In the aftermath of the global financial crisis and growing
public mistrust, the investigation and prosecution of corporate
misconduct has become a renewed focus and priority globally for law
enforcement agencies. This has led to a dramatic shift in the use
of aggressive investigative techniques to detect and prosecute
corporate wrongdoing, especially in the area of financial and
market crimes, and in broadening the scope of corporate liability.
Canadian and US police agencies and regulators are using (or have
announced their intention to use) a broader range of aggressive
investigative tools, traditionally reserved for serious criminal
offences such as narcotics and organized crime offences, including
wiretaps, search warrants and wired informants, to investigate and
prosecute financial crimes.
The increasing use of such aggressive investigative techniques
raises serious concerns regarding what use can be made of the
fruits of the state investigation in parallel civil or regulatory
proceedings. While the risk that criminal evidence could be used in
parallel civil or regulatory proceedings is not new, the recent
Supreme Court of Canada decision in Imperial Oil v Jacques (et
al) has opened the door to allow private civil litigants
access to state-obtained wiretap evidence at an earlier stage of a
criminal proceeding, prior to any ruling on the admissibility or
legality of such interceptions, and appears to have shifted the
balance away from the protection of the strong privacy interests at
stake and other public interest considerations.
Of concern for corporations is the prevalence of parallel class
action proceedings in close proximity to external investigations of
corporate misconduct and the increased risk following Imperial
Oil that such evidence will be available to class counsel
before its admissibility has been tested in the criminal context,
notwithstanding the significant privacy rights of corporate
defendants and third parties. Further, putting select and untested
evidence of private conversations into the hands of private civil
litigants at such an early stage allows them the benefit of
extraordinary and highly intrusive state powers, creates the
opportunity for unfair leverage in such proceedings and complicates
the difficult strategic issues relating to managing parallel civil
and criminal proceedings.
These issues are increasingly significant given other recent
developments, including the commitment of Canadian law enforcement
and regulatory agencies to seek expansion of the enumerated
offences under the Criminal Code of Canada, for which the
use of enhanced investigative tools, such as wiretaps, is permitted
and the expansion of criminal and quasi-criminal investigations and
prosecutions of corporate misconduct by other regulatory
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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