Cases such as Treat Canada Ltd. v. Leonidas, and
Catalyst Fund General Partner I Inc. v. Hollinger Inc.
show Canadian courts tend to avoid addressing the risk of
self-incrimination in cross-border disputes head on in favour of
crafting safeguards to protect the right. The problem with
such an approach is that it relies on the United States (U.S.)
enforcing these safeguards.
Without a definitive and clear approach articulated in all U.S.
jurisdictions, it is unknown how U.S. courts will treat conditions
imposed by Canadian courts. It is also unclear how U.S. courts will
apply the Fifth Amendment to incriminating evidence obtained in
Canada. This very issue has been the subject of conflicting
expert evidence in some of the Canadian cases referred to in this
series of blogs. Since Canadian constitutional rights cannot be
asserted in U.S. criminal proceedings, the important determination
is whether the Fifth Amendment will prohibit the use, in a U.S.
court, of incriminating evidence obtained in Canadian
Whether foreign nationals are protected by the Fifth Amendment
in U.S. proceedings in circumstances in which they are interrogated
abroad has not been answered by the U.S. Supreme Court. In re
Terrorist Bombings of U.S. Embassies E. Afr., 552 F.3d 177,
201 (2d Cir. 2008), the Second Circuit Court found that the Fifth
Amendment applies when US officials interrogate foreign nationals
abroad. Whether this applies equally to interrogations by
foreign officials is still unclear. The general rule is that
the Fifth Amendment does not apply to foreign interrogations unless
U.S. officials were intimately involved in the interrogation so as
to be considered a joint venture. As a result, it is likely
that incriminating evidence obtained abroad (by someone other than
a U.S. official) will not be protected under the Fifth
Despite differing expert opinions on how the Fifth Amendment
applies, there is a general consensus that a U.S. court will not
admit evidence if it will "shock the conscience of the
court". However, as applied, this rule does little to
assuage the risk faced by the subject of a cross-border proceeding.
For example, there are a variety of U.S. cases in which
bounty hunters have kidnapped accused persons located outside the
U.S., against whom arrest warrants have been issued, and brought
them to the U.S. to stand trial. Despite the fact that this
raises concerns about principles of comity, sovereignty, and may be
in violation of extradition treaties, such conduct has not been
found to shock the conscience of the court.
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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