Privilege in criminal offences

On September 22, 2023, Justice Bawden of the Ontario Superior Court of Justice released his decision on an application for disclosure in R. v. Tri-Can Contract Inc.¹ This is the second decision to consider in detail how legal privilege applies during the Competition Bureau’s (“Bureau”) immunity and leniency regimes for criminal offences. The decision confirms that, where lawyers communicate and conduct interviews with clients to obtain information to be proffered to the Bureau in connection with immunity or leniency applications, solicitor-client privilege appropriately applies to those solicitor-client communications.

(a)Background: The Competition Bureau’s immunity and leniency regimes

The immunity and leniency processes proceed in three broad steps. First, a “marker” is granted if a party, typically through their counsel, identifies, on the basis of a limited hypothetical disclosure, the nature of the potential criminal offence it has committed in respect of a specified product or service. Second, if the Bureau grants a marker to the party, the party would then proffer to the Bureau a detailed description of the illegal activity. The proffer is typically made in hypothetical terms by the applicant’s legal representative to provide the Bureau with sufficient information to determine whether a grant of immunity or leniency will be made. Finally, subject to certain conditions, including full co-operation and disclosure from the applicant, the Bureau would provide all of the relevant information and recommend to the Director of Public Prosecutions that immunity from prosecution (or leniency) be granted, following which an immunity/leniency agreement between the Crown and the applicant would be executed.

(b)Prior jurisprudence

Privilege under the immunity and leniency regimes was previously considered in R. v. Nestlé Canada Inc.² There, Nordheimer J (as he then was), considered whether information collected by counsel in an internal investigation, and subsequently provided to the Crown, was protected by privilege. Justice Nordheimer held that where an immunity/leniency applicant provides copies of solicitor-client communications to the Crown, the privilege is waived with respect to those communications.³

(c)Analysis from Tri-Can

Justice Bawden described Tri-Can as the “predictable sequel” to Nestlé.⁴ In Nestlé, the Court presumed that solicitor-client privilege applied to the lawyers’ interview notes but held that this privilege was lost when the notes were intentionally disclosed to the Bureau. The defendants in Tri-Can challenged that first presumption. They argued that the lawyers for the immunity/leniency applicants in Tri-Can became agents of the state when they agreed to question witnesses on specific topics at the direction of the Bureau, and thus the factual information they collected (as opposed to legal advice that was given) was under the control of the state and subject to disclosure in accordance with R. v. Stinchcombe.

The Court rejected this argument, and held that “solicitor-client privilege applies to information obtained by counsel from an immunity or leniency applicant at the proffer stage of the application,” which includes interviews with “employees and officers of the company to determine the facts.”⁵ In doing so, the Court made a number of useful observations:

• Solicitor-client privilege belongs to the client: While Justice Bawden did not accept that the lawyers for the immunity or leniency applicants were merely agents of the state,⁶ he also clarified the relevant question for determining whether solicitor-client privilege protects this information. Because solicitor-client privilege belongs to the client, the question is whether the client made communications in confidence to a lawyer for the purposes of seeking legal advice. Put another way, the “only fact that matters is whether the clients understood that when they spoke to their lawyers, the conversations were privileged.”⁷ The Court found that this is exactly what the clients expected, and that the communications in question were therefore privileged.⁸
• A privileged knowledge of the facts is a precondition for legal advice: The defendants’ request had attempted to distinguish between the ‘factual information’ contained within the solicitor-client communications and the legal advice contained therein. The defendants argued that they were only seeking the former. The Court questioned the soundness of this distinction. In accepting that the communications were privileged, Justice Bawden emphasized that counsel must be “armed with a privileged knowledge of the facts” in order to provide sound legal advice.⁹
• The Bureau is not entitled to an “investigative file”: In Tri-Can, the Bureau made a number of requests for the “investigative file” of certain immunity applicants in the wake of Nestlé. Justice Bawden took the opportunity to clarify that the Bureau is not entitled to such information (absent waiver of that privilege, as was the case in Nestlé); indeed, the relevant Bureau guidelines make clear that the immunity/leniency processes do not require applicants to provide privileged documents.¹⁰

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Nikiforos Iatrou is a partner in McCarthy Tétrault LLP’s Competition/Antitrust and Foreign Investment Group, where he works on all manner of competition litigation and investigation matters. William Rooney is an associate in the Competition/Antitrust and Foreign Investment Group at McCarthy Tétrault LLP, and maintains a broad practice, including mergers and acquisitions, marketing and distribution practices, investigations, compliance, and contentious competition law issues.

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