Current trends in the risk of self-incrimination in cross-border disputes

Cases such as Treat Canada Ltd. v. Leonidas, and Catalyst Fund General Partner I Inc. v. Hollinger Inc. show Canadian courts tend to avoid addressing the risk of self-incrimination in cross-border disputes head on in favour of crafting safeguards to protect the right. The problem with such an approach is that it relies on the United States (U.S.) enforcing these safeguards.

Without a definitive and clear approach articulated in all U.S. jurisdictions, it is unknown how U.S. courts will treat conditions imposed by Canadian courts. It is also unclear how U.S. courts will apply the Fifth Amendment to incriminating evidence obtained in Canada. This very issue has been the subject of conflicting expert evidence in some of the Canadian cases referred to in this series of blogs. Since Canadian constitutional rights cannot be asserted in U.S. criminal proceedings, the important determination is whether the Fifth Amendment will prohibit the use, in a U.S. court, of incriminating evidence obtained in Canadian proceedings.

Whether foreign nationals are protected by the Fifth Amendment in U.S. proceedings in circumstances in which they are interrogated abroad has not been answered by the U.S. Supreme Court. In re Terrorist Bombings of U.S. Embassies E. Afr., 552 F.3d 177, 201 (2d Cir. 2008), the Second Circuit Court found that the Fifth Amendment applies when US officials interrogate foreign nationals abroad. Whether this applies equally to interrogations by foreign officials is still unclear. The general rule is that the Fifth Amendment does not apply to foreign interrogations unless U.S. officials were intimately involved in the interrogation so as to be considered a joint venture. As a result, it is likely that incriminating evidence obtained abroad (by someone other than a U.S. official) will not be protected under the Fifth Amendment.

Despite differing expert opinions on how the Fifth Amendment applies, there is a general consensus that a U.S. court will not admit evidence if it will “shock the conscience of the court”. However, as applied, this rule does little to assuage the risk faced by the subject of a cross-border proceeding. For example, there are a variety of U.S. cases in which bounty hunters have kidnapped accused persons located outside the U.S., against whom arrest warrants have been issued, and brought them to the U.S. to stand trial. Despite the fact that this raises concerns about principles of comity, sovereignty, and may be in violation of extradition treaties, such conduct has not been found to shock the conscience of the court.