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.