Legalization and Apostilles in Canada: A Bleg

[vocabulary watch: 'bleg' - a request (beg) for information delivered by blog]

Does anyone know of any instance where any body in Canada – private or public – asks that foreign public documents be legalized before being accepted for use here? (Legalization is a method of authenticating a foreign public document by consular officials of the country in which it is to be used. Public documents can include birth certificates and other personal status documents, school or unversity transcripts, and much else that is issued by a public authority of some kind.)

So far as I know, no one in Canada asks for legalization. That’s not how our rules of evidence work. However, I also know that some Canadian consulates abroad purport to offer legalization services for documents bound to Canada – though I do not know what client base they think they have for such services.

It matters because if Canada becomes a party to the Hague Apostille Convention (known formally as the Convention on the abolition of all forms of legalization), then it will be contrary to the Convention for anyone in Canada to ask for legalization. Instead, people here have to accept an apostille under the Convention as sufficient authentication of the documents in question. (I have written previously about the Convention on Slaw.)

If no one in Canada asks for legalization now, we can accede to the Convention based on administrative agreements among federal/provincial/territorial governments to issue apostilles under certain circumstances. But if someone does require legalization now, then we may have to legislate to ban it and to insist that an apostille will suffice. We at least have to have some frank discussions with the organizations in question. But first we have to find them – if they exist. Thus this bleg.

The Canadian Bar Association has urged the federal, provincial and territorial governments of Canada to do what is needed to ratify the Apostille Convention. The CBA says the Convention would save a lot of Canadians – individuals and businesses – a lot of time and money in dealing with foreign countries.

A number of Canadian governments are increasingly frequently asked to issue apostilles because Canadians are told in foreign countries that they need them – but we can’t issue them until we join the Convention.

Getting a firm fix on what is happening now is part of what is needed.

We would appreciate your help.

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Comments

  1. Interesting blog as I was doing research on why our Canadian government has not joined the Hague Convention. I didn’t quite understand what you meant by “If no one in Canada asks for legalization now”.

    Perhaps you could clarify. I, for one would love to know why Canada hasn’t decided joined and made it easier to have documents “apostilled”.

  2. As the note says, the Convention abolishes all forms of legalization. So if Canada becomes a party, it will not be appropriate for anyone in Canada to require that a foreign public document (from a contracting state to the Convention) must be legalized in order to give it legal effect in Canada.

    Generally speaking, our laws do not now require legalization. I understand that there are a couple of private bodies that ask for it anyway. (The point of the original post here was to find out about any such body, public or private.) Presumably, however, they can be persuaded to accept an apostille from a Convention state in the place of legalization.

    There are legal and administrative reasons why we have not joined. The legal reason is that the Convention does not have a federal state clause (a.k.a. territorial unit clause) that would allow it to be brought into force piecemeal as provinces implement it. Most private law conventions made since the early 1970s have such a clause. Such a clause helps Canada because it is hard to get provincial and territorial unanimity to legislate, even for uncontroversial matters like the Apostille Convention.

    If the Convention can be implemented administratively, that make it easier to get the requisite provincial and territorial buy-in.

    The administrative barrier to accession is the difficulty in figuring out how apostilles would be issued in Canada – by whom, at what cost – and how to manage the transition from the current regime that authenticates public documents to support legalization by foreign consular services. Some efforts have been made to figure this out, but it can be a challenge to keep the attention of the people who have to do the work, when more urgent matters land on their desks.

    So far as I can tell, everybody who knows about the Convention wants it for Canada – but maybe they don’t want it enough, or governments don’t know how much they want it.

  3. I appreciate the post on what should be a rather simple proposition, but is just the opposite thanks to Canadian federalism. I assist a local consulate and it downright embarrassing as a Canadian and especially a lawyer to have to explain to citizens/officials that we are in the dark ages on this one. But hey, we finally got our act together on ICSID, so maybe there is hope.

    Keep us posted.

    Carlos Garcia

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