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The risk of self-incrimination in cross-border disputes: The Mutual Legal Assistance in Criminal Matters Act (527)

3 minute read

In Attorney General of Manitoba et al. v. Clark, 2013 MBQB 249 (“Clark”), the Crown sought to enforce an evidence gathering order under the Mutual Legal Assistance in Criminal Matters Act (the “Act”). The order required Clark, a Canadian pharmacist, to produce documents requested by the U.S. Department of Justice in furtherance of an investigation into an American physician who allegedly purchased prescription drugs from Clark that were not approved by the United States ("U.S.") Food and Drug Administration.

Clark argued that an order compelling him to produce the documents without providing him immunity from prosecution in the U.S. would violate his rights under section 7 of the Charter. The liberty interest in section 7 is triggered when an individual is subject to penal sanctions. One of the principles of fundamental justice protected by section 7 is the principle against self-incrimination. Clark argued that an order requiring him to produce the documents could result in him being prosecuted in the U.S. for selling “medical products” to the U.S. doctor. If that were to happen, Clark argued that he would not be able to rely on the Fifth Amendment to the U.S. Constitution to prevent the documents from being used against him. The result would be a legal vacuum in which he could not rely on the protections against self-incrimination enshrined in either the American or Canadian constitutions.

The Court found that the production order did not violate Clark's rights under section 7 of the Charter. The Court relied on British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3 (“Branch”) for the finding that the privilege against self-incrimination does not extend to the production of documents. In our view, Clark oversimplified the findings in Branch. In fact, Branch left the door open for circumstances in which the privilege against self-incrimination may extend to the production of documents. These circumstances may arise when a document contains the equivalent of a compelled answer given by a person at risk of criminal prosecution. Such a document may be treated in the same way as compelled oral testimony and protected by the privilege against self-incrimination

Clark also argued that the possibility that information in the documents could constitute an offence in the U.S., such as aiding and abetting the U.S. doctor, was sufficient to trigger section 18(7)(c) of the Act. Section 18(7)(c) of the Act allows an individual to refuse to answer a question or produce a record if doing so would constitute the commission by the person of an offence against a law in force in the state that presented the request.

The Court rejected Clark's arguments and declined to impose a condition requiring immunity before production. The Court noted that Clark did not adduce any expert evidence that he was at risk of prosecution in the U.S. In any event, the Court ultimately concluded that it was not the role of the Court to review the actions of U.S. authorities in the U.S.

Clark may expand the risk of compelled disclosure of incriminating documents without protection from their use in the U.S. It has yet to be seen whether this line of reasoning will be followed by other courts.

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Lisa C. Munro, Q.Arb

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