Requirement of Notice of Investigation The Right of a Suspect to Know of Allegations and Evidence

Question: Do Ontario regulators have to tell me I’m under investigation and what the allegations are before interviewing me?

Answer: Yes, procedural fairness generally requires a regulatory body to give notice that you’re the target of an investigation, outline the allegations, and allow reasonable access to relevant evidence before an interview so you can respond meaningfully and avoid unfair surprise; in Ontario, Vagans Legal provides paralegal support to help you request disclosure, document the process, and raise fairness concerns if proper notice wasn’t given.  Courts have emphasized this duty in Samatar v Canada (Attorney General), 2012 FC 1263.

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:

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:

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.