Quebec accountants are demanding that they be granted special protection against police searches similar to that enjoyed by lawyers. The implications would be enormous for the fight against white-collar crime. An investigation by the Permanent Anti-Corruption Unit (UPAC) has also been blocked for months due to this affair.
Published at 1:30 a.m.
Updated at 6:00 a.m.
The debate was raised by a chartered professional accountant (CPA) from the Montreal region. On June 5, UPAC police officers came to his office with a warrant signed by a judge, to seize the file of one of his clients targeted by a criminal investigation. A common practice in financial crimes.
But that day, the accountant objected to the seizure of the equipment. She argued that her professional secrecy protected her relationship with the client and asked that the Superior Court look into what could be kept out of reach of investigators.
Since then, the investigation has been stalled.
Support from the CPA Order
During a recent hearing on this case at the Montreal courthouse, the Order of Chartered Professional Accountants of Quebec confirmed that it supported the request for a special procedure aimed at protecting the professional secrecy of accountants during searches.
“The Order supports the request of the chartered professional accountant who is a member,” declared Mr.e Chantal Roy, director of legislation and regulation within the organization.
“I represent a professional who is between the tree and the bark, between UPAC and her order. It’s a Mexican standoff! », explained Me Gabriel Querry, the accountant’s lawyer, in reference to the classic cinema scene where several people are at gunpoint.
His client, whose identity is currently protected by a publication ban, only wishes to respect her professional responsibilities, he argued, while emphasizing that there is currently a “jurisprudential uncertainty” on this question
Me Querry suggests that the court draw inspiration from the procedure already in place to protect the professional secrecy of lawyers: when a police search risks violating the privilege of confidential exchanges between a member of the Bar and his client, an independent lawyer is appointed to inspect each document and determine whether it can be consulted by the police or whether it remains protected.
Years late
Imposing such a process in the case of accountants could considerably lengthen investigations. Already, the process for lawyers is causing headaches: a committee has been formed at the Ministry of Justice to simplify these long processes of sorting through millions of potentially privileged documents, in which the police are increasingly bogged down.
“It remains a daily challenge in our operations,” he recently explained to The Press the acting commissioner of UPAC, Éric René. “The delays are always very long to gain access to documents when it is contested in court,” he emphasized.
In the UPAC investigation into the financing of the Liberal Party of Quebec, which was closed without charges, the work of the police was delayed for more than three years because businessman Marc Bibeau cited the risk of violation of the professional secrecy of its companies’ lawyers.
In the case of the construction company De Castel, targeted by a UPAC search in 2012, access to evidence by the police was delayed for six years due to legal challenges linked to professional secrecy of lawyers.
In 2019, the former mayor of Chambly Denis Lavoie, who is himself a lawyer, invoked the privilege of professional secrecy when a UPAC search targeted the municipal administration. An independent observer had to comb through 3.1 million documents over 14 months to determine that just one was covered by privilege and could not be handed over to police.
“It’s definitely shocking”
Judge Mario Longpré, who heard the accountant’s request, seemed stunned by the request to put in place such cumbersome processes for accountants.
“Criminal investigations should not be minimized, quite the contrary! “, he exclaimed, emphasizing the potential impact on “all investigations of fraud, money laundering, fraudulent telemarketing… lots of big investigations! “.
“I am fully aware of that. If we focus on the impacts, it’s sure to be shocking,” replied M.e Querry, on behalf of the accountant concerned.
The lawyer for the Attorney General of Quebec, Ms.e Amélie Savard, argued that the search warrant authorized by a judge in the accountant’s office should authorize the seizure of the relevant material.
“Basically, a judicial authorization, authorized by a judge, is presumed valid,” she said.
For the representative of the Director of Criminal and Penal Prosecutions (DPCP), François Boillat-Madfouny, the law is clear: “The professional secrecy of accountants cannot be opposed to the execution of a search warrant in criminal matters”, he insisted in front of the judge.
“Most major investigations will involve financial documents,” he stressed.
The judge has taken the matter under advisement and must make his decision on the application of professional secrecy at a later date.
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