Protocol On Foreign Criminal Investigators In Canada

Introduction

This Protocol sets out Canada’s notification and approval requirements for regulating the entry and monitoring of foreign criminal investigators pursuing foreign criminal investigations in Canada. It also describes the respective roles and responsibilities of foreign criminal investigators, foreign embassies, the Department of Foreign Affairs and International Trade (DFAIT), the Royal Canadian Mounted Police (RCMP) and Canada’s federal, provincial and municipal police services in the implementation of this Protocol.

Definitions

For the purposes of the Protocol:

“ Foreign criminal investigators ” includes: police officers, law enforcement officers, crown attorneys, attorneys or persons acting on their behalf of a foreign state engaging in the questioning, interviewing or statement taking from witnesses, suspects or accused persons which may lead to criminal court proceedings in a foreign state or jurisdiction.

“ Federal law enforcement services ” includes, for the Canadian Forces, the Military Police.

Objectives

The objectives of this Protocol are as follows:

• to safeguard Canadian security, sovereignty and the public interest while providing clarity and assistance to foreign partners wishing to pursue foreign criminal investigations in Canada;
• to promote effective criminal investigations and prosecutions by ensuring compliance with Canadian laws during a criminal investigation by foreign criminal investigators in Canada;
• to protect the rights of all persons in Canada affected by foreign criminal investigations;
• to provide a mechanism to promote effective relationships and communication with sovereign nations and criminal investigators based on cooperation, effective coordination and a shared understanding of cooperative arrangements; and
• to foster effective communication and coordination among Canadian officials to minimize the likelihood that foreign criminal investigations in Canada will affect or interfere with other police operations that may be underway.

Step-by-step process

• Step 1 : Foreign criminal investigators send a request to their home country foreign office/ministry if they wish to pursue a criminal investigation in Canada. The request is then submitted at least two weeks before the visit to Canada through diplomatic channels to DFAIT - Canada’s point of contact for receiving notifications under the Protocol about foreign criminal investigators in Canada. DFAIT then submits the request to the RCMP for assessment.
• Step 2 : The RCMP reviews the request from an operational police perspective, coordinates with appropriate police agencies, and then advises DFAIT accordingly.
• Step 3: After conducting its own foreign policy assessment, DFAIT makes the final decision on whether to approve or deny the request. It then notifies the relevant foreign embassy and, if applicable, communicates conditions that may apply for the visit. The entire process may take approximately two weeks.
• Step 4 : When a foreign criminal investigator enters Canada, the police force of jurisdiction supervises his or her activities to ensure they meet the objectives of the Protocol. This is necessary, because foreign criminal investigators do not have peace officer status or powers in Canada.

Scope of Protocol

This Protocol applies to all foreign criminal investigations pursued in Canada by foreign criminal investigators except for those activities which are already governed by other notification and approval requirements under other bilateral or multilateral arrangements between the Government of Canada and the Government of a foreign state or between their respective national departments and agencies.

This Protocol does not apply to the following activities:

• visits to Canada by foreign criminal investigators associated with the informal exchange of information among criminal law enforcement officials/agencies, secondment arrangements between law enforcement agencies, attendance at conferences or seminars, professional consultation, and police training and instruction;
• visits to Canada by foreign criminal investigators facilitated via Interpol (an interface administered by the RCMP), or pursuant to requests for assistance made to the Minister of Justice, who is the Central Authority for Canada under the Canadian mutual legal assistance process, as administered by the International Assistance Group of the Department of Justice; the notification procedures to be followed in the latter cases will be those established by the Central Authority for Canada;
• visits to Canada by foreign criminal investigators pursuant to the provisions of a bilateral or multilateral treaty or agreement of which the Government of Canada is a Party where these treaties and/or agreements contain separate notification requirements, which would be followed;
• criminal investigations conducted by foreign military authorities when exercising rights conferred by the provisions of the Visiting Forces Act, status of forces agreements, and international arrangements that govern the exercise of such investigations in Canada;
• visits to Canada made by foreign criminal investigators pursuant to the provisions of an agreement or written arrangement concluded on behalf of a Government of Canada department or agency that includes a provision for the notification of the Canadian department or agency; and
• joint criminal investigations conducted with Canadian law enforcement authorities, provided that Canadian federal authorities are notified of the entry of foreign criminal investigators.

It should be reiterated that the Protocol does not change or supersede other arrangements between the Government of Canada and the Government of a foreign state or between their respective national departments and agencies, if those arrangements contain notification and approval requirements.

Roles and Responsibilities

This Protocol is consistent with the approach taken by many countries, which requires foreign criminal investigators or persons acting on their behalf who wish to enter a foreign state for criminal investigative purposes to give reasonable notification to the foreign state and obtain approval prior to their entry.

The various roles and responsibilities of the parties involved in the successful administration of this Protocol are outlined below.

Foreign Criminal Investigators

Foreign criminal investigators wishing to pursue a criminal investigation in Canada must make a request to their home foreign ministry/office to ensure that the request is forwarded to the Department of Foreign Affairs and International Trade through diplomatic channels (i.e. via the Canadian mission abroad, or through their foreign mission in Canada) in order to facilitate the process in obtaining timely Canadian approval.

The request must identify the names of the foreign criminal investigators or persons acting on their behalf, their coordinates and respective agencies; the planned dates of arrival and departure to and from Canada; the location of the planned criminal investigation; the nature of the criminal investigation and the identity of witnesses and suspects. Since foreign criminal investigators or persons acting on their behalf do not possess peace officer status or jurisdiction in Canada, they are required to rely on the assistance and supervision of the appropriate Canadian police force of local jurisdiction when they are pursuing their investigation in Canada.

At all times while pursuing a foreign criminal investigation in Canada, foreign criminal investigators must comply with Canadian law and the Canadian Charter of Rights and Freedoms.

Foreign Missions

Foreign missions/embassies are responsible for notifying the Department of Foreign Affairs and International Trade, via diplomatic note, at least two weeks in advance of the prospective visit from criminal investigators in their respective jurisdictions. In exceptional cases where it is not feasible to provide two weeks notice, Canada may still consider such requests and grant approval on a case-by-case basis.

The Department of Foreign Affairs and International Trade (DFAIT)

Under this Protocol, DFAIT has the lead on all international matters and is Canada’s principal point of contact for receiving requests from foreign states through diplomatic channels (i.e. from a foreign embassy) about planned visits by foreign criminal investigators in Canada.

DFAIT receives foreign criminal investigators’ requests for permission to enter Canada for the purpose of pursuing a criminal investigation from a foreign state via a diplomatic note.

DFAIT logs all requests to enter Canada under this Protocol and forwards them to the RCMP for coordination. If necessary, DFAIT will follow-up on requests that require further clarification on the nature of the criminal investigation.

Once advised by the RCMP on whether a request can be supported, DFAIT, after conducting its own assessment, makes the final decision and notifies the foreign mission that Canada agrees or objects to the proposed activities of the foreign criminal investigators in Canada, including any applicable condition. This concurrence does not exempt foreign criminal investigators from following applicable Canadian legislation, including legislation that sets out the requirements for entering Canada.

Royal Canadian Mounted Police

The Interpol Office at the RCMP plays an important national coordination role in communicating foreign requests to pursue criminal investigations in Canada to the appropriate police services.

Under this Protocol, once advised by DFAIT of a request, the Interpol Office reviews and determines what form of action or assistance is required, including:

• determining whether the RCMP can be of direct assistance to the foreign criminal investigator because the foreign criminal investigation will take place within RCMP jurisdiction, or the RCMP may be involved in similar cases or has other information to share which is germane to the investigation;
• determining whether the foreign criminal investigation will impact other criminal RCMP investigations planned or underway (e.g., a national security investigation, on-going surveillance of suspects, or undercover operation);
• informing federal, provincial or municipal law enforcement services of requests to pursue a foreign criminal investigation in their respective jurisdictions;
• advising DFAIT in a timely manner, following consultations with RCMP detachments, federal, provincial and municipal law enforcement services, whether or not a request to pursue a foreign criminal investigation in Canada can be supported and providing notification of any applicable conditions; and
• facilitating the activities of all foreign criminal investigators within RCMP jurisdiction to promote compliance with Canada’s legal and Charter requirements, and providing any necessary assistance (e.g., interviewing witnesses, carrying out arrests).

In the event that an RCMP office, in whose jurisdiction the foreign criminal investigation would take place, receives a direct request from a foreign criminal investigator wishing to enter Canada for criminal investigative purposes, the RCMP office shall communicate Canada’s Protocol for requesting entry and advise RCMP HQ of the request to ensure national coordination. In these cases, the RCMP will advise DFAIT of the request.

Federal, Provincial, and Municipal Law Enforcement Services in Canada

Under this Protocol, once advised by the RCMP of a request to pursue a foreign criminal investigation within its jurisdiction, the law enforcement agency of jurisdiction reviews and determines what form of action or assistance is required, including:

• determining whether the foreign criminal investigation will impact other criminal investigations planned or underway within the police service’s jurisdiction;
• notifying the RCMP in a timely manner whether a request to pursue a foreign criminal investigation within its jurisdiction can be supported and identify applicable conditions; and
• facilitating the activities of all foreign criminal investigators within its jurisdiction to promote compliance with Canada’s legal and Charter requirements and providing any necessary assistance.

In the event that a federal, provincial or municipal criminal law enforcement agency in whose jurisdiction the foreign criminal investigation would take place receives a direct request from a foreign criminal investigator wishing to enter Canada for criminal investigative purposes, the law enforcement agency communicates Canada’s Protocol for requesting entry and advises the RCMP of the request to ensure national coordination. In these cases, the RCMP will advise DFAIT of the request.