Canada: R. v. Nestle Canada Inc.: Settlement Privilege In Criminal Proceedings

Canadian courts have long recognized that there is a compelling public interest in promoting an open and productive settlement process, both in civil and criminal proceedings.[1] Plea bargaining in criminal and quasi-criminal prosecutions is essential to the proper operation of the justice system in Canada. A 1998 study found that 91.3% of all criminal cases in Ontario were resolved without a trial.[2] Courts in Canada have acknowledged that without resolution discussions, the Canadian system of criminal justice would collapse under its own weight.[3] The openness and productivity of resolution discussions is assured by the imposition of settlement privilege, which wraps a protective veil around the information that is exchanged.[4]

In some cases this must be balanced against an even greater interest, the ability of a criminal accused to make full answer and defence. In R. v. Nestle Canada,[5] a very recent decision of the Ontario Superior Court of Justice, the Court held that where a member of a price-fixing cartel provides information against other members of the cartel to the Crown in exchange for immunity from criminal prosecution, that information must be disclosed to the other members that are charged. This paper examines the Nestle Canada decision and its implications for the law of settlement privilege in Canada.

A. Settlement Privilege Protects Against Information Being Used Against Parties

Information exchanged and offers made during the plea bargaining process cannot be used against either the accused or the Crown prosecutor. An offer by an accused to plead guilty to an offence in resolution discussions with the Crown cannot be used as evidence at trial that the individual did in fact commit the offence.[6] Similarly, an offer of a reduced sentence for a guilty plea made by the Crown cannot later be adduced to argue that the accused should receive that lesser punishment.[7] In fact, even if plea bargaining is successful and the parties enter a joint submission on sentencing, the content of those discussions should not be presented to the sentencing judge, only the result.[8]

B. Settlement Privilege Does Not Protect Against Information Being Disclosed to Another Accused

While it is clear that the information disclosed to authorities during plea bargaining cannot be used against the person disclosing it, two decisions of the Ontario courts suggest that the information can be provided to a third party that is charged in a closely-connected criminal or quasi-criminal proceeding.

Nestle Canada involved Cadbury Canada Inc. and Hershey Canada Inc. disclosing the results of internal investigations to the Canadian Competition Bureau in return for leniency. The Canadian Competition Bureau operates an Immunity Program whereby the first party to disclose an offence to the Bureau and provide evidence leading to the filing of charges against another party receives immunity from prosecution. In 2007, Cadbury contacted the Bureau and advised that an internal investigation had revealed a domestic chocolate price-fixing cartel. Cadbury provided a great deal of information that they had collected during this investigation, including records and interviews, and received immunity from prosecution in return.

The Bureau executed search warrants on the other members of the alleged cartel, including Hershey Canada, Nestle Canada Inc., and Mars Canada Inc. Immediately after execution, Hershey approached the Bureau and offered to co-operate in return for consideration under the Bureau's Leniency Program. Hershey also disclosed information that had been obtained during its internal investigation of the matter, including employee interviews. Hershey pleaded guilty to price fixing and received a $4 million fine.

Nestle, Mars and others were charged with price-fixing. In the course of making disclosure to the accused, the Crown prosecutor inadvertently disclosed the information that had been provided by Cadbury and Hershey. The accused corporations refused to return or delete the information when the Crown requested they do so. At issue was whether the remaining accused were entitled to the information or whether it was protected by privilege.

In Canadian criminal law, the Crown must disclose to an accused person all information in its possession, whether inculpatory or exculpatory, unless the information is clearly irrelevant or is protected by privilege.[9] The only potential source of privilege in the Nestle Canada case was settlement privilege. Solicitor-client privilege did not apply to the information disclosed by Cadbury or Hershey because disclosure to an adverse party, especially a prosecuting authority such as the Competition Bureau, is a waiver of that privilege.[10] This is settled law in Canada.

On settlement privilege, Nordheimer J. affirmed that settlement discussions cannot be used against the settling party in a criminal proceeding.[11] The privilege also extends to the use of that information in a subsequent civil proceeding.[12] However, Nordheimer J. held that, where the disclosing party has resolved the charges (or potential charges) against them, settlement privilege doesn't protect against disclosure of the information to another accused against whom the information may be used. In these situations, disclosure of the information would not result in any significant risk of prejudice to the disclosing party. They are free from the jeopardy of criminal prosecution. The only competing rights, then, are the right of the accused to make full answer and defence against the public interest in promoting the resolution of disputes. Nordheimer J. held that the right to full answer and defence trumps:

[S]ettlement privilege does not apply to prohibit the disclosure of factual information provided to the Crown in respect of a proposed criminal prosecution in circumstances where the person providing that information does so with the knowledge that the Crown intends to rely on some or all of that information for the purposes of that criminal prosecution.[13]

Nestle and Mars were thus entitled to the internal investigation information that had been provided to the Competition Bureau by Cadbury and Hershey.

A similar result was reached in the murder prosecution of infamous serial killer Paul Bernardo.[14] Bernardo's wife, the equally infamous Karla Homolka, reached a deal with the prosecution whereby she would testify against Bernardo in exchange for pleading guilty to manslaughter and receiving a sentence of 12 years in prison. Bernardo applied for disclosure of the entirety of the Crown's file concerning the plea negotiations. The Court held that Bernardo was entitled to the file, since Ms. Homolka was no longer at risk of criminal prosecution. In an oft-cited passage, Lesage J. stated:

In these circumstances, the negotiations between counsel for the Crown and counsel for Ms. Homolka are not being sought so that they may be used against her, rather they are being requested so that they can be used in the defence of another person. Although I readily accept the Crown's position that a privilege ought to exist in the sense that the information should not be used against her in a subsequent prosecution, I do not conclude that the "privilege" ought to extend when that person, i.e. Ms. Homolka, is not an accused nor is at any risk of prejudice. In this circumstance, it is intended that she testify on behalf of the Crown, putting another at penal risk.[15]

C. Settlement Privilege Protects Information Where Charges Against an Accused Still Pending

While it is now uncontroversial in Canadian law in light of Nestle Canada and Bernardo that information disclosed in the course of resolution discussions may be disclosed to another accused against whom that information may be used,[16] this rule only applies where the disclosing person has completely resolved the charges against them and they are no longer at risk of criminal prosecution.[17] The courts in Nestle Canada[18] and Bernardo[19] were both alive to this distinction. The decisions in these cases are at least partially premised on the fact that Cadbury, Hershey and Karla Homolka would not suffer any prejudice from the information being disclosed as the charges against them had been resolved.

The contrary situation was presented in R. v. R.F.S.,[20] where two young offenders were jointly charged with second degree murder. R.F.S. had considerable settlement discussions with the Crown which went as far as preparing an agreed statement of facts and setting a date to plead guilty to a lesser offence. R.F.S. changed his mind and decided not to plead guilty. The co-accused sought disclosure of the agreed statement of facts and all other information relayed to the Crown. The Court held that the Crown file should not be disclosed. Shuler J. distinguished Bernardo as R.F.S. was still subject to criminal prosecution.[21] Thus, there remained a significant risk of prejudice to him if the information was disclosed to the co-accused.[22]

In light of Nestle Canada and Bernardo, corporations and individuals in Canada should be aware of the implications of providing information to law enforcement or regulatory authorities in return for a plea deal. Once the proceedings against the disclosing party have been resolved, the Crown will be under an obligation to disclose any relevant information to other persons charged in relation to the matter.


[1] Pirie v. Wyld (1886), 11 O.R. 422 at 427 (C.A.); Bombardier inc. c. Union Carbide Canada inc., 2014 SCC 35 at paras. 31-32.

[2] Department of Justice Canada, "Plea Bargaining" (2004), online: .

[3] R. v. Delchev, 2012 ONSC 2094 at para 35.

[4] Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37 at para. 2.

[5] 2015 ONSC 810 [Nestle Canada].

[6] R. v. Larocque (1998), 124 C.C.C. (3d) 564 (Ont. Gen. Div.) at paras. 12-13.

[7] R. v. Roberts, 2001 ABQB 520 at para. 60.

[8] R. v. Tkachuk, 2001 ABCA 243 at para. 34.

[9] R. v. Stinchcombe, [1991] 3 S.C.R. 326 at 345.

[10] Nestle Canada at para. 34.

[11] Nestle Canada at para. 53.

[12] Nestle Canada at para. 53.

[13] Nestle Canada at para. 69.

[14] R. v. Bernardo, [1994] O.J. No. 1718 (C.J.) [Bernardo].

[15] Bernardo at para. 17.

[16] See also R. v. Delorme, 2005 NWTSC 34 [Delorme]; R. v. Dickson, 2014 ABPC 233.

[17] Delorme at para. 30.

[18] Nestle Canada at para. 64.

[19] Bernardo at para. 17.

[20] 2003 NWTSC 58 [R.F.S.].

[21] R.F.S. at paras. 12-14.

[22] See also R. v. Lake, 1997 CarswellOnt 6601 (Gen. Div.).

To view original article, please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.