Justice Committee on Feb. 25th, 2019

[Mary Ellen Turpel-Lafond, Senior Associate Counsel, Woodward and Company LLP; and Professor, Peter Allard School of Law, University of British Columbia, As an Individual]

Thank you, Mr. Chair.

First of all, I did have a chance to listen in to the earlier presentation and to hear both of those presenters and most of the questions. I regret that I'm not there in person today, but I was able to hear it. Of course, they've covered a fair bit of ground in terms of the rule of law and the applicable legal principles that govern these issues.

I have some points of difference that I would like to address and would be happy to answer questions on.

In particular, I think that what we assess as being rational or not rational requires a much more profound understanding of the facts here. In terms of the law, I think we understand that the rule of law requires that all public officials, when they act, must have a lawful authority to point to that is consistent with the rule of law, consistent with our constitutional conventions and principles and consistent with the important independent role that the Attorney General plays.

A slight point of distinction, in my view, with respect to the matter is that there is a fair amount of discussion about the obligation of the Attorney General, when acting as an Attorney General...that they should resign. I did have a chance to listen, and I would have some distinct views on that from what I heard in your prior panel.

Again, we do not know the full facts, and facts are very significant. There are nuances that are very critical here. I think that there could be a rational explanation as to why an Attorney General, acting as the chief prosecutor and chief law officer of Canada, would not resign when their prosecutorial independence was challenged. That's because I think it is a constitutional requirement, consistent with the rule of law in Canada, that prosecutors do not resign, that they stand firm in the face of pressure, if there is pressure—and I appreciate that's not factually fully established—and they stand firmly in the defence of the rule of law.

Prosecutors are very rarely fired for doing their job. However, if an Attorney General was proven to have stood firm in her decision-making as a prosecutor and as a lead prosecutor for Canada, namely as the Attorney General enmeshed and embedded in this very significant and well-articulated rule of law function, I think there would have been a very concerning situation if she had been removed.

With regard to the issue of resignation versus removal, it may very well be that we have a situation where we have a prosecutor that was removed from her role as opposed to an Attorney General who should resign. In fact, prosecutors should not resign. Lead prosecutors, when they've taken a decision, should hold firm in their decision, and that is consistent with the rule of law.

Alternatively, I think it's important that those who may seek to influence or to engage the Attorney General when she's wearing that hat as Attorney General...and I agree with the former panellist that the Shawcross doctrine is a fairly flimsy basis in which to blanket oneself in terms of a public official saying, “I can approach the Attorney General and vigorously attempt to persuade her to another view because I have the Shawcross doctrine.” I think that Shawcross has to be understood more broadly within the Constitution of Canada, the principles of the rule of law, which have been very clearly upheld in the Manitoba language reference, the succession reference, the judge's reference and others.

I think the issue of the Attorney General acting as prosecutor is that they should remain firm. Someone who is seeking to invoke the Shawcross doctrine to say, “I have lawful authority to approach an Attorney General and seek to convince her of another view”, I think has a fairly flimsy foundation in terms of lawful authority. I would be very careful about pointing to that.

All public officials, members of the executive branch and administrative branch of government, must always point to lawful authority for the actions they take. It must be clearly articulated and it must be evident. I think if there are ambiguities of any kind, those ambiguities will always be resolved in favour of these very significant independent and quasi-judical roles, like the independence of the Attorney General of Canada.

Obviously, the independence and the role of the Attorney General are not always subject to scrutiny and review such as we are talking about it today. In the context of actual prosecutions, obviously there's been a fair amount of scrutiny of the role of the public prosecution service and the prosecutors of Canada, whether that be because of charter rights issues, whether that be because of issues where there's impropriety and there may be torts of malicious prosecution. These matters do come to the courts in different ways, but the actual exercise of the discretion to decide to pursue a prosecution is something that is really not looked at unless there is, I think as the late Justice Marc Rosenberg said, “flagrant impropriety”. I think that some of these principles are fairly well-established.

The prosecutorial function has to be exercised independently. We've identified that and we understand that. The decision points in the prosecution role, including the decision to pursue a prosecution, once that commences and we then go into a court process, whether that's a preliminary inquiry stage, whether that's a trial—and again, having been a judge and run many trials, there have been many times when we start a trial, and it ends up with a resolution where I certainly would have counsel before me to say, “Your Honour, we have a joint submission on a resolution of the matter we would like to put to you.” We were well out of the starting gates of the trial, but things changed.

In prosecutions, things do change, but they change within a scope of decision-making that has some very definite parameters. They change because there may be a difference in terms of the likelihood of conviction of one offence. They change to perhaps spare a victim having to testify. They change for a whole variety of reasons. Of course, we do promote resolution of matters without having every case fully tried.

When a prosecutor has decided to test, before a court, the evidence that the investigative branch of government has prepared for them to pursue a prosecution, that decision is a very significant decision point. There is limited lawful authority for anyone to intervene at that decision point and going forward. If, in the instance that you're examining—as I say, we don't know the facts—we're finding there are interventions that are seeking to address that decision point, I think that's a very significant issue that would attract concern for the rule of law in Canada.

Having worked closely with prosecutions and understanding how the prosecution service works, I can say that prosecutors are very well trained. They hold themselves and others to account, and if there's any indication that decisions stray from lawful considerations, they are able to establish boundaries. I'm not sure in this instance if this is a case where there was not the ability to establish boundaries, but perhaps this is an instance where a prosecutor was actually fired for establishing a boundary that was not popularly accepted. I'm not sure of that. I think there is some suspicion and concern about that.

I would also say that to the extent that we have any ambiguity about what the rules that apply are, that ambiguity rests in the issue of what lawful authority public officials or other members of the executive branch of government rely on to justify their actions. I haven't followed the matter very closely, but other than the Shawcross doctrine, which I think is a somewhat flimsy foundation for this, the lawful authority is somewhat shaky in terms of being able to intervene with a prosecutor.

I do think the facts are extremely important. It is not inappropriate for a public official to engage with prosecutors and say, “Should you require additional information, I am standing ready to provide it to you.” That's a fairly fair position. When we get beyond that position, that would be a more passive and respectful approach, and we get into a very vigorous position of saying, “I challenge you to take a different position.” I think we are into very serious issues with the rule of law.

There are a variety of factors at play, and some of them were identified by the previous panellists, but certainly, we would need to understand very clearly how that experience or situation may have unfolded. This is not to suggest, by any means, that an Attorney General is a thin-skinned individual who can't take push back; the issue is the propriety of entreaties that may be made to an Attorney General. The propriety really goes to the zone of, for what purpose?

If the purpose was to persuade the Attorney General as chief prosecutor to take a different position on a prosecution, it triggers a serious rule of law concern. How will we know whether that's serious or not? Well, obviously, you need to hear from those who may have been involved. Maybe this is completely unfounded and we have no reason to be concerned about the rule of law. I certainly would hope that this is the case. However, when I think about the spectrum of entreaties that can be made to an Attorney General, I think there's a range that would be very troubling to me, and there are some that would be deeply troubling to me.

One of the areas that would be most troubling to me would be if public officials and members of the executive went to an Attorney General and said, “I don't like the decision that you have reached and I would like you to get another opinion from someone else.” That would be very troubling. I'm not saying that is the case here, but that's an example, upon reflection, where I think it's somewhat of a repudiation of the decision point role for the Attorney General as lead prosecutor. If the discussion was, as I said earlier, to indicate point of information, “There's material that we may share, should you be interested in receiving it....”

In between those two extremes, one being “We may insist on you getting a different opinion because we don't agree or respect your opinion”—I'm not saying that applied here, but if that did pertain, it's very serious, and the other, “We're standing ready to provide information if you want it,” there's a whole range and degree of entreaties that could have occurred, all of which would engage serious rule of law issues and would need to be carefully examined incident by incident if they happened.

Obviously, in terms of the rule of law—

[The Chair, Liberal, Anthony Housefather]

Ms. Turpel-Lafond, I would just give you a cautionary signal. You are at 12 minutes. If you could wrap it up in the next minute or so, that would be amazing.

[Mary Ellen Turpel-Lafond]

I will and I apologize.

The final point I wanted to say about the exercise of lawful authority and prosecutorial discretion is that the rule of law is informed by our conventions, our practices, our legislation that governs prosecutions, prosecutor's desk books, and other things that inform our rule of law. What also informs our rule of law is our international conventions and obligations.

If we have international normative standards with guidelines, for instance, with respect to how bribery or corruption offences are prosecuted, in keeping with our role as a global citizen and a participant in a broader legal network, those factors would also be part of the rule of law in Canada. With regard to considerations about being a good adherent to international conventions and treaties—I think there are three international treaties, including the OECD treaty, applying to bribery and corruption—prosecutors would be expected as part of the rule of law to consider those factors, which are important. Where we have multi-state treaties at an international level, they become part of the rule of law of Canada as well.

I will end it there and say that these are nuanced issues. Obviously, I've heard the prior panel, and I affirm much of what they said although I have a somewhat different understanding of it. I would suggest to the committee that those engaging in entreaties to an Attorney General exercising the authority as a chief prosecutor must point to lawful authority that actually backs up their actions. I would say the Shawcross doctrine is a flimsy authority.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We're now going to Ms. Berman.

[Wendy Berman, Lawyer and Partner, Cassels Brock & Blackwell LLP, As an Individual]

Thank you, Mr. Chair.

Thank you, members of the Standing Committee on Justice and Human Rights for inviting me to participate today.

I have come to speak to you about remediation agreements and deferred prosecution agreements as a defence counsel who has been involved in negotiating such agreements.

As you well know, the regime in Canada on the criminal side is recent and so there are not a lot of deferred prosecution agreements in that context, but in the securities regulatory enforcement context and other contexts involving serious allegations of complex corporate misconduct, those prosecutors have a panoply of tools in their tool box to deal with corporate misconduct.

In terms of that, one of those tools is a deferred prosecution agreement. I have been involved for many years in a number of contexts to ensure that the tool was available to prosecutors. It has a negative connotation in some spheres as being a way for corporations to buy out from their responsibility, and that misconstrues the nature of a deferred prosecution agreement and the unique nature of a corporate organization that is facing allegations of corporate misconduct such as bribery and securities law disclosure violations.

The corporate entity that is charged with that offence or is facing an investigation into such allegations is unique and different from individuals charged with those very same allegations of misconduct.

The deferred prosecution agreement, in terms of its nature, does hold the corporate entity to account for the misconduct. It does meet, in my respectful view, all of the objectives that are necessary for a robust criminal justice system. It allows, more importantly, for benefits that aren't available from the rigidity of a binary conviction or no-conviction regime.

In particular, provided that a deferred prosecution agreement regime is robust—and in my respectful opinion the regime implemented by Canada is a robust regime. It's very similar to that adopted in the U.K. and has improvements, I think, that make it different from the regime adopted south of the border in the United States.

For example, corporations availing themselves of a deferred prosecution agreement will admit and will take account and responsibility for their conduct. There will be a statement of facts in any deferred prosecution agreement that outlines the nature of the conduct involved. There will be terms in a deferred prosecution agreement that include remediation terms, both in terms of enhancements to internal compliance regimes and a financial penalty, so reparation for the conduct accused.

In terms of the criminal justice objectives, it meets those in terms of assuming responsibility. It meets those in terms of ensuring the harm is addressed in the marketplace and to those affected by the conduct. It meets that in terms of ensuring deterrence.

The most important part of a deferred prosecution remediation agreement is that it allows for a very timely resolution. Complex issues and complex conduct are involved, so typically, these prosecutions take multiple years before there is any statement to the public or any guidance to the public in terms of what is expected.

The real benefit of a deferred prosecution agreement for the country as a whole and for our markets is that it allows for us to move that needle. It allows for a prosecutor to make a statement regarding what is expected in terms of evolving best practices for corporate governance for compliance regimes in a very timely manner without the delay that we would see in a normal prosecution.

The other very important part is that it avoids the collateral damage. A corporation acts through individuals, and if a corporation is to take steps to address alleged misconduct, to improve its regime and to address the wrongdoing done by individuals through disciplinary actions or through a change in the upper level or the medium level of management to remove those who are responsible for the misconduct and, in that situation, to improve its own internal compliance regime through a remediation agreement, then it meets the objective by moving the needle, as I said before, in terms of enhancing best practices for corporate governance for corporations and setting a standard that all Canadian corporations will have to meet in improving that standard.

The collateral damage from the binary conviction or no-conviction regime is that today's stakeholders pay the price of a conviction. So in certain circumstances, it may be appropriate to explore a deferred prosecution agreement to avoid that collateral damage. The collateral damage will be felt by all who are involved with the corporation. Whether they are employees, pensioners, business partners, suppliers or downstream or upstream business partners to that organization, they will feel that impact if that organization faces a conviction, with the resulting reputational harm, as well as the harm to its business from a conviction that may make it impossible for a corporation to continue to operate.

So, there's a real risk in certain circumstances that a corporation could, for lack of a better expression, wither away and cease to exist, with all of the collateral damage to those who rely on the corporation for economic benefits. In those situations, the prosecutor may, in balancing with what the other panel members discussed—being the public interest—look at those factors in determining that here are some circumstances that make sense for looking at something other than that convict or no-convict regime.

It's important to know that a deferred prosecution agreement is not a non-prosecution agreement, which is another tool available to prosecutors in other jurisdictions. That is a situation where a corporation is not charged and does not take any account for its conduct. Here, in the deferred prosecution agreement, a corporation does. The corporation is charged. The state, through the DPP, enters into a remediation agreement, which allows for a suspension of the prosecution against the corporation, and that suspension is a contingent suspension. The corporation must meet all of the terms of the remediation agreement, which as I outlined earlier, would include a number of terms of certain steps the corporation has to take regarding its own internal organization and internal regime for compliance: the payment of a financial penalty; often the imposition of a monitor, an independent third party to review the steps that the corporation takes; and often an obligation to report to the court or to the prosecutor on its progress in meeting the terms of the remediation agreement.

If the remediation agreement is breached, then in those circumstances, the corporation will be prosecuted. If all of the terms of the agreement are met by the corporation, then the charges are dismissed.

The important objective in the criminal justice system of holding others accountable for their wrongdoing is met in these circumstances and met in a way that avoids the sometimes very draconian result that can occur when a corporation is facing a conviction.

When Canada considered implementing such a regime, it was able to look to other states that had implemented deferred prosecution regimes or similar ones, and it did. Canada now has, with the benefit of a deferred prosecution regime, this effective tool similar to those of many other states globally, including the U.K., the United States, other members of the EU, and Australia, which most recently adopted a deferred prosecution regime.

We have the benefit of looking at the experience—the U.S. has had a deferred prosecution regime in place since the early 1990s, the longest period of time in that list of countries. Its regime is different from Canada's. What we see demonstrated from their regime is that it's used in limited circumstances, and that's where it's meant to be used. Certain conditions have to be met so a corporation will qualify to be considered for a deferred prosecution agreement. For example, in 2018 alone, across the United States there were 24 deferred prosecution agreements and non-prosecution agreements. That is not an astounding number, given the number of active investigations and the number of cases on the go.

The U.K. adopted a deferred prosecution regime in 2013, and there have been only four deferred prosecution agreements. The fear around their use is not realized when we look at other jurisdictions.

In Canada's regime, we have some very important attributes that make it robust, and that includes conditions that the prosecutor must meet to even consider negotiating remediation agreements. One of those, interestingly and importantly, is that the DPP requires the consent of the Attorney General prior to beginning the negotiations. The prosecutor performs a gatekeeping role; the courts perform another very important gatekeeping role, and then finally and most importantly, the regime ensures transparency. We move the deterrence ball forward and we move the needle forward on best practice for corporations, because all DPAs will be made publicly available, unless there are reasons for the court to defer the publication.

I'll move it across to my colleague Mr. Jull who will also speak to deferred prosecution agreements.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Jull.

[Kenneth Jull, Lawyer and Academic, Gardiner Roberts LLP, As an Individual]

Thank you.

Mr. Chair and members of the standing committee, it's an honour to be invited to attend to speak about remediation agreements.

Since 2014, I along with others have argued that we ought to have deferred prosecution agreements, and I was happy to see that in 2018 the legislation passed. The legislation sets out six purposes or objectives in the statute. I want to go through those.

The first purpose of these agreements is to denounce wrongdoing. The second is to hold organizations accountable. The third is to promote a compliance culture. The fourth purpose, and this is a very important one, is to encourage voluntary disclosure of wrongdoing. This is the idea of a company coming in from the cold and telling prosecutors something that the government hasn't discovered yet. I'm going to come back to that if I have time. The fifth purpose is to provide remedies for harms done to victims. The sixth purpose is to reduce the negative consequences for employees, customers, pensioners and others who did not engage in the wrongdoing.

I want to spend some time on that last objective. A similar test is used in the United Kingdom legislation, which refers to collateral effects on public employees and shareholders, as Ms. Berman has stated. I think we need to talk a little bit about this to understand it. Negative or collateral effects on persons who are not guilty of any wrongdoing are particularly acute if the particular corporation is doing a lot of government work. That is because a conviction in Canada leads to debarment, and with the present regime, it leads to debarment for a 10-year period, subject to reduction to a five-year period. That is a very real collateral effect on employees, pensioners and customers if the company can't tender or do government work for 10 years.

I don't want to, but I may find myself giving a little bit of a lecture on corporate criminal liability. You really have to understand corporate criminal liability as set out in the Criminal Code under section 22.2 to understand the dynamic of a corporation vis-à-vis the individuals.

Let me give you an example. There's only one such litigated case in Canada. It's called R. v. Pétroles Global Inc. In that decision, Justice Tôth said:

It will no longer be necessary for prosecutors to prove fault in the boardrooms or at the highest levels of a corporation: the fault even of middle managers may suffice.

It means that it is possible that senior managers or even middle managers, acting within the scope of their authority—and that's an important point—may have committed an offence such as bribery, while many of the employees had no idea about that act. Customers and pensioners are a further step removed from the circle of knowledge about that bribery. These are the people, in my submission, who are referred to in the purpose section to reduce the negative consequences of the wrongdoing for persons who were not part of it.

The reduction of negative consequences has economic consequences. An important question, then, is how this objective relates to the prohibition against considering the national economic interest. I want to turn to that. Subsection 715.32(3) of the Criminal Code states:

Despite paragraph (2)(i), 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.

This section is very similar to the U.K. legislation and, as was mentioned earlier, is consistent with the OECD treaty.

When this legislation was passed, I wrote about it in my text. At the time, none of the recent events had occurred, so I went back and I looked at what I said at the time. I want to read to you what I said, and give a comment. What I said at the time about this provision is as follows:

This clause is designed to avoid political or economic factors interfering with the administration of justice. Conceivably this clause prevents an organization that is a prominent Canadian company from seeking special treatment on the basis that a conviction of the corporation would impact the national economic interest. There is, however, room for such a corporation to argue that it should be considered for a remediation agreement under the purpose section (f) to reduce the negative consequences of the wrongdoing for persons — employees, customers, pensioners and others — who did not engage in the wrongdoing, while holding responsible those individuals who did engage in that wrongdoing.

Members of the committee, you might ask how it is logically possible to consider the reduction of negative economic consequences for employees and pensioners and those not guilty of wrongdoing while at the same time not considering the impact on the national economic interest. It seems like a logical paradox, right?

I'm going to suggest that there is a way out of that logical paradox. It comes back to the concept of the essence of corporate criminal liability. If you have a situation where a crime is committed by senior or even middle-level officials, but there's a whole range of folks who had nothing to do with it, those two provisions work together. You can give a deferred prosecution to save those people from being affected, while at the same time it has absolutely nothing to do with economic interest. It's designed specifically to deal with protecting the people who had nothing to do with the bribery.

Let's take the complete reverse scenario. Suppose you have a company where the corruption extends right down to most of the employees. Suppose you have a company that really can't say they're a lot of innocent folks. If that company goes to the prosecutor and says, “We still need a deferred prosecution agreement, not because we're protecting innocent people but because it's in the national economic interest and you can't let us fail”, that's prohibitive, in my view, and then there are all sorts of permutations and combinations that apply to considering the situation for pensioners and/or customers in that scenario.

Each case, as has been said before by the prior speakers, needs to be evaluated on its facts. There are no simple answers here.

I want to briefly touch on something that Ms. Berman talked about. She has spoken a lot about deferred prosecutions not being what I call “free passes”, and I'm not going to spend much time on it because she's done such a great job on that. I think the one thing I would want to say is that when we talk about these arcane examples, you need a fact pattern to give it substance. Let me give you an example of one that happened recently.

Panasonic, in 2018, received a deferred prosecution agreement in the United States. They had been accused of paying bribes to get their entertainment systems, through a subsidiary, onto Middle East Airline planes. Over a period of time they paid about $7 million and disguised this as consulting fees when they weren't really consulting fees. Not only were they paying bribes, but they were falsifying books and records.

They received a deferred prosecution agreement, but to Ms. Berman's point, listen to the penalties. The disgorgement of the profit.... They made a profit of $126 million. That was disgorged. They had to pay that back. On top of that, they then had to pay a penalty of $135 million, and that was with a 20% discount. Then they had a monitor imposed for a period of two years. That's a good example of how powerful these can be.

There have been a lot of people talking about gatekeepers. I'm not going to comment on that because people have done such a fantastic job, except to reiterate one point, and that is, what people haven't been talking about a lot is the fact that because the Canadian system requires court approval, a judge ultimately has that ultimate approval.

I'm speaking completely hypothetically here. Even if an Attorney General felt pressured and ultimately put something before a court as a remediation agreement, a judge has the right to say he needs to know the factors. The judge in our legislation has to be satisfied that it's fair, that it's appropriate. A judge could say that if you are only considering the national economic interests, that's a prohibitive factor and he's not going to approve this agreement. There is that judicial check. We have to keep that in mind.

I'm starting to run out of time so I'll probably save this for questioning. If anybody's interested in it, I'm happy to talk about the whole concept of coming in from the cold and how it applies. I think this is important in this spectre.

This is complex, and we're neophytes as Canadians. I think we ought to give some serious thought to the passing of guidelines. This legislation gives the cabinet power to pass guidelines for the implementation of remediation agreements. I think we ought to set up a panel of some really smart people, some of whom have come before you. I'm not saying I'd be one of them, but get some really smart people together and study this so guidelines could be passed by way of regulation that would help the Attorney General, the cabinet and the parties understand the differences between some of the factors that may be more partisan and some of them that are more legal.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We'll now go to one round of questions, and then we'll see where we are after that.

Ms. Raitt, you're up first for six minutes.

[Lisa Raitt]

Thank you very much, Mr. Chair.

Professor Turpel-Lafond, thank you very much for your interventions. Thank you for all the work you do as a voice for children and youth in this country. You've done an incredible amount and I appreciate it.

My question for you has to do with something you said on TV recently. If I could quote, it was, “A political official or an administrative official in government that attempts to influence a prosecution...is not only immoral but is illegal”. What did you mean by “illegal”?

[Mary Ellen Turpel-Lafond]

First of all, it's very important to look at the context. I think that was a quote, perhaps from the Globe and Mail, when it put a scenario to me.

What I mean is pretty much consistent with what I've said today, which is that all public officials must point to lawful authority to ground their actions. If they're senior administrative officials in government, whether in the Privy Council Office, the Prime Minister's Office, whether it's the Prime Minister or a member of cabinet, all public officials must point to lawful authority. If any public official seeks to influence a prosecution in any form, or bring information to a prosecution, they must point to lawful authority for that.

In my respectful view, the Shawcross doctrine is very flimsy authority in terms of the rule of law in Canada and whether or not it even has the status of a legal convention.... What does have clear legal status is the independent and quasi-judicial role of the Attorney General and the director of public prosecutions, who is an assistant attorney general.

Certainly I'm very reluctant to ever be in a role to play prosecutor because I highly respect the decisions of prosecutors. I do not think prosecutors are unaware of their lawful obligations, but I do worry about people who approach prosecutors and claim to be able to have discussions with them, and claim that there's legal authority. They must point out the explicit legal authority because these are highly sensitive issues, and we have a range of offences in the Criminal Code that speak to integrity. One should be able to point very clearly to your committee what legal authority they are claiming should they be seeking to intervene with an Attorney General who's made a decision on a prosecution.

[Lisa Raitt]

Thank you.

You also mentioned today that we need to understand clearly how the facts have unfolded. I take the point very well. I don't think we know the conversations that have happened, what their content was. You did say something else, and I'm sorry to quote you back, but you said, "If there is evidence, if this story proves accurate, then this must be turned over to the RCMP for a full investigation.” I'm trying to get my head around what breach it would be. The public authority does not have...as you pointed out, they're not grounded in what legal authority they may have to intervene with the prosecutor. What is the response to what they have possibly breached within the Criminal Code?

[Mary Ellen Turpel-Lafond]

Well, there are issues of integrity and ethics. It's a spectrum. On the Criminal Code issue—and I'm not suggesting there's been a criminal offence—I'm saying that the integrity unit in the RCMP should thoroughly examine the issue, and they may very well be examining the issue. I think they indicated they were aware of the matter. These are issues about positive obligations.

If, for example, the Attorney General acting as the lead prosecutor for Canada in this very important role was actually fired from her job because she didn't make a decision that comported with her colleagues or whomever, and I'm not saying this is the case, but if she did get fired, I do not think the obligation is on her to resign. Arguably, a rational person may say you don't have to resign because you're being a prosecutor, but if there's evidence that a prosecutor was fired and there was an attempt to influence or direct her attention to something that didn't have lawful authority, then it does raise the spectre of obstruction of justice, because obstruction of justice requires a fear or favour element.

I think we have to come back to this key piece, which is, when someone is making entreaties to the Attorney General, is the subtext of those entreaties and is it implied in those entreaties that you will lose your job if you do not listen to me? This is why the rule of law issues become not only engaged, but it could potentially be very serious. I hope it isn't, because it affects public confidence, but because it's so serious, we have to look at it from every angle of integrity, including our normative systems that appear in our Criminal Code and our rule of law principles, which I appreciate you're studying today.

One of the critical rule of law principles, and I'm flipping it back, is saying that, if you seek to influence a prosecution, you had better be able to show lawful authority for your action. If your only basis of your lawful authority is a 1951 political convention that really doesn't even comport with our constitutional order in Canada, then I think we should be looking at that very carefully.

[Lisa Raitt]

Is that it?

[The Chair, Liberal, Anthony Housefather]

Yes, we're at six minutes.

Thank you so much.

We're now going to Mr. Ehsassi.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you, Mr. Chair.

I will turn everyone's attention to deferred prosecution agreements.

Ms. Berman, I understand that you've been practising in this area for many years. We heard from Mr. Jull that he's been an advocate of these agreements since four years ago. My understanding is that there has been a lot of chatter and discussion among leading Canadian experts on the need to have a DPP regime for many years now.

How long do you recall this discussion having been going on for?

[Wendy Berman]

I'd say the discussion about deferred prosecution agreements has been going on probably as long as I've been practising, and I'm going to decline to say how long that is.

[Some hon. members]

Oh, oh!

[Wendy Berman]

It's been a discussion for quite some time. Whether it's quasi-criminal, criminal or regulatory responsibility for corporations, it's been a discussion in all three spheres. Certainly it's come in faster in other spheres, and we've seen great result in terms of the objectives that I talked about before, and limited use of it in the appropriate circumstances.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you.

It's good to know that it wasn't a surreptitious development that was introduced last year. One of the members of the opposition on this committee said a while back that the government snuck it into the Budget Implementation Act and that there were no consultations held by Justice Canada.

Could you tell me if there was a consultation process in place in the fall of 2017?

[Wendy Berman]

Yes, there was. In fact, a number of people participated in that consultation and either put in written submissions or appeared at round table and other discussions.

I put in submissions in terms of the deferred prosecution agreement jointly with another law firm. I don't have the numbers offhand, but I believe they received close to 40 written submissions, and then there were a number of people who came and made oral submissions.

There was, in my view, a very broad consultation process around the implementation of deferred prosecution agreements, but 2017 wasn't the first time that it had been discussed with government officials, bringing in a deferred prosecution regime. It was the first time that I can recall a very formal process to consult stakeholders, defence counsel, prosecution and corporations, broad consultation.

[Ali Ehsassi, Liberal, Willowdale, ON]

According to the government itself, 70 submissions came in. There were 370 Canadians, industry associations, businesses and NGOs that took part in the exercise.

Mr. Jull, do you think that is sufficient consultation? Did you partake in that process?

[Kenneth Jull]

There are two parts to that question. As I say, I certainly advocated in my writing and my teaching, and I was part of a round table, but then I happily came here to Ottawa in the fall of 2016 to do an interchange with the Competition Bureau. At that time, I became a Department of Justice lawyer for two years, so I couldn't participate actively in that capacity.

With respect to the number of consultations, it's a hard, subjective question. I think this was important legislation. We can always have more study, of course, but there's an expression some people have, which is “analysis paralysis”. At some point, it's appropriate to move forward. I think this legislation was carefully drafted in that regard.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you for that.

It appears pretty straightforward to me that, given developments we heard about in other jurisdictions in the world, the government's attempt to adopt this legislation was really meant to level the playing field. I know, Ms. Berman, in your writing on this, you referred to this development five or six months ago as Canada playing catch-up. Could you elaborate on that for us, please?

[Wendy Berman]

As I said, we saw the U.S. being at the forefront for deferred prosecution agreements, non-prosecution agreements and no-contest settlements—a whole panoply of tools that prosecutors can use to resolve corporate misconduct. Canada never had it for pure criminal allegations and investigations against corporations. That's the catch-up.

The U.K. brought it in in 2013. Ours is largely modelled after that regime. What we were missing was.... We were not harmonized with other major economic players globally and it made it very difficult. The reality is that most corporations are global entities. They operate around the world. We weren't able, in many cases, to negotiate a global resolution because of the lack of that tool in the kit that other nation-states had. We certainly were playing catch-up, and we made it.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you.