One scenario in which the jeopardy to the privilege against
self-incrimination may arise is when an individual is facing
criminal or regulatory proceedings in Canada at the same time as
the individual is engaged in civil litigation in the United States
King v. Drabinsky, 2008 ONCA 566, is one example.
The defendants were officers and director of Livent, an Ontario
corporation that operated in both Canada and the U.S., who faced
criminal prosecution in both the U.S. and Canada on the basis that
they were alleged to have made material misrepresentations in
financial information filed with securities regulators. The
defendants were Ontario residents and chose not to appear in the
U.S. criminal proceedings; the Canadian criminal proceedings had
not yet gone to trial. Shareholders of Livent had brought a
class action in the U.S. against the defendants, who relied upon
the U.S. Constitution's Fifth Amendment and refused to answer
questions at depositions, as a result of which the U.S. Court
granted judgment against them. The plaintiffs then brought a
motion in Ontario to have the U.S. judgment enforced. In
response, the defendants argued that their Charter rights
had been violated because they were unable to testify in the U.S.
class action due to the risk that their testimony would be used
against them in the ongoing Canadian criminal proceedings.
The Ontario Court of Appeal rejected the defendants'
Charter argument for several reasons.
Firstly, the Court concluded that Charter principles
are to be considered at the time the evidence is sought to be used
against an accused, which is at trial, not at the time it is taken
outside the jurisdiction. The Court found that section 13 of
the Charter would likely protect the defendants during the
Canadian criminal trial from the use of incriminatory statements
made by them in the U.S. class action. In particular, the
defendants would be permitted to seek an exclusion of their U.S.
deposition evidence under section 7 of the Charter or
under the trial judge's residual discretion to exclude evidence
to ensure a fair trial.
Secondly, the Court noted that evidence given by the accused
persons voluntarily during depositions would likely be exculpatory,
not incriminatory; only incriminating evidence is protected by
section 13 of the Charter.
Thirdly, the Court balanced the principles of order and fairness
articulated by the Supreme Court of Canada in a 2003 decision,
Beals v. Saldanha, and concluded that the U.S. judgment
would not operate unfairly in the circumstances. The Court
emphasized that the U.S. class action had been brought against
Canadian citizens doing business in both the U.S. and Canada.
As a result, any defendant in the same situation is in the
unenviable position of having to make the tactical decision of
whether to be deposed in the U.S. to avoid a judgment that could
bankrupt him or her or to testify and hope that a Canadian court
will not admit the evidence as part of its discretion to ensure a
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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