The risk of self-incrimination in cross-border disputes: The use of Canadian discovery evidence in United States criminal/regulatory proceedings – Part II


Royal Trust Corporation of Canada v. Fisherman (“Royal Trust”), a decision of the Ontario Superior Court, is another example of a court addressing the risk that discovery evidence could be used against a defendant in a Canadian action, who is also a defendant in United States ("U.S.") criminal proceedings. 

The Court took a different approach from that in Gillis v Eagleson in refusing to order a stay of an Ontario class action, despite the defendant’s argument that any evidence given by him would be used against him in anticipated criminal proceedings in the U.S.  In Gillis, the defendant successfully sought a stay of an Ontario civil action pending the final determination of U.S. criminal proceedings. 

In Royal Trust, the Court found that no Canadian constitutional right was engaged because the risk arose based on U.S. constitutional principles.  The Court further emphasized that it was not up to the Canadian courts to frustrate Canadian litigation in order to remedy so-called deficiencies in the U.S. Constitution. To do so, wrote the Court, would be to give the Charter extra-territorial effect.

The Court also distinguished Gillis based on a number of factors, including that no criminal charges had yet been laid against the defendant so the risk was speculative (even though it later came to pass), discovery had not been completed, and the defendant was not a Canadian citizen.  Most significantly, perhaps, was the fact that in Gillis there was uncontroverted expert evidence that the defendant would receive no 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 in the Ontario civil proceedings from being used against him in the U.S. criminal trial. In Royal Trust, however, the expert opinion was divided as to the use that would be made of the Ontario evidence by a U.S. court. Therefore, the prejudice to the defendant was less clear. 

Consistently, subsequent courts have followed this approach; they have been reluctant to step in where no clear prejudice can be shown.


Topics:  Canada, Criminal Prosecution, Cross-Border, Self-Incrimination

Published In: Civil Procedure Updates, Criminal Law Updates, Finance & Banking Updates, International Trade Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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