The issue of corporate integrity when it comes to cooperating with authorities in criminal investigations and its impact on privilege is another trend, as companies look to increase transparency. Between 2023 and 2012, Canada’s score on the Corruption Perceptions Index has significantly declined4. The index serves as a global indicator of public sector corruption, and in 2023, Canada scored 76 out of 100, ranking 12 out of 180 countries measured. By increasing corporate collaboration with the authorities, while simultaneously protecting the disclosure of privileged reports or documents in this particular context, could foster a national culture that attempts to reduce corruption, abuse of power and bribery, as well as increase accountability both in public and private corporate settings.
Recently, the Québec courts dealt with the legal consequences of voluntarily disclosing the fruits of an internal investigation to the authorities as part of a criminal investigation. Does such disclosure automatically result in the loss of attorney-client privilege? According to the courts, it does not: a waiver of privilege may be partial, meaning that the disclosure of a privileged document does not entail the automatic waiver of privilege towards all third parties.
Waiver of privilege and voluntary disclosure to law enforcement
It is generally recognized that a secret once revealed is a secret no longer. However, based on the recent Québec case law, the disclosure of a document subject to attorney-client privilege to police authorities to collaborate in a criminal investigation does not in itself result in the loss of confidentiality of the document with regard to other third parties. Indeed, the waiver of privilege in such a context will depend on the specific facts and context of a case. Any waiver of attorney-client privilege must be voluntary, clear and unequivocal, based on the factual context and circumstances applicable to each case. It will also be interpreted restrictively. Consequently, no particular formula, such as an explicit reservation of rights, is required when disclosing the report or document to the authorities in a criminal investigation.
In line with those rulings, it was decided that sharing privileged information with law enforcement, the Competition Bureau, or even a disciplinary board does not necessarily constitute a waiver of privilege against other third parties, because there is a moral duty to collaborate with those investigations. On the other hand, disclosing confidential information and reports outside the scope of investigations, for example, in a proceeding or a detailed press release, still constitutes a risk with regards to a total or partial waiver of privilege.
