Evidence of meeting #133 for Justice and Human Rights in the 42nd Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was rule.
A video is available from Parliament.
Liberal
The Chair Liberal Anthony Housefather
Mr. Ehsassi, you have 15 seconds left, if you want to rattle off something quick.
Liberal
Ali Ehsassi Liberal Willowdale, ON
The made-in-Canada version was adopted. Do you think it's more robust than the British system, given the use of judicial approval and oversight and of independent monitors?
Lawyer and Academic, Gardiner Roberts LLP, As an Individual
I think it's very similar to the U.K. system, because both have the judicial supervision model.
By the way, in the United States, there is some discussion by some judges that they want to do that, but ours is pretty close to the U.K. model.
NDP
Murray Rankin NDP Victoria, BC
I would like to start by welcoming Professor Turpel-Lafond, who I think lives in my home riding of Victoria, so she's particularly welcome here, Mr. Chair.
NDP
Murray Rankin NDP Victoria, BC
I want to take you back to some of the things you said in your opening remarks. You talked about the importance of defending the rule of law, and that prosecutors ought not to, in fact, succumb to pressure and resign. You said that we're into serious issues here with respect to the rule of law, particularly as we focus on what you called the propriety of entreaties to the Attorney General.
You also said, in the context of this, that we need to hear from those involved. I presume that would mean you accept that, in these circumstances, to clear the air and to do our job, we should hear from those involved, not just from the former Attorney General.
Senior Associate Counsel, Woodward and Company LLP; and Professor, Peter Allard School of Law, University of British Columbia, As an Individual
Yes, of course. In the interest of transparency, this has become almost of the character of a crisis, in terms of the rule of law which requires this committee, or more generally, an inquiry of some kind, to hear fully from the critical individuals. Of course, the Attorney General is a very significant individual who will need to share her experience. Whether she can share that experience in your committee, I don't know.
Senior Associate Counsel, Woodward and Company LLP; and Professor, Peter Allard School of Law, University of British Columbia, As an Individual
I mean, even if she has solicitor-client privilege—
Senior Associate Counsel, Woodward and Company LLP; and Professor, Peter Allard School of Law, University of British Columbia, As an Individual
—and even if her privilege is waived, I am concerned—
NDP
Murray Rankin NDP Victoria, BC
In the interest of time—it's very limited—I simply wanted to confirm that you said we need to hear from those involved. I'm pleased you agree that it includes more than just her.
Senior Associate Counsel, Woodward and Company LLP; and Professor, Peter Allard School of Law, University of British Columbia, As an Individual
Yes, absolutely. You need to hear fully from all involved.
NDP
Murray Rankin NDP Victoria, BC
Yes.
I agree as well with the Liberal member of Parliament for Toronto Beaches, Mr. Erskine-Smith, when it comes to the merits of a remediation agreement with this particular company SNC-Lavalin. He said:
Whether or not an intervention [by the Prime Minister's Office] may have been justified in substance, the real question is the nature of that intervention. Specifically, was undue pressure exerted, contrary to the constitutional convention of Attorney General independence?
That seems to me very similar to the points you are making here with us today.
Ms. Berman, you talked about the deferred prosecution agreements. I appreciate your experience in the field with corporate misconduct. The history of Canada in this area, and I want to see if you agree, is rather limited. Canada was criticized by the OECD in 2011 for its lack of investigators and weak penalties in the rare event of a conviction. Last year Transparency International, in its annual report entitled “Exporting Corruption”, talked about the fact that not only is Canada characterized by, quote, “limited enforcement”, it found that it was also one of four countries that had, quote, “regressed” in terms of the application of the Corruption of Foreign Public Officials Act.
It's rather grim. One hopes, therefore, that we continue with prosecutions. That might have been what led an independent director of public prosecutions to not waver, to not decide to enter into a DPP, and for the Attorney General to sustain that. After that, of course, the evidence would appear to show a considerable intervention by other cabinet ministers, PMO officials and the like to get her to change her mind.
Talk to us a little bit, if you would, please, about the importance of going after people under the Corruption of Foreign Public Officials Act and Canada's record in that regard.
Lawyer and Partner, Cassels Brock & Blackwell LLP, As an Individual
In terms of Canada's record, we've not dedicated the same resources, even on a per capita basis, that the U.S. has dedicated to investigations of foreign corruption. In terms of prosecuting and enforcing the law on foreign corruption, that involves investigations and prosecutions and taking matters to trial. It's the entire range. So entering into a deferred prosecution agreement with a company that has been charged would not indicate lax enforcement by Canada, in my view. What indicates lax enforcement is probably more the number of investigations and the length of time. That's because foreign corruption is very complex to investigate and very resource-intensive. You have to go to multiple jurisdictions and review millions of documents to piece together a corruption case.
As a result, one of those tools, such as a deferred prosecution agreement, would likely assist Canada in upping its game regarding enforcement of foreign corruption, because it would promote corporations to come in and self-report. It even can be a condition of a deferred prosecution agreement that they self-report and that they identify and provide information about the nature of the conduct and identify the individuals who engaged in the conduct. That would allow Canada to prosecute the individuals in a much more streamlined fashion with the collaboration from a corporation that has replaced its C-suite and replaced its board of directors with new individuals who are taking the corporation in a direction of enhanced compliance.
Liberal
The Chair Liberal Anthony Housefather
Mr. Rankin, you have about 10 seconds left if you want to fire a quick one off.
NDP
Murray Rankin NDP Victoria, BC
I'm wondering if either of you has had any experience doing business with the federal government, which has a 10-year rule if someone has been convicted of an offence under this. Last year there were consultations on maybe changing the 10 years to something a little bit less. Have either of you had any experience with those consultations to relax the 10-year ban?
Lawyer and Academic, Gardiner Roberts LLP, As an Individual
Again, because of my role at the government, I wasn't formally part of the consultations, but I've written about it. It's a very interesting new development, because it's creating a matrix. A matrix is very critical to corporate compliance. You look at the seriousness of the conduct on the one hand. On the other hand, you look at the remedial effects and the attempts by the corporation to put in a compliance culture. You balance those two. The proposals for the new debarment regime are saying, in effect, that it could be up to 10 years but lower. It's using more of a matrix analysis to balance those two.
Could I just take one minute to follow up on an earlier question, if that's permitted?
Liberal
The Chair Liberal Anthony Housefather
Mr. Boissonnault's time is going to start, so I think I have to turn to Mr. Boissonnault.
Liberal
The Chair Liberal Anthony Housefather
If you manage to work it into an answer to Mr. Boissonnault, you're more than welcome to do so.