Lexpert Special Editions

Securities Enforcement | 29 was given to those people being interviewed in those circumstances was at least that what was being said would not be disclosed outside the boundaries of that investigation without leave. "Giving the OSC the power to do that raises questions about how far those answers can go and whether there is any protection against self-incrimination, because the protections against self-incrimination that would apply to Canadian proceedings may not apply at all to foreign proceedings. "This causes very serious potential problems for those being investigated. It creates a real dilemma and may very well be challenged." Any challenge would likely be rooted in the Canadian Charter of Rights and Freedoms, says Keefe. The Charter specifies that a witness who testifies in any proceeding has the right not to have evidence they provide used to incriminate them in any other proceeding (perjury charges are the exception). That might appear to prohibit handing incriminating evidence over to a foreign regulator who is not bound by the Canadian Constitution. But an Alberta court felt otherwise. Like Québec, Alberta has a disclosure framework similar to the one recently adopted by Ontario. The question of whether the provincial regulator has the authority to share transcripts of interviews and other information to the SEC was challenged before the Court of Queen's Bench. The court ruled in 2008 that the securities commission could share information, including compelled testimony from a person or company being investigated for securities violations, with the US agency. Justice Karen Horner held it does not violate Charter rights provided there is not a criminal probe open at the same time. Should criminal proceedings arise at a later date, she wrote, she believed that both the Securities Act and case law would prevent the use of such compelled testimony in Canada. And there is no evidence that compelled evidence would be admissible in a US criminal proceeding, she added. David Tupper, a litigator at Blake, Cassels & Graydon LLP in Calgary, says the way the ruling was written clearly does not slam the door on another challenge. "The court did say they weren't considering what would happen if the disclosure was for criminal-enforcement purposes," he says, "so they didn't close the field that that might create Charter issues. "The problem is in the US, they have an absolute Fifth-Amendment right "I AM APPREHENSIVE FRANKLY THAT CANADA IS MOVING TO A US MODEL OF AGGRESSIVENESS. ONE OF THE CONCERNS I HAVE IS WE DON'T NECESSARILY HAVE THE EXPERTISE IN THE PROSECUTORIAL AUTHORITIES AND BUDGETS WHICH ALLOW FOR IT. I THINK THIS IS OF REAL CONCERN." – William Brock, Davies Ward Phillips & Vineberg LLP LEXPERT®Ranked Lawyers Nicholl, AdE, John I.S. Clyde & Co Canada LLP (855) 607-4288 john.nicholl@clydeco.ca Mr. Nicholl is essentially a claims "fixer" for the insurance industry, and his practice focuses on defence and coverage advice and litigation. He is a frequent presenter and author on insurance coverage issues. Nitikman, Joel A. O'Neill, Louis-Martin Dentons Canada LLP Davies Ward Phillips & Vineberg LLP (604) 443-7115 joel.nitikman@dentons.com Mr. Nitikman focuses on and has extensive experience in federal and provincial tax litigation. He has appeared before the Tax Court of Canada, the Federal Court of Appeal and the Supreme Court of Canada. (514) 841-6547 lmoneill@dwpv.com Mr. O'Neill specializes in complex litigation. His practice embraces a broad spectrum of M&A, securities, corporate and commercial disputes, insolvency restructurings, as well as white-collar investigations and defence work. O'Sullivan, LSM, Terrence J. Lax O'Sullivan Scott Lisus LLP (416) 598-3556 tosullivan@ counsel-toronto.com Mr. O'Sullivan's litigation and arbitration practices focus on business disputes, financial institution litigation, regulatory charges and defence of directors' and officers' liability. He acts as a mediator, arbitrator and is an ACTL and IATL Fellow. Orr, James C. Orzy, S. Richard Kim Orr Barristers P.C. Bennett Jones LLP (416) 349-6571 jo@kimorr.ca (416) 777-5737 orzyr@bennettjones.com Mr. Orr has extensive trial, appellate and arbitration experience. His broad civil litigation background includes class actions, shareholder rights, competition/anti-trust, corporate restructuring, employment law and professional negligence matters. Co-leader of Restructuring Practice. Acts for debtors and creditors in major domestic and crossborder restructuring and insolvency matters. His clients include bondholders, indenture trustees, court officers, financial institutions and insurers.

• Cover