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Canadian Yearbook of International Law. Volume 23 (1985), p. 261-284.


The question whether Canadian or American courts should enforce their laws in a manner that respects the laws of friendly sovereign states has recently been examined by the Supreme Court of Canada and the United States Court of Appeals for the Eleventh Circuit. Their decisions will be the object of this note in the light of recent developments in Canada-United States relations in the area of legal assistance in civil and criminal matters.

Often our courts are asked to compel a person not a party to the litigation or investigation to produce documents or give evidence in Canada when to do so might or does constitute a criminal offence where the information originated or must be obtained. How can the witness choose between the conflicting commands of two states? Does the principle of equality of states demand that these conflicting commands be given equal weight so that the witness will not be penalized if he or she obeys one or the other or should the lex fori always prevail, especially in criminal matters, in order not to frustrate the administration of justice in Canada? Are there other ways to resolve this dilemma which respect international law principles? More generally, to what extent is the foreign state compulsion defence available in a Canadian or American civil or criminal trial?

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