A common scenario in which the privilege against
self-incrimination is threatened occurs when a person is party to
criminal or regulatory proceedings in the United States
(U.S.) and civil litigation in Canada.
In the leading case of Gillis v. Eagleson,  OJ
No. 1160, the defendant lawyer brought a motion for a temporary
stay of an Ontario civil action against him, pending the final
determination of U.S. criminal proceedings and Law Society of Upper
Canada disciplinary proceedings in which the same allegations were
raised. He claimed that the Ontario action would prejudice
him in the criminal and disciplinary proceedings. The
plaintiff was a former hockey player, who had suffered a career
ending injury and alleged that his former lawyer had engaged in
deceit, breach of contract, and breach of fiduciary duty arising
out of the settlement of his insurance claim relating to the
The Court applied the test in Stickney v. Trusz, a
pre-Charter case, which held that where there are parallel
civil and criminal proceedings in Canada, a stay should only be
granted in exceptional and extraordinary circumstances if the
accused's right to a fair trial will be prejudiced in a manner
specific and peculiar to that party. That prejudice is to be
balanced against the right of the plaintiff to have a conclusion to
his or her litigation.
The Court found that there was uncontroverted expert evidence
that the defendant would not receive Charter protection in
the U.S. criminal proceedings and that he would not have the
ability to invoke the U.S. Constitution's Fifth Amendment to
prevent any discovery or trial evidence given in Ontario from being
used against him in the U.S. criminal trial. The Court concluded
that there was no procedure in Ontario that would be effective to
stop the evidence from being used in the U.S. – a sealing
order might not be honoured by a U.S. court. Further, it
would be "anomalous to deprive a Canadian resident of the
protections he would have been afforded if he had been charged in
Canada in respect of conduct committed in part in Canada against a
Canadian resident." As a result, the motion for a
temporary stay was granted.
This case has become the high watermark for protection in Canada
against the risk of the loss of the privilege against
self-incrimination in the U.S., likely due to its unique facts. In
particular, in subsequent cases, the expert evidence has been
conflicting with the result that the defendant cannot establish
more than the potential for prejudice.
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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