The risk of self-incrimination in international cross-border disputes

The risk to the privilege against self-incrimination is not limited to proceedings taking place in parallel in Canada and the United States (U.S.). The case of R. v. Eurocopter Canada Ltd., [2004] O.J. No. 2120, is a good example of how the risk can arise when a person is forced to testify at a public inquiry in Canada while facing criminal proceedings abroad. In Eurocopter, Karlheinz Schreiber brought an application to quash a subpoena compelling him to testify at the Ontario preliminary inquiry concerning criminal charges brought against Eurocopter Canada Ltd. relating to commissions paid on the sale of helicopters to the Canadian government. Schreiber, a citizen of both Canada and Germany, was facing tax evasion, fraud, and bribery charges in Germany relating to the same matters and had not (yet) been extradited. Schreiber argued that any evidence he was to give at the preliminary inquiry could be used against him in Germany. The application to quash the subpoena was dismissed. The Court found that whether Schreiber's Charter rights would be violated if he was compelled to testify at the preliminary inquiry depended on whether or not evidence given by him would be used against him in criminal proceedings in Germany. The Court found that Schreiber had failed to prove that his evidence in Canada could be used against him in Germany. In addition, the Court, relying on testimony from a German law expert observed, “it does not seem likely that a country that would go to such lengths to protect his self-incrimination would effectively turn its back on that protection and use compelled self-incriminating evidence simply because it was obtained in a foreign jurisdiction.”

Schreiber was eventually extradited to Germany to face charges of tax evasion and bribery; however, the German court dropped the bribery charges after finding that the statute of limitations had run out. He was convicted for tax evasion.

Although this issue arises most often in circumstances in which the individual affected conducts business in the U.S. and Canada, the Schreiber case shows that the risk extends beyond cross-border disputes. Individuals conducting business in Canada and abroad may also be at risk when the constitutional right is protected differently than in Canada.