The right not to be compelled to incriminate oneself is a
protection enshrined in both the
United States Constitution and the Canadian Charter
of Rights and Freedoms (the "Charter"). In
reality, however, there is protection only so long as an individual
is not facing investigation or prosecution in both countries. There
is a risk that evidence given by a person in Canada could be used
to incriminate that person in the United States when the
individual is involved in parallel, cross-border proceedings. This
may occur for two reasons.
First, the manner in which the right is protected differs in
In Canada, the protection against self-incrimination is
enshrined in sections 7 and 13 of the Charter. Only
incriminating evidence is protected. Where an
individual's evidence is compelled, it cannot be used against
him or her in another proceeding (except for a prosecution for
perjury or giving contradictory evidence). The protection offered
is both use and derivative use immunity, which means that there is
protection for the evidence itself, as well as evidence that could
not have been obtained or the significance of which could not have
been appreciated, but for the evidence given.
In the United States, the Fifth Amendment to the
United States Constitution operates by allowing a witness
to refuse to answer any question or give any evidence on the basis
that the answer may tend to incriminate the witness. This is
referred to colloquially as the right to silence. An adverse
inference may, however, be drawn from a witness's refusal to
The result of these differences is that a witness may be
compelled to testify in a Canadian proceeding and will, in
exchange, receive Charter protection in respect of that
evidence in Canada. However, if such evidence is later
introduced in a United States proceeding, it could
be used against that witness there.
Second, Canadian courts have frequently determined that these
circumstances do not engage a Canadian constitutional right for
which the courts can fashion a remedy.
Despite the fact that this result has the potential to entirely
eviscerate a constitutional right, Canadian courts have generally
determined that in these circumstances it is the
United States Constitution, and not the Charter,
that is engaged. The Canadian courts, therefore, leave it to the
United States courts to determine whether such evidence
can be admitted.
There are a variety of ways in which incriminating evidence may
flow from Canada to the United States. These include:
formal cooperation between securities regulators; cooperation
agreements between litigants and foreign authorities; international
treaties; and the granting of letters of request from a foreign
court for the taking of evidence in Canada for the purposes of a
court proceeding in that foreign jurisdiction. The deemed
undertaking rule and protective orders provide questionable
protection to witnesses giving evidence in Canada, who face
prosecution in the United States.
Those at greatest risk are directors and officers of public
corporations who do business in both the
United States and Canada and face overlapping criminal,
Ontario Securities Commission and/or
United States Securities and Exchange Commission
investigations or prosecutions, and civil litigation.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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