December 22, 2023

Getting Evidence from Canada: Letters Rogatory or Letters of Request

What to do when you need testimony and/or records from Canadian entities?

What are letters rogatory

Letters rogatory, also known as letters of request, are formal communications used in the legal field to request judicial assistance from foreign courts. They are typically employed when evidence needed for a court case is located outside the jurisdiction of the court where the case is being heard. These letters request that a foreign court facilitate the gathering of evidence or conduct specific judicial acts. In essence, they are tools for international legal cooperation, bridging the procedural differences between jurisdictions to aid in the collection of evidence across borders.

How are letters rogatory enforced

In Canada, letters rogatory are enforced through a judicial process. The foreign court sends the letter rogatory to a Canadian court, which then reviews it to ensure it meets specific legal criteria. If the Canadian court finds the request satisfactory, it will issue an order directing the relevant party to comply with the terms of the letter, such as providing testimony or documents. This process integrates the judicial authority of the foreign court with the Canadian legal system, ensuring international legal cooperation while respecting Canadian legal standards and procedures.

The most straightforward way to enforce a subpoena or court order from a foreign jurisdiction is to seek voluntary compliance from the Canadian witness or entity involved in the request.

To enforce letters rogatory in Canada, four preconditions and six factors must be satisfied. The preconditions include: the foreign court's desire for the evidence, the witness being within the Canadian court's jurisdiction, the evidence's relevance to a pending foreign matter, and the foreign court's competence. The six factors are: relevance and necessity of the evidence, unavailability of the evidence elsewhere, non-contradiction with public policy, reasonable specificity in identifying documents, and ensuring the order isn't unduly burdensome or contrary to Canadian legal principles.