Punishing The Crime, Not The Process: Key Considerations When Investigating And Reporting White-Collar Crime

In late 2022, the Canadian Bar Association released the Guide for Internal Investigations of White-Collar Crime (the Guide)¹, which consolidates and clarifies best practices for corporations conducting an internal investigation in response to suspicions or allegations of criminal activity. While the Guide will help to promote consistency in approach, practitioners continue to look for guidance from Canadian courts on key issues with respect to the conduct of investigations and issues arising therefrom.

Privilege over work product related to the investigation

Records created throughout the course of an investigation by external, independent, counsel for the purpose of obtaining legal advice and /or within the context of impending litigation will be privileged.² Where an investigation identifies criminal activity, prompt self-reporting to the appropriate regulatory authority is one strategy to mitigate the consequences flowing from a finding of illegal activity³ Non