For many years, there has been a growing concern in Alberta and
elsewhere as to what might happen when the subject of a compelled
examination under Alberta securities law faces potential scrutiny
in other jurisdictions; can the results of those compelled
interviews be shared with other jurisdictions? Even at the risk of
potential violations of the subject's rights against
The Court of Appeal recently held (in Beaudette v Alberta
(Securities Commission), 2016 ABCA 9) that the Alberta
Securities Commission (ASC) may share compelled testimony of
witnesses with other Canadian and foreign authorities, and that
such sharing does not violate Charter rights against
Scott Beaudette was the CEO and sole employee of Sunpeak
Ventures Inc, a company subject to investigation by the ASC. An
Investigation Order under section 42 of the Securities
Act, RSA 2000, c S-4 compelled Beaudette to give evidence
under oath and to produce all documents under his control to the
ASC. The Securities Act requires a witness to answer
questions put to them, even when those answers may result in the
witness giving self-incriminating evidence. Beaudette refused to
comply, and the ASC brought an application under section 197 of the
Securities Act to force compliance with the previous order
and hold him in contempt of court.
Beaudette was concerned that section 42 of the Securities
Act compelled him to give potentially self-incriminating
evidence, while section 46 allowed his evidence to be shared with
other regulatory and law enforcement agencies in Canada and abroad.
He argued that the combined effect of these provisions was a
violation of his Charter rights, including his section 7
rights to life, liberty and security of the person, and his section
13 right against self-incrimination. Beaudette contended that the
ASC was working in cooperation with not only other provincial
securities authorities, but also with American police authorities
to support or facilitate an American criminal prosecution. A
justice of the Court of Queen's Bench rejected Beaudette's
Sharing Self-Incriminating Evidence with Foreign
The Court of Appeal upheld the Court of Queen's Bench
decision and found that the combination of sections 42 and 46 did
not violate the appellant's Charter rights. The Court
was skeptical of a potential breach of Charter rights, and
noted that a potential future breach and allegation of possible
foreign state actions is not proof that those events are likely to
happen. There must be a clear implication that rights would be
violated for the rights to be implicated.
Immunity from the use of self-incriminating evidence in
subsequent proceedings is recognized in Canada to prevent such
evidence from being used in the criminal law context. However, the
Court noted that whether the principle of self-incrimination has
truly been brought into play is a fact-specific exercise; not all
compelled evidence in front of a regulatory body will constitute a
destruction of the right against self-incrimination.
The Court pointed to the importance of Canadian securities
regulators and found that even though securities legislation allows
for the investigation of offences committed both in Canada and
elsewhere, the ASC has a legitimate regulatory purpose and is not
in service of the criminal law.
The Court held that section 42 and the Securities Act
as a whole "strike a balance between the privilege against
self-incrimination and the principle that relevant evidence should
be available in a search for the truth" (at para 42). Even
though evidence could potentially be used in American proceedings,
Canadian courts are not authorized by the Charter to
evaluate or control the investigative and judicial processes of a
friendly foreign rule of law democracy.
This decision is cold comfort to those compelled to appear
before the ASC. This type of information sharing has long been of
concern to those representing witnesses at compelled interviews.
The ability of the ASC to share incriminating statements with
American or other authorities is often a boon to those foreign
authorities, who may never have been able to get such information
without the ASC's assistance. This is particularly the case
with American authorities who, if they attempted to question the
same witness directly, would likely be met with objections on the
basis of the Fifth Amendment. In other words, the ASC may be able
to provide those foreign authorities with evidence that the foreign
authority could never have obtained by itself.
Any witnesses who have concerns about the cross-border use of
evidence compelled by the ASC would be well-served to consult
carefully with counsel about how best to maximize the possible
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.
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Under the Income Tax Act, the Employment Insurance Act, and the Excise Tax Act, a director of a corporation is jointly and severally liable for a corporation's failure to deduct and remit source deductions or GST.
Under the Income Tax Act, the Employment Insurance Act, the Canada Pension Plan Act and the Excise Tax Act, a director of a corporation is jointly and severally liable for a corporation's failure to deduct and remit source deductions.
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