When corporations or the people behind them are alleged to have committed a white-collar crime, government prosecutions and investigations often follow. These corporations and individuals need strong legal representation to defend them, present arguments, and clear their names.
Defending white‑collar cases often start long before any trial. Once a whistleblower report is filed or a regulatory inquiry begins, a white‑collar case is already underway, and so do the white-collar defences.
Investigations are usually the first step in white-collar cases. They are also a key opportunity to build the defence. Because the allegations are still at an early stage, addressing white-collar investigations directly is often the most effective route for the defence.
How white-collar investigations start
Internal investigations occur when there are suspicions or allegations of white‑collar crimes inside a business or corporation. These investigations may be triggered by the following:
whistleblower report, whether anonymous or named
complaint from a business's client, supplier, shareholder, or employee
government regulators and police at the federal and provincial levels
irregularities in financial or compliance records, as flagged by regulators
Inspections and audits
These investigations are separate from inspections and audits, which are also conducted by government regulators. While inspections and audits focus on legal compliance, they can still lead to white-collar investigations when regulators find suspicious or potentially illegal activities.
White-collar defence
In some cases, investigations can escalate to other regulatory processes or even litigation, where white-collar charges are filed against the defendant. At this stage, white‑collar defence lawyers shift from advisory roles to active defence work in court.
White-collar investigations may lead to litigation if:
the investigating body recommends the filing of cases to the prosecution
the prosecution finds sufficient evidence for white-collar crimes
The role of the Public Prosecution Service of Canada (PPSC)
When investigators refer the case to the PPSC, it will independently review the case, including the pieces of evidence submitted to them. The PPSC will then decide whether to proceed with the case and pursue a criminal case or not.
If the PPSC decides to prosecute the alleged white-collar crime, the defendant will:
be summoned to court
receive a full disclosure of the case filed against them
At this stage, white‑collar defence lawyers review the disclosure and other court documents. This helps them identify possible defences and other ways to assist the defendant.
White-collar investigations can be criminal or regulatory in nature. In any case, they may lead to litigation, which white-collar defence teams often seek to avoid. Investigators operate at both the provincial and federal levels.
Because the term “white-collar crimes” encompass many offences, multiple agencies are involved in these investigations. Each body focuses on specific white-collar crimes, with different mandates and jurisdictions.
Here's a rundown of the different bodies that conduct white-collar investigations in Canada:
Canada Revenue Agency (CRA): the CRA's Criminal Investigations Program looks at possible tax-related white-collar crimes, such as tax evasion, tax fraud, and other tax crimes under the Income Tax Act, Excise Tax Act, and other related laws
Competition Bureau: the Bureau focuses its investigative efforts on anti‑competitive activities, such as price-fixing and bid-rigging, aside from investigating offences under the Competition Act
Royal Canadian Mounted Police (RCMP): the RCMP and its several task forces investigate market and financial crimes, reports of serious fraud, corruption, and money laundering; it can also seize assets acquired from illegal activities
municipal and provincial police: aside from the RCMP, municipal and provincial police enforcers investigate other occupational crimes under the Criminal Code, including internal theft, fraud, and embezzlement
Financial Transactions and Reports Analysis Centre of Canada (FINTRAC): when it comes to money laundering and terrorist financing, the FINTRAC assists in investigations by conducting assessments and shares the findings with other regulators
provincial securities commissions: these commissions oversee investigations on securities or investment frauds, which may be identified by their own compliance and surveillance departments or reported by the public
One of the roles of lawyers is dealing with investigators, so that defendants are properly protected and represented in all stages of the investigation.
Defences against white-collar crimes depend on the overall facts, with lawyers evaluating the evidence in each case. However, there are some common defences that companies and individuals often use in these prosecutions:
invoking one's rights under the Charter
that there was no intent to commit a crime
that the prosecution's evidence is insufficient
We'll briefly discuss these defences below.
Invoking one's rights under the Charter
Even during white-collar investigations, defendants can invoke the Canadian Charter of Rights and Freedoms. This is especially important when they are not given their rights during the investigation. The Charter can also be invoked to prevent potential violations.
Fundamental rights during white-collar defence and investigations may include:
right to be heard: this applies not just during the trial, but also during investigations, where defendants are given the opportunity to present their side
right to counsel: especially when cases are already filed in court, or when the defendant has already been arrested or detained by police enforcers
right to privileged communication: where privileged information acquired during white-collar investigations is protected, subject to certain exceptions
Violations of these fundamental rights can lead to:
the exclusion of the prosecution's evidence
dismissal of the cases for white-collar crimes
Charter violations can also include how the warrant of arrest or search warrant was implemented, which can also be questioned before the courts.
No intent to commit a white-collar crime
In criminal cases, the prosecution must prove that the defendant has the intent to commit the crime. In a white-collar crime, it must be proved that the defendant knowingly and deliberately acted with deceit or fraud for personal or corporate gain.
On the part of the white-collar defence, it can be argued that the prosecution has not properly proved the element of intent. It can further be argued that the case was a financial or accounting error rather than a crime. If true, the case may be dismissed.
The following are some examples of situations where criminal intent is absent:
when the defendant genuinely believed that the act was legal
that the defendant was coerced into doing the illegal act
if it was only an honest mistake or poor judgment on the defendant's part
that the defendant had no knowledge of the illegal activities in the business
Prosecution has insufficient evidence
Another defence is that the prosecution's evidence does not make a case for a white-collar crime. Here, the defence may prove that:
the pieces of evidence (e.g., financial records) are unreliable, or they do not show that the defendant has the intent to commit a white-collar crime
the prosecution's witnesses are not credible, that their claims are false, or that there are inconsistencies in their written or oral statements
During white-collar investigations, defence lawyers can evaluate the evidence that regulators have collected to assess whether the case is likely to proceed. This is why it's important to engage in the services of a lawyer early in the investigation stage.
Other defences against white-collar crimes
Here are other defences that can be used against prosecutions for white-collar crimes:
stay of proceedings: when the case is not yet filed in court, efforts can be made to stay the investigation; legal remedies can include quashing search warrants or seeking withdrawal of the criminal charges, depending on the defendant's circumstances
negotiated penalties: if acquittal seem unlikely, defendants may pursue plea bargaining to seek reduced or alternative penalties and restitution instead of jail time; this legal strategy is often used when the evidence against the defendant is overwhelming or when the prosecution has a strong case
Due to the complexity of white-collar defence and investigations, alleged defendants should seek criminal defence lawyers who specialize in white-collar crimes as early as possible. Here are some ways that these lawyers can help clients:
limit exposure to white-collar crimes: even before white-collar investigations start, lawyers can help businesses identify and limit its exposure to possible white-collar crimes within the organization
legal representation in all matters: white-collar defence and investigations involve several legal proceedings with different bodies (e.g., regulators, courts) where the presence of lawyers may be required
organizing witnesses and evidence: white-collar crimes often involve large volumes of complex financial and documentary evidence, which lawyers can organize to present the strongest defence possible
protect the defendant's rights: from white-collar investigations to their prosecutions, lawyers are vital to protect the defendant's rights and timely invoke them all throughout these legal processes
Do you need help in dealing with white collar crimes? Look below for the best lawyers for white collar defence and investigations in your area as ranked by Lexpert.
