Is privilege waived where information is shared with law enforcement?

A common issue arising in our investigations for clients is whether information discovered or prepared in the ‎course of our investigation should be shared with law enforcement. Together with a host of factors, a ‎central concern is whether sharing such information might constitute a waiver of the privilege, ‎resulting in the potential disclosure of the entirety of the investigation file in civil proceedings or other ‎related proceedings.‎

The recent Quebec Court of Appeal decision in Centre universitaire de santé McGill c. Lemay, 2022 ‎QCCA 1394 provides some clarity on this important issue. In that case, the Unité permanente ‎anticorruption (UPAC) initiated a criminal investigation relating to collusion and corruption in the ‎awarding of contracts for the construction of the McGill University Health Center (MUHC). ‎MUHC engaged legal counsel, who in turn engaged forensic accountants to assist in the investigation. ‎The forensic accountants prepared a preliminary report as part of their mandate. This report was ‎provided by legal counsel to the MUHC’s President and CEO, who in turn presented the findings to the ‎MUHC’s Audit Committee. The report was not given to the Audit Committee and the members were ‎informed of the confidentiality of the matters discussed. The President and CEO then provided the ‎forensic report to UPAC.‎

The legal proceedings were the result of an access to information request made to MUHC to obtain a ‎copy of the report. The Commission d'accès à l'information du Québec (CAI) refused access to the ‎report on the grounds that it was protected by solicitor-client privilege. The Court of Quebec upheld ‎that decision. The matter proceeded by judicial review to the Superior Court, which allowed the ‎appeal. The Quebec Court of Appeal reversed the Superior Court’s decision and upheld the judgment ‎of the Court of Quebec, confirming the decision of the CAI.  ‎

In making this finding, the Court of Appeal noted in particular the following facts:‎

• The intention of MUHC was not to waive any privilege, but was to “collaborate with UPAC, for the ‎sake of transparency, considering the criminal investigation that was underway.”‎
• The report was treated as confidential by MUHC, and distribution of the reportwithin MUHC was ‎very limited.‎
• The report was only presented within MUHC to the Audit Committee, and instructions were ‎provided to that Committee regarding confidentiality of the report. ‎
• The report was prepared by the forensic accountants under the direction of legal counsel.‎
• The report was marked “DRAFT Privileged and Confidential For Discussion Only”‎.

The Court of Appeal noted that while MUHC failed to explicitly reserve privilege when sending the ‎report to the UPAC, such failure must not be construed as a waiver of privilege. However, our practice ‎and recommendation is to include such a reservation, as and to the extent appropriate.‎

This case is helpful and illustrative of the principles at play when sharing privileged investigation ‎reports with law enforcement or other government authorities. Care must be taken in such disclosure, ‎and if done properly, privilege is not waived.‎

This article provides only general information about legal issues and developments, and is not intended to provide specific legal advice. Please see our disclaimer for more details.