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The risk of self-incrimination in cross-border disputes: Hollinger case study – Part II

2 minute read

Sun-Times Media Group, Inc. v. Black, [2007] O.J. No. 795 (SCJ), is another case involving the former officers and directors of the Hollinger-related corporations, which highlights the risk of self-incrimination that officers and directors can face in cross-border disputes.

The plaintiff brought a motion in an Ontario action for a stand-alone Mareva injunction to freeze the assets of the defendants in respect of an action the plaintiff had brought against the defendants in the United States (U.S.). It also sought an examination under oath. In the U.S. action, the Court had granted a stay of oral and documentary discovery, pending conclusion of the U.S. criminal proceedings. Defendant Black argued that the Ontario action was an attempt to avoid the stay and prohibition against discovery in the U.S. civil proceedings.

The Court denied the Mareva injunction and quashed the summonses, in part, based upon the risk that the evidence could be used against Black in the U.S. criminal proceedings. The Court undertook a balancing exercise. It referred to the conflicting expert evidence on the jeopardy that would be faced by Black in the U.S. if he was required to give evidence in Canada and found that there was a risk that his compelled testimony in Canada would be admissible in a U.S. Court, and that there was no public purpose to the examination which could be weighed against this risk of prejudice.

The treatment of conflicting expert evidence by Canadian courts is particularly important in the absence of any conclusive statement of law in the U.S. with respect to the use that may be made of compelled evidence obtained in Canada. The lack of consensus between experts demonstrates the uncertainty that still remains and the resulting risk to the privilege against self-incrimination.

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Lisa C. Munro, Q.Arb

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