Estey,
J
(concurring):—I
am
in
respectful
agreement
with
the
law
as
expressed
in
the
judgment
of
La
Forest
J
and
the
disposition
there
proposed.
The
fact
that
the
giving
of
the
evidence
sought
in
this
case
may
constitute
a
crime
in
another
country
cannot
prevent
the
Canadian
courts
from
compelling
a
witness
to
testify.
However,
the
threat
arising
in
a
foreign
jurisdiction
of
criminal
proceedings
against
a
Canadian
resident
for
revealing
information
in
a
Canadian
judicial
proceeding
is
a
serious
consideration
to
be
borne
in
mind
in
a
proceeding
such
as
this.
Thus
any
course
by
which
such
a
serious
consequence
may
be
avoided
must
be
carefully
considered
by
our
courts.
In
these
proceedings
it
is
therefore
relevant
to
take
note
of
the
fact
that
under
Bahamian
law
an
appropriate
order
releasing
the
appellant
may
be
obtained
from
a
Bahamian
court.
Section
10
of
the
Banks
and
Trust
Companies
Regulation
Act,
1965
provides:
10.
(1)
No
person
who
has
acquired
information
in
his
capacity
as
.
.
.
(a)
director,
officer,
employee
or
agent
of
any
licensee
or
former
licensee:
shall,
without
the
express
or
implied
consent
of
the
customer
concerned,
disclose
to
any
person
any
such
information
relating
to
the
identity,
assets,
liabilities,
transactions,
accounts
of
a
customer
of
a
licensee
or
relating
to
any
application
by
any
person
under
the
provisions
of
this
Act
as
the
case
may
be,
except
(iii)
when
a
licensee
is
lawfully
required
to
make
a
disclosure
by
any
court
of
competent
jurisdiction
within
The
Bahamas,
or
under
the
provisions
of
any
law
of
The
Bahamas.
..
.
(3)
Every
person
who
contravenes
the
provisions
of
subsection
(1)
of
this
section
shall
be
guilty
of
an
offence
against
this
Act
and
shall
be
liable
on
summary
conviction
to
a
fine
not
exceeding
fifteen
thousand
dollars
or
to
a
term
of
imprisonment
not
exceeding
two
years
or
to
both
such
fine
and
imprisonment.
This
Bahamian
legislation
was
passed
in
order
to
ensure
that
The
Bahamas
remained
an
attractive
location
for
foreign
banks
and
other
financial
institutions.
According
to
the
Bahamian
Chief
Justice,
“the
secrecy
provision
is
one
of
the
pillars
of
this
part
of
our
economic
structure,
the
destruction
of
which
would
lead
to
the
collapse
of
the
whole
structure
which
it
supports”
(In
the
matter
of
Nassau
Bank
and
Trust
Company
Limited,
1975,
unreported).
The
provisions
are
of
equal
import
to
the
Canadian
and
other
foreign
companies
doing
business
in
the
Bahamas.
In
this
context,
international
comity
dictates
that
Canadian
courts
should
not
lightly
disregard
the
Bahamian
provisions
by
requiring
the
appellant
in
this
case
to
testify.
"'Comity'
in
the
legal
sense,
is
neither
a
matter
of
absolute
obligation,
on
the
one
hand,
nor
of
mere
courtesy
and
good
will,
upon
the
other.
But
it
is
the
recognition
which
one
national
allows
within
its
territory
to
the
legislative,
executive
or
judicial
acts
of
another
nation,
having
due
regard
both
to
international
duty
and
convenience
and
to
the
rights
of
its
own
citizens
or
other
persons
who
are
under
the
protection
of
its
laws”:
Hilton
v
Guyot,
159
US
113
(1895),
at
163.
It
therefore
would
have
been
a
preferable
alternative
at
the
trial
level
to
have
granted
a
stay
of
these
proceedings
so
as
to
allow
the
appellant
sufficient
time
to
make
application
to
a
Bahamian
court
of
competent
jurisdiction
for
an
order
permitting
disclosure
of
the
evidence
sought
to
be
compelled.
Such
an
order
was
asked
for
and
granted
in
the
case
of
Re
International
Bank
of
Washington
et
al,
1980,
Supreme
Court
of
The
Bahamas,
unreported,
in
circumstances
substantially
similar
to
those
existing
in
this
case,
and
in
Re
Application
of
Chase
Manhattan
Bank,
297
F.
2d
611
(1962,
2nd
Cir),
a
subpoena
duces
tecum
was
modified
to
permit
application
to
be
made
to
the
appropriate
Panamanian
authorities
for
permission
to
disclose
information
covered
by
Panama’s
secrecy
provisions.
Moore,
J
spoke
at
613
in
the
latter
case
of
the
“obligation
to
respect
the
laws
of
other
sovereign
states
even
though
they
may
differ
in
economic
and
legal
philosophy
from
our
own.
As
we
recently
said
.
.
.
'upon
fundamental
principles
of
international
comity,
our
courts
dedicated
to
the
enforcement
of
our
laws
should
not
take
such
action
as
may
cause
a
violation
of
the
laws
of
a
friendly
neighbour,
or,
at
the
least,
an
unnecessary
circumvention
of
its
procedures'.”
If
an
authorizing
order
had
not
been
sought
or
obtained
within
a
reasonable
time,
the
Canadian
courts
would
have
had
no
option,
having
regard
to
the
subject
matter
of
these
proceedings,
but
to
proceed
in
the
manner
indicated
by
the
Ontario
Court
of
Appeal
below.
Appeal
dismissed.
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