An Act to amend the Competition Act and the Competition Tribunal Act (S.C. 2002, c. 16)
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Assented to 2002-06-04
An Act to amend the Competition Act and the Competition Tribunal Act
S.C. 2002, c. 16
Assented to 2002-06-04
An Act to amend the Competition Act and the Competition Tribunal Act
SUMMARY
This enactment amends the Competition Act and the Competition Tribunal Act. The amendments include the following:
- –amendments to facilitate cooperation with foreign competition authorities for the enforcement of civil competition and fair trade practices laws;
- –amendments prohibiting deceptive prize notices;
- –amendments streamlining the Competition Tribunal process by providing for cost awards, summary dispositions and references;
- –amendments broadening the scope under which the Tribunal may issue temporary orders; and
- –some housekeeping items.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
R.S., c. C-34; R.S., c. 19 (2nd Supp.), s. 19COMPETITION ACT
Marginal note:R.S., c. 19, (2nd Supp.), s. 24; 1999, c. 2, par. 37(d)
1. Paragraph 11(1)(b) of the Competition Act is replaced by the following:
(b) produce to the Commissioner or the authorized representative of the Commissioner within a time and at a place specified in the order, a record, a copy of a record certified by affidavit to be a true copy, or any other thing, specified in the order; or
2. Section 18 of the Act is amended by adding the following after subsection (1):
Marginal note:Certified copies
(1.1) The Commissioner need not return any copy of a record produced pursuant to section 11.
2.1 (1) Subsection 29(1) of the Act is amended by striking out the word “or” at the end of paragraph (c), by adding the word “or” at the end of paragraph (d) and by adding the following after paragraph (d):
(e) any information provided voluntarily pursuant to this Act.
Marginal note:R.S., c. 19 (2nd Supp.), s. 26
(2) Subsection 29(2) of the Act is replaced by the following:
Marginal note:Exception
(2) This section does not apply in respect of any information that has been made public or any information the communication of which was authorized by the person who provided the information.
3. The Act is amended by adding the following before the heading “PART IV”:
PART IIIMUTUAL LEGAL ASSISTANCE
Interpretation
Marginal note:Definitions
30. The definitions in this section apply in this Part.
“agreement”
« accord »
“agreement” means a treaty, convention or other international agreement to which Canada is a party that provides for mutual legal assistance in competition matters, other than a matter in respect of which the Mutual Legal Assistance in Criminal Matters Act applies.
“conduct”
« comportement »
“conduct” means conduct or matters within the meaning of the relevant agreement in respect of which mutual legal assistance may be requested in accordance with this Part.
“data”
« données »
“data” means representations, in any form, of information or concepts.
“foreign state”
« État étranger »
“foreign state” means a country other than Canada, and includes any international organization of states.
“judge”
« juge »
“judge” means
(a) in Ontario, a judge of the Superior Court of Justice;
(b) in Quebec, a judge of the Superior Court;
(c) in Nova Scotia, British Columbia, Newfoundland, the Yukon Territory and the Northwest Territories, a judge of the Supreme Court, and in Nunavut, a judge of the Nunavut Court of Justice;
(d) in New Brunswick, Manitoba, Saskatchewan and Alberta, a judge of the Court of Queen’s Bench;
(e) in Prince Edward Island, a judge of the trial division of the Supreme Court; and
(f) in any province or territory, a judge of the Federal Court — Trial Division.
Functions of the Minister of Justice
Marginal note:Agreements respecting mutual legal assistance
30.01 Before Canada enters into an agreement, the Minister of Justice must be satisfied that
(a) the laws of the foreign state that address conduct that is similar to conduct prohibited or reviewable under this Act are, in his or her opinion, substantially similar to the relevant provisions of this Act, regardless of whether the conduct is dealt with criminally or otherwise;
(b) any record or thing provided by Canada under the agreement will be protected by laws respecting confidentiality that are, in his or her opinion, substantially similar to Canadian laws;
(c) the agreement contains provisions in respect of
(i) the circumstances in which Canada may refuse, in whole or in part, to approve a request, and
(ii) the confidentiality protections that will be afforded to any record or thing provided by Canada;
(d) the agreement contains the following undertakings by the foreign state, namely,
(i) that it will provide assistance to Canada comparable in scope to that provided by Canada,
(ii) that any record or thing provided by Canada will be used only for the purpose for which it was requested,
(iii) that any record or thing provided by Canada will be used subject to any terms and conditions on which it was provided, including conditions respecting applicable rights or privileges under Canadian law,
(iv) that, at the conclusion of the investigation or proceedings in respect of which any record or thing was provided by Canada, the foreign state will return the record or thing and any copies to Canada or, with the consent of Canada, return the record or thing to Canada and destroy any copies,
(v) subject to subparagraph (ii), that it will, to the greatest extent possible consistent with its laws, keep confidential any record or thing obtained by it pursuant to its request, and oppose any application by a third party for disclosure of the record or thing, and
(vi) that it will promptly notify the Minister of Justice in the event that the confidentiality protections contained in the agreement have been breached; and
(e) the agreement contains a provision in respect of the manner in which it may be terminated.
Publication of Agreements
Marginal note:Publication in Canada Gazette
30.02 (1) An agreement must be published in the Canada Gazette no later than 60 days after the agreement comes into force, unless it has already been published under subsection (2).
Marginal note:Publication in Canada Treaty Series
(2) An agreement may be published in the Canada Treaty Series and, if so published, the publication must be no later than 60 days after the agreement comes into force.
Marginal note:Judicial notice
(3) Agreements published in the Canada Gazette or the Canada Treaty Series are to be judicially noticed.
Requests Made to Canada from Abroad
Requests
Marginal note:Requests
30.03 The Minister of Justice is responsible for dealing with a request made by a foreign state under an agreement, in accordance with the agreement and this Part.
Search and Seizure
Marginal note:Application of sections 15, 16 and 19
30.04 Sections 15, 16 and 19 apply, with any modifications that the circumstances require, in respect of a search or a seizure under this Part, except to the extent that those sections are inconsistent with this Part.
Marginal note:Approval of request for search and seizure
30.05 (1) If the Minister of Justice approves a request of a foreign state to have a search and seizure carried out in respect of conduct that is the subject of the request, the Minister of Justice shall provide the Commissioner with any documents or information necessary to apply for a search warrant.
Marginal note:Application for search warrant
(2) The Commissioner or the authorized representative of the Commissioner shall apply ex parte for a search warrant to a judge.
Marginal note:Warrant for entry of premises
30.06 (1) A judge to whom an application is made under subsection 30.05(2) may issue a search warrant authorizing the person named in it to execute it anywhere in Canada where the judge is satisfied by information on oath or solemn affirmation that there are reasonable grounds to believe that
(a) conduct that is the subject of a request made by a foreign state is taking place, has taken place or is about to take place;
(b) evidence in respect of the conduct referred to in paragraph (a) will be found in any premises; and
(c) it would not, in the circumstances, be appropriate to make an order under subsection 30.11(1).
Marginal note:Authorization
(2) A search warrant issued under subsection (1) authorizes the person named in it to enter the premises specified in the warrant, subject to any conditions that may be specified in the warrant, and to search the premises for any record or thing specified in the warrant and to examine and seize it.
Marginal note:Hearing re execution
(3) A judge who issues a search warrant under subsection (1) shall fix a time and place for a hearing to consider the execution of the warrant as well as the report referred to in section 30.07.
Marginal note:Contents of warrant
(4) A search warrant issued under subsection (1) must
(a) set out the time and place for the hearing mentioned in subsection (3);
(b) state that, at that hearing, an order will be sought for the sending to the foreign state of the records or things seized in execution of the warrant; and
(c) state that every person from whom a record or thing is seized in execution of the warrant and any person who claims to have an interest in a record or thing so seized may make representations at the hearing before any order is made concerning the record or thing.
Marginal note:Duty of persons in control of premises
(5) Every person who is in possession or control of any premises, record or thing in respect of which a search warrant is issued under subsection (1) shall, on presentation of the warrant, permit the person named in the warrant to enter the premises, search the premises and examine the record or thing and seize it.
Marginal note:Where admission or access refused
(6) Where a person, in executing a search warrant issued under subsection (1), is refused access to any premises, record or thing or where the Commissioner believes on reasonable grounds that access will be refused, the judge who issued the warrant or a judge of the same court, on the ex parte application of the Commissioner or the authorized representative of the Commissioner, may by order direct a peace officer to take any steps that the judge considers necessary to give access to the person named in the warrant.
Marginal note:Report
30.07 (1) The person who executes a search warrant shall, at least five days before the time of the hearing to consider its execution, file with the court of which the judge who issued the warrant is a member a written report concerning the execution of the warrant that includes a general description of the records or things seized.
Marginal note:Copy to Minister of Justice
(2) The person who files the report under subsection (1) shall send a copy of it to the Minister of Justice promptly after its filing.
Marginal note:Sending abroad
30.08 (1) At the hearing referred to in subsection 30.06(3), after having considered any representations of the Minister of Justice, the Commissioner, the person from whom a record or thing was seized and any person who claims to have an interest in the record or thing, the judge who issued the search warrant or another judge of the same court may
(a) where the judge is not satisfied that the warrant was executed according to its terms and conditions or where the judge is satisfied that an order should not be made under paragraph (b), order that a record or thing seized be returned to
(i) the person from whom it was seized, if possession of it by that person is lawful, or
(ii) the lawful owner or the person who is lawfully entitled to its possession, if the owner or that person is known and possession of the record or thing by the person from whom it was seized is unlawful; or
(b) in any other case, order that a record or thing seized be sent to the foreign state mentioned in subsection 30.05(1) and include in the order any terms and conditions that the judge considers desirable, including terms and conditions
(i) necessary to give effect to the request mentioned in that subsection,
(ii) in respect of the preservation and return to Canada of any record or thing seized, and
(iii) in respect of the protection of the interests of third parties.
Marginal note:Requiring record, etc., at hearing
(2) At the hearing mentioned in subsection (1), the judge may require that a record or thing seized be brought before him or her.
Marginal note:Terms and conditions
30.09 No record or thing seized that has been ordered under section 30.08 to be sent to a foreign state shall be so sent until the Minister of Justice is satisfied that the foreign state has agreed to comply with any terms or conditions imposed in respect of the sending abroad of the record or thing.
Evidence for Use Abroad
Marginal note:Approval of request to obtain evidence
30.1 (1) If the Minister of Justice approves a request of a foreign state to obtain, by means of an order of a judge, evidence in respect of conduct that is the subject of the request, the Minister of Justice shall provide the Commissioner with any documents or information necessary to apply for the order.
Marginal note:Application for order
(2) The Commissioner or the authorized representative of the Commissioner shall apply ex parte to a judge for an order for the gathering of evidence.
Marginal note:Evidence-gathering order
30.11 (1) A judge to whom an application is made under subsection 30.1(2) may make an order for the gathering of evidence where the judge is satisfied that there are reasonable grounds to believe that
(a) conduct that is the subject of a request made by a foreign state is taking place, has taken place or is about to take place; and
(b) there will be found in Canada evidence in respect of the conduct referred to in paragraph (a).
Marginal note:Provisions of order
(2) An order made under subsection (1) must provide for the manner in which the evidence is to be obtained in order to give effect to the request mentioned in subsection 30.1(1) and may
(a) order the examination, on oath or otherwise, of a person named in the order, order the person to attend at the place fixed by the person designated under paragraph (c) for the examination and to remain in attendance until he or she is excused by the person so designated, order the person so named, where appropriate, to make a copy of a record or to make a record from data and to bring the copy or record with him or her, and order the person so named to bring with him or her any record or thing in his or her possession or control, in order to produce them to the person before whom the examination takes place;
(b) order a person named in the order to make a copy of a record or to make a record from data and to produce the copy or record to the person designated under paragraph (c), order the person to produce any record or thing in his or her possession or control to the person so designated and provide, where appropriate, for any affidavit or certificate that, pursuant to the request, is to accompany any copy, record or thing so produced; and
(c) designate a person before whom the examination referred to in paragraph (a) is to take place or to whom the copies, records, things, affidavits and certificates mentioned in paragraph (b) are to be produced.
Marginal note:Designation of judge
(3) For greater certainty, a judge who makes an order under subsection (1) may designate himself or herself or another person, including a judge of a Canadian or foreign court, under paragraph (2)(c).
Marginal note:Order effective throughout Canada
(4) An order made under subsection (1) may be executed anywhere in Canada.
Marginal note:Terms and conditions of order
(5) An order made under subsection (1) may include any terms or conditions that the judge considers desirable, including those relating to the protection of the interests of a person named in the order and of third parties.
Marginal note:Variation
(6) The judge who made the order under subsection (1) or another judge of the same court may vary its terms and conditions.
Marginal note:Other laws to apply
(7) A person named in an order made under subsection (1) shall answer questions and produce records or things to the person designated under paragraph (2)(c) in accordance with the laws of evidence and procedure in the foreign state that presented the request, but may refuse if answering the questions or producing the records or things would disclose information that is protected by the Canadian law of non-disclosure of information or privilege.
Marginal note:Execution of order to be completed
(8) If a person refuses to answer a question or to produce a record or thing, the person designated under paragraph (2)(c)
(a) may, if he or she is a judge of a Canadian or foreign court, make immediate rulings on any objections or issues within his or her jurisdiction; or
(b) shall, in any other case, continue the examination and ask any other question or request the production of any other record or thing mentioned in the order.
Marginal note:Statement of reasons for refusal
(9) A person named in an order made under subsection (1) who, under subsection (7), refuses to answer one or more questions or to produce certain records or things shall, within seven days, give to the person designated under paragraph (2)(c), unless that person has already ruled on the objection under paragraph (8)(a), a detailed statement in writing of the reasons on which the person bases the refusal to answer each question that the person refuses to answer or to produce each record or thing that the person refuses to produce.
Marginal note:Expenses
(10) A person named in an order made under subsection (1) is entitled to be paid the travel and living expenses to which the person would be entitled if the person were required to attend as a witness before the judge who made the order.
Marginal note:Contents of order
(11) An order made under subsection (1) must state that a person named in the order, and any person who claims an interest in any record or thing provided pursuant to the order, may make representations referred to in subsection 30.13(2) before any order is made under subsection 30.13(1).
Marginal note:Report
30.12 (1) A person designated under paragraph 30.11(2)(c) in an order made under subsection 30.11(1) shall make a report to the judge who made the order, or another judge of the same court, accompanied by
(a) a transcript of every examination held under the order;
(b) a general description of every record or thing produced to the person under the order and, if the judge so requires, a record or thing itself; and
(c) a copy of every statement given under subsection 30.11(9) of the reasons for a refusal to answer any question or to produce any record or thing.
Marginal note:Copy to Minister of Justice
(2) The person designated under paragraph 30.11(2)(c) shall send a copy of the report to the Minister of Justice promptly after it is made.
Marginal note:Refusals
(3) If any reasons contained in a statement given under subsection 30.11(9) are based on the Canadian law of non-disclosure of information or privilege, a judge to whom a report is made shall determine whether those reasons are well-founded and, if the judge determines that they are, that determination shall be mentioned in any order that the judge makes under section 30.13, but if the judge determines that they are not, the judge shall order that the person named in the order made under subsection 30.11(1) answer the questions or produce the records or things.
Marginal note:Refusals based on foreign law
(4) A copy of every statement given under subsection 30.11(9) that contains reasons that purport to be based on a law that applies to the foreign state shall be appended to any order that the judge makes under section 30.13.
Marginal note:Sending abroad
30.13 (1) A judge to whom a report is made under subsection 30.12(1) may order that there be sent to the foreign state mentioned in subsection 30.1(1)
(a) the report, any transcript referred to in paragraph 30.12(1)(a) and any record or thing produced;
(b) a copy of the order made under subsection 30.11(1) accompanied by a copy of any statement given under subsection 30.11(9) that contains reasons that purport to be based on a law that applies to the foreign state; and
(c) any determination made under subsection 30.12(3) that the reasons contained in a statement given under subsection 30.11(9) are well-founded.
Marginal note:Terms and conditions
(2) An order made under subsection (1) may include any terms or conditions that the judge considers desirable, after having considered any representations of the Minister of Justice, the Commissioner, the person who produced any record or thing to the person designated under paragraph 30.11(2)(c) and any person who claims to have an interest in any record or thing so produced, including terms and conditions
(a) necessary to give effect to the request mentioned in subsection 30.1(1);
(b) in respect of the preservation and return to Canada of any record or thing so produced; and
(c) in respect of the protection of the interests of third parties.
Marginal note:Further execution
(3) The execution of an order made under subsection 30.11(1) that was not completely executed because of a refusal, by reason of a law that applies to the foreign state, to answer one or more questions or to produce certain records or things to the person designated under paragraph 30.11(2)(c) may be continued, unless a ruling has already been made on the objection under paragraph 30.11(8)(a), if a court of the foreign state or a person designated by the foreign state determines that the reasons are not well-founded and the foreign state so advises the Minister of Justice.
Marginal note:Leave of judge required
(4) No person named in an order made under subsection 30.11(1) whose reasons for refusing to answer a question or to produce a record or thing are determined not to be well-founded, or whose objection has been ruled against under paragraph 30.11(8)(a), shall, during the continued execution of the order or ruling, refuse to answer that question or to produce that record or thing to the person designated under paragraph 30.11(2)(c), except with the permission of the judge who made the order or ruling or another judge of the same court.
Marginal note:Terms and conditions
30.14 No record or thing that has been ordered under section 30.13 to be sent to the foreign state mentioned in subsection 30.1(1) shall be so sent until the Minister of Justice is satisfied that the foreign state has agreed to comply with any terms or conditions imposed in respect of the sending abroad of the record or thing.
Marginal note:Approval of request to obtain evidence by video link, etc.
30.15 (1) If the Minister of Justice approves a request of a foreign state to compel a person to provide evidence or a statement in respect of conduct that is the subject of the request by means of technology that permits the virtual presence of the person in the territory over which the foreign state has jurisdiction, or that permits the person to be heard and examined, the Minister of Justice shall provide the Commissioner with any documents or information necessary to apply for the order.
Marginal note:Application for order
(2) The Commissioner or the authorized representative of the Commissioner shall apply ex parte to a judge for an order for the taking of evidence or a statement from the person.
Marginal note:Order for video link, etc.
30.16 (1) A judge to whom an application is made under subsection 30.15(2) may make an order for the taking of evidence or a statement from a person where the judge is satisfied that there are reasonable grounds to believe that
(a) conduct that is the subject of a request made by a foreign state is taking place, has taken place or is about to take place; and
(b) the foreign state believes that the person’s evidence or statement would be relevant to the investigation or proceedings in respect of the conduct referred to in paragraph (a).
Marginal note:Provisions of order
(2) An order made under subsection (1) shall order the person
(a) to attend at the place fixed by the judge for the taking of the evidence or statement by means of the technology and to remain in attendance until the person is excused by the authorities of the foreign state;
(b) to answer any questions put to the person by the authorities of the foreign state or by any person authorized by those authorities;
(c) to make a copy of a record or to make a record from data and to bring the copy or record, when appropriate; and
(d) to bring any record or thing in his or her possession or control, when appropriate, in order to show it to the authorities by means of the technology.
Marginal note:Order effective throughout Canada
(3) An order made under subsection (1) may be executed anywhere in Canada.
Marginal note:Terms and conditions of order
(4) An order made under subsection (1) may include any terms or conditions that the judge considers desirable, including those relating to the protection of the interests of the person named in it and of third parties.
Marginal note:Variation
(5) The judge who made the order under subsection (1) or another judge of the same court may vary its terms and conditions.
Marginal note:Expenses
(6) A person named in an order made under subsection (1) is entitled to be paid the travel and living expenses to which the person would be entitled if the person were required to attend as a witness before the judge who made the order.
Marginal note:Other laws to apply
30.17 (1) When a person gives evidence or a statement pursuant to an order made under subsection 30.16(1), the person shall give the evidence or statement as though he or she were physically before the court or tribunal outside Canada, in accordance with the laws of evidence and procedure applicable to that court or tribunal, but may refuse to give evidence or a statement, in whole or in part, if giving the evidence or statement would disclose information that is protected by the Canadian law of non-disclosure of information or privilege.
Marginal note:Statement of reasons for refusal
(2) A person named in an order made under subsection 30.16(1) who refuses to give evidence or a statement on the grounds that it would disclose information that is protected by the Canadian law of non-disclosure of information or privilege shall, within seven days, give to the judge who made the order or another judge of the same court a detailed statement in writing of the reasons on which the person bases each refusal.
Marginal note:Refusals
(3) A judge to whom a statement is given under subsection (2) shall determine whether the reasons for refusal are well-founded and, if the judge determines that they are not, the judge shall order that the person named in the order made under subsection 30.16(1) give the evidence or statement.
Marginal note:Contempt of court in Canada
(4) When a witness gives evidence under section 30.16, the Canadian law relating to contempt of court applies with respect to a refusal by the person to answer a question or to produce a record or thing as ordered by the judge under that section.
Marginal note:Arrest warrant
30.18 (1) The judge who made the order under subsection 30.11(1) or 30.16(1) or another judge of the same court may issue a warrant for the arrest of the person named in the order where the judge is satisfied, on an information in writing and under oath or solemn declaration, that
(a) the person did not attend or remain in attendance as required by the order or is about to abscond;
(b) the order was personally served on the person; and
(c) in the case of an order made under subsection 30.11(1), the person is likely to give material evidence and, in the case of an order made under subsection 30.16(1), the foreign state believes that the testimony of the person would be relevant to the investigation or proceedings in respect of the conduct.
Marginal note:Warrant effective throughout Canada
(2) A warrant issued under subsection (1) may be executed anywhere in Canada by any peace officer.
Marginal note:Order
(3) A peace officer who arrests a person in execution of a warrant issued under subsection (1) shall, without delay, bring the person or cause the person to be brought before the judge who issued the warrant or another judge of the same court who may, to ensure compliance with the order made under subsection 30.11(1) or 30.16(1), order that the person be detained in custody or released on recognizance, with or without sureties.
Marginal note:Copy of information
(4) A person who is arrested in execution of a warrant issued under subsection (1) is entitled to receive, on request, a copy of the information on which the warrant was issued.
Lending Exhibits
Marginal note:Approval of loan request
30.19 (1) If the Minister of Justice approves a request of a foreign state under an agreement to have an exhibit that was admitted in evidence in a proceeding in respect of an offence in a court in Canada or in a proceeding before the Tribunal lent to the foreign state, the Minister shall provide the Commissioner with any documents or information necessary to apply for a loan order.
Marginal note:Application for loan order
(2) The Commissioner or the authorized representative of the Commissioner shall apply for a loan order in respect of the exhibit to the court that has possession of the exhibit, or to the Tribunal if it has possession of the exhibit, after having given reasonable notice to the parties to the proceedings and to
(a) the Attorney General of Canada, in the case of an application to the Federal Court;
(b) the attorney general of the province in which the exhibit is located, in the case of an application to a court other than the Federal Court; or
(c) the Chairman of the Tribunal, in the case of an application to the Tribunal.
Marginal note:Contents of application
(3) An application made under subsection (2) must
(a) contain a description of the exhibit requested to be lent;
(b) designate a person or class of persons to whom the exhibit is sought to be given;
(c) state the reasons for the request and, if any tests are sought to be performed on the exhibit, contain a description of the tests and a statement of the place where they will be performed;
(d) state the place or places to which the exhibit is sought to be removed; and
(e) specify the time at or before which the exhibit is to be returned.
Marginal note:Making of loan order
30.2 (1) If the court or the Tribunal, as the case may be, is satisfied that the foreign state has requested the loan for a fixed period and has agreed to comply with the terms and conditions that the court or Tribunal proposes to include in any loan order, the court or Tribunal may, after having considered any representations of the persons to whom notice of the application was given in accordance with subsection 30.19(2), make a loan order.
Marginal note:Terms of loan order
(2) A loan order made under subsection (1) must
(a) contain a description of the exhibit;
(b) order the person who has possession of the exhibit to give it to a person designated in the order or who is a member of a class of persons so designated;
(c) contain a description of any tests authorized to be performed on the exhibit, as well as a statement of the place where the tests must be performed;
(d) fix the place or places to which the exhibit may be removed; and
(e) fix the time at or before which the exhibit must be returned.
Marginal note:Terms and conditions
(3) A loan order made under subsection (1) may include any terms or conditions that the court or the Tribunal considers desirable, including those relating to the preservation of the exhibit.
Marginal note:Variation of loan order
30.21 A court or the Tribunal may vary the terms and conditions of any loan order made by it.
Marginal note:Copy of order to custodian
30.22 A copy of a loan order and of an order varying it shall be delivered by the Commissioner to the Minister of Justice and to the person who had possession of the exhibit when the loan order was made.
Marginal note:Presumption of continuity
30.23 The burden of proving that an exhibit lent to a foreign state pursuant to a loan order made under subsection 30.2(1) and returned to Canada is not in the same condition as it was when the loan order was made or that it was tampered with after the loan order was made is on the party who makes that allegation and, in the absence of that proof, the exhibit is deemed to have been continuously in the possession of the court that made the loan order or the Tribunal, as the case may be.
Appeal
Marginal note:Appeal on question of law
30.24 (1) An appeal lies, with leave, on a question of law alone, to the court of appeal, within the meaning of section 2 of the Criminal Code, from an order or decision of a judge or a court in Canada made under this Part, other than an order or decision of the Federal Court — Trial Division or a judge of that Court, if the application for leave to appeal is made to a judge of the court of appeal within fifteen days after the order or decision.
Marginal note:Appeal on question of law
(2) An appeal lies, with leave, on a question of law alone, to the Federal Court of Appeal, from any order or decision of the Federal Court — Trial Division or the Tribunal made under this Part, if the application for leave to appeal is made to a judge of that Court within fifteen days after the order or decision.
Evidence Obtained by Canada from Abroad
Marginal note:Evidence
30.25 The Minister of Justice shall, on receiving evidence sent by a foreign state in response to a request made by Canada under an agreement, send it promptly to the Commissioner.
Marginal note:Foreign records
30.26 (1) In a proceeding in respect of which Parliament has jurisdiction, a record or a copy of a record and any affidavit, certificate or other statement pertaining to the record made by a person who has custody or knowledge of the record, sent to the Minister of Justice by a foreign state in accordance with a Canadian request under an agreement, is not inadmissible in evidence by reason only that a statement contained in it is hearsay or a statement of opinion.
Marginal note:Probative value
(2) For the purpose of determining the probative value of a record or a copy of a record admitted in evidence under Part VII.1 or VIII, the court hearing the matter, or the Tribunal in proceedings before it, may examine the record or copy, receive evidence orally or by affidavit, or by a certificate or other statement pertaining to the record in which a person attests that the certificate or statement is made in conformity with the laws that apply to a foreign state, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the foreign state, including evidence as to the circumstances in which the information contained in the record or copy was written, stored or reproduced, and may draw any reasonable inference from the form or content of the record or copy.
Marginal note:Foreign things
30.27 In a proceeding in respect of which Parliament has jurisdiction, a thing and any affidavit, certificate or other statement pertaining to the thing made by a person in a foreign state as to the identity and possession of the thing from the time it was obtained until its sending to the Commissioner by the Minister of Justice in accordance with a Canadian request under an agreement, are not inadmissible in evidence by reason only that the affidavit, certificate or other statement contains hearsay or a statement of opinion.
Marginal note:Status of certificate
30.28 An affidavit, certificate or other statement mentioned in section 30.26 or 30.27 is, in the absence of evidence to the contrary, proof of the statements contained in it without proof of the signature or official character of the person appearing to have signed it.
General
Marginal note:Confidentiality of foreign requests and evidence
30.29 (1) No person who performs or has performed duties or functions in the administration or enforcement of this Act shall communicate or allow to be communicated to any other person, except for the purposes of the administration or enforcement of this Act,
(a) the contents of a request made to Canada from a foreign state or the fact of the request having been made; or
(b) the contents of any record or thing obtained from a foreign state pursuant to a Canadian request.
Marginal note:Confidentiality of Canadian evidence
(2) No person who performs or has performed duties or functions in the administration or enforcement of this Act shall communicate or allow to be communicated to any other person, except to a Canadian law enforcement agency or for the purposes of the administration or enforcement of this Act, any information obtained under section 30.06 or 30.11.
Marginal note:Exception
(3) This section does not apply in respect of any information that has been made public.
Marginal note:Records or other things already in Commissioner’s possession
30.291 (1) For greater certainty, any evidence requested by a foreign state under an agreement may be obtained for the purposes of giving effect to the request only in accordance with the agreement and the procedure set out in this Part, even in the case of records or other things already in the possession of the Commissioner.
Marginal note:Exception
(2) This section does not apply in respect of any information that has been made public or any information the communication of which was authorized by the person who provided the information.
Marginal note:Preservation of informal arrangements
30.3 Nothing in this Part shall be construed so as to abrogate or derogate from any arrangement or agreement, other than an agreement under this Part, in respect of cooperation between the Commissioner and a foreign authority.
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