CONDUCTING REGULATORY
INVESTIGATIONS
Practical Skills and Legal Guidance

September 13 & 14, 2011 • Ottawa Convention Centre, Ottawa, Ontario
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An Introduction to Regulatory Investigations

Barbara McIsaac, Q.C.
Counsel, Borden Ladner Gervais LLP

• The principles of natural justice as they apply to administrative investigations
  • the role of administrative investigators, and how the legal context may differ from that of police investigators
  • how the investigative role differs from decision-making (tribunal) functions
  • how investigations differ from inspection and audits
• Understanding the scope of your statutory authority
  • can individuals be compelled to cooperate with the investigation?
  • authority of some regulatory agencies under the Public Inquiries Act
  • can you compel production of documents?
  • search warrants
• The balance between duties owed to individuals and duties owed to the public interest
  • advocacy vs. investigation: are you investigating on behalf of a complainant?
• The content of procedural fairness in diff erent contexts
  • where to find standards that apply to your particular organization
  • quasi-criminal vs. other contexts
  • what makes an investigation balanced?
  • exercising your organization’s powers in good faith: what does it mean? – recent case law on entrapment
  • examples from case law
  • documenting your compliance with the requirements of procedural fairness
• Implications of the Jarvis and Ling decisions at the SCC
• Ethical considerations in structuring investigations
  • avoiding conflict of interest
  • preventing the perception of bias
  • heading off a cozy relationship between the regulated industry and long-time investigators
• The role of the Charter
  • does the right to counsel apply to administrative investigations?
• The consequences of flawed investigations
  • when has a flawed investigation led to a successful judicial review?
  • personal risks of exceeding your statutory authority
  • the current status of civil liability for negligent investigations
  • implications of the discontinuance of the Berendsen appeal to the SCC
  • what if any statutory protection do investigators have against lawsuits from disgruntled targets?
  • limits on that protection

Planning and Preparing for the Investigation

Sandy Boucher
Senior Manager, Specialist Advisory Services
Grant Thornton LLP, Toronto

• Are there any policies or regulations prescribing the manner of the investigation?
• Preparing an investigation plan
• Useful forms and templates
• Checklists
• Who should conduct the investigation?
• Delimiting the scope of the investigation
• Identifying the issues
  • who decides what the issues are?
  • focusing what may be a rambling complaint
  • eliminating interesting or sympathetic issues that are not relevant
  • your organization’s jurisdiction
  • the dangers of framing issues too broadly
  • avoiding “issue creep”
  • keeping it relevant
• Figuring out what you need to prove on each issue
  • identifying the relevant legislation and policy
  • what evidence is required to prove those elements?
• Identifying the individuals and organizations who have the evidence you will need
• Investigative strategies
• Setting time frames and deadlines
  • allowing adequate time for a fair investigation
  • are there cases where deadlines may not be appropriate?

Understanding the Proper Uses of Investigative Information

Brian Gover
Partner, Stockwoods LLP, Toronto

• The limits on collateral uses of information gathered in an investigation
  • what rights do witnesses have in the evidence provided?
• What if there are or may be concurrent criminal or civil proceedings arising from the same events?
  • should the investigation wait until criminal proceedings are complete?
  • important decisions from the Supreme Court of Canada
  • what “ethical walls” apply?
• Can an investigator make use of evidence or findings from other proceedings?
  • does the Wagg principle apply in professional disciplinary proceedings? – recent case law developments
• How much disclosure is required at the investigation stage, and to whom?
  • how much information about the allegations is the target of an investigation entitled to receive?
  • if the investigation arises from a complaint, does the target of the investigation get a copy?
  • if the target knows the allegations, is he or she entitled to the underlying evidence such as documents?
  • who decides what’s relevant?
  • how understanding disclosure obligations informs the investigation
  • is a complainant entitled to information about previous complaints against the same respondent?

The Nuts and Bolts of Conducting an Investigation

Sandy Boucher
Senior Manager, Specialist Advisory Services
Grant Thornton LLP, Toronto

• Parts of the investigation
  • what constitutes a complete investigation?
  • where do you start?
• How does the procedure for administrative investigations diff er from police investigations?
  • which skills are transferable?
  • which skills should investigators with police training rethink?
  • powers given to some administrative organizations that are not available to police forces
• What is good evidence?
  • does your organization accept hearsay?
• Observation skills
• Maintaining focus
  • the risks of sympathy for a complainant
• Locating that hard-to-find witness
• Pursuing leads arising from interviews and other sources
  • confirming or disproving allegations in witness statements
• Getting access to documents
  • financial institutions
  • persuasion/negotiation vs. coercion
  • the status of the federal bill on lawful access
• Privacy and confidentiality considerations
  • duties to third-party witnesses
  • video surveillance: recent case law
• An introduction to file protocol
• Keeping track of evidence
  • document handling and retrieval
  • organizational tips for cases with large volumes of documents
  • logging evidence
  • protecting the integrity of evidence
  • chain of custody and security
• The relationship between custody and disclosure
• How much investigation is enough?
• Managing expectations
  • of the complainant if any
  • of the organization or individual being investigated
• The role of counsel in advising investigators
  • during the investigation
  • “post mortems” after the matter has been disposed of
  • working effectively with counsel
• When should you decide to drop an investigation?
• Quality control
  • who is accountable for ensuring the investigation conforms with the legislation, policy and principles of natural justice?
  • how organizations can monitor compliance with their standards for investigations, including timeliness
  • tracking the progress of the investigation
• Wrapping up your investigation

Improving Your Interviewing Skills

Peter Warrack
Head of Investigations, AML Financial Intelligence
Royal Bank of Canada

The modern conversational method of interviewing has replaced the interrogation approach in a wide variety of contexts, including interviews of suspects, witnesses, victims and even job candidates. In this session, you’ll learn why the approach works better and how to do it.

• How interviewing skills for internal investigations differ from police or regulatory investigations
• Planning and preparing for the interview
  • In what order should you interview subjects?
  • Knowing and understanding the goals of the interview
  • Designing appropriate questions to suit your needs
  • Considerations such as location, using the telephone and audio or video taping
  • Considerations when interviewing a subject who may be charged with an offence
  • Allowing for the fact that the problem may be more widespread than you know
• Are witnesses entitled to have someone else present during interviews?
  • Counsel
• What interview subjects have in common
• Communication styles
  • Non-verbal communication
  • Helpful communication techniques
• Interviewing techniques
  • Establishing rapport with subjects and minimizing their anxiety
  • Gaining the subject’s cooperation and engagement
  • Using effective listening and communication skills in the interview
  • Appropriate ways to assist a subject with recall
  • Helpful dos and don’ts
  • Generating further questions and closing gaps
• Techniques for note taking
• Interviewing the more challenging subject
  • Alleged victims
  • The overzealous interviewee
  • The reluctant/uncooperative interviewee
  • Allaying concerns about reprisals for cooperating
• Leaving the door open for future contact, dialogue and follow-up questions
• Evaluating the interview and deciding what needs to be done next

SEPTEMBER 14, 2011

Collecting, Securing and Analyzing Electronic Evidence

René Hamel
Senior Manager Forensic Technology-Global Security
and Investigations, TD Financial Group

• Ensuring that necessary evidence is not destroyed before you get it
• Finding relevant evidence within massive stores of electronic documents
  • Active, archival and forensic data
  • Retrieving the irretrievable
  • Records from personal communication devices: recent case law
• Using metadata to assist your investigation
• Ensuring your electronic documents are admissible
  • What does “chain of custody” mean in the context of electronic documents?
  • Proving the authenticity of electronic documents
• The Canadian General Standards Board’s national standard on Electronic Records as Documentary Evidence

Effective Report Writing

Craig Hannaford , CGA
President, Hannaford Partners Inc., Milton ON

• Who are the audiences for your report?
  • should the complainant if any get a copy?
  • how will that aff ect your style and approach?
  • who gets to respond?
• Ensuring that your report is useful to the reader
• Style tips and appropriate use of language
• Parts of a report
  • creating an outline
  • what information should be included and what should be omitted? – tips for concise yet thorough writing
  • should some material be in appendices?
  • long reports: should they have an executive summary?
• Making compelling recommendations
• Appropriate use of personal information in reports
• Avoiding common mistakes in report writing
• Use of debriefing documents after the fact, for internal use

Attacking Faulty Investigations: Insights into the Defence Perspective

Anil Kapoor
Kapoor, Barristers, Toronto

Nothing focuses the mind more than hearing about the ways a skilled defence lawyer can call into question the quality of your investigation.

Anil Kapoor, in addition to a practice that includes appearing before professional disciplinary proceedings, was Commission Counsel to the Air India Inquiry.

Practical Exercises

Sandy Boucher
Senior Manager, Specialist Advisory Services
Grant Thornton LLP, Toronto

In the final afternoon of the course, participants will take part in practical exercises that will reinforce what they have learned about planning investigations and interviewing skills.