22 LEXPERT MAGAZINE
|
APRIL 2019
cutor must consider a DPA to be in the "na-
tional interest" can be separated from the
provision stating Canada's economic inter-
ests cannot be taken into consideration —
and whether the government has any place
making national-interest arguments with
the attorney general.
"Minister Wilson-Raybourd, as she then
was, has noted that she doesn't think there
were any breaches of criminal law," says
Hansell. "What that means is she must
have concluded that the issue of jobs was
something that was fair game for the gov-
ernment to talk about. e fact that she re-
jected it doesn't mean it was wrong of them
to be discussing it."
From the public and media debate that
followed, it appears many Canadians seem
to think granting a DPA is allowing a cor-
poration to get away with something. "It's
not a free pass," says Hansell. "Nothing
could be further from the truth."
e UK, and several European countries
already have DPA regimes and Singapore,
France, Argentina and Australia are look-
ing at or are in the process of implement-
ing them.
e reason is they provide enforcement
with a way to clean up companies but pun-
ish just the law-breakers, says Wendy Ber-
man, the head of the securities litigation
and white collar crime and regulatory re-
sponse groups at Cassels Brock & Black-
well LLP.
"[People] think the company's
going to get away with it, no one's
going to be held accountable.
I can't understand that,
that somehow a corporation's
buying its way out of responsibility.
They start by admitting
responsibility.And any company
that signs a DPA it will have
a lot of conditions on it
for improvement."
"Typically a DPA would come in only
where you've had a lot of change within the
corporation so a whole bunch of stakehold-
ers are not destroyed by a few bad actors
who previously ran the company, and were
presumably involved in the wrongdoing,"
she says. "With SNC, all the top executives
were gone."
Berman points out Canada's regime
requires the corporation admit wrongdo-
ing and pay significant financial penalties
as well as disgorgement. "If a corporation
were tried and convicted, you would prob-
ably remain somewhere around the same
amount in terms of financial penalty.
"I feel like a lot of people ignore that.
ey think the company's going to get
away with it, no one's going to be held ac-
countable. I can't understand that, that
somehow a corporation's buying its way
out of responsibility. ey start by admit-
ting responsibility.
"And any company that signs a DPA it
will have a lot of conditions on it for im-
provement: enhanced compliance regimes,
a monitor — which can be very costly —
and a duty to report on the implementation
of the conditions to the court." If the com-
pany violates any of the terms, the criminal
prosecution will proceed.
Berman says any corporation convicted
on foreign bribery charges in Canada is
barred from bidding on large federal proj-
ects not just in Canada, but in many ju-
risdictions around the world for five to 10
years, which might well lead to its collapse.
Jon Levin, a corporate partner at Fasken
Martineau DuMoulin LLP in Toronto,
says "it's not appropriate to punish inno-
cent shareholders, innocent employees,
innocent retirees or customers by having
a company penalized by a conviction. It's
quite different to penalize the individual
wrong-doers."
Canada's officers and directors are not
included in Canada's deferred prosecu-
tion regime, he says, only the corporation
itself. at means those involved in illegal
actions still face jail time and heavy fines
if convicted.
Mark Andrews, QC, a partner at Fasken
in Vancouver, says he doesn't think the Ca-
WENDY BERMAN
CASSELS BROCK
& BLACKWELL LLP
