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Chapter 44

The Federal Prosecution Service DESKBOOK

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Part VIII
INTERNATIONAL ASSISTANCE
Chapter 44

44 AUTHORIZATION TO TRAVEL AND WORK ABROAD

44.1 Introduction

Increasingly, crimes investigated and prosecuted by Canada have an international component. Prosecutorial authorities around the world are acutely aware of the globalisation of crime. Criminals do not respect national borders, and many prosecutions involve investigations in more than one country.

Since the 1988 enactment of the Mutual Legal Assistance in Criminal Matters Act and the subsequent entry into force of Canada’s many bilateral and multilateral mutual legal assistance treaties, the number of requests by Canada to foreign states for assistance in gathering evidence has grown dramatically. As a result, Department of Justice counsel may from time to time need to travel to foreign countries for operational purposes related to an ongoing investigation or prosecution. This may occur in the context of both investigations and the execution of Canadian requests for assistance or commission evidence requests. In addition, counsel from the Department of Justice may be required to attend working meetings or legal conferences in foreign states.

Counsel may also seek to broaden their experience by taking a short term assignment with a prosecuting or other legal agency abroad, without leaving their permanent position. Opportunities to do so frequently arise with international agencies such as the International Criminal Court or specialized prosecution agencies established by the United Nations.

This chapter outlines the policy and procedures for obtaining travel authorization for the various types of foreign travel and provides some practical tips for those travelling abroad. It also outlines the processes governing work assignments abroad by Crown counsel who intend to return to the Department at the end of such an assignment.

44.2 Purpose and Scope of the Policy

Both foreign work assignments and international travel on behalf of the Attorney General or Minister of Justice requires sensitivity to budgetary constraints and the impact on Canada’s relations with foreign states. This policy is intended to ensure that the Department of Justice and the Federal Prosecution Service (FPS) are well-represented abroad, and that any foreign work assignments or necessary travel is carefully reviewed and authorized.

This policy is applicable to all operational travel to foreign states including travel for the purpose of:

advising the police in the course of their investigation;
obtaining evidence under the Canada Evidence Act;
obtaining commission evidence; and
all other case preparation purposes.

44.3 Types of Travel

Operational travel to foreign states is generally one of two types:

44.3.1 “Prosecution Function” Travel

Work relating to the mandate of the Attorney General, for example, in prosecuting international drug conspiracies or acting as counsel for the requesting state in extradition matters (“prosecution function” travel); or,

44.3.2 “Prosecution-related Function” Travel

Work relating to the mandate of the Minister of Justice, for example, in participating in multilateral working groups or international organizations involved in the suppression of crime, or negotiating treaties (“prosecution-related function” travel).

44.4 Approval Process

44.4.1 General Requirements

Operational travel to foreign states, except “Prosecution Function” travel to the U.S.A. as noted in s. 44.4.2.1 below, requires the approval of the Associate Deputy Minister responsible for corporate management on the recommendation of the Assistant Deputy Attorney General (Criminal Law). Crown counsel who expect to travel to foreign countries must obtain proper internal authorization and foreign approval where necessary.

44.4.2 Internal approval process

44.4.2.1 Procedure

44.4.2.1.1 Attendance of a conference of a national scale or that occurs abroad

For the purpose of this chapter, a conference is a congress, convention, seminar, or other formal gathering in one location where participants discuss, contribute to, or are informed about, matters of common interest.

A conference is considered to be of a national scale if: a) it is organized by a pan-Canadian organization and b) the subject of the conference is not purely local or provincial.

Attendance for all conferences of a national scale or that occur abroad, and all related travelling expenses, where applicable, must be approved according to the following procedure:

the person who is planning to attend a conference of national scale or that occurs abroad must prepare an “attendance request”;
the “attendance request” must be prepared as soon as the proposed conference attendance is known to be necessary. It must be made in writing and contain sufficient information to enable a decision to be made;
the “attendance request” must be approved by:
1. in a region, the Senior Regional Director on the recommendation of the FPS Director (and Regional Director, where applicable), or, in Ottawa, the Senior General Counsel (Criminal Law) or Senior General Counsel (Strategic Prosecution Policy Section);
2. the ADAG (Criminal Law); and
3. the designated Associate Deputy Minister.

For travel to the United States, items b) and c) do not apply, but counsel must send a copy of the travel authorization to the ADAG (Criminal Law) by e-mail to the e-mail box “ADAG-Trip Reports”.

With respect to those conferences that do not fall within these categories, the person making the request must obtain the approval for attendance and the related travelling costs, where applicable, from his immediate manager, as identified in the Delegation of Financial Signing Authorities Chart.

44.4.2.1.2 Travel abroad for purposes other than attending a conference

All foreign travel for purposes other than attending a conference must be approved according to the following procedure:

the person who is planning to travel must prepare a “request for travel authorization”;
the “request for travel authorization” must be prepared as soon as the proposed travel is known to be necessary. It must be made in writing and contain sufficient information to enable a decision to be made;
the “request for travel authorization” must be approved by:
1. in a region, the Senior Regional Director on the recommendation of the FPS Director (and Regional Director, where applicable). an electronic copy of the approval must be forwarded to the ADAG (Criminal Law) at the mailbox “ADAG-Trip Reports”;
  
  or
2. in Ottawa, the ADAG (Criminal Law) on the recommendation of the Senior General Counsel (Criminal Law) or Senior General Counsel (Strategic Prosecution Policy Section).

44.4.2.2 Criteria

Generally

Before any foreign travel is authorized, the person giving the authorization must be satisfied:
1. the travel is necessary;
2. the projected expenses are reasonable;
3. the costs can be accommodated within existing budgets.
The criteria considered in assessing requests for authorization include:
- the purpose of the travel;
- whether the travel has been requested by the foreign state;
- whether the travel has been requested by the Canadian investigating agency;
- whether the investigating agency will fund the travel;
- whether there are reasonable alternatives to the travel, such as teleconferencing or videoconferencing.
Prosecution-related Function Travel

The criteria considered in assessing requests for authorization include the following:
- the purpose of the meeting;
- the relevance and priority of the meeting to counsel’s work and that of the FPS;
- counsel’s involvement (speaker, panelist, guest, etc.);
- the potential consequences of non-attendance;
- whether counsel’s personal attendance is required or whether someone else could attend;
- whether any other members of the FPS, the Department of Justice or federal government are attending;
- whether and by whom counsel has been invited;
- the estimated cost of the trip;
- how the travel is to be funded, including whether non-Departmental sources of funding have been investigated;
- whether the request has been made in sufficient time to take advantage of the most economical means of travel and accommodation;
- whether other members of the FPS, the Department of Justice or the federal government will benefit by counsel’s attendance;
- if written materials are to be submitted to the meeting or conference, whether counsel has obtained the necessary approval (a copy of counsel’s materials should be appended to the request);
- if the purpose is to attend a meeting, the reasons why a face-to-face meeting is necessary, as opposed to a teleconference, videoconference, or other means of communication;
- if the purpose is to attend a meeting, the reasons why the meeting is not taking place in Canada.

44.4.2.3 Expenses

When foreign travel is made at the request of another party (e.g. another part of the department or another government department), counsel should explore whether the other party will cover some or all of the expenses;
Government policy provides for the payment of reasonable and necessary expenses when travelling on government business;
Any departure from the authorized travel plan that results in expenditures exceeding the estimated cost of the trip must be approved by the traveller's manager.

44.4.3 Foreign Approval

44.4.3.1 The Trip itself

Many foreign countries consider it a violation of their domestic law and sovereignty for a foreign official to attend in the state and undertake any acts in an official capacity without proper authorization. This may be the case even where, for example, a witness has agreed to cooperate and meet with Canadian officials. The simple act of contacting that foreign citizen to discuss the possibility of an interview may be regarded by some states as improper.

Case preparation activities in foreign countries thus requires coordination through appropriate channels. Crown counsel who expects to travel to foreign countries (including the U.S.A.) for such purposes must obtain the appropriate authorization. Failure to obtain approval can create a risk of violating foreign law, jeopardizing the request for assistance and/or harming international relations. Counsel should consult the IAG on the need to obtain foreign approval.

44.4.3.2 Visas

A number of countries require visas for entry. The IAG can assist counsel with obtaining information in this regard.

44.5 The Role of the IAG

44.5.1 Accountability of the ADAG (Criminal Law)

The ADAG (Criminal Law) is accountable to the Deputy Minister and Minister for the activities of Crown counsel abroad. In order to fulfill this responsibility, the ADAG must be provided with sufficient information concerning travel by Crown counsel.

44.5.2 Co-ordination and Advisory

The IAG has been delegated responsibility by the Assistant Deputy Attorney General (Criminal Law) to co-ordinate and provide advice on foreign travel. The IAG has a recognized expertise in the area due in large measure to its close links with the R.C.M.P., Interpol, the Department of Foreign Affairs and International Trade (DFAIT), and the central authorities in other states. The IAG must be given information on foreign travel so that the IAG knows who is where at any given time. Such information should be sent by e-mail to the mailbox “ADAG-Trip Reports”.

44.5.3 Reporting Requirements

Counsel undertaking foreign travel must prepare a report for the IAG immediately upon returning to Canada, for transmittal to the ADAG (Criminal Law). The report must be informative, and highlight any information that may be of use to others, such as the DFAIT. The report should be sent by e-mail to the mailbox “ADAG-Trip Reports”.

44.6 Conduct of Counsel Abroad

In dealing with foreign officials, Crown Counsel must remember they are acting in an official capacity as representatives of the Canadian Department of Justice and the FPS and in some cases, as representatives of the AG Canada or the Minister of Justice.

In many cases (other than routine “prosecution function” travel to the U.S.) the nearest Canadian Embassy or diplomatic post abroad should be informed of Crown Counsel’s presence in the foreign state. For advice on whether this should be done, and how to do it, counsel should consult the IAG.

As an official representative, Crown counsel may be presented with gifts/souvenirs by the foreign hosts. Such gifts must be reported according to governmental policy and authority to keep such gifts must be sought in the same fashion. (See the Treasury Board Policy, “Conflict of Interest and Post-Employment Code for the Public Service”¹.)

It may be appropriate for counsel, or even expected of counsel, to offer welcome or protocol gifts to foreign hosts. The IAG can advise counsel on this issue.

To foster international cooperation and a better understanding of the Canadian legal system, Crown counsel should take advantage of foreign trips to provide information on the Department of Justice and the FPS (eg. FPS Booklet; IAG Booklet, the Charter of Rights, other departmental publications).

44.7 Practical Suggestions for Travel Abroad

Counsel preparing to acquire evidence on a foreign commission must address several concerns, among them:

Obtaining the prior approval of the foreign state for proposed travel dates

In cases where counsel are travelling to further an ongoing investigation or prosecution, the foreign state often requires the presence of one or more of its officials to attend and/or participate in any evidence gathering procedures and meetings. Travel dates must therefore take into account the schedule of these officials. Frequently, proposed dates are re-scheduled several times prior to a consensus being reached by officials in Canada and the foreign state. If at all possible, counsel should avoid making inflexible travel arrangements unless absolutely certain that the proposed dates have been approved by the foreign state.

Setting travel dates to allow ample time for all witnesses to be questioned

Counsel must also allow time for potential legal arguments, temporary illnesses or other unavailability of witnesses or staff, and other unforeseen difficulties.

Interpretation invariably slows the process, sometimes more than doubling the time needed.

Arranging facilities and equipment:

This can generally be done by the IAG or the investigating agency.

Identifying the group travelling from Canada

The group may include a Canadian judge, court staff (consider taking two reporters if a commission will be lengthy), a video technician if the evidence is to be videotaped, Crown, defence team, interpreters (consider taking two if the commission will be lengthy). If obtaining interpreters is a problem, the Department of Secretary of State may be able to help. In some cases, DFAIT may ask the local diplomatic post to obtain interpreters.

Obtaining passports, visas and vaccinations, where appropriate
Booking air travel and hotels

Since prior approval from the foreign state may be necessary, this should be done as early as possible. It is often preferable for one person to arrange this for the entire travelling party to avoid confusion.

Arranging ground transportation
Determining expense guidelines

All persons travelling at government expense must be familiar with the Department of Justice and Treasury Board allowances for meals and incidentals and be aware of any vouchers required for the particular country to be visited.

Arranging any medical and travel insurance needed

Considerable information about travel insurance can be found on the Department's Intranet site. Go to “Civil Law and Corporate Management”, click on “Comptroller Directorate”, then “Finance and Resource Management Division”, then “Government Travel”.

Obtaining a “calling card” to minimize phone expenses

44.8 Working Abroad

Counsel wishing to pursue working assignments abroad should consult Human Resources personnel on the financial and other implications of taking such positions and the Treasury Board policy on “Leave Without Pay”.

Where Crown counsel does accept a position abroad on a “leave without pay” basis, it should be borne in mind that the foreign agency for which they work is likely to regard them as a representative of the government of Canada. Any disagreement between counsel and the foreign agency about their performance or the terms of their employment may cause the agency to pursue its complaint with the government of Canada. While it is hoped that any disagreements can be resolved amicably, situations have arisen where the disagreement led to an exchange of notes through diplomatic channels.

Accordingly, it is imperative that managers take a careful approach before permitting an employee to take leave without pay to take a temporary position abroad. Counsel contemplating a foreign posting should advise and seek the approval of the FPS Director at the earliest opportunity. The FPS Director should inform both the Senior Regional Director and the ADAG (Criminal Law) where counsel requests this type of leave. Final approval must be obtained from the Regional Director after consulting both the Senior Regional Director and the ADAG (Criminal Law).

Where a person requests leave to take a position with a public organization such as a foreign government or an international agency such as the United Nations, managers should take particular care, for the person will be seen as a representative of the Department of Justice. Managers must consider, inter alia:

whether agreeing to the request will compromise operational demands;
whether the individual applying is a suitable representative of the Department;
whether the agreement with the foreign employer raises any expectations of the Department of Justice that it can meet (for example, providing a replacement if the person is unable to complete the contract).

1 See the Treasury Board website at www.tbs-sct.gc.ca/Pubs_pol/hrpubs.