Evidence Compellable Even When No Assurances As To Use Are Obtained

Canadian courts have consistently held that individuals should expect to be governed by the laws of the state(s) in which they live or conduct business - it is the individual's decision to operate in another country that subjects him or her to the application of foreign law.

In Beaudette v Alberta (Securities Commission), 2015 ABQB, Beaudette challenged the constitutionality of sections of the Alberta Securities Act which allowed him to be compelled to give evidence in relation to an investigation into the trading of shares of a United States ("U.S.") corporation in which he had a controlling interest and permitted the Alberta Securities Commission ("ASC") to share that evidence with other law enforcement authorities. Beaudette refused to be examined on the basis that it would violate his Charter rights unless the ASC provided written assurances that any evidence compelled from him would not be shared with U.S. law enforcement agencies without notice to him to allow him to seek to resist the use of that evidence against him in a criminal proceeding in the U.S. He noted that the securities legislation in other provinces (including Ontario) contains such protections. The ASC was aware of a parallel investigation by the U.S. Securities and Exchange Commission and conceded that there was a possibility that information it compelled would be shared. Beaudette's concern (which the Court found was speculative) was that this could lead to criminal prosecution against him in the U.S.

Following previous authority, the Court found that Beaudette's Charter rights would not be infringed by the examination because:

The evidence from the experts on U.S. law expressed different views on whether Beaudette's compelled evidence could be used against him in a U.S. prosecution; The ASC summons was not issued for the predominant purpose of obtaining incriminating evidence against Beaudette, but was for the purpose of the ASC investigation; Even though there was a possibility that the evidence could be used against Beaudette in a U.S. criminal prosecution, the question of what evidence could be used against him in that proceeding was a matter within the exclusive authority of the U.S. court; The ASC was not required to seek assurances...

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