Deposing a Canadian witness for a U.S. case
Canada is not a party to the Hague Evidence Convention. Willing witness or letters rogatory: here is how it works, and what to plan for when the witness speaks French.
No Hague Convention
First reflex to correct: Canada is not a party to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. The U.S. State Department says so plainly in its country page. The Hague route that works with France or Germany does not exist with Canada.
The willing witness: the simple route
In a private civil case, parties to U.S. litigation may arrange to depose a willing witness in Canada without asking permission from federal or provincial authorities. They arrange the court reporter, the room and the oath themselves; the U.S. consulate offers no logistical help, although consular officers can take the voluntary deposition of a U.S. citizen.
On the U.S. side, Rule 28(b) of the Federal Rules of Civil Procedure provides several ways to take a deposition abroad: on notice, before a person authorized to administer oaths under federal law or the law of the place; before a person commissioned by the court; or under a letter of request. The parties can also stipulate to a remote deposition, or the court can order one (Rule 30(b)(4)).
The reluctant witness: letters rogatory
If the witness refuses, or documents are needed, a Canadian court has to be involved. The U.S. court issues letters rogatory (a letter of request); a Canadian court can give effect to them under section 46 of the Canada Evidence Act or the applicable provincial statute — in Ontario, section 60 of the Evidence Act. The application goes directly to the Canadian court, not through diplomatic channels; Canadian counsel is required.
The Canadian court examines the request before enforcing it. In Ontario it asks, among other things, whether the evidence is relevant, whether it is necessary for trial, whether it can be obtained otherwise, whether documents are identified with reasonable specificity, and whether the order would be unduly burdensome for the witness; a request contrary to public policy is refused. Plan for weeks, sometimes months.
When the witness speaks French
A Quebec witness may want to testify in French. The record of a U.S. deposition is in English: you need a qualified interpreter, and the court reporter takes down the interpreter’s English. The witness’s French exists in the record only if someone records it and transcribes it.
That is not a detail. If an answer is disputed — a nuance, a verb tense, an “I think” that became “I know” — the original decides. United States v. Chavez (10th Cir. 2020) made the point the hard way: a conviction reversed because translated transcripts were offered without the original recordings.
Our advice: record the deposition in audio or video, and have the source language transcribed. That is exactly what Lexoral produces: the French as it was spoken, the interpretation set apart, each language identified. See also our cross-border page.
Checklist
- Is the witness willing? If not: letters rogatory and Canadian counsel.
- Who administers the oath, and under which law?
- Court reporter, room, time zone, platform if the deposition is remote.
- A qualified interpreter, booked in advance.
- An audio or video recording of the session.
- A source-language transcript, in addition to the English record.
Sources
- U.S. Department of State, Judicial Assistance Country Information: Canada
- Federal Rules of Civil Procedure, Rule 28 — depositions in a foreign country (LII)
- Federal Rules of Civil Procedure, Rule 30(b)(4) — remote depositions (LII)
- Canada Evidence Act, section 46
- Cassels, “Compelling Discovery from Canadian Witnesses”
- American Bar Association, “Letters Rogatory for Discovery in Canada”
- United States v. Chavez, No. 17-8096 (10th Cir. 2020) (Justia)
General information, not legal advice. Rules change and differ from one forum to the next: check the current text and what your forum requires.
A recording or a proceeding in French, English or both? Send us the proceeding, the languages and the deadline.
Submit a proceeding →