Question: Can a person under investigation by a regulatory body be interviewed without notice of the allegations?
Answer: No, regulatory bodies must inform individuals of the investigation and provide details about the allegations and evidence before interviewing them. This ensures procedural fairness and helps protect against self-incrimination. For guidance on navigating such situations, consider our professional support to safeguard your rights.
Requirementof Notice of Suspicions to Persons Under Investigation
When a person is under investigation by a regulatory body, such as when a licensing board is contemplating a discipline proceeding and is conducting an interview following conduct complaints, the regulatory body is required to inform or otherwise provide notice to the person being investigated before interviewing such a person. The requirement to provide notice of investigation to a person being interviewed as the target of the investigation is a critical element of the right to procedural fairness. Without providing notice to the person being interviewed that such person is the target of the investigation, an abuse of process by lack of procedural fairness may arise.
The Law
Persons being interviewed as part of a regulatory investigation are entitled to know that an investigation is underway, to know what the allegations are, to know what evidence is already collected, and to review that evidence prior to answering questions at an interview. This requirement was clearly stated in the case of Samatar v. Canada (Attorney General), 2012 FC 1263, wherein it was stated:
[108] No matter who the witness is, a person summoned to an interview must be made aware of the suspicions weighing against him or her, and even have access to documents relevant to the investigation. A witness must be able to, if applicable, invoke the protection granted to him or her under section 5 of the Canada Evidence Act, RSC 1985, c C-5, even though it no longer seems really necessary because of section 13 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 (Charter). On this point, see R v Henry, 2005 SCC 76 (CanLII), [2005] 3 SCR 609.
The Samatar case involved breaches of procedural fairness within an administrative investigation for fraud conducted by the Public Service Commission following applications for certain positions within the Office of the Secretary to the Governor General. During the investigation, Ms. Samatar was interviewed and questioned without being advised that the purpose of the interview and questioning related to a fraud investigation in which Ms. Samatar was the suspect. Accordingly, without being advised of the investigation, and therefore being without knowledge of the investigation, Ms. Samatar was also without an opportunity to know of the specific allegations or the evidence already collected. Instead, the investigation and interview was improperly conducted in an ambush fashion.
Interestingly, and as emphasized by the court in Samatar, where an administrative body suspects wrongdoing and is conducting an investigation, especially when investigating issues that could relate to, and possibly lead to, criminal allegations, the failure to provide notice of the purpose of an interview potentially presents as a constitutional rights violation.
Protection From Self Incrimination
As per the Samatar case, the importance of proper notice of an investigation is to enable a person under investigation by a regulatory body, among others, to avoid the risk of unwitted criminal self-incrimination whereas regulatory bodies may compel a response to a regulatory issue; however, the response may contain self-incriminating details. As cited in Samatar, the case of R. v. Henry, [2005] 3 S.C.R. 609, explicitly addresses this point where it was said:
2 The right against self-incrimination is of course one of the cornerstones of our criminal law. The right to stand silent before the accusations of the state has its historical roots in the general revulsion against the practices of the Star Chamber, and in modern times is intimately linked to our adversarial system of criminal justice and the presumption of innocence. Section 13 of the Charter gives constitutional protection to a more specific privilege against testimonial self-incrimination. In Dubois v. The Queen, 1985 CanLII 10 (SCC), [1985] 2 S.C.R. 350, the Court stated at p. 358 that
the purpose of s. 13, when the section is viewed in the context of s. 11(c) and (d), is to protect individuals from being indirectly compelled to incriminate themselves, to ensure that the Crown will not be able to do indirectly that which s. 11(c) prohibits. [Emphasis Added.]
Conclusion
The rules of procedural fairness that apply to matters of administrative law, such as investigations by a regulatory authority, require that witnesses under suspicion of misconduct be provided reasonable notice of the purpose of interviews. A witness under suspicion of misconduct must, generally, receive notice of complaints, notice of the alleged facts and gathered evidence, and notice of whom is the complainant.
