Lord Black's lawyer warns of illegal U.S. intervention

A U.S. government willing to kidnap alleged criminals in other countries is not likely to abide by the Canadian Charter rights of Conrad Black or his colleagues, an appeal court was told.

Lord Black, David Radler and Jack Boultbee are fighting attempts to question them by the inspector looking into related-party transactions at Hollinger Inc.

They took their case to the Ontario Court of Appeal yesterday, where they argued that information they are compelled to reveal in Canada could be used against them in U.S. criminal cases.

The three are appealing a ruling by Ontario Superior Court Justice Colin Campbell, who ruled in May that they must talk to Ernst & Young, the Hollinger Inc. inspector.

Lord Black's lawyer Edward Greenspan told three appeal judges that American authorities will have no compunction about trying to get information supplied to the inspector for use in U.S. prosecutions.

He cited the case of a Mexican citizen who was kidnapped and taken to the United States for prosecution, and mentioned the U.S. invasion of Panama, which saw Manuel Noriega taken to the United States for trial.

"They are their own law," Mr. Greenspan said. "They will not be deterred by some foreign jurisdiction."

The crux of the case is the way the two countries treat testimony that might be considered self-incriminating.

Canadians who are compelled to testify in regulatory or civil matters are protected against future use of that information in a criminal case. In the United States, witnesses have an absolute right to remain silent in the face of possible self-incrimination, under the Fifth Amendment.

Mr. Greenspan, along with Mr. Radler's lawyer Michael Code and Mr. Boultbee's lawyer Don Jack, argued that evidence elicited from the three men by Ernst & Young could find its way into the hands of U.S. prosecutors.

U.S. federal attorneys have already filed criminal indictments against Mr. Radler, alleging that he helped divert $32-million (U.S.) from U.S. operating company Hollinger International Inc. into the pockets of executives. U.S. prosecutors are expected to launch more charges in the near future.

Any leakage of information to U.S. prosecutors would violate the three executives' rights under the Charter of Rights and Freedoms, the three lawyers told the judges. "When the cat is out of the bag, it's a big problem," Mr. Jack said.

One concern is that U.S. officials might try to subpoena U.S. executives of Ernst & Young who become aware of the content of any interview transcripts.

The three lawyers also argued that the inspector doesn't really need to interview the three executives at all, and could get the information it needs from other sources.

That elicited skepticism from one of the appeal court judges, Mr. Justice Robert Blair.

"You can't get this information from a better source," he told Mr. Code. "Common sense says these three individuals have the answers."

Peter Griffin, the lawyer for Ernst & Young, said a system proposed by Judge Campbell to deal with Charter issues is logical: Any questions asked of the three executives that raise constitutional issues could be brought to him for a ruling.

David Moore, the lawyer for Catalyst Fund General Partner 1 Inc., the Toronto investment firm that initially demanded the inspector be put in place, told the judges that there is very little overlap between the inspection and the U.S. criminal investigations.

Consequently, cross-border rights issues should come up in only a small percentage of the questions the inspector will ask the three executives, he said.

The three judges reserved their decision in the case after the one-day hearing.