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.
Lawyer and Academic, Gardiner Roberts LLP, As an Individual
All right. Thank you, Mr. Chair.
February 25th, 2019 / 5:45 p.m.
Liberal
Randy Boissonnault Liberal Edmonton Centre, AB
Thanks, Mr. Chair.
Thank you to all the witnesses for joining us today. Each of your testimonies has been very instructive.
I come at this with a different perspective from yours. I chose a different path. I didn't go down the law school path, and I come to this committee through other means. In looking at these matters from a non-legal perspective, it strikes me that remediation agreements raise an issue for which there is public sympathy. If I can look at one of the things you said, Mr. Jull, it's regarding the purposes of a remediation agreement. It's to reduce harm that a criminal conviction of an organization could have for employees, shareholders and other third parties. In layman's terms, it's so innocent people don't pay the price for the misdeeds or wrongdoing or malfeasance of a few.
If we remember the reaction of Canadians to Sears pensioners who were last in line for their pensions, if we listen to the very real concerns of GM workers in Oshawa, workers shouldn't have to pay for the decisions or illegal activities of a few corporate executives or even, in your language, middle management.
I would feel the same way if this were an oil and gas company, a mining or construction company from the west whose workers could be vulnerable if they found themselves in the same situation as the workers, suppliers and pensioners of SNC-Lavalin. There has been some observation on this part of the act. It states that, when considering a remediation agreement and, Mr. Jull, you also referred to this:
if the organization is alleged to have committed an offence under section 3 or 4 of the Corruption of Foreign Public Officials Act, the prosecutor must not consider the national economic interest, the potential effect on relations with a state other than Canada or the identity of the organization or individual involved.
The national economic interest is a big term. You also pointed us to another part of the act that talks about mitigating the effects on workers. But even that term, “the national economic interest”, doesn't mean that the Attorney General couldn't consider the impacts on specific employees, for example, or pensioners, or the many thousands of people who work at the company and did nothing wrong. Furthermore, while the act does prohibit the consideration of the national economic interest, the act expressly states that factors that can be considered include “any other factor that the prosecutor considers relevant”.
Would you say that leaves quite a lot of room for the prosecutor, who could be the Attorney General, to consider a vague range of items, including the effects on the local economy of not proceeding with a remediation agreement? We've already established that the Attorney General can have discussions with the Prime Minister in his or her office about such considerations, and you can imagine these conversations to be quite wide ranging. Is it the case that the national economic interest doesn't mean that no economic interest whatsoever should be considered?
Lawyer and Academic, Gardiner Roberts LLP, As an Individual
As I said, I think it comes down to the facts of the case and the extent to which the corporation is corporately criminally liable. It comes back to this notion of the senior officer. That, to some extent, guides what section you're going to fall within.
If you have a situation in which senior officers have committed bribery but many employees have had nothing to do with it, I think there you can fall within the purpose section and say you're going to protect those people who didn't have anything to do with the wrongdoing.
If, on the other hand, that is not your scenario.... I'm sorry to repeat myself, but if that's not your scenario, and the corporation, for want of a better word, let's just say, is rotten to the core—
Liberal
Randy Boissonnault Liberal Edmonton Centre, AB
You made that very clear, very carefully. The two different—
Lawyer and Academic, Gardiner Roberts LLP, As an Individual
—then, in that case, they can't go.... It's a prohibitive factor. It's pretty rare in legislation to see a prohibitive factor that says “you shall not consider this”, and that's what this says. In that case, it's simply something that, on its own, ought not to be considered. In other words, all things being equal, you just can't look at that factor if there's nothing else you can hang your hat on.
Lawyer and Partner, Cassels Brock & Blackwell LLP, As an Individual
But we have to also go back to the purpose, which is laid out in the statute.
The purpose does talk about the consequences, which include financial consequences to pensioners, employees and other stakeholders. It's not as if economic harm, whether it's national, local or—
Lawyer and Partner, Cassels Brock & Blackwell LLP, As an Individual
—regional, or just to that company and the stakeholders who are affected by that company. They aren't separate spheres. They're overlapping spheres, in my opinion.
Liberal
Randy Boissonnault Liberal Edmonton Centre, AB
That's completely legitimate information to be providing to an Attorney General in the context of public interest, and understanding the full context of public interest, as we heard from one of the earlier panellists who raised these kinds of matters.
Lawyer and Partner, Cassels Brock & Blackwell LLP, As an Individual
I'm not an expert, and I'm not here to testify on what can be said to the Attorney General, but I do think that the Attorney General, just like the director of public prosecutions, should be considering the financial consequences to all of those stakeholders as a result of a criminal conviction of that corporation. I do think that information provided to either of those offices by anybody is important information that both of those offices should be considering in determining whether this is a circumstance in which a deferred prosecution agreement should be implemented.
Remember, a deferred prosecution agreement can be implemented at any time, even on the eve of a trial and even during a trial. On the notion of when, I have negotiated them on the courtroom step many times. I've negotiated them during a hearing. That consideration is an ongoing thing.
Liberal
Randy Boissonnault Liberal Edmonton Centre, AB
Once again, with 10 seconds left on my clock, do you both agree that remediation agreements are important parts of the tool kit for Canada?
Lawyer and Academic, Gardiner Roberts LLP, As an Individual
Yes, and can I sneak in my answer on that one?
Lawyer and Academic, Gardiner Roberts LLP, As an Individual
Okay.
Five or six years ago, before deferred prosecutions occurred, a client called me and said, “We are a Canadian company. We've discovered a serious bribery scam in a foreign country. What do we do?” I said, “Stop it”, and then he said, “What do we do?” I said to do an internal investigation and he should self-report. He then said, “What will happen?” and I said, “You will be convicted. It's not the United States”, and then he said, “What will happen?” and I said, “You'll be debarred.”
What do you think they did?
Lawyer and Academic, Gardiner Roberts LLP, As an Individual
Of course they didn't, and to my mind, that goes back to the earlier question that was raised by Mr. Rankin about the enforcement of white-collar crime. We don't have the resources—these are hidden schemes, often, and you're policing all of Canada and the world. If we don't have some sort of carrot or incentive to invite companies to come in from the cold and report things that we're not aware of, then it's very difficult.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much.
Colleagues, we've exhausted the hour, so are we agreed that we're going to stop here?
I want to thank each of the witnesses. Your testimony was very helpful and it's very much appreciated.
Colleagues, remember, we're meeting tomorrow at 8:45 a.m., to deal with Mr. Cooper's private member's bill.
The meeting is adjourned.