investigative information with other investigative organizations locally or internationally.

Voir également

• MLA Information Exchange Network
  • MLA Request materials