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Can incriminating evidence from an administrative investigation be used in a foreign jurisdiction?

In Mallat c. Autorité des marchés financiers de France, Justice Carol Cohen of the Superior Court of Quebec clarified how foreign authorities can obtain the help of Quebec's financial regulator, the Autorité des marchés financiers (the «AMFQ») to investigate individuals in order to assist prosecutions in their own jurisdiction.

The plaintiffs were three high-level employees of Ubisoft who were under investigation by the French regulator, the Autorité des marchés financiers de France (the «AMFF»), regarding alleged insider trading on Ubisoft stock. Pursuant to an international agreement between several securities commissions (the Enhanced Multilateral Memorandum of Understanding Concerning Consultation and Cooperation and the Exchange of Information, referred to as the «International Agreement»), the AMFF obtained the AMFQ's cooperation in its investigation, pursuant to which the AMFF conducted examinations in Montreal in the presence of AMFQ investigators and obtained many of Plaintiffs' emails. The plaintiffs were found guilty of insider trading in France and condemned to large fines; these decisions are being appealed.

The plaintiffs filed a claim against the AMFQ and the AMFF in Quebec in order for the International Agreement to be declared null and void and for the investigation, examinations and evidence obtained by the AMFF through the AMFQ be excluded from the AMFF's file as contrary to the Canadian and Quebec Charter of Rights and Freedoms. The AMFQ filed for dismissal and the AMFF filed a declinatory exception.

In her judgment granting both the AMFQ and the AMFF's motions, Justice Cohen confirmed the validity of the International Agreement and the procedure followed by the AMFQ to compel plaintiffs to be examined by the AMFF and to obtain evidence from them.

While any incriminating testimony and evidence given in an administrative investigation such as the AMFQ's investigations in securities matters cannot be used against witnesses in criminal or penal procedures in Canada pursuant to Canada's Evidence Act, Justice Cohen determined that this protection only applies to Canadian proceedings. As such, any incriminating material obtained by a foreign securities commission through examinations held under the purview of the AMFQ can be used in penal or criminal proceedings in foreign jurisdictions. Furthermore, the Quebec courts do not have jurisdiction over the inclusion or exclusion of evidence in foreign proceedings.

While most jurisdictions have their own safeguards to include or exclude evidence based on their domestic law, pursuant to which the French tribunals in this case excluded the testimony obtained in Quebec, it is important for individuals being examined by a securities commission in Canada to consider that while they must answer all questions even if doing so will be incriminating, the protection set out in the Evidence Act regarding the exclusion of such testimony from penal or criminal proceedings only applies in Canadian jurisdictions. As such, any state which obtains the cooperation of the AMFQ through the International Agreement can, based on material obtained in Canada, prosecute individuals in their jurisdiction and the self-incriminating materials will only be excluded from their evidence if said state's internal law provides for their exclusion.