Department of Justice

APPOINTMENT OF THE HONOURABLE ALLAN GOODMAN, Q.C., TO REVIEW CHANGES MADE TO THE MUTUAL LEGAL ASSISTANCE PROCESS

OTTAWA , February 3,1997 -- Allan Rock, Minister of Justice and Attorney General of Canada, today announced that the Department has appointed former Justice Allan Goodman to review the policy and procedures in relation to international mutual legal assistance, including changes already made to these procedures.

The changes were made by the Department of Justice as a result of the publication in the Financial Post of a non-government summary of a Letter of Request for legal assistance sent to Switzerland in the RCMP Airbus investigation.

"Mr. Goodman has been appointed to provide an independent assessment of the practices in place and corrective action which we have taken to date. Mr. Goodman is a very well-respected and distinguished member of Canada's legal community and I look forward to the results of his review," Mr. Rock said.

Mr. Goodman's mandate is to review and make recommendations on the procedures now followed by the International Assistance Group in the Department of Justice for preparing letters of request for legal assistance. More specifically, Mr. Goodman has been asked to provide comments on the revised process for reviewing letters of request and for minimizing the risk of disclosure. He will also review the draft departmental policy on mutual legal assistance, as well as the Department's plans for implementing that policy.

It's expected that Mr. Goodman will submit his report and recommendations to the Deputy Minister of Justice at the end of March.

Ref. :    Cyrus Reporter
          Minister's Office
          (613) 992-4621 

January 30, 1997

The Honourable A. Goodman, Q.C.
Legal Protection
1 Dundas Street, West
Suite 2200
P.O. Box 75
Toronto, Ontario
M5G 1Z3

Dear Mr. Goodman:

Re:Review of Department of Justice Procedures and Policy in Mutual Legal Assistance Matters

Thank you for having agreed to assist the Government of Canada in reviewing its procedures in relation to mutual legal assistance. This letter is further to our meeting of January 24, 1997 and sets out the work that I would ask you to do for the Department of Justice in this matter.

As you know, the civil litigation arising from a Letter of Request sent to Switzerland in the R.C.M.P. Airbus investigation was terminated with a settlement agreement. The agreement acknowledges that:

the procedure used in sending the Request for Assistance to Switzerland in this case was the same as that followed in numerous previous requests for mutual assistance under both the current and previous administrations where such requests have always remained confidential. Because of this, the Government of Canada did not foresee that the Request for Assistance would become public. Since it did, the Government of Canada has reviewed its procedure to ensure that the risk of this happening again is minimized.

Once the Letter of Request became public, steps were taken to maintain to the greatest extent possible, the confidentiality of subsequent requests and to avoid individual conclusory statements in these requests. Since then, additional changes have been proposed and are being implemented. I attach a summary of the changes, a draft departmental deskbook policy entitled "Mutual Legal Assistance in Criminal Matters" and the settlement agreement.

Under your retainer, you would review the procedures now followed by the International Assistance Group for preparing letters of request for assistance, the draft departmental deskbook policy on mutual legal assistance, and the procedures and practices which are being implemented. You would provide your comments on the sufficiency of the amended process to ensure the appropriateness of the language used in requests, making it clear that the presumption of innocence applies, and to minimize the risk of disclosure. You would also recommend any additional changes that, in your judgement, would further improve the process. You would not deal with the question of law now before the Federal Court of Appeal in Attorney General of Canada and Schreiber, namely:

whether the Canadian standard for the issuance of a search warrant was required to be satisfied before the Minister of Justice and Attorney General of Canada submitted the letter of request asking Swiss authorities to search for and seize the plaintiff's banking documents and records.

You might also consider comparing our procedures with those of one or two other jurisdictions. You may wish to meet or talk to the experts who were retained by the plaintiff and by the defendants in the civil case.

You will have access to any information under the control of the Department and any persons including the Minister and me. We will arrange additional meetings with the lawyers who do or supervise this work whenever you may wish to have them.

As part of this review, you will need to consider the procedures followed by the investigative agencies which regularly initiate requests for assistance. Commissioner Murray of the RCMP has offered the full cooperation of the RCMP, which initiates a large number of them. You may also wish to consider the procedures followed by other police forces.

I would like you to provide me with the results of your review and any recommendations you may have by the end of March, unless you advise that additional time is required. It is our expectation that your report will be made public. Should you have any questions on the above please do not hesitate to contact Daniel Bellemare, Assistant Deputy Attorney General (Criminal Law) at (613) 957-4756. Mr. Bellemare and his staff will be finalizing matters on an administrative nature with you in the near future.

Thank you in advance for your assistance.

Yours sincerely,

George Thomson
Deputy Minister of Justice

Enclosures

I. CHANGES MADE TO MUTUAL LEGAL ASSISTANCE PRACTICE FOLLOWING THE DISCLOSURE OF THE REQUEST IN AIRBUS

1.1 Language of the request

a)Counsel within the International Assistance Group review all requests to consider whether they contain conclusory statements or statements inconsistent with the investigative nature of the request.

b) Unusual, sensitive or significant requests are reviewed at a more senior level within the Department. Where necessary this may include the Deputy Minister but not the Minister.

1.2 Confidentiality of Requests

a) The practice of classifying any significant, unusual or sensitive request at a higher security level has been reinforced.

b) Counsel discuss confidentiality concerns in detail with Canadian investigative authorities submitting requests. For example, they outline to investigators that, with some countries, seeking assistance in the form of the restraint of bank accounts requires disclosure of the request to account holders. In light of that fact, counsel review appropriate alternatives, such as delaying any request for restraint of bank accounts, in all cases.

c) Counsel discuss confidentiality concerns in detail with the relevant foreign authorities to ascertain whether any additional steps could be taken to minimize disclosure, for example, by sealing materials filed in court.

II. LONGER TERM CHANGES THAT ARE BEING IMPLEMENTED

2.1 Language of the request

a) The forms used by investigative agencies in drafting requests are being reviewed to:

- include the following caution in all pre-charge investigations:

"This Letter of Request is made to assist an ongoing police investigation being undertaken by a Canadian investigative agency. All information contained in this request is provided from the police investigation and consists of unproved allegations which the police investigators believe merit investigation. No charges have been laid and all persons named in this letter are presumed innocent under Canadian law. The consideration of charges will only take place at the conclusion of the investigation. All information in this request is confidential. All statements or information contained in this request must be read as a whole in the context of the investigative nature of this request."

- update the standard language of the form to ensure it is clear that the request constitutes an investigative document relating to allegations only;

- include a caution to investigators against the use of any conclusory language.

b)Each page of the request will contain a shortened version of the caution as follows:

"All information contained in this request is provided from the police investigation and consists of unproved allegations."

2.2 Confidentiality

a) We are developing and acting on an enhanced training program to ensure the new Mutual Legal Assistance Policy is fully implemented

b) We are expanding the International Assistance Group to provide enhanced support and consultation to investigative agencies as they draft letters of request.

c) The confidentiality article in the model treaty, used in treaty negotiations, is being rewritten to emphasize the need for confidentiality:

2.3 General

a) A regular review of the policy and its application will be conducted by the Assistant Deputy Attorney General (Criminal Law). The ADAG (Criminal Law) will report the results of these reviews to the Deputy Minister.

b) The IAG is developing a special training module on confidentiality and drafting issues to enhance its training program for investigators.

III.REVIEW OF ACTIVE REQUESTS MADE PRE- DECEMBER 1995

3.1 In relation to these requests:

a)The IAG is currently reviewing files submitted prior to December 1995 which have not yet been completely processed by foreign authorities, with a view to identifying any conclusory language within the requests.

b)To date, review of relevant pre-charge files has been completed and the IAG has determined the remedial action to take on a case by case basis.