Diversion programs for those accused of criminal offences are not new in Canada. In Québec, for example, first-time individual accused or accused suffering from a psychiatric or medical condition may participate in a diversion program, which results in the criminal charges being dropped. Corporations may also benefit from diversion programs, such as the Competition Bureau’s Immunity and Leniency Programs.
Transparency International Canada (“TI Canada”), a non-governmental anti-corruption organization, released a report in July, 2017 “urging” the Canadian government to adopt a Deferred Prosecution Agreement (“DPA”) mechanism, modeled closely to the current regime in the U.K. A DPA is an agreement between the prosecutor and the accused suspending outstanding charges and requiring the accused to fulfill a certain number of commitments. Once the accused has completed its contractual undertakings, the prosecutor will drop the charges.
TI Canada’s Recommended DPA Mechanism
The proposed scheme, according to TI Canada, addresses all the pitfalls of the current DPA regime in the U.S., but retains all of the advantages, including encouraging greater enforcement and self-reporting, saving costs and resources for both parties, and promoting certainty and transparency for all stakeholders involved.
TI Canada recommends that the proposed DPA scheme only be available to corporate accused who are charged with economic crimes. The DPA scheme would be legislatively enacted and judicially monitored to fulfill the underlying three objectives of financial reparations, sincere compliance reform, and accountability of individual wrongdoers.
Below is a summary of the proposed regime.
On April 20, 2017, the Government of Canada introduced a new tool in the fight against federal fraud. The federal contracting fraud tip line is a joint initiative between the Competition Bureau, Public Services and Procurement Canada (PSPC) and the Royal Canadian Mounted Police (RCMP). It allows anyone who suspects unethical business practices in federal contracting, such as bid-rigging, price-fixing, bribery, undisclosed conflict of interest and fraudulent contract schemes, to report it anonymously. Individuals may report either by calling in to a toll-free number or by completing an online form. The information provided through the tip line will be shared with three federal organizations and will be used to help conduct investigations and to introduce due diligence measures, where warranted. Any suspected criminal activity that is uncovered as a result will be turned over to the Competition Bureau and/or the RCMP.
The tip line complements measures already in place at the Competition Bureau to detect fraud in the realm of federal contracting. The immunity and leniency programs are currently the most relied upon by the Competition Bureau to detect and investigate criminal offences under the Competition Act. Under these programs, individuals with evidence of criminal offenses under the Competition Act are given immunity or lenient treatment if they cooperate with the Competition Bureau and Crown in investigating and prosecuting others implicated in the illegal activity. However, the Competition Bureau has still encountered challenges over the years in securing convictions with the evidence obtained through these programs. The primary reason being insufficient resources and the lack of experience and training of Competition Bureau investigators.
This was evident in the 2014-2015 trial of several information technology companies and individuals charged with conspiracy and working together to obtain contracts with the federal government. The trial arose from charges laid following an investigation at the Competition Bureau and ultimately led to a defeat for the Competition Bureau, due to the weaknesses in the Crown’s case. At trial, it was shown that the Competition Bureau had relied almost exclusively on the testimony of self-interested people who were competing against the accused when making its referral of the case to the Director of Public Prosecutions. The Competition Bureau investigators had essentially taken the immunity and leniency reports of these individuals without independent investigation. The evidence at trial disclosed that the Bureau investigators in charge of the case, while seizing hundreds of thousands of documents from the suspect companies, failed to seek any significant material from the government agencies involved. The resulting, 8-month jury trial resulted in 60 not-guilty verdicts.
It will be interesting to see if the Competition Bureau, with its new Tip Line has learned from such cases and how it investigates future potential criminal offences under the Competition Act. By collaborating with RCMP officials, this hopefully marks the beginning of additional measures being implemented by the Competition Bureau to ensure that allegations of illegal conduct are investigated thoroughly and that only appropriate action is taken. It is not clear whether the Competition Bureau, PSPC or the RCMP will take the lead in investigations arising from tip line complaints. The addition of a combined task force, signals that the Competition Bureau is getting serious in its efforts to detect and investigate Anti-corruption crimes.
 “Government of Canada launches tip line to help Canadians report federal contracting fraud”
 “Report wrongdoing in government contracts and real property agreements”
The Quebec Superior Court recently released a decision with broad implications for corporate employers, owners, managers and supervisors across Canada. In R. c. Fournier, Justice Villemure held that an individual’s contravention of provincial health and safety legislation was an “unlawful act”, under section s. 222(5)(a) of the Criminal Code (“Code”) and therefore a basis for committal to trial under a criminal charge of manslaughter. This case involved the owner of a small construction company, who is now personally being charged with manslaughter arising from a workplace fatality. This is the first decision of its kind in Canada.
The decision must not only have been a shock for Mr. Fournier, the owner of a small construction firm, who had lost a worker in a tragic workplace accident, but also for criminal lawyers across Canada, since this is the first time this issue has been considered by the courts. It will be even more shocking for individuals, supervisors and employers, and others, bound to comply with provincial, strict liability health and safety laws. Since there were 852 workplace fatalities in Canada in 2015 – there were 852 potential opportunities for a contravention of health and safety laws to give rise to criminal manslaughter charges.
What Happened in this Case
According to the Superior Court’s decision the facts of the case include the following:
- Lévesque and Mr. Fournier were working together at a construction project replacing in-ground sewer and water main lines;
- The Quebec Safety Code was applicable to the excavation that was taking place;
- Fournier and Mr. Lévesque were both working in an excavation on the day of the fatality;
- The walls of the excavation were not shored, and dirt and other material removed from excavation was placed too close to the edge of the excavation;
- Lévesque died when the walls of the excavation collapsed. He was working alone at the time of the collapse.
Mr. Fournier was charged with two counts under the Code — criminal negligence for breach of the duty of persons directing work under section 217.1 thereby violating s. 220 of the Code, and manslaughter by unlawful act under section 222(5)(a) of the Code. There is no mention in the Superior Court decision about whether strict liability offences under the Quebec Safety Code were also laid against Mr. Fournier and what the outcome, if any of those charges were.
Following a preliminary inquiry, a judge committed Mr. Fournier to stand trial on both charges. Mr. Fournier challenged the committal to stand trial on the manslaughter charge.
Norm Keith, LL.M., partner at Fasken Martineau, will address this timely and important topic of the accountability, criminal enforcement and the social responsibility of corporations in Canada. Topics to be covered will include:
1. The “new normal” of criminalizing corporate behavior;
2. How the Westray Mine disaster changed corporate criminal liability;
3. The problem of proof in white collar prosecutions (Dunn & Duffy);
4. Recent examples of white collar convictions (Karigar & Kazenelson);
5. Will criminal prosecutions make businesses “more ethical”;
6. Towards a rationale model of corporate accountability and compliance.
Wednesday, March 22, 2017
Fasken Martineau, 333 Bay Street, 24th Floor, Bay Adelaide
>> Register Now – Space is limited <<
In R v Anthony-Cook, the Supreme Court in a unanimous judgement authored by Moldaver J. has settled the test to be applied where a judge is faced with a joint submission he or she has difficulty accepting. This case has important implications for accused and their counsel in negotiating a Plea bargain with the Crown in criminal and quasi-criminal, regulatory prosecutions.
Joint submissions are the culmination of the plea bargaining process in criminal cases. They are the result of discussions and negotiations, often with the assistance of a judge conducting pre-trial conference. The Crown inevitably focuses on the seriousness of the allegations and the harm to the alleged victims. The defence will focus on numerous considerations including mitigating factors, circumstances of the accused, evidentiary problems with the Crown’s case and remedial steps taken by the accused. Sometimes the negotiations involve consideration of what’s often referred to as a “rehabilitative remand” where the accused is given time to undergo a restorative justice program, make restitution, or initiate procedures to prevent the harm caused from reoccurring.