Nothing seems to be going right for Lord Conrad Black these days. The mastermind behind a media empire that once stretched from Europe and Australia to Canada and the United States is currently ensnared in a legal quagmire that could cost him his freedom.
Lord Black is a wanted man in both Canada and the United States, with investigators tripping over each other in search of evidence that could put the wealthy executive behind bars. The problem is that although both the United States and Canada respect due process, they treat the right to refuse self-incrimination very differently. And those differences can trap the unwary.
“In the United States, a person can refuse to answer a question under oath on the ground he might incriminate himself,” says Michael Code, who represents Black’s associate, David Radler, and is a partner with the Toronto firm of Sack Goldblatt Mitchell. “But in Canada, a witness must answer the incriminating question. And although Canadian courts will grant immunity against the use of the self-incriminating evidence against the witness, American courts don’t recognize that immunity.”
As everyone knows, Lord Black is hardly unwary. Which is why he, Radler and Jack Boultbee, former executives at Hollinger Inc.–the Canadian parent of Chicago-based Hollinger International–are fighting hard to prevent prosecutors from forcing Black to testify in Canadian civil proceedings.
With the former executives facing shareholder lawsuits, an SEC civil investigation and a criminal investigation in the United States, what they are or aren’t forced to say north of the border will have considerable bearing on the outcome of the various proceedings in the United States.
“No one has ever taken this issue head on before,” says Alan Mark, Black’s lawyer and a partner at the Toronto office of Ogilvy Renault.
That’s why so many eyes are on the Toronto case Catalyst Fund General Partner I Inc. v. Hollinger Inc.
E&Y Gets Serious
Black’s troubles began in earnest when a special investigative committee led by former SEC Chair Richard Breeden accused Black, Boultbee and Radler of presiding over a “corporate kleptocracy” where “ethical corruption was a defining characteristic of the leadership teams.”
The Breeden report alleges the three men and others received $88 million in “sham non-compete payments” from Hollinger International, engaged in “textbook money laundering” with the proceeds of those payments and “affirmatively misrepresented” their compensation plans to the audit committee.
“The Breeden report reads very much like a blueprint for an indictment,” says Don Jack, a partner at Lerners in Toronto and counsel for Boultbee.
It was. The SEC subpoenaed Black immediately. He responded in December 2003 by invoking the Fifth Amendment and declining to testify. Eleven months later, the SEC filed a securities fraud complaint in a Chicago federal court. The complaint alleges Black and Radler fraudulently diverted cash and assets from Hollinger International.
Around the same time, the U.S. attorney’s office in Chicago commenced a criminal investigation dealing with the allegations in the Breeden report.
Meanwhile in September 2004, Catalyst, a shareholder in Hollinger Inc., convinced Justice Colin Campbell of the Ontario Superior Court to order an inspection of various transactions at the parent company. These included the sale of three corporate jets; management fees paid to Black’s personal holding company; noncompetition payments received by Hollinger Inc. amounting to $16.5 million; and real estate transactions at Hollinger subsidiary Domgroup Ltd.
In October 2004, Campbell appointed Ernst & Young to investigate whether anyone benefited improperly from “related party” transactions between the company and Black, Radler or Boultbee. It also authorized the firm to examine witnesses under oath if that was necessary to its investigation.
E&Y believed it was.
In early January, E&Y’s lawyer, Peter Griffin, a partner at Toronto’s Lenczner Slaght Royce Smith Griffin, sought an order to examine Black, Radler and Boultbee under oath. The lawyers for the three defendants objected on the grounds that authorities could obtain and use the evidence against their clients.
“Once the cat’s out of the bag, it’s going to scamper across the border and that will be a big problem for our clients,” Jack says.
Jack, Code and Mark bolstered their argument with the expert assessment of Barry Bohrer, a partner in the New York firm Morvillo, Abramowitz, Grand, Iason & Silberberg. Proffered as an expert on U.S. law in the Canadian proceedings, Bohrer concluded it was “highly unlikely” that a protective immunity order would shield incriminating testimony from disclosure in the United States.
“It is highly likely that if [a witness] testified and produced evidence in Canada even pursuant to the maximum protection permitted, the practical consequence of such compelled testimony will be that his privilege under the Fifth Amendment to the United States Constitution will be effectively eviscerated,” Bohrer stated during the proceedings.
Griffin counters that E&Y’s consent to an order granting immunity meant the examinations met Canadian constitutional guidelines for compelled testimony.
Bohrer’s advice was of no assistance, Griffin adds, because he isn’t an expert on Canadian court’s interpretation of the Mutual Legal Assistance in Criminal Matters Act (see “MLAC Traps Black”).
“The evidence, being the [E&Y] transcript, will remain in Canada and, as a result, will remain subject to Canadian proceedings and Canadian law,” Griffin argues.
With cross-border commerce and corporate governance issues proliferating, the self-incrimination issue needs to be resolved. But when the parties appeared in court on Jan. 12 to argue the point, Campbell showed a distinct reluctance to make a decision.
Court Gets Cold Feet
“Campbell is as inclined to decide this thing as he is to take a barrel over Niagara Falls,” says one lawyer close to the case. “That’s because he knows that whatever decision he reaches will be appealed all the way to the Supreme Court of Canada, and that will bring a grinding halt to the investigation and put the final report on the back burner for a long time.”
Campbell suggested the lawyers find another way–apart from examining the witnesses–to resolve the issue. The answers to the questions E&Y wished to ask, he suggested, might appear after the firm finished examining the documents or interviewed other former Hollinger officials such as Peter Atkinson, Peter White and Black’s wife, Barbara Amiel Black, who had agreed to testify about their knowledge of the transactions.
Griffin, agreed, at least temporarily, that E&Y would continue to investigate without conducting the examinations. Griffin made it clear, however, that when E&Y finished poring through the documents, he would renew his application to examine the witnesses. At press time, that had not yet happened.
“Ultimately, it will be necessary to examine all members of senior management,” E&Y asserts in a report filed with the court.
What’s not clear is whether E&Y will get that chance.
“If they do, it would be highly ironic, and fundamentally unfair, if cooperation between these two legal systems resulted in the nullification of fundamental legal rights, which both countries recognize domestically,” Jack says.
But then Lord Black might not be surprised: After all, his life has not been short on irony thus far.