U.S. District Court, Re, (1979) 21 A.R. 271 (QB)

JudgeMiller, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateSeptember 12, 1979
Citations(1979), 21 A.R. 271 (QB)

U.S. District Court, Re (1979), 21 A.R. 271 (QB)

MLB headnote and full text

Re U.S. District Court

(No. 116449)

Indexed As: U.S. District Court, Re

Alberta Court of Queen's Bench

Miller, J.

September 12, 1979.

Summary:

This case arose out of an application for international judicial assistance pursuant to s. 43 of Canada Evidence Act to Alberta Court of Queen's Bench by way of letter rogatory from a U.S. District Court. The accused were charged with tax offences in the United States. Extensive tax investigations were previously made in Canada with the result that documents and taped phone interceptions were in the possession of the Canadian authorities. The Alberta Court allowed the application under the Canada Evidence Act and held that the pith and substance of the charges were criminal in nature and Canadian assistance was necessary to insure a full hearing in the U.S. court.

Courts - Topic 5684

Provincial courts - Jurisdiction - Respecting federal government departments - A request for international judicial assistance pursuant to section 43 of the Canada Evidence Act was made to the Alberta Court of Queen's Bench by way of letter rogatory from a United States District Court - The request involved documents in the possession of the Department of National Revenue - The defence argued that only the Federal Court had jurisdiction over federal departments - The Alberta Court of Queen's Bench allowed the application and held that it did have jurisdiction to make an order relating to a federal government department - See paragraph 75.

Evidence - Topic 7521

Competency of evidence - Illegally obtained evidence - General principles - The Alberta Court of Queen's Bench held that illegally obtained evidence may still be tendered at trial in Canada - See paragraph 49.

Practice - Topic 3748

Evidence - Letters rogatory - When evidence will be taken in jurisdiction receiving request - An application for international judicial assistance pursuant to section 43 of the Canada Evidence Act was made to the Alberta Court of Queen's Bench by letters rogatory from a U.S. District Court - The Alberta Court of Queen's Bench allowed the application and held that it would only exercise its jurisdiction to allow the application if (1) it was not inconsistent with Canadian national sovereignty, (2) it does not expose a Canadian resident to harsher treatment than would be received in Canada, (3) it would not allow an inquiry out of the jurisdiction that would not be allowed in Canada, (4) the foreign court has indicated with some specificity which documents it wants - See paragraphs 32 to 46.

Practice - Topic 3750

Evidence - Letters rogatory - Restriction on use of evidence taken - An application for international judicial assistance was made pursuant to section 43 of the Canada Evidence Act to the Alberta Court of Queen's Bench by way of letter rogatory from a U.S. District Court - The request involved production of documents and taped telephone interceptions in possession of Canadian authorities - The Alberta District Court allowed the application on the condition that the evidence sought would only be used as evidence at trial and the taped phone interceptions, which were illegally obtained, would not be used against the parties to the conversation - See paragraphs 38 and 47 to 60.

Words and Phrases

Testimony - The Alberta Court of Queen Bench discussed the meaning of the word "testimony" found in s. 43 of the Canada Evidence Act - The Alberta Court of Queen's Bench held the word testimony included documentary evidence.

Cases Noticed:

Radio Corporation of America v. Rauland and Another, [1951] 1 Q.B. 618, appld. [para. 27].

Re Radio Corporation of America v. Rauland et al., 5 D.L.R.(2d) 424, refd to. [para. 27].

Re Comtesse and Zelig, 23 D.L.R.(2d) 506, refd to. [para. 34].

Re Westinghouse Electric Corporation and Duquesne Light Company et al., 78 D.L.R.(3d) 3, refd to. [para. 35].

In re Letter Rogatory from the Justice Court, District of Montreal, Canada v. Fecarotta, 523 F.(2d) 562, refd to. [para. 36].

R. v. LeSage (1976), 26 C.C.C.(2d) 388, refd to. [para. 50].

Echlin Manufacturing Co. v. Sloan Valve Co. et al., 5 C.P.C. 275, dist. [para. 63].

Raychem Corporation v. Canusa Coating Systems Inc., [1971] O.R. 448, dist. [para. 63].

Re Dwelle Estate, 69 W.W.R.(N.S.) 212, refd to. [para. 73].

The Signe, 37 F. Supp. 819, appld. [para. 26].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1970, c. E-10, sect. 43 [para. 22]; sect. 48(2) [para. 24].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 176.16 [para. 49]; sect. 178.2 [para. 52]; sect. 446(1), sect. 446(5), sect. 446(6) [para. 77].

Public Inquiries Act, R.S.A. 1970, c. 296 [para. 53].

Authors and Works Noticed:

Jowitt, Dictionary of English Law (2nd Ed.), p. 1588 [para. 25].

Counsel:

M.G. Stevens-Guille, for the applicant;

A.G. MacDonald, for the defendants in the American cases;

R.J.N. Gilborn, for the Department of National Revenue.

This case was heard by MILLER, J., of the Alberta Court of Queen's Bench.

On September 12, 1979, MILLER, J., delivered the following judgment:

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    ...Shows Inc. et al., [1982] 1 S.C.R. 414; 41 N.R. 181; 36 A.R. 361; 66 C.C.C.(2d) 125, reving. (1981), 26 A.R. 136 (C.A.), reving. (1979), 21 A.R. 271 (Q.B.), refd to. [para. 25, footnote R. v. Rockey (S.E.), [1996] 3 S.C.R. 829; 204 N.R. 214; 95 O.A.C. 134; 110 C.C.C.(3d) 481; 2 C.R.(5th) 30......
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    ...52 C.C.C.(2d) 39, refd to. [para. 19]. Re Application by Letters Rogatory from United States District Court, Middle District of Florida, 21 A.R. 271; [1980] 1 W.W.R. 7, refd to. [para. Re Kirchoffer v. The Imperial Loan and Investment Company (1904), 7 O.L.R. 295, refd to. [para. 22]. Re Is......
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    • Canada (Federal) Supreme Court (Canada)
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    ...52 C.C.C.(2d) 39, refd to. [para. 19]. Re Application by Letters Rogatory from United States District Court, Middle District of Florida, 21 A.R. 271; [1980] 1 W.W.R. 7, refd to. [para. Re Kirchoffer v. The Imperial Loan and Investment Company (1904), 7 O.L.R. 295, refd to. [para. 22]. Re Is......
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  • CSI Wireless LLC v. Harris Canada Inc. et al., (2003) 342 A.R. 57 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • June 26, 2003
    ...Shows Inc. et al., [1982] 1 S.C.R. 414; 41 N.R. 181; 36 A.R. 361; 66 C.C.C.(2d) 125, reving. (1981), 26 A.R. 136 (C.A.), reving. (1979), 21 A.R. 271 (Q.B.), refd to. [para. 25, footnote R. v. Rockey (S.E.), [1996] 3 S.C.R. 829; 204 N.R. 214; 95 O.A.C. 134; 110 C.C.C.(3d) 481; 2 C.R.(5th) 30......
  • R. v. Zingre, Wuest and Reiser, (1981) 38 N.R. 272 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • September 28, 1981
    ...52 C.C.C.(2d) 39, refd to. [para. 19]. Re Application by Letters Rogatory from United States District Court, Middle District of Florida, 21 A.R. 271; [1980] 1 W.W.R. 7, refd to. [para. Re Kirchoffer v. The Imperial Loan and Investment Company (1904), 7 O.L.R. 295, refd to. [para. 22]. Re Is......
  • R. v. Zingre, Wuest and Reiser, (1981) 10 Man.R.(2d) 62 (SCC)
    • Canada
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    • September 28, 1981
    ...52 C.C.C.(2d) 39, refd to. [para. 19]. Re Application by Letters Rogatory from United States District Court, Middle District of Florida, 21 A.R. 271; [1980] 1 W.W.R. 7, refd to. [para. Re Kirchoffer v. The Imperial Loan and Investment Company (1904), 7 O.L.R. 295, refd to. [para. 22]. Re Is......

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