In Attorney General of Manitoba et al. v. Clark, 2013
MBQB 249 ("Clark"), the Crown sought to enforce
an evidence gathering order under the Mutual Legal Assistance
in Criminal Matters Act (the "Act"). The order
required Clark, a Canadian pharmacist, to produce documents
requested by the U.S. Department of Justice in furtherance of an
investigation into an American physician who allegedly purchased
prescription drugs from Clark that were not approved by the
United States ("U.S.") Food and Drug
Clark argued that an order compelling him to produce the
documents without providing him immunity from prosecution in the
U.S. would violate his rights under section 7 of the
Charter. The liberty interest in section 7 is
triggered when an individual is subject to penal sanctions.
One of the principles of fundamental justice protected by
section 7 is the principle against self-incrimination.
Clark argued that an order requiring him to produce the documents
could result in him being prosecuted in the U.S. for selling
"medical products" to the U.S. doctor. If that were
to happen, Clark argued that he would not be able to rely on the
Fifth Amendment to the U.S. Constitution to prevent the documents
from being used against him. The result would be a legal
vacuum in which he could not rely on the protections against
self-incrimination enshrined in either the American or Canadian
The Court found that the production order did not violate
Clark's rights under section 7 of the
Charter. The Court relied on British Columbia
Securities Commission v. Branch,  2 S.C.R. 3
("Branch") for the finding that the privilege
against self-incrimination does not extend to the production of
documents. In our view, Clark oversimplified the
findings in Branch. In fact, Branch left the door
open for circumstances in which the privilege against
self-incrimination may extend to the production of documents.
These circumstances may arise when a document contains the
equivalent of a compelled answer given by a person at risk of
criminal prosecution. Such a document may be treated in the
same way as compelled oral testimony and protected by the privilege
Clark also argued that the possibility that information in the
documents could constitute an offence in the U.S., such as aiding
and abetting the U.S. doctor, was sufficient to trigger
section 18(7)(c) of the Act. Section 18(7)(c) of the Act
allows an individual to refuse to answer a question or produce a
record if doing so would constitute the commission by the person of
an offence against a law in force in the state that presented the
The Court rejected Clark's arguments and declined to impose
a condition requiring immunity before production. The Court
noted that Clark did not adduce any expert evidence that he was at
risk of prosecution in the U.S. In any event, the Court
ultimately concluded that it was not the role of the Court to
review the actions of U.S. authorities in the U.S.
Clark may expand the risk of compelled disclosure of
incriminating documents without protection from their use in the
U.S. It has yet to be seen whether this line of reasoning will be
followed by other courts.
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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