DEPARTMENT OF JUSTICE
TREATY BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF
THE UNITED MEXICAN STATES ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL
MATTERS
Mexico, March 16, 1990
The Government of Canada and the Government of the United
Mexican States (the Parties) desiring to improve the effectiveness
of both countries in the investigation, prosecution and suppression
of crime through co-operation and mutual assistance in criminal
matters, have agreed as follows:
ARTICLE I
Scope of the Treaty
1. The Parties shall co-operate with each other by
taking all appropriate measures that they have legal authority to
take, in order to provide mutual assistance in criminal matters, in
accordance with the terms of this Treaty and subject to the
limitations of their respective domestic legal provisions. Such
assistance shall deal with the prevention, investigation and
prosecution of offences or any other criminal proceedings arising
from acts which are within the competence or jurisdiction of the
Requesting Party at the time the assistance is requested, and in
connection with ancillary proceedings of any other kind related to
the criminal matters in question.
2. This Treaty does not empower one Party's
authorities to undertake, in the territorial jurisdiction of the
other, the exercise and performance of the functions or authority
exclusively entrusted to the authorities of the other Party by its
national laws or regulations.
3. Criminal matters for the purpose of paragraph 1
mean, for Canada, investigations or proceedings relating to any
offence created by a law of Parliament or by the legislature of a
province and, for the United Mexican States, investigations or
proceedings relating to any offence under federal or state law.
4. Criminal matters shall also include
investigations or proceedings relating to offences concerning
taxation, duties, customs and international transfer of capital or
payments.
5. Assistance shall include:
(a) taking of evidence and obtaining of statements of
persons;
(b) provision of information, documents and other records,
including extracts from criminal records;
(c) location of persons and objects, including their
identification;
(d) search and seizure;
(e) delivery of property, including lending of exhibits;
(f) making detained persons and others available to give
evidence or assist investigations;
(g) service of documents, including documents seeking the
attendance of persons; and
(h) other assistance consistent with the objects of this Treaty,
which is not inconsistent with the law of the Requested Party.
ARTICLE II
Refusal or Postponement of Assistance
1. Assistance may be refused if, in the opinion of
the Requested Party:
(a) the execution of the request would impair its sovereignty,
security, public order or similar essential public interest,
prejudice the safety of any person or be unreasonable on other
grounds;
(b) the execution of the request would require the Requested
Party to exceed its legal authority or would otherwise be
prohibited by the legal provision in force in the Requested Party,
in which case the Co-ordinating Authorities referred to in Article
XII of this Treaty shall consult with each other to identify lawful
means for securing assistance; or
(c) there is a possibility of the death penalty being imposed or
executed in the proceedings in respect of which assistance is
sought.
2. Assistance may be postponed by the Request Party
on the ground that the immediate granting of the assistance may
interfere with an ongoing investigation or proceeding.
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.
4. The Requested Party shall promptly inform the
Requesting Party of a decision not to comply in whole or in part
with a request for assistance, or to postpone execution, and shall
give reasons for that decision.
ARTICLE III
Dual Criminality
Requests for assistance requiring the use of compulsory measures
may be refused if the alleged acts or omissions giving rise to the
request would not constitute an offence known to law in the
Requested Party.
ARTICLE IV
Delivery of Property for Use in
Investigations or Proceedings
1. In response to a request for assistance, property
which may be used in investigations or serve as evidence in
proceedings in the Requesting Party, shall be delivered to that
Party upon such terms and conditions as the Requested Party sees
fit.
2. The delivery of property pursuant to paragraph 1
shall not affect the rights of bona fide third parties.
ARTICLE V
Return of Property
Any property, including original records or documents, handed
over in execution of a request, shall be returned as soon as
possible, unless the Requested Party waives the obligation to
return that property.
ARTICLE VI
Proceeds of Crime
1. The Requested Party shall, upon request,
endeavour to ascertain whether any proceeds of a crime are located
within its jurisdiction and shall notify the Requesting Party of
the results of its inquiries. In making the request, the Requesting
Party shall notify the Requested Party of the basis of its belief
that such proceeds may be located in its jurisdiction.
2. Where, pursuant to paragraph 1, suspected
proceeds of crime are found, the Requesting Party may ask the
Requested Party to take such measures as are permitted by its law
to freeze, seize and confiscate such proceeds.
3. In the application of this Article, the rights of
bona fide third parties shall be respected.
ARTICLE VII
Attendance of Witnesses
and Experts in the Requesting Party
1. A request may be made for assistance in making a
person available to testify or to assist an investigation in the
Requesting Party.
2. The Requested Party shall forward to the
Requesting Party proof of execution of such requests.
ARTICLE VIII
Testimony in the Requested Party
1. A person in the Requested Party whose testimony
is .1 requested shall be compelled, by subpoena if necessary, by a
11 competent authority of the Requested Party to appear and ~ -
testify or produce documents, records, and objects.
2. The Requested Party shall, upon request, inform
the e- ~. Requesting Party of the time and place of execution of
the request for assistance.
3. The Requested Party shall authorize the presence
at the taking of the testimony of such persons as specified by the
1 Requesting Party in its request.
4. Any claim of immunity, incapacity or privilege
under the laws of the Requesting Party shall be decided by the
competent authorities of the Requesting Party.
ARTICLE IX
Making Detained Persons Available to Give
Evidence or Assist Investigations
1. A person in custody in the Requested Party shall,
at the request of the Requesting Party, be temporarily transferred
to the Requesting Party to assist investigations or proceedings,
provided that the person consents to that transfer, and there are
no overriding grounds for refusing the request.
2. Where the person transferred is required to be
kept in custody under the law of the Requested Party, the
Requesting Party shall hold that person in custody and shall return
the person in custody either upon fulfilment of the request, or at
such earlier time stipulated by the Requested Party.
3. Where the sentence imposed expires, or where the
Requested Party advises the Requesting Party that the transferred
person is no longer required to be held in custody, that person
shall be set at liberty and be treated as a person in the
Requesting Party pursuant to a request under Article VII seeking
that person's attendance.
ARTICLE X
Safe Conduct
1. A witness or expert present in the Requesting
Party in response to a request seeking that person's attendance
shall not be prosecuted, detained or subjected to any other
restriction of personal liberty in that Party for any acts or
omissions which preceded that person's departure from the Requested
Party, nor shall that person be obliged to give evidence in any
proceeding other than the proceeding to which the request
relates.
2. Paragraph 1 shall cease to apply if a person,
being free to leave the Requesting Party, has not left it within a
period of thirty (30) days after being officially notified that
person's attendance is no longer required or, having left, has
voluntarily returned.
3. A person, who does not respond to a request
seeking that person's attendance, shall not, even if the request
refers to a notice of penalty, be subjected to any punishment or
measure of constraint.
ARTICLE XI
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 and the
authority making the request;
(b) the purpose for which the request is made and the nature of
the assistance sought;
(c) where possible, the identity, nationality and location of
the person or persons who are the subject of the investigation or
proceedings; and
(d) except in cases of requests for service of documents, a
description of the acts or omissions alleged to constitute the
offence and a statement of the relevant law and jurisdiction.
2. In addition, requests for assistance shall
include:
(a) in the case of requests for service of documents, the name
and address of the person to be served;
(b) in the case of requests for compulsory measures, a statement
indicating the reasons for which it is believed that evidence is
located in the Requested Party, unless this appears from the
request itself;
(c) in the case of search and seizure, a declaration by a
competent authority that seizure could be obtained by compulsory
measures, if the property were situated in the Requesting
Party;
(d) in the case of requests to take evidence from a person, the
subject matter about which the person is to be examined, including
where possible, a list of questions, and details of any right of
that person to decline to give evidence;
(e) 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;
(f) 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 and the date by which the exhibit will
be returned;
(g) details of any particular procedure the Requesting Party
wishes to be followed, and the reasons therefore;
(h) any requirements for confidentiality.
3. Additional information shall be furnished if it
appears necessary to the Requested Party for the execution of the
request.
ARTICLE XII
Channels of Communication
Requests for assistance may be made on behalf of courts,
prosecutors and authorities responsible for investigations or
prosecutions related to criminal matters. Requests and responses
thereto shall be made by or through the Minister of Justice of
Canada and the Procuraduria General de la Repubublica of the United
Mexican States as the Co-ordinating Authorities of the Parties.
ARTICLE XIII
Execution of Requests
1. Requests for assistance shall be executed
promptly in accordance with the law of the Requested Party and,
insofar as it is not prohibited by that law, in the manner
requested by the
Requesting Party.
2. If the Requesting Party desires witnesses or
experts to give evidence under oath, it shall expressly so
request.
3. Unless original documents are expressly
requested, the provision of certified copies of those documents
shall be sufficient compliance with the request.
ARTICLE XIV
Limitations on Use of Information or Evidence
1. The Requesting Party shall not use any
information or evidence obtained under this Treaty for purposes
other than those stated in the request without the prior consent of
the Co-ordinating Authority of the Requested Party.
2. When necessary, the Requested Party may request
that information or evidence furnished be kept confidential in
accordance with conditions it may specify. If the Requesting Party
cannot comply with such conditions, the Co-ordinating Authorities
shall consult to determine mutually agreeable conditions of
confidentiality.
3. The use of any information or evidence obtained
under this Treaty which has been made public in the Requesting
Party in a proceeding resulting from the investigation or the
proceeding described in the request, shall not be subject to the
restriction referred to in paragraph 1 .
ARTICLE XV
Authentication
Evidence or documents transmitted through the Co-ordinating
Authorities pursuant to this Treaty shall not require any form of
authentication.
ARTICLE XVI
Language
1. Requests and supporting documents shall be
accompanied by a translation into one of the official languages of
theRequested Party.
2. Requests for service shall be accompanied by a
translation of the documents to be served into a language
understood by the person to be served.
ARTICLE XVII
Other Assistance
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.
ARTICLE XVIII
Expenses
1. The Requested Party shall meet the cost of
executing the request for assistance, except that the Requesting
Party
shall bear:
(a) the expenses associated with conveying any person to or from
the Requested Party at the request of the Requesting , Party, and
any allowance or expenses payable to that person while in the
Requesting Party pursuant to a request under Articles VII or IX of
this Treaty;
(b) the expenses and fees of experts either in the Requested
Party or the Requesting Party.
2. 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 XIX
Consultations
The Parties shall consult promptly, at the request of either,
concerning the interpretation and the implementation of this
Treaty, including Articles VI and XVIII, in order to avoid any
disproportionate effects on either Party.
ARTICLE XX
Third States
Where a national or resident of one Party is directed by the 1
judicial authorities of a third State to act in a manner that
conflicts with the laws or public interest of the other Party, the
Parties shall consult to identify means to avoid or minimize such
conflict.
ARTICLE XXI
Entry into Force and Termination
1. This Treaty shall enter into force thirty (30)
days after the Contracting States have exchanged notifications,
through diplomatic channels, that their respective domestic legal
requirements for its entry into force have been met.
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.
3. Either Party may terminate this Treaty by notice
in writing, through diplomatic channels, at any time and it shall
cease to be in force one hundred and eighty (180) days following
receipt of such notice.
In witness whereof the undersigned, being duly authorized by
their respective Governments, have signed this Treaty.
Done at Mexico City this 16th day of March 1990, in two
originals, each in the English, French and Spanish languages, the
texts in each of the three languages having equal authenticity.
For the Government of Canada
DAVID WINFIELD
For the Government of the United Mexican States
FERNANDO SOLANA
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