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Treaty between Canada and the People's Republic of China on Mutual Legal Assistance in Criminal Matters [1995] CATSer 15 (1 July 1995)

E101640 - CTS 1995 No. 29

TREATY BETWEEN CANADA AND THE PEOPLE'S REPUBLIC OF CHINA ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS

Canada and the People's Republic of China (hereinafter referred to as "the Parties"), desiring to strengthen their close cooperation in the field of mutual legal assistance in criminal matters on the basis of mutual respect for sovereignty and equality and mutual benefit, have hereby resolved to conclude this Treaty.

To this end the Parties have agreed as follows:

CHAPTER I - GENERAL PROVISIONS

ARTICLE 1

Mutual Legal Assistance in Criminal Matters

1. The Parties shall, in accordance with this Treaty, grant each other mutual legal assistance in criminal matters.

2. Mutual legal assistance shall be any assistance given by the Requested Party in respect of investigations or proceedings in the Requesting Party in a criminal matter, irrespective of whether the assistance is sought or to be provided by a court or some other authority.

3. Criminal matters for the purpose of paragraph 1 mean, for the People's Republic of China, investigations or proceedings relating to any offence created by the laws enacted and issued by the National People's Congress and its Standing Committee; and for Canada, investigations or proceedings relating to any offence created by a law of Parliament.

ARTICLE 2

Scope of Mutual Legal Assistance

Assistance shall include:

a) Service of documents for proceedings in criminal matters;

b) Taking of evidence and obtaining of statements of persons;

c) Search and seizure;

d) Obtaining and providing expert evaluations;

e) Transfer of material evidence;

f) Provision of criminal records, and court records;

g) Provision of documentary evidence;

h) Authorizing or assisting persons, including detained persons, to travel to the Requesting Party to give evidence or assist investigations; and

i) Measures related to the proceeds of crime and the restoration of property to victims.

ARTICLE 3

Channels of Communications for Legal Assistance

1. Unless otherwise stipulated in this Treaty, the courts and other authorities of the Parties shall, through their respective Central Authorities, request and render each other mutual legal assistance.

2. The Central Authorities referred to in paragraph 1 are: for the People's Republic of China, the Ministry of Justice and for Canada, the Minister of Justice or an official designated by that Minister.

ARTICLE 4

Laws Applicable in Legal Assistance

1. The Requested Party shall provide assistance in accordance with its national law.

2. Insofar as it is not prohibited by the law of the Requested Party, requests shall be executed in the manner requested by the Requesting Party.

ARTICLE 5

Language

Letters of request for assistance shall be written in the language of the Requesting Party. Letters of request and their annexes shall be accompanied by a translation into an official language of the Requested Party.

ARTICLES 6

Expenses for Legal Assistance

1. The Requested Party shall pay the costs of providing legal assistance, except for the following expenses which shall be borne by the Requesting Party:

a) the travel, board and lodging expenses of persons travelling to the Requesting Party pursuant to a request for assistance as well as any allowances payable to that person. These shall be paid according to the standards or regulations of the Requesting Party; and

b) the expenses and fees of experts either in the Requested or Requesting Party.

2. The Requesting Party shall specify in the request or accompanying document the expenses and fees payable and shall pay the expenses and fees in advance if so requested by the person or expert.

3. If it becomes apparent that the execution of the request requires expenses of an extraordinary nature, the Parties shall consult to determine the terms and conditions under which the requested assistance can be provided.

ARTICLE 7

Refusal of Legal Assistance

1. Assistance may be refused by the Requested Party if:

a) the Requested Party considers that the execution of the request would impair its sovereignty, security, public order or other essential public interest, or the case may be more properly prosecuted by the Requested Party;

b) in accordance with the law of the requested Party, the conduct of the suspect, defendant or convicted person referred to in the letter of request does not constitute an offence in the Requested Party; or

c) there are substantial grounds leading the Requested Party to believe that compliance would facilitate the prosecution or punishment of the person to whom the request refers on account of race, religion, nationality or political opinions.

2. Where a request cannot be executed for the reasons in paragraph 1 or because execution is prohibited by domestic law, the Requested Party shall promptly return the request and accompanying documentation to the Requesting Party and shall give reasons for the decision.

3. Before refusing to grant a request for assistance or before postponing the grant of such assistance, the Requested Party shall consider whether assistance may be granted subject to such conditions as it deems necessary. If the Requesting Party accepts assistance subject to these conditions, it shall comply with them.

ARTICLE 8

Authentication

Any documents or translations transmitted pursuant to this Treaty shall not require any form of authentication, subject to Article 16.

CHAPTER II - REQUESTS FOR ASSISTANCE

ARTICLE 9

Contents of Requests

1. In all cases requests for assistance shall include:

a) the name of the competent authority conducting the investigation or proceedings to which the request relates;

b) a description of the investigation or proceedings, including a summary of the relevant facts and laws;

c) the purpose for which the request is made and the nature of the assistance sought;

d) the need, if any, for confidentiality and the reasons therefor; and

e) any time limit within which compliance with the request is desired.

2. Requests for assistance shall also contain the following information:

a) where possible, the identity, nationality and location of the person or persons who are the subject of the investigation or proceedings;

b) where necessary, details of any particular procedure or requirement that the Requesting Party wishes to be followed and the reasons therefor;

c) in the case of requests for the taking of evidence or search and seizure, a statement indicating the basis for belief that evidence may be found in the jurisdiction of the Requested Party;

d) in the case of requests to take evidence from a person, a statement as to whether sworn or affirmed statements are required, and a description of the subject matter of the evidence or statement sought;

e) in the case of lending of exhibits, the person or class of persons who will have custody of the exhibit, the place to which the exhibit is to be removed, any tests to be conducted and the date by which the exhibit will be returned; and

f) in the case of making detained persons available, the person or class of persons who will have custody during the transfer, the place to which the detained person is to be transferred and the date of that person's return.

3. If the Requested Party considers that the information contained in the request is not sufficient to enable the request to be dealt with, that Party may request that additional details be furnished.

4. A request shall be made in writing. In urgent circumstances or where otherwise permitted by the Requested Party, a request may be made orally but shall be confirmed in writing promptly thereafter.

ARTICLE 10

Postponement

Assistance may be postponed by the Requested Party if execution of the request would interfere with an ongoing investigation or prosecution in the Requested Party, however it shall promptly notify this to the Requesting Party.

ARTICLE 11

Notification of the Results of Execution

1. The Requested Party, shall through the channels stipulated in Article 3 of this Treaty, notify the Requesting Party in written form of the results of the execution of the request. As appropriate, notification shall be accompanied by any proof of service or evidence obtained.

2. Proof of service shall contain the date, place and a description of the method of service. It should be signed by the authority who served the document and by the addressee. If the addressee refuses to sign, the proof of service should include a statement to this effect.

ARTICLE 12

Assistance in the Requested Party

1. The Requested Party shall, upon request, inform the Requesting Party of the time and place of execution of the request for assistance.

2. To the extent not prohibited by the law of the Requested Party, the Requested Party shall permit the judicial personnel or other persons concerned in the investigation or proceeding in the Requesting Party to be present when the competent authorities of the Requested Party carry out investigations or provide other assistance pursuant to a request and to pose questions and make a verbatim transcript in a manner agreed to by the Requested Party.

ARTICLE 13

Testimony by the Detained Person

1. For the purpose of testimony by personal appearance, a person in custody in the territory of one Party shall, at the request of the other Party, be transferred to the Requesting Party, provided the person consents and there is prior written agreement by the Central Authorities on the conditions of the transfer.

2. In accordance with the request of the Requested Party, the Requesting Party shall keep the person transferred to its territory in custody and shall return that person to the Requested Party at the conclusion of the testimony or within the time limit agreed to by both parties.

3. Where the Requesting Party receives notice from the Requested Party that the transferred person is no longer required to be held in custody, that person shall be set at liberty and treated as a person giving assistance or evidence as provided for in Article 14 and Article 15.

ARTICLE 14

Giving Evidence or Assisting Investigation in the Requesting Party

1. The Requesting Party may invite a person in the territory of the Requested Party to appear in the territory of the Requesting Party to testify or to assist an investigation.

2. The Requested Party shall transmit the said request to that person and notify the Requesting Party as to whether the person agrees to comply with the request.

ARTICLE 15

Protection of Witnesses and Experts

1. A witness or expert appearing in the Requesting Party to give evidence or expert evaluation shall not be subjected to investigation of criminal responsibilities, arrest, to detention or deprivation or limit of personal liberty in any other form by the Requesting Party for any offence committed before entry into its territory nor shall that person be obliged to give evidence in any proceeding other than the proceedings to which the request relates.

2. A witness or expert shall forfeit the protection granted in paragraph 1 if that person has not left the territory of the Requesting Party after fifteen days from the date of notification by the Requesting Party that that person's presence is no longer required or, having left that territory has voluntarily returned. But this period of time shall not include the time during which the witness or expert is unable to leave the territory of the Requesting Party for reasons beyond that person's control.

3. Neither of the Parties shall threaten or impose any sanctions against a person who fails to appear in the Requesting Party in response to a request or summons.

4. The competent authority which seeks the appearance of a witness from the Requested Party for the purpose of testimony, shall ensure that the witness is properly instructed regarding responsibilities and obligations to the court so as to ensure that the witness is not subjected to contempt or similar proceedings.

5. This Article shall not affect the obligation to return a person transferred in custody, as provided in Article 13(2).

ARTICLE 16

Transmission of Documents and Objects

1. When the request for assistance concerns the transmission of records and documents, the Requested Party may transmit certified true copies thereof, unless the Requesting Party expressly requests the originals.

2. The original records or documents and the objects transmitted to the Requesting Party shall be returned to the Requested Party as soon as possible, upon the latter's request.

3. Insofar as not prohibited by the law of the Requested Party, documents, objects and records shall be transmitted in a form or accompanied by such certification as may be requested by the Requesting Party in order to make them admissible according to the law of the Requesting Party.

ARTICLE 17

Proceeds of crime

1. One Party may, upon request, endeavour to ascertain whether any proceeds of a crime committed in the territory of the other Party are located within its jurisdiction and shall notify the other Party of the results of its inquiries. The Requesting Party shall provide the Requested Party with data and information which constitute the basis of its belief that such proceeds may be located in this jurisdiction.

2. Where, pursuant to paragraph 1 of this Article, the suspected proceeds of crime are found, the Requested Party shall take such measures as are permitted by its law to freeze, seize and confiscate such proceeds.

3. To the extent permitted by its law, the Requested Party may, at the request of the Requesting Party, transfer to the latter the above-mentioned proceeds of crime, but such transfer shall not infringe upon the rights of a third party to such proceeds.

4. If the above-mentioned proceeds of crime are indispensable to other pending criminal proceedings in the territory of the Requested Party, the Requested Party may delay such transfer.

5. The Parties shall assist each other, to the extent permitted by their respective laws, in proceedings related to restitution to the victims of crime.

ARTICLE 18

Services of Documents and Taking of Evidence by Diplomatic and Consular Officials

Either Party may serve documents on and take evidence from its nationals in the territory of the other Party through its diplomatic or consular officials therein, provided that the laws of the other Party will not be violated and no compulsory measures of any kind will be taken.

ARTICLE 19

Notification of Results of Proceedings in Criminal Matters

One Party shall, upon request, inform the other Party of judgments and decisions in criminal matters against nationals of the other Party, and provide copies of the judgments and decisions.

ARTICLE 20

Supply of Criminal Records

One Party shall, upon request, provide the other Party with criminal records and information concerning its court proceedings against the person being investigated in a criminal matter in the territory of the other Party.

ARTICLE 21

Confidentiality and Limitation of Use

1. The Requested Party may require, after consultation with the Requesting Party, that information or evidence furnished or the source of such information or evidence be kept confidential or be disclosed or used only subject to such terms and conditions as it may specify.

2. The Requested Party shall, to the extent requested, keep confidential a request, its contents, supporting documents and any action taken pursuant to the request except to the extent necessary to execute it.

3. The Requesting Party shall not disclose or use information or evidence furnished for purposes other than those stated in the request without the prior consent of the Requested Party.

CHAPTER III - FINAL PROVISIONS

ARTICLE 22

Settlement of Disputes

Any difficulties arising from the implementation of this Treaty shall be settled through the diplomatic channel.

ARTICLE 23

Other Assistance

1. This Treaty shall not derogate from obligations subsisting between the Parties whether pursuant to other treaties, arrangements or otherwise, or prevent the Parties providing or continuing to provide assistance to each other pursuant to other treaties, arrangements or otherwise.

2. This Treaty shall apply to any requests presented after its entry into force even if the relevant acts or omissions occurred before that date.

ARTICLE 24

Entry into Force

This Treaty shall enter into force on the first day of the second month after the date on which the Parties have notified each other through the diplomatic channel that their legal procedures have been complied with.

ARTICLE 25

Termination

This Treaty shall remain in force until the expiry of six months after the date when either Party has given written notice of termination through the diplomatic channel. Otherwise, the present Treaty shall remain valid.

IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective Governments, have signed this Treaty.

DONE at Beijing on this 29^th day of July one thousand nine hundred and ninety-four in two copies, in the Chinese, English and French languages, each version being equally authentic.

FOR CANADA

André Ouellet

FOR THE PEOPLE'S REPUBLIC OF CHINA

Qian Quichen