Justice committee  Yes, and can I sneak in my answer on that one?

Justice committee  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.

Justice committee  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.

Justice committee  All right. Thank you, Mr. Chair.

Justice committee  Okay.

Justice committee  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.

Justice committee  —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.

Justice committee  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.

Justice committee  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.

Justice committee  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.

Justice committee  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.