Ontario Court of Appeal confirms application of Mutual Legal Assistance Act in Falconbridge case

In the Falconbridge case, the Ontario Court of Appeal has upheld application of the Mutual Legal Assistance Act to assist U.S. prosecution of antitrust behaviour.In a decision released on May 1, 2003, the Ontario Court of Appeal upheld the Superior Court of Justice's decision in Commissioner of Competition v. Falconbridge Limited et. al. to grant evidence-gathering orders and search warrants in order to investigate two mining companies, Falconbridge and Noranda, for alleged offences under U.S. antitrust law.  The United States requested and received legal assistance under a treaty 1 between Canada and the United States to investigate possible violations of the Sherman Act.  Falconbridge and Noranda subsequently applied to have the warrants and orders set aside arguing that they were invalid under the Mutual Legal Assistance in Criminal Matters Act (the Act).

Falconbridge and Noranda argued that section 8(1) of the Act required that if legal assistance was requested for an offence within the United States, that same offence, or a substantial counterpart, must also exist in Canada.  Falconbridge and Noranda argued that Canada's conspiracy provisions were not counterparts to section 1 of the U.S. Sherman Act.  The Court refused to find a "reciprocal offence" requirement in the Act for two reasons.  First, the Court found that relying on the requirement could create an illogical situation where, although a substantial Canadian counterpart may not exist, the conduct would nevertheless be considered a criminal offence if committed in Canada.  Second, the Court held that the plain wording of section 8(1) did not support the reciprocal offence requirement.  Although there was confusion as to how the word "offence" should be interpreted, the Court found that the Act itself defines the word "offence" to mean "an offence within the meaning of the relevant agreement." The Court, therefore, held that so long as the Minister is satisfied that the offence under investigation by the United States is one that is covered by the Treaty, nothing more is required.

Furthermore, the Court held that even if there were a reciprocal offence requirement within the Act, in this case there is a substantial Canadian counterpart to section 1 of the Sherman Act in section 45 of the Competition Act.  The Court found that although the offences in the Sherman Act and the Competition Act are not identical, they relate to the same subject matter, have the same object, and address the same fundamental conduct.

For these reasons, the Ontario Court of Appeal upheld Canada's obligation to provide mutual legal assistance even where no reciprocal offence exists in the United States, and the application of the Act remained intact.

[1]Treaty Between the Government of Canada and the Government of the United States of America on Mutual Legal Assistance in Criminal Matters, Can T.S. 1990 No. 19 ("Treaty").

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