In Treat Canada Ltd. v. Leonidas,  O.J. No. 5551, the Ontario Court of Appeal considered the jeopardy to the privilege against self-incrimination in an appeal from an Ontario order enforcing a letter of request for international judicial assistance issued to the plaintiff in a U.S. class action. The class action related to an alleged conspiracy among U.S. and Canadian chocolate manufacturers to inflate prices. The order compelled Robert Leonidas, former president and CEO of Nestle Canada, to appear for a deposition and to provide oral testimony as a witness in the class action. Neither Nestle nor Leonidas was a defendant in the proceeding; however, the Canadian Commissioner of Competition confirmed that Leonidas would soon be charged for his involvement in the alleged conspiracy.
The Court of Appeal found that the order did not breach Leodinas’s Charter rights.
The Court found that requiring Leonidas to testify would raise public policy concerns that reflect on the fairness of the Canadian criminal justice system if the Commissioner was later able to access his testimony to assist in the preparation of the criminal case against him. Despite these public policy concerns, the Court concluded that appropriate conditions could be put in place to ensure that Leonidas’s immunity rights were protected while honouring Canada’s comity obligations to the U.S. These included restrictions on the Commissioner’s ability to obtain access to Leonidas’s evidence. In particular, the Court imposed the following conditions:
The Commissioner was to provide notice to Leonidas before taking any step to seek access to the transcript of his evidence;
The Commissioner was not to seek or receive information regarding the contents of Leonidas’s testimony from anyone with knowledge or possession of those contents;
The Commissioner was not to seek a court order to access Leonidas’s testimony unless he was not charged but instead became a witness for the prosecution or if he was charged and testified in a subsequent proceeding against him; and
In the event the Commissioner wished to obtain an order to access Leonidas’s testimony, the order had to be sought and obtained from the Ontario Superior Court, on notice to Leonidas.
In any event, the Court found that it was not necessary to decide whether the Charter protection against self-incrimination extends to preclude a Canadian prosecutor from obtaining access to compelled testimony in a U.S. proceeding for the purpose of a criminal investigation. Instead, the Court relied on the Commissioner’s undertaking not to do so. Leave to appeal to the Supreme Court of Canada was refused.
The Court’s decision demonstrates a confidence (as yet untested) that the imposition of conditions can ameliorate the risk. The problem with this approach is the resulting uncertainty as to whether any such conditions will be effective.