COURT FILE NO.: CV-21-00655418-00CL DATE: 20220426 SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN:

SAKAB SAUDI HOLDING COMPANY, ALPHA STAR AVIATION SERVICES COMPANY, ENMA AL ARED REAL ESTATE INVESTMENT AND DEVELOPMENT COMPANY, KAFA’AT BUSINESS SOLUTIONS COMPANY, SECURITY CONTROL COMPANY, ARMOUR SECURITY INDUSTRIAL MANUFACTURING COMPANY, SAUDI TECHNOLOGY & SECURITY COMPREHENSIVE CONTROL COMPANY, TECHNOLOGY CONTROL COMPANY, NEW DAWN CONTRACTING COMPANY and SKY PRIME INVESTMENT COMPANY, Plaintiffs

AND:

SAAD KHALID S AL JABRI, DREAMS INTERNATIONAL ADVISORY SERVICES LTD., 1147848 B.C. LTD., NEW EAST (US) INC., NEW EAST 804 805 LLC, NEW EAST BACK BAY LLC, NEW EAST DC LLC, JAALIK CONTRACTING LTD., NADYAH SULAIMAN A AL JABRI, personally and as litigation guardian for SULIMAIN SAAD KHALID AL JABRI, KHALID SAAD KHALIOD AL JABRI, MOHAMMED SAAD KH AL JABRI, NAIF SAAD KH AL JABRI, HISSAH SAAD KH AL JABRI, SALEH SAAD KHALID AL JABRI, CANADIAN GROWTH INVESTMENTS LIMITED, GRYPHON SECURE INC., INFOSEC GLOBAL INC., QFIVE GLOBAL INVESTMENT INC., GOLDEN VALLEY MANAGEMENT LTD., NEW SOUTH EAST PTE LTD., TEN LEAVES MANAGEMENT LTD., 2767143 ONTARIO INC., NAGY MOUSTAFA, HSBC TRUSTEE (C.I.) LIMITED in its capacity as Trustee of the Black Stallion Trust, HSBC PRIVATE BANKING NOMINEE 3 (JERSEY) LIMITED in its capacity as a Nominee Shareholder of Black Stallion Investments Limited, BLACK STALLION INVESTMENTS LIMITED, NEW EAST FAMILY FOUNDATION, NEW EAST INTERNATIONAL LIMITED, NEW SOUTH EAST ESTABLISHMENT, NCOM INC., and 2701644 ONTARIO INC., Defendants

BEFORE: Justice Cavanagh

COUNSEL: Munaf Mohamed Q.C., Jonathan Bell, and Doug Fenton, for the plaintiffs John J. Adair for the defendants Saad Khalid S Al Jabri, Nadyah Sulaiman A Al Jabri, personally and as litigation guardian for Sulaiman Saad Khalid Al Jabri, Khalid Saad Khalid Al Jabri, Naif Saad Kh Al Jabri, Hissah Saad Kh Al Jabri, 1147848 B.C. Ltd., and 2701644 Ontario Inc. Stuart Svonkin for the defendant Saad Khalid S Al Jabri on the Plaintiffs’ contempt motion Andrew Max for the defendants Mohammed Saad Kh Al Jabri, Dreams International Advisory Services Ltd., New East (US) Inc., New East 804 805 LLC, New East Back Bay LLC, New East DC LLC, Golden Valley Management Ltd., Ten Leaves Management Ltd. and New East International Limited

HEARD: April 22, 2022

ENDORSEMENT

Introduction

[1] One of the defendants in this action, Saad Khalid Al Jabri (“Dr. Saad”), intends to renew a motion for an order staying this action on various grounds. Dr. Saad intends to rely on his affidavit delivered in support of the stay motion, that was previously adjourned, and his additional affidavit evidence.

[2] In the action, the Plaintiffs have moved for an order that Dr. Saad be found in contempt of court and sanctioned for breaching a Mareva injunction order against him.

[3] Hearing dates for the contempt motion have not been set pending decisions of the Divisional Court on appeals of orders made on preliminary motions that relate to the Plaintiffs’ contempt motion.

[4] Dr. Saad moves for an order declaring that the evidence he gives on the stay motion and any evidence derived therefrom is inadmissible for any purpose in the contempt proceeding.

[5] For the following reasons, Dr. Saad’s motion is dismissed.

Procedural background

[6] Much of the procedural background to this litigation is set out in my Reasons for Judgment for several other motions that were brought in the within action. These reasons are reported at Sakab Saudi Holding Company v. Al Jabri, 2021 ONSC 7681.

[7] The Plaintiffs are companies that were established and funded by the Kingdom of Saudi Arabi’s Ministry of Finance for counter-terrorism activities.

[8] Dr. Saad is a former high-ranking government official of the Kingdom of Saudi Arabia. The defendant Mohammed Al Jabri (“Mohammed”) is Dr. Saad’s son.

[9] In their Statement of Claim issued on January 22, 2021, the Plaintiffs allege that Dr. Saad (with the assistance of others), defrauded the Plaintiffs of approximately USD $3.5 billion. The Plaintiffs allege that Dr. Saad personally received at least USD $488 million and conspired to hide these funds in various jurisdictions around the world through corporate structures and nominees, including entities notionally controlled by Mohammed.

[10] In his Statement of Defence dated July 16, 2021, Dr. Saad denies that he defrauded the Plaintiffs. Dr. Saad maintains that as a former high-ranking Saudi government official, he was tasked by members of the Saudi Royal Family with carrying out counter-terrorism activities that exposed him and his family to serious risk of grievous harm and death. He asserts the funds paid to him by the Plaintiffs were provided and authorized by the Saudi government and used for counter-terrorism purposes and to compensate him for his faithful and hazardous service.

[11] On January 22, 2021, an Order was made by this Court enjoining Dr. Saad from dealing with any of his worldwide assets. The motion judge was satisfied that the evidence established a strong prima facie case of fraud. Dr. Saad’s motion to set aside the Mareva Order was dismissed. Leave to appeal to the Divisional Court was denied.

[12] Dr. Saad provided asset disclosure required by the Mareva Order in early February 2021 and he was cross-examined on his statutory declarations.

[13] On February 16, 2021, the Plaintiffs moved to vary the Mareva Order against Dr. Saad to expressly capture all assets that he had testified were gifted to Mohammed.

[14] In response, Mohammed brought a motion asserting that the Ontario courts did not have jurisdiction over him and several corporate defendants. In connection with that motion, Mohammed provided affidavit evidence, was cross-examined on his affidavit, and provided answers to undertakings given on his cross-examination. Mohammed’s motion challenging jurisdiction was dismissed. Mohammed appealed this dismissal and sought a stay pending appeal which was denied.

[15] On August 9, 2021, the Plaintiffs obtained a stand-alone worldwide Mareva injunction against Mohammed.

[16] Dr. Saad has not applied to this Court for an order authorizing release of funds subject to the Mareva Order to pay for his living expenses and legal fees, nor has Mohammed. The Plaintiffs assert that Dr. Saad and Mohammed are continuing to use frozen funds in breach of the Mareva Order to fund personal living expenses and to fund litigation expenses in Ontario and in various other jurisdictions around the world where the Plaintiffs seek to enforce the Mareva Order.

[17] On August 27, 2021, the Plaintiff’s served a notice of motion against Dr. Saad and Mohammed seeking a declaration that each breached the Mareva Order against Dr. Saad and for findings of contempt against each of them. The Plaintiffs seek sanctions for contempt of court as set out in their notice of motion.

[18] Dr. Saad and Mohammed brought seven motions heard on October 20 and 21, 2021 seeking relief in relation to the Plaintiffs’ contempt motion. The Plaintiffs brought a motion heard with these motions seeking an order that Dr. Saad answer undertakings given on his cross-examination and produce documents and other information.

[19] My Reasons for Judgment on these motions were released on November 19, 2021. Dr. Saad, with leave, has appealed some orders made on these motions to the Divisional Court. The Plaintiffs, with leave, have also appealed the undertakings and production order. The appeals are scheduled to be heard on June 22, 2022.

[20] The Plaintiffs’ contempt motion was scheduled to be heard in March 2022 but it has been adjourned because of the pending Divisional Court appeals.

[21] The plaintiff Sakab Saudi Holding Company (“Sakab”) commenced an action in 2021 against Dr. Saad and others in the United States District Court for the District of Massachusetts (the “U.S. Court”).

[22] In the Massachusetts action, Sakab seeks recognition and enforcement of the Mareva order against Dr. Saad and a related receivership order in order to attach real estate in Boston. Sakab filed a motion in the Massachusetts action to attach the Boston real estate and, once that relief was granted, it sought to stay the Massachusetts action. Dr. Saad and Mohammed opposed Sakab’s action and motion.

[23] Dr. Saad asserted to the U.S. Court that he is unable to defend himself because to do so he needs to rely on evidence over which the U.S. government asserts state secrets privilege. The U.S. Court ordered Sakab to show cause why the Massachusetts action should not be dismissed.

[24] On December 29, 2021, the U.S. Court dismissed the Massachusetts action with prejudice on the basis that the claims were not justiciable because Dr. Saad (and other defendants) would not be able to defend themselves without relying on a substantial amount of evidence that is unavailable due to the U.S. government’s valid assertion of state secrets privilege.

[25] Sakab has appealed the decision of the U.S. Court.

[26] In April 2021, Dr. Saad delivered a notice of motion seeking to stay the Ontario action on grounds including that documents he needs to defend the action are subject to state secrecy laws. Dr. Saad provided an affidavit in support of this motion. On August 19, 2021, Dr. Saad’s counsel advised the Court that Dr. Saad agreed that his stay motion should be adjourned pending disposition of the contempt motion.

[27] Following the dismissal order in the Massachusetts action, Dr. Saad advised the Plaintiffs that he intends to renew his motion for an order dismissing or permanently staying the Ontario action on the grounds that:

a. Dr. Saad cannot defend the action without disclosing U.S. state secrets;

b. The action is not justiciable, as it turns on political questions and requires the joinder of necessary parties who cannot be sued under the State Immunity Act; and

c. Dr. Saad’s actions are protected by state immunity.

[28] The stay motion is scheduled for a four-day hearing commencing November 28, 2022.

Analysis

[29] On this motion, Dr. Saad seeks a declaratory Order that any evidence he gives on the stay motion, and any evidence derived therefrom, is not admissible at the hearing of the contempt motion.

[30] Dr. Saad submits that the order he seeks should be granted to ensure that at the hearing of the contempt motion, the Plaintiffs are not able to rely on any testimony given by Dr. Saad on his stay motion. Dr. Saad relies, in particular, on the right under s. 13 of the Charter afforded to a witness who testifies in any proceeding “not to have any incriminating evidence given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence”.

[31] Dr. Saad submits that such an order is appropriate because it will allow him to participate in and respond to the ongoing litigation by bringing his stay motion while, at the same time, ensuring that effect is given to the principle against self-incrimination by preventing evidence he gives from being used to incriminate him at the hearing of the contempt motion.

[32] In response, the Plaintiffs submit that there is no free-standing right against self-incrimination. They submit that s. 13 of the Charter does not apply because Dr. Saad’s evidence will not be given in “separate proceedings” from the proceeding in which the contempt motion has been brought. The Plaintiffs submit that, in any event, the evidence of Dr. Saad on the stay motion has been, and will be, given voluntarily and not under compulsion. The Plaintiffs submit that in such circumstances, s. 13 of the Charter is not engaged.

[33] I first address whether Dr. Saad’s evidence in support of his stay motion should be regarded as compelled evidence under s. 13 of the Charter.

[34] Dr. Saad submits that if the Plaintiffs were to seek to use his evidence given on the stay motion to incriminate him at the hearing of the contempt motion, his evidence should be regarded as compelled evidence, to which s. 13 of the Charter applies. In support of this submission, Dr. Saad relies on three authorities.

[35] The first authority on which Dr. Saad relies is Dubois v. The Queen, [1985] 2 S.C.R. 350. In Dubois, the appellant gave evidence on his criminal trial where he was charged with second-degree murder and was convicted. On appeal, a new trial was ordered. At the new trial, the Crown read in as part of its case the evidence the appellant had given at his earlier trial. The appellant objected, based on s. 13 of the Charter. The appellant called no evidence was convicted.

[36] On the appeal to the Supreme Court of Canada, Lamer J., writing for the majority, held, at para. 16, that “the purpose of s. 13, when the section is viewed in the context of s. 11(c) and (d), is to protect individuals from being indirectly compelled to incriminate themselves, to ensure that the Crown will not be able to do indirectly that which s. 11(c) prohibits”. Lamer J. held, at para. 20, that the right under s. 13 inures to an individual at the moment an attempt is made to use the previous testimony to incriminate him or her. Lamer J. regarded the issue of whether the testimony was compulsory or voluntary at the moment it was given to be “largely irrelevant” since the focus of the right is on the second proceeding rather than when the evidence was given. Lamer J. concluded, at para. 26, that “s. 13 applies as much to testimony voluntarily given by an accused as to testimony given by a witness under compulsion”.

[37] Dr. Saad submits that Dubois is authority for the proposition that s. 13 of the Charter may apply to a witness who gives evidence voluntarily. He submits that allowing the Plaintiffs to use his affidavit evidence and evidence from his cross-examination against him at the hearing of the contempt motion would indirectly compel him to do what s. 13 is intended to prevent.

[38] The Plaintiffs, in response, submit that the reasoning in Dubois on this issue has been overtaken by the reasoning of the Supreme Court of Canada in R. v. Nedelcu, 2012 SCC 59. In Nedelcu, the accused was charged with dangerous driving following a motorcycle accident. During his examination for discovery in a civil action, the accused testified that he had no memory from the events of the day of the accident until he woke up in the hospital the following day. At his criminal trial, the accused gave a detailed account of the events leading up to and during the accident. The Crown was granted leave to cross-examine on the discovery evidence and asked the accused about his memory of the events and he testified that he had a strong recollection. The accused’s trial testimony was found to be unreliable and he was convicted. On appeal, the conviction was overturned and a new trial was ordered.

[39] On an appeal to the Supreme Court of Canada, the appeal was allowed and the guilty verdict was restored. The reasons of the majority of the Court were given by Moldaver J. who agreed with the dissenting judgment on the issue of compulsion. Moldaver J. held, at paras. 6-8, that a party seeking to invoke s. 13 must first establish that he or she gave incriminating evidence under compulsion at the prior proceeding, and if the party seeking to do so fails to meet these twin requirements, s. 13 is not engaged. Moldaver J., at para. 1, accepted that the accused was statutorily compellable to give evidence in the civil action and, therefore, his evidence was compelled for the purpose of s. 13 of the Charter. The majority of the Court held, at para. 25, that the accused’s discovery evidence used for impeachment purposes was not incriminating evidence and did not trigger the application of s. 13.

[40] In Nedelcu, LeBel J. gave the dissenting reasons but, on the issue of compulsion, the majority agreed with his reasons. LeBel J., at para. 83, addressed the reasoning of Binnie J. in R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609 in which Binnie J. considered Dubois having regard to the historical rationale underlying s. 13 of the Charter, that is, the quid pro quo principle:

Binnie J., writing for the Court, began his analysis by noting that “[t]he consistent theme in the s. 13 jurisprudence is that ‘the purpose of s. 13 ... is to protect individuals from being indirectly compelled to incriminate themselves’” (para. 22, citing Dubois, at p. 358). In setting the tone for the analysis that followed, he quoted Arbour J. in Noël:

Section 13 reflects a long-standing form of statutory protection against compulsory self-incrimination in Canadian law, and is best understood by reference to s. 5 of the Canada Evidence Act. Like the statutory protection, the constitutional one represents what Fish J.A. called a quid pro quo: when a witness who is compelled to give evidence in a court proceeding is exposed to the risk of self-incrimination, the state offers protection against the subsequent use of that evidence against the witness in exchange for his or her full and frank testimony. [Emphasis added by Binnie J.; para. 21.]

[41] LeBel J observed, at para. 88, that in Henry, “Binnie J. noted that the outcome in Dubois was correct, and declined to revisit it”. LeBel J. pointed out what he regarded as a “key distinction” between Dubois and another Supreme Court of Canada decision, R. v. Mannion, [1986] 2 S.C.R. 272, (which was overruled by the decision in Henry): “Dubois was a compelled witness at the second trial (since he had chosen not to testify), while Mannion had testified voluntarily at both trials.” Lebel J. held, at para. 91, that “[t]his distinction was key to understanding the quid pro quo principle underlying s. 13, and therefore to understanding s. 13’s proper application”.

[42] In Nedelcu, LeBel J. held, at para. 100, that s. 13 only applies in situations where the quid pro quo is engaged, which refers to a witness’s compelled evidence in exchange for a guarantee that the Crown will not use that evidence against that person in another proceeding. LeBel J. held, at para. 104, that to determine whether the quid pro quo is engaged in a particular case, the court should consider whether the witness was statutorily compellable to give evidence in the proceeding. LeBel J. held, at paras. 106-107, that the accused’s evidence on discovery in the civil action was statutorily compellable.

[43] I have reviewed the decisions in Dubois and Nedelcu (including the analysis by LeBel J. in Nedelcu of the decision of Binnie J. in Henry), because, in my view, it is difficult to reconcile the holding in Dubois that s. 13 of the Charter applies where an accused voluntarily testifies at a first trial and the Crown seeks to use this testimony as indirectly compelled evidence at a re-trial (where the accused elects not to testify) with the principle expressed in Nedelcu that s. 13 only applies where a witness was statutorily compellable to give evidence in the first proceeding.

[44] For the purposes of the motion before me, I apply the principle clearly expressed in Nedelcu, at paras. 1, 8, 100, and 104, that s. 13 of the Charter applies only where prior evidence was statutorily compellable and, therefore, is treated as having been compelled. I do so for two reasons. First, Nedelcu is the more recent treatment of this issue by the Supreme Court of Canada. Second, the evidence given and to be given by Dr. Saad to which the motion before me relates, like the prior evidence in Nedelcu, and unlike the prior evidence in Dubois (testimony at a criminal trial), is evidence in a civil proceeding, in this case, evidence in support of a motion to stay a civil action. It may be that where an accused faces criminal jeopardy and elects to testify in his or her own defence (as opposed to giving prior evidence under compulsion in a civil proceeding) and a re-trial is ordered, as in Dubois, different considerations apply.

[45] I note one other point of distinction between the circumstances of the motion before me and those in Dubois. When the accused in Dubois testified at his first criminal trial, this was the only proceeding pending in which his testimony was relevant. The accused elected to testify, although he was not compelled to do so. After the accused testified and he was convicted, a new trial was ordered and he elected not to testify. In Henry, as I have noted, Binnie J. held, at para. 22 (citing Dubois), that the purpose of s. 13 of the Charter “is to protect individuals from being indirectly compelled to incriminate themselves”. The circumstances that exist on the motion before me are unlike those in Dubois in that the Plaintiffs’ contempt motion has been brought and the hearing is pending. Dr. Saad is not in the same position as was the accused in Dubois. He is able to decide whether or not to move now to stay the civil action, supported by his affidavits, and risk having evidence so given used against him at the hearing of the contempt motion.

[46] The second authority upon which Dr. Saad relies is R. v. Trang, 2011 ABQB 919. In Trang, the application judge, at para. 44, accepted that the use immunity afforded to an accused person under s. 13 of the Charter is available where an accused person, while not formally compelled to testify, is practically required to testify or provide a sworn affidavit. Dr. Saad submits that he cannot bring the stay motion without giving evidence by affidavit and, if his evidence can be used against him at the hearing of the contempt motion, this would, as he puts it, “effectively paralyze” him from participating further in the litigation.

[47] The third authority upon which Dr. Saad relies is Ontario Psychological Association v. Mardonet, 2015 ONSC 1286; leave to appeal denied, 2015 ONSC 4048 (Div. Ct.). In Mardonet, a motion for a Mareva injunction was made on notice and three defendants brought motions for orders to keep confidential affidavits they intended to deliver in response to the injunction motion and transcripts of cross-examinations. The defendants contended that their Charter protected rights against self-incrimination were being compromised. The motion judge, at paras. 25-33, held that although there was no order compelling the defendants to give evidence in response to the injunction motion, the defendants could be statutorily compelled to give such evidence as witnesses for the interlocutory motion or at trial and, therefore, the principle against self-incrimination was engaged and the defendants were entitled to the protection that s. 13 of the Charter offers.

[48] In Mardonet, the plaintiffs had brought a motion for a Mareva injunction and the defendants’ evidence to be given in opposition to this motion was treated as statutorily compellable, thus engaging the protections of s. 13 of the Charter. In contrast to the circumstances in Mardonet, Dr. Saad’s affidavit evidence (and any evidence given on cross-examination) will not be given in opposition to any motion by the Plaintiffs. Dr. Saad’s evidence will be in support of a motion he chooses to bring at this time. [^1] I regard this distinction as material.

[49] In Nedelcu, the Supreme Court of Canada, at para. 104, formulated the relevant question to determine whether the quid pro quo is engaged in a particular case and, therefore, whether s. 13 of the Charter is engaged, as “[w]as the respondent statutorily compelled to give evidence in the [prior] proceeding?”

[50] The Plaintiffs are unable to compel Dr. Saad to bring his stay motion or to file affidavit evidence in support thereof. Although he may have sound tactical reasons to do so, Dr. Saad is not under any statutory compulsion or, in my view, any practical compulsion, to bring a stay motion now, before the hearing of the contempt motion. I do not agree that because the U.S. Court has dismissed the Plaintiffs’ legal action in Massachusetts, Dr. Saad is practically compelled to bring a stay motion now in the Ontario action. Dr. Saad may prefer not to delay bringing his stay motion until after the Plaintiffs contempt motion has been heard but, as things stand, it is open to him to do so.

[51] I conclude that Dr. Saad’s affidavit evidence in support of the stay motion he intends to bring is not statutorily compellable. As a result, I conclude that s. 13 of the Charter is not engaged: Nedelcu, at para. 8.

[52] Dr. Saad submits that the stay motion is wholly unrelated to the Plaintiffs’ motion for contempt of court and that the evidence in support of the stay motion is irrelevant to the contempt motion. He submits that in such circumstances, under s. 13 of the Charter, the contempt motion should be treated as “other proceedings” than the stay motion.

[53] The Plaintiffs submit that their contempt motion is not “other proceedings” than Dr. Saad’s stay motion because they are both brought within the same civil action. On this basis, the Plaintiffs submit that s. 13 of the Charter does not apply.

[54] In my decision on a prior motion in this action (reported at 2021 ONSC 7681), I held, at para. 78, that the Plaintiffs’ contempt motion made in a civil proceeding for the alleged violation of a Mareva injunction order made in that proceeding does not qualify as “other proceedings” under s. 13 of the Charter. As a result, I held that compelled evidence given by Dr. Saad and evidence derived therefrom that he sought to strike from the Plaintiffs’ motion materials for their contempt motion are not inadmissible because of the protections afforded by s. 13 of the Charter. The Plaintiffs submit that the reasoning on this issue in my earlier decision does not apply on this motion where the evidence that Dr. Saad seeks to exclude will not be given pursuant to the order that the contempt motion is brought to enforce.

[55] I have concluded that s. 13 of the Charter is not engaged because Dr. Saad is not compelled to give evidence in support of the stay motion he now, voluntarily, wishes to bring. As a result of this conclusion, it is not necessary for me to decide whether, for the purpose of s. 13 of the Charter, the Plaintiffs’ contempt motion is “other proceedings” than Dr. Saad’s stay motion, brought in the same civil action in which he has given and intends to give affidavit evidence.

[56] Dr Saad does not rely only on s. 13 of the Charter. He submits there are other sources of his right not to have his evidence given on the stay motion used against him at the hearing of the contempt motion.

[57] Dr. Saad submits that one source of his right to use immunity is in the law of contempt of court. In support of this submission, Dr. Saad cites Oesterlund v. Pursglove, 2015 ONSC 6145, at paras. 7-8, citing Vale Inco Ltd. v. U.S.W., Local 6500, 2010 ONSC 3039, at para. 3, and Vidéotron Ltée v. Industries Microlec produits électriques Inc., at para. 24. In Oesterlund, the motion judge described certain procedural protections afforded to a party faced with civil contempt including the right not to be compelled to testify at the hearing which, the motion judge held, is “consistent with” s. 7 of the Charter and the principles of natural justice. Dr. Saad relies on the fact that the motion judge did not limit the source of this right to the Charter.

[58] Dr. Saad submits that another source of his right to use immunity in respect of evidence he gives on the stay motion is the court’s right to control its own process. In support of this submission, Dr. Saad cites the decision of the Court of Queen’s Bench of Alberta in Trang. In Trang, the Applicant argued that an accused person charged with possession of proceeds of crime and applying for an order for return of property under s. 462.34 of the Criminal Code (requiring him to establish that he has no other assets or means available for the specified purposes) could not safely give an affidavit on which he could be cross-examined. The Applicant sought a declaration that this provision of the Criminal Code contravenes the Charter. The motion judge, at paras. 47-48, held that the Court has the ability to craft conditions to provide the accused with protections to which he is entitled through the Court’s ability to control its own process and to ensure that the proceedings are not abused.

[59] In Nedelcu, Moldaver J., at para. 16, citing Dubois as authority, accepted that the time for determining whether the evidence given at the prior proceeding may properly be characterized as “incriminating evidence” is the time when the Crown seeks to use it at the subsequent hearing. The evidence to which s. 13 is directed is not “any evidence” the witness may have been compelled to give at the prior proceeding, but evidence that qualifies as “incriminating evidence”.

[60] If Dr. Saad brings a stay motion and gives evidence in support, and the Plaintiffs seek to use any of this evidence against him on their contempt motion, Dr. Saad may object to the admissibility of the evidence at the hearing of the contempt motion, and assert use immunity. If an objection is made and Dr. Saad relies on a right to use immunity for such evidence, the judge hearing the contempt motion will be well situated to rule on the admissibility of the evidence, having regard to the nature of the evidence to which objection is made, the use to be made by the Plaintiffs of the evidence they seek to rely on, and the grounds advanced for the objection.

[61] Dr. Saad submitted at the hearing of this motion, in the alternative, that issues relating to admissibility of Dr. Saad’s evidence used on the stay motion could be left to the judge hearing the contempt motion.

[62] The proper time for Dr. Saad to seek use immunity in respect of any evidence he gives on his stay motion, or evidence derived therefrom, is when the Plaintiffs seek to use this evidence at the hearing of the contempt motion.

[63] Dr. Saad has not shown that he is entitled to a declaratory order that any evidence he provides on the stay motion and evidence derived therefrom is not admissible at the hearing of the contempt motion.

Disposition

[64] For these reasons, Dr. Saad’s motion is dismissed.

[65] If the Plaintiffs intend to seek costs other than partial indemnity costs, I ask that they advise me and I will set a timetable for written submissions. It does not appear to me that an order for elevated costs is justified. If no request is made for elevated costs, I will fix costs on a partial indemnity scale in the amount that the parties have agreed upon, $20,000.

Cavanagh J. Date: April 26, 2022

[^1]: In my decision in Sakab Saudi Holding Company v. Al Jabri, 2021 ONSC 7681, at paras. 110-114, I relied on Mardonet and treated the affidavits of Mohammed Al Jabri in support of his motion brought to challenge the jurisdiction of the court as compelled evidence. This conclusion was made where the evidence was given in support of a motion brought in opposition to the Plaintiffs’ motion for a Mareva injunction. If Mohammed Al Jabri intended oppose the motion for a Mareva injunction on the ground of lack of jurisdiction, he was practically compelled to do so when he did. In this respect, the circumstances in which his motion to challenge jurisdiction was made differ materially from those in which Dr. Saad intends to move for an order staying the Ontario action.