Manitoba (Attorney General) et al. v. Clark,

• Jurisdiction: Manitoba
• Judge: Perlmutter
• Neutral Citation: 2013 MBQB 249
• Citation: (2013), 298 Man.R.(2d) 169 (QB),2013 MBQB 249,298 ManR(2d) 169,(2013), 298 ManR(2d) 169 (QB),298 Man.R.(2d) 169
• Date: 23 October 2013
• Court: Court of Queen's Bench of Manitoba (Canada)

Man. (A.G.) v. Clark (2013), 298 Man.R.(2d) 169 (QB)

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. NO.037

The Attorney General of Manitoba and The Attorney General of Canada on behalf of the United States Department of Justice, Criminal Division (applicant) v. Paul Clark (respondent)

(CR 12-01-32060; 2013 MBQB 249)

Indexed As: Manitoba (Attorney General) et al. v. Clark

Manitoba Court of Queen's Bench

Winnipeg Centre

Perlmutter, A.C.J.Q.B.

October 23, 2013.

Summary:

The United States Department of Justice was investigating a doctor in the U.S. for unlawfully purchasing prescription drugs from a Canadian company. It sought documents from three Canadian companies that were linked to the respondent Clark. Cameron, J., issued an order under the Mutual Legal Assistance in Criminal Matters Act, requiring Clark to produce the documents. Clark refused to comply, relying on s. 18(7)(c) of the Act, under which a person named in an order could refuse to comply if producing the record "would constitute the commission by the person of an offence against a law in force in the state ... that presented the request" and on his right to silence under s. 7 of the Charter. The Crown moved to enforce the order.

The Manitoba Court of Queen's Bench granted the motion.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - [See second Criminal Law - Topic 5599.4 ].

Criminal Law - Topic 5599.4

Evidence and witnesses - Foreign evidence assistance agreements and legislation - Evidence gathering orders - Rights of persons affected by - The United States Department of Justice was investigating a doctor in the U.S. for unlawfully purchasing prescription drugs from a Canadian company - It sought documents from three Canadian companies that were linked to the respondent Clark - Cameron, J., issued an order under the Mutual Legal Assistance in Criminal Matters Act, requiring Clark to produce the documents - Clark refused to comply, relying on s. 18(7)(c) of the Act, under which a person named in an order could refuse to comply if producing the record "would constitute the commission by the person of an offence against a law in force in the state ... that presented the request" and on his right to silence under s. 7 of the Charter - The Crown moved to enforce the order - The Manitoba Court of Queen's Bench granted the motion - The ordinary meaning of s. 18(7)(c) was that it was the act of "producing" the documents that potentially triggered the section - Further, the ordinary meaning of "would constitute the commission by the person of an offence" had not been demonstrated by any standard - While the court had assumed, without deciding, that Clark was at risk of prosecution, he had not established that producing the documents would constitute the commission by him of an offence against a law in force in the U.S. - Clark's interpretation of s. 18(7)(c) was inconsistent with the Act's object and Parliament's intention, which was to fulfill Canada's treaty obligation - See paragraphs 15 to 21.

Criminal Law - Topic 5599.4

Evidence and witnesses - Foreign evidence assistance agreements and legislation - Evidence gathering orders - Rights of persons affected by - The United States Department of Justice was investigating a doctor in the U.S. for unlawfully purchasing prescription drugs from a Canadian company - It sought documents from three Canadian companies that were linked to the respondent Clark - Cameron, J., issued an order under the Mutual Legal Assistance in Criminal Matters Act, requiring Clark to produce the documents - Clark refused to comply, relying on s. 18(7)(c) of the Act, under which a person named in an order could refuse to comply if producing the record "would constitute the commission by the person of an offence against a law in force in the state ... that presented the request" and on his right to silence under s. 7 of the Charter - The Crown moved to enforce the order - The Manitoba Court of Queen's Bench granted the motion - The court rejected Clark's assertion that being required to produce the documents without a guarantee of immunity would deprive him of his rights under s. 7 of the Charter and leave him in a position where he could not rely on the Fifth Amendment to the U.S. Constitution - The court's role was not to weigh the implications of foreign law - Further, Clark could not rely on s. 7 - Production of documents in Canada under the Act for use in a foreign state did not violate an accused's rights under s. 7 - The right to remain silent and the privilege against self-incrimination did not extend to the production of documents - Charter values could not be relied on at this stage of the proceedings - The issue was compliance - The order, itself, had not been challenged - See paragraphs 22 to 37.

Criminal Law - Topic 5599.6

Evidence and witnesses - Foreign evidence assistance agreements and legislation - Interpretation - [See first Criminal Law - Topic 5599.4 ].

Statutes - Topic 502

Interpretation - General principles - Intention of Parliament or legislature - [See first Criminal Law - Topic 5599.4 ].

Statutes - Topic 516

Interpretation - General principles - Ordinary meaning of words - [See first Criminal Law - Topic 5599.4 ].

Cases Noticed:

Pokidyshev et al., Re (1999), 124 O.A.C. 24; 138 C.C.C.(3d) 321 (C.A.), refd to. [para. 16].

R. v. Terry (R.S.), [1996] 2 S.C.R. 207; 197 N.R. 105; 76 B.C.A.C. 25; 125 W.A.C. 25, refd to. [para. 16].

Canada (Commissioner of Competition) v. Falconbridge Ltd. (2003), 170 O.A.C. 299; 173 C.C.C.(3d) 466 (C.A.), refd to. [para. 16].

TransCanada Pipelines Ltd. v. Manitoba (2013), 299 Man.R.(2d) 47; 590 W.A.C. 47; 2013 MBCA 88, refd to. [para. 18].

United States of America v. Ross (1995), 100 C.C.C.(3d) 320 (Que. C.A.), refd to. [para. 19].

United Kingdom v. Ramsden (1996), 92 O.A.C. 270; 108 C.C.C.(3d) 289 (C.A.), refd to. [para. 21].

EchoStar Satellite Corp. et al. v. Quinn et al., [2007] B.C.T.C. Uned. E52; 2007 BCSC 1225, refd to. [para. 22].

United Kingdom v. Hrynyk (1996), 107 C.C.C.(3d) 104 (Ont. Gen. Div.), refd to. [para. 22].

British Columbia Securities Commission v. Branch and Levitt, [1995] 2 S.C.R. 3; 180 N.R. 241; 60 B.C.A.C. 1; 99 W.A.C. 1, refd to. [para. 26].

R. v. Fitzpatrick (B.), [1995] 4 S.C.R. 154; 188 N.R. 248; 65 B.C.A.C. 1; 106 W.A.C. 1, refd to. [para. 27].

United States of America v. Beach et al. (2000), 145 Man.R.(2d) 70; 218 W.A.C. 70 (C.A.), refd to. [para. 32].

R. v. Hape (L.R.), [2007] 2 S.C.R. 292; 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, refd to. [para. 35].

Statutes Noticed:

Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985 (4th Supp.), c. 30, sect. 18(7)(c) [para. 11].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law in Canada (5th Ed. 2007) (Looseleaf supplement), vol. 2, para. 54.8 [para. 29].

Counsel:

Donald R. Melnyk and Nathaniel Carnegie, for the applicant;

Curtis M. Unfried and Jason B. Gisser, for the respondent.

This motion was heard by Perlmutter, A.C.J.Q.B., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on October 23, 2013.