Chapter 20
The ability of defendants to use MACMA

Approaches taken overseas


20.15In Australia, a defendant may apply to the relevant court for a certificate that it would be in the interests of justice for the Attorney-General to make a request to a foreign country.908
20.16The Australian Act specifies that the request could concern:909
20.17The court must give all parties and the Attorney-General the opportunity to submit on the merits of the application.910 In making its decision, the court may have regard to any relevant matter and must consider:911
20.18If the court issues a certificate, a copy is sent to the Attorney-General. The Attorney-General must, in accordance with the certificate, make a request for assistance on behalf of the defendant to the foreign country unless he or she is of the opinion, having regard to the special circumstances of the case, that the request should not be made.912

United KingdomTop

20.19In the United Kingdom, mutual legal assistance requests are governed by the Crime (International Co-operation) Act 2003. That Act provides defendants prosecuted in the United Kingdom with a mechanism for requesting foreign assistance through the court. Where proceedings have been instituted, a person charged in those proceedings may apply to a judicial authority to make a request for mutual legal assistance.913
20.20The Act permits a United Kingdom court (or a prosecuting authority) to submit a request directly to a foreign court or to the appropriate authority for receiving requests in the foreign country.914 Alternatively, a request by a judicial authority or prosecuting authority may be sent to the Secretary of State915 for forwarding to the appropriate foreign court or authority.916
20.21There are clear differences between the Australian and United Kingdom approaches. First, the United Kingdom provision only refers to the Attorney-General “forwarding” the request and does not seem to confer discretion over whether or not to do so. This is consistent with the fact that the United Kingdom court or prosecutor can make a request directly to a foreign authority. However, the Crown Prosecution Service has noted that, as requests for assistance are usually made pursuant to section 74 of the Proceeds of Crime Act 2002, they must be sent to the Secretary of State who will forward them to the requested country if it is appropriate to do so.917 Regardless, the legislation is not particularly clear on this. In contrast, the Australian provision clearly provides for a two-step process, which gives the Attorney-General discretion over the request.
20.22Secondly, unlike the Australian equivalent, the United Kingdom Act does not state the specific matters that a request may concern. Instead, it simply provides that “any evidence specified in the request for use in the proceedings or investigation” may be requested.918


20.23Canada’s mutual legal assistance scheme is different to that in other states because it primarily operates on the basis of bilateral treaties and multilateral conventions. Canada also makes requests for assistance to foreign states with which it does not have a treaty via a non-treaty letter of request issued by a court.

20.24One option available to defendants is a non-treaty court-issued request, permitted under section 709 of the Criminal Code.919 A party to proceedings, by way of indictment or summary conviction, may apply for an order appointing a commissioner to take the evidence of a witness who is outside of Canada. If successful, the court issues a request seeking evidence in the foreign state. Requests for evidence in criminal matters are, by practice, transmitted by the Minister of Justice through diplomatic channels to the foreign state.920 This is much more limited than the procedure in Australia and the United Kingdom, as processes in those states are not limited to taking statements.
908Mutual Assistance in Criminal Matters Act 1987 (Cth), s 39A(1). “Relevant court” is defined in s 39A(1A).
909Mutual Assistance in Criminal Matters Act 1987 (Cth), s 39A(1).
910Mutual Assistance in Criminal Matters Act 1987 (Cth), s 39A(2).
911Mutual Assistance in Criminal Matters Act 1987 (Cth), s 39A(3).
912Mutual Assistance in Criminal Matters Act 1987 (Cth), s 39A(5). Note that “special circumstances of the case” is not defined further in the Act.
913Crime (International Co-operation) Act 2003 (UK), s 7(3)(c).
914Crime (International Co-operation) Act 2003 (UK), s 8(1). In contrast, the earlier United Kingdom legislation did not permit the direct transfer of requests between courts, except in cases of urgency. Instead, the Secretary of State acted as an intermediary (but appeared to have no discretion): see Criminal Justice (International Co-operation) Act 1990 (UK), s 3. This was altered by the 2003 Act.
915Or the Lord Advocate in relation to Scotland.
916Crime (International Co-operation) Act 2003 (UK), s 8(2).
917Crown Prosecution Service “Legal Guidance: International Enquiries” <>.
918Crime (International Co-operation) Act 2003 (UK), s 7(2).
919Criminal Code RSC 1985 c C-46, s 709.
920Public Prosecution Service of Canada “Part VIII International Assistance” in The Federal Prosecution Service Deskbook at [43.3.3].