Criminal Competition Law Developments - Quarterly Update

In this quarterly update on criminal competition law and related developments, we provide highlights on significant issues in Canada and the U.S.

Disclosure rights and remedies

In the Supreme Court's decision in R. v. Ahmad, 2011 SCC 6 (released February 10), a case dealing with a constitutional challenge to the scheme of Section 38 of the Canada Evidence Act, and the Federal Court's paramountcy to adjudicate upon materials that may constitute sensitive or national security information under that section, the Court made some interesting observations on disclosure principles in criminal trials. We note the following (at paragraph [2]of the reasons):

"We acknowledge at the outset that in some situations, the prosecution's refusal to disclose relevant (if sensitive or potentially injurious) information in the course of a criminal trial, may on the facts of a particular case prejudice the constitutional right of every accused to "a fair and public hearing" and the separately guaranteed right "to be tried within a reasonable time" [citations omitted]. Where the conflict is irreconcilable, an unfair trial cannot be tolerated. Under the rule of law, the right of an accused person to make full answer and defence may not be compromised."

This citation may be of assistance in litigating cases involving the prosecution's failure to make relevant or timely disclosure.

A link to the Court's decision may be found here.

Trans-border witness examination in class action antitrust cases

In Treat America Limited v. Nestlé Canada Inc. 2011 ONSC 617 (released January 26), the applicant (plaintiffs in a civil action pending in the United States District Court for the Middle District of Pennsylvania), sought an order to give effect to a Letter of Request for international judicial assistance in relation to compelling production of documents from Nestlé Canada and that a representative of Nestlé be produced for examination, for use in a U.S. proceeding. This involves a large-scale group of claims (subject to the U.S.Multidistrict Litigation process) against Canadian and U.S. candy manufacturers alleging inter alia an antitrust conspiracy and fraudulent concealment of a conspiracy relating to chocolate pricing in the United States. The U.S. plaintiffs allege that it was likely that decisions relating to pricing in Canada were part of an overall North America budgeting and strategic planning exercise and that they necessarily affected pricing in the United States (the allegations remain unproven).

In countering the application before Campbell, J., Nestlé Canada asserted that:

since it had been removed from the U.S. proceedings (on jurisdictional grounds) Nestlé did not have a chance to object to the relief now sought; the scope of the request was too broad; and the test for exercise of discretion by the Court had not been met as the request did not relate to the merits of the U.S. proceedings, the materials were unnecessary for trial and would not be subject to production under Ontario rules. While accepting the general principle that principles of international comity should dictate a liberal approach to such requests, Campbell J., ruled that...