(a) The preamble of the treaty between Canada and India on mutual assistance in criminal matters makes specific reference to Canada and India desiring to improve the effectiveness of both countries in the investigation, prosecution and suppression of crime, including terrorism related crime.
The Minister of Justice is unable to comment on the full scope of India's Terrorist and Disruptive Activities (Prevention) Act (TADA) and on the extent of its extraterritorial reach, if any.
(b) The mutual assistance treaty does not make India's TADA legislation part of Canadian law. The treaty generally provides for assistance relating to the gathering of evidence for the purpose of a criminal investigation or prosecution pending in the state requesting assistance. The assistance contemplated under this treaty does not include the arrest of persons for the purpose of their return to the requesting state through deportation or extradition.
Requests for assistance made to Canada under the mutual assistance treaty are executed in accordance with canadian law once their execution has been authorized by the Minister of Justice. For this purpose the requests must contain information prescribed by the treaty. This includes the relevant law of the state requesting assistance.
There is no requirement under the treaty that an offence under investigation or prosecution in India also exist in Canada (referred to as double criminality requirement). This is common in mutual assistance treaties.
Canada may refuse or delay assistance based on grounds set out in the treaty. The treaty provides that assistance may be refused where executing the request would impair Canada's sovereignty, security, or public order and that assistance may be postponed where executing the request would interfere with ongoing investigations or prosecutions. These grounds are intended to protect the fundamental interests of Canada, where Canada is the requested state. They can be relied on in appropriate cases based on a consideration of the circumstances of each case in view of the treaty and the relevant law and could apply to
a request by India pertaining to an investigation under the TADA legislation.