The moving parties argued they were facing criminal charges in Canada and civil claims in America. To defend the American claims they had to give evidence which might be used against them in Canada. As a result they did not give evidence in America which led to (what the moving parties said was) a unfair civil finding against them.
As a result the moving parties asked the American judgment not be recognized in Canada.
The Court of Appeal did recognize the American judgment suggesting the judgment was not unfair and that American evidence, if given, would be subject to exclusion in a Canadian criminal case under the Charter, s. 13.
The Court held:
[10] Foreign judgments are generally recognized on the basis of the rules of comity. LaForest J. described comity in Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077 at 1096 as "grounded in the need in modern times to facilitate the flow of wealth, skills and people across state lines in a fair and orderly manner", a principle of particular importance in times of increasing transnational commerce. In extending comity to international commerce, Major J. in Beals v. Saldanha, [2003] 3 S.C.R. 416 adapted the "real and substantial connection" test for the recognition of foreign judgments. There is no question that the test was met in this case both because the registration statement named New York as the appropriate jurisdiction and because the appellants attorned to the jurisdiction by participating extensively in that proceeding.
[11] Beals also established the available defences of fraud, public policy or lack of natural justice. The list of available defences is not closed. Major J., writing for the majority, recognized, at para. 42, that "[u]nusual situations may arise that might require the creation of a new defence". However, he also cautioned, at paras. 41 and 42, that the defences, including any new defences, should be applied narrowly.
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[13] Since the basis for the appellants' argument rests on the different jurisdictions' approaches to self-incrimination, I begin with Arbour J.'s description, at paras. 21-22, in R. v. Noël (2002), 168 C.C.C. (3d) 193 (S.C.C.):In the United States, a different arrangement is in place: faced with the prospect of self-incrimination, the witness can claim the Fifth Amendment, and refuse to provide the incriminating answer. The state then has to dispense with his evidence altogether. …Under the regime of the Canada Evidence Act, and now also under the Charter, a different bargain is struck. When a witness provides evidence in any proceeding, whether voluntarily or under legal compulsion, he or she cannot refuse to answer a question that may tend to incriminate the witness, but is offered protection against the subsequent use of that evidence.
[14] Thus, under the Fifth Amendment, a defendant who is facing both civil litigation and criminal charges in the U.S. has the option either to waive his or her right to silence and to testify in the civil proceeding or to refuse to testify and run the risk of an adverse inference. In Canada , the testimony of a person who chooses to testify in a civil proceeding cannot be used as part of the prosecution's case against that person as an accused in any later criminal proceeding. However, any evidence that same person voluntarily gives in the civil proceeding may be used to cross-examine that person on a prior inconsistent statement should he or she testify as an accused at the subsequent criminal trial. See R. v. Henry (2005), 202 C.C.C. (3d) 449 (S.C.C.).
[15] Levy is the seminal decision regarding the impact of the different approaches on the recognition of a U.S. judgment in Ontario. In that case, the Canadian defendants argued that their Fifth Amendment right to silence precluded them from testifying in the U.S. summary judgment motion. The U.S. court in Levy drew an adverse inference from the defendants' failure to testify. Such an adverse inference is available in the U.S. system: Baxter v. Palmigiano, 425 U.S. 308 (1976). The defendants argued that this violated their Canadian constitutional right to silence and rendered recognition of the U.S. judgment against them in Canada offensive to our concepts of public policy and natural justice. I note parenthetically that the U.S. court in this case, given the weight of the evidence, found it unnecessary to, and accordingly did not, draw an adverse inference against the appellants, which made their argument regarding the U.S. charges even weaker than the defence raised in Levy.
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24] Section 13 of the Charter provides:A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.
[25] The application of this section raises two issues in this case: first, whether "proceedings" where a witness testifies could include the U.S. proceedings and, second, when the determination is made that the evidence is "incriminating".
[26] First, in regard to "proceedings", s. 13 would likely protect the appellants, in the context of this criminal proceeding, by protecting any incriminatory statements made in the U.S. civil proceeding from being used in the Canadian criminal proceeding. I say this because s. 13 refers broadly to "any proceedings". ssuming that the appellants' affidavit and deposition evidence would be considered evidence in the U.S. proceeding, [2] s. 13 may be construed to extend its protection to that evidence. I find support for this position in R. v. Stratton, (1978), 42 C.C.C. (2d) 449, which considered s. 12 of the Canada Evidence Act, R.S.O. 1970, c. E-10. Section 12 provides that a witness may be asked whether he (or she) has been "convicted of any offence". In Stratton, Martin J.A. interpreted this provision to mean that a witness may be asked about foreign convictions, provided that the foreign offence "would constitute a conviction under Canadian law." Applying this reasoning to s. 13 of the Charter, a witness in any foreign proceeding would be protected against self-incrimination to the extent the foreign proceeding would constitute "proceedings" under Canadian law.
[27] Second, the time for the determination of whether a statement is "incriminatory" is not at the time when the statement was made. Rather, the relevant time for the application of the Charter is at the time of the attempted introduction of the statements at the Canadian criminal trial. This was established by the Supreme Court of Canada in R. v. Dubois (1985), 22 C.C.C. (3d) 513, which specifically considered the Charter's s. 13 protection against self-incrimination. The sole issue in that case was whether s. 13 prevented the Crown from adducing testimony given by the appellant in his first trial at his second trial on a charge of second degree murder.
[28] In considering whether the evidence from the first trial was "incriminating" in the second trial, Lamer J., for the majority, concluded, at p. 536, that "s. 13 does not require that the incriminating character of the evidence be evaluated in the first proceedings as well as in the second"; rather, "whether evidence is incriminating or not can only be properly assessed at the time it is being used in the subsequent proceedings, at the time when the Crown seeks to make use of the evidence".
[29] Lamer J. wrote at p. 533: "As s. 13 guarantees the right of a person against self-incrimination, rather than the rights of a witness giving testimony, it inures to an individual only at the moment an attempt is made to use previous testimony to incriminate its author". He confirmed at p. 534 that the "focus of the right is on the second proceedings, the time at which the previous testimony is sought to be used, rather than the time at which it is given".
[30] It follows from this that the applicability of the protection depends on whether the evidence would be incriminating at the time it is sought to be adduced at the criminal trial, not whether it was incriminatory at the time of the summary judgment motion.
[31] On the basis of Dubois, it would be open to the appellants to argue that the evidence they gave in the U.S. civil proceeding would constitute "incriminating evidence", if and when tendered as part of the Crown's case, and thus, should be excluded pursuant to s. 13 in the Canadian criminal proceeding. See also R. v. Henry, supra.
[32] The appellants distinguish Dubois and Henry on the basis that they concerned domestic proceedings only and argue that Charter protection would not be available in Canada for evidence given in the U.S.
[33] The decision in R. v. Hape (2007), 220 C.C.C. (3d) 161 (S.C.C.) is helpful on this issue. The court in Hape considered the extraterritorial application of the Charter to searches conducted by Canadian officers in the Turks and Caicos relying on that jurisdiction's requirements for a legal search. LeBel J., writing for the majority, held that the Charter did not apply to the searches. Yet he also observed at para. 96: "there is no impediment to extraterritorial adjudicative jurisdiction pursuant to which evidence gathered abroad may be excluded from a Canadian trial, as this jurisdiction simply attaches domestic consequences to foreign events". This important observation applies to this case. LeBel J. made it clear, referring to Harrer, that the rights of an accused in Canada are still respected at the trial stage. As he said at para. 100: "Where the Crown seeks at trial to adduce evidence gathered abroad, the Charter provisions governing trial processes in Canada ensure that the appropriate balance is struck and that due consideration is shown for the rights of an accused being investigated abroad."
[34] Thus, I take two things from Hape. First, Hape supports the reasoning in Dubois, that when considering the protection provided by s. 13 of the Charter, the "timing" of the Charter application is concerned with the moment when the incriminating evidence is to be adduced at the criminal trial. Second, the Charter can have "extraterritorial adjudicative jurisdiction" particularly where the application of that jurisdiction results in purely domestic consequences and does not interfere with the jurisdiction of the foreign country. This supports my view that the term "any proceedings" under s. 13 of the Charter is not necessarily restricted to a proceeding that occurs in Canada ; a court will have the jurisdiction to consider "any proceedings" in the context in which they occurred.
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