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Disclosure in Cartel Cases in Canada
W. Michael G. Osborne Affleck Greene McMurtry LLP
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Overview Canadian disclosure rules in criminal cases
Recent developments in disclosure law Implications of disclosure for investigative procedures Other forms of disclosure available to targets of inquiries Information sharing
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Canadian disclosure rules in criminal cases
Criminal procedures apply to cartel offences “All relevant information” must be disclosed (R v Stinchcombe - SCC) Both inculpatory and exculpatory evidence But identity of CIs and privileged material Accused does not have disclosure obligations
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Recent developments in disclosure law
Disclosure of notes from proffer: Factual information from immunity/leniency applicant not privileged; subject to disclosure (R v Nestle) Disclosure to plaintiffs in private actions: Wiretap evidence disclosed to accused ordered produced (Imperial Oil v Jacques - SCC) Documents and information CCB obtains from third parties protected by public interest privilege (Pro-Sys v Microsoft) Can CCB officer be examined for discovery? (AG v Thouin – on appeal to SCC)
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Other forms of disclosure available to targets of inquiries
Two useful sources: Information to Obtain a search warrant – unsealed after execution Affidavit in support of s. 11 order application – available once order granted Right to be present at s. 11 oral examination Information on inquiry by target (s. 10(2))
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Information sharing Competition Act’s confidentiality provision (s. 29): Allows sharing “for purposes of administration or enforcement” CCB takes a broad view of this provision MLAT provisions in CA: Allow search warrants to assist foreign investigation CCB has many agreements with sister agencies
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W. Michael G. Osborne Affleck Greene McMurtry LLP Toronto, Canada
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