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"I FORESEE MUCH LITIGATION IN THE
CONTEXT OF CONSTITUTIONAL
LITIGATION, PARTICULARLY IN THE
AREAS OF STATUTORY COMPULSION
AND SEARCH AND SEIZURE."
Joven Narwal
NARWAL LITIGATION
First, he says, they only reward the
reporting of misconduct aer it's happened.
Second, research has suggested that finan-
cial incentives may decrease whistleblowing.
And third, the programs "create a strong
incentive to provide false or misleading
information."
But securities regulators investigate whis-
tleblowers' reports, Fuerst says. "e bigger
concern I see for corporations is the risk
that information about potential internal
wrongdoing gets reported to the regulator
first, rather than internally."
Privacy and constitutional litigation
Narwal, who specializes in white-collar crime
and financial misconduct, is concerned that
"government intrusion does pose a very
real threat to our daily lives." Information
on suspected wrongdoers is collected and
disclosed through various techniques that are
not subject "to any real quality control at the
collection level." When people share suspi-
cious transactions with the Canada Revenue
Agency, he says that this may spark costly
investigations of innocent people.
He notes a steady increase of orders
to freeze assets, where no one has made
allegations, and the use of compulsion
powers that are not judicially authorized
to seize private communications. Narwal
has launched constitutional challenges to
both issues — the freezing of assets and the
seizure of private communications — and is
concerned that public outcry over money
laundering will cause damage through the
use of unjustified state intrusions.
"I think that those concerns to some
extent need to be addressed within the poli-
tics of lawmaking over white-collar crime
and money laundering," he says; "however,
it's going to be le to the bar to litigate
the constitutionality of many of these
proposals."
He has already seen many changes to
search-and-seizure techniques used in
capital markets, he says. British Columbia
also created mandatory minimum sentences
under its Securities Act, even though the
Supreme Court of Canada has found
these to be unconstitutional. He also sees
constitutional concerns in the cross-border
context, especially between Canada and the
United States.
"Given the extensive cooperation
between Canadian and foreign regulators,
I anticipate that the concern which oen
materializes over what use can be made in
the foreign jurisdiction of compelled testi-
mony or compelled processes in Canada
will very much come to the forefront."
One issue arising with increasing
frequency, particularly given changes to
the U.S. anti-money laundering regime, is
the enforceability in Canada of subpoenas
issued under the U.S. legislation without a
corresponding mutual legal assistance treaty
request, he says.
