Civil Evidence in a Criminal Proceeding

King v. Drabinsky, 2008 ONCA 566 (CanLII)

[18] Regarding both their natural justice and meaningful opportunity defences, the appellants attempt to distinguish Levy on two bases. First, they argue that since the appellants were criminally charged in Canada, they did not have a meaningful choice to defend the U.S. proceedings. Charter protection was not available to them, the appellants say, because the Charter does not apply extraterritorially; any evidence they gave in the U.S. could be used against them in the Canadian criminal proceeding. Second, they argue that the extent of their self-incrimination would have exceeded the parameters found acceptable in Levy because, in this case, it would have been necessary for the appellants to give detailed evidence about their due diligence. Such detail would have provided the Canadian prosecution with a virtual discovery of the defence position that would have otherwise been unavailable, resulting in derivative evidence, and would have caused unfair prejudice. For the reasons that follow, I do not accept either argument.