Protocol on Foreign Criminal Investigators in Canada

Circular Note No. JLA-0142 of March 2, 2007

Most recent date of change: November 15, 2017

The Department of Foreign Affairs, Trade and Development (Office of Protocol) presents its compliments to Their Excellencies the Heads of Diplomatic Missions and Charges d'affaires, a.i. accredited to Canada and has the honour to refer to the matter of foreign criminal investigators wishing to pursue criminal investigations in Canada.

The Department wishes to draw the attention of their Excellencies on Canada's Protocol on Foreign Criminal Investigators (the Protocol), recently adopted by the Government of Canada. The Protocol reaffirms Canadian policy in relation to foreign criminal investigators intending to come to Canada, and clarifies the notification and approval procedure applicable in such instances.

It is Canadian policy that, before foreign criminal investigators enter Canada to conduct investigative work, they must notify Canadian authorities in advance, through recognized channels, and seek approval for such visits. This policy not only contributes to the safeguarding of Canadian sovereignty and public interest of Canada, it also allows to better protect the rights of Canadians and to promote effective criminal investigations on Canadian territory.

The Protocol recognizes that a number of valid channels are already in place for the Assistance Treaties (administered through the Department of Justice) or Interpol (administered through the Royal Canadian Mounted Police - RCMP) and various other mechanisms established under international agreements or arrangements between Canada and other States, or between Canadian federal departments and their international counterparts. The Protocol is not intended to replace these other channels, but rather to provide a procedure for instances where these other channels do not apply. It should be noted that the Protocol applies to situations where an investigation is taking place on a voluntary basis. Where compulsory measures are being sought, use must be made of other appropriate mechanisms such as under mutual legal assistance treaties or applicable assistance mechanisms established under multilateral treaties to which Canada is a Party.

According to the procedure established under the Protocol, diplomatic channels are to be used for notifying of, and seeking approval for, foreign criminal investigators' visits to Canada. Requests will be channelled through diplomatic missions accredited to Canada or Canadian diplomatic missions abroad, and forwarded to the Criminal, Security and Treaty Law Division (JLA) of the Department. The Department will assess the requests, in consultation with the RCMP, and notify foreign governments, through the same channels, whether a visit may proceed and what conditions may apply. Additional information on the Protocol on Foreign Criminal Investigators may be obtained via the RCMP website.

The diplomatic note containing a request under the Protocol, or an advance copy of such a diplomatic note sent by fax (1-613-992-2467), must be received by JLA at least two weeks in advance of a visit. The following information is required in support of a request:

• the names of the foreign criminal investigators or persons acting on their behalf;
• the planned date of arrival to and departure from Canada;
• the date, time, and location of the interview/investigative activity;
• the identity of witnesses and suspects, including date of birth, citizenship, and any other pertinent information to assist in locating them; and
• the nature of the criminal investigation, including the purpose of the visit (investigation or interview), a brief summary of the foreign investigation, a brief summary of the criminal investigation to be conducted in Canada, the name of the person who contacted witnesses (if applicable), whether witnesses have agreed to provide voluntary statements; and a description of the arrangement made with the local Canadian police force or the witnesses' lawyer (if applicable).

In order to expedite the processing of a request, the following additional information would also prove useful, where available: if Canadian law enforcement was contacted, the name and contact information of the Canadian police agency/officer; and, if a lawyer will be present during the interview to be conducted by a foreign criminal investigator, the name and contact information of the lawyer/law firm.

The Department requests the assistance of Heads of Diplomatic Missions to inform their respective government authorities, including in the criminal investigation field, of the existence and content of the Protocol.

The Department of Foreign Affairs, Trade and Development (Office of Protocol) avails itself of this opportunity to renew to Their Excellencies the Heads of Diplomatic Missions and Charges d'affaires, a.i. accredited to Canada the assurances of its highest consideration.

Ottawa, March 2, 2007