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.