Jeopardy to the Privilege Against Self-Incrimination in Cross-Border Proceedings

One of the little-known risks to officers and directors of public companies carrying on business in both Canada and the United States is the potential for the loss of the constitutionally-enshrined privilege against self-incrimination where these individuals face criminal or regulatory [Ontario Securities Commission (“OSC”) or United States Securities and Exchange Commission (“SEC”)] investigations or charges and civil litigation involving the same allegations of misconduct. Recent high-profile examples include proceedings involving Karlheinz Schreiber, the former officers and directors of Live Entertainment Corporation of Canada (Livent), the Hollinger-related corporations, and the B.C. reference into the constitutionality of the polygamy provisions of the Criminal Code.

Presented at the 6th Directors' and Officers' Liability Conference presented by Federated Press, March 2011