The right not to be compelled to incriminate oneself is a protection enshrined in both the United States Constitution and the Canadian Charter of Rights and Freedoms (the “Charter”). In reality, however, there is protection only so long as an individual is not facing investigation or prosecution in both countries. There is a risk that evidence given by a person in Canada could be used to incriminate that person in the United States when the individual is involved in parallel, cross-border proceedings. This may occur for two reasons.
First, the manner in which the right is protected differs in each country.
In Canada, the protection against self-incrimination is enshrined in sections 7 and 13 of the Charter. Only incriminating evidence is protected. Where an individual's evidence is compelled, it cannot be used against him or her in another proceeding (except for a prosecution for perjury or giving contradictory evidence). The protection offered is both use and derivative use immunity, which means that there is protection for the evidence itself, as well as evidence that could not have been obtained or the significance of which could not have been appreciated, but for the evidence given.
In the United States, the Fifth Amendment to the United States Constitution operates by allowing a witness to refuse to answer any question or give any evidence on the basis that the answer may tend to incriminate the witness. This is referred to colloquially as the right to silence. An adverse inference may, however, be drawn from a witness's refusal to testify.
The result of these differences is that a witness may be compelled to testify in a Canadian proceeding and will, in exchange, receive Charter protection in respect of that evidence in Canada. However, if such evidence is later introduced in a United States proceeding, it could be used against that witness there.
Second, Canadian courts have frequently determined that these circumstances do not engage a Canadian constitutional right for which the courts can fashion a remedy.
Despite the fact that this result has the potential to entirely eviscerate a constitutional right, Canadian courts have generally determined that in these circumstances it is the United States Constitution, and not the Charter, that is engaged. The Canadian courts, therefore, leave it to the United States courts to determine whether such evidence can be admitted.
There are a variety of ways in which incriminating evidence may flow from Canada to the United States. These include: formal cooperation between securities regulators; cooperation agreements between litigants and foreign authorities; international treaties; and the granting of letters of request from a foreign court for the taking of evidence in Canada for the purposes of a court proceeding in that foreign jurisdiction. The deemed undertaking rule and protective orders provide questionable protection to witnesses giving evidence in Canada, who face prosecution in the United States.
Those at greatest risk are directors and officers of public corporations who do business in both the United States and Canada and face overlapping criminal, Ontario Securities Commission and/or United States Securities and Exchange Commission investigations or prosecutions, and civil litigation.