Despite internal safe guards and the best efforts of mining companies and their executives, criminal investigations can arise in relation to operations at home or abroad. How a company responds to a criminal investigation or to possible internal criminal misconduct, can have a serious legal and reputational impact, particularly since changes to Canadian law have made it easier for prosecutors to convict corporations and their officers of criminal wrongdoing. Today at Fasken Martineau’s PDAC 2016 seminar, Peter Mantas and Norm Keith of Fasken Martineau and Sandy Boucher of Grant Thornton discussed how proactive a mining company should be during the critical period after suspected criminal wrongdoing is discovered.
On December 10, 2015, SNC-Lavalin announced that it had signed the first-ever administrative agreement with the Government of Canada under the Integrity Regime.
The Integrity Regime, in effect since July 2015, bars companies and their related legal entities from bidding on government contracts if they are charged with or convicted of certain criminal or administrative charges. SNC-Lavalin is currently battling fraud and corruption charges filed in February, 2015 regarding three of its legal entities. This administrative agreement allows it to bid and win government contracts as it signifies the government’s satisfaction with SNC-Lavalin’s ethics and compliance programs.
SNC-Lavalin had to undertake and institute a comprehensive ethics and compliance program. Some of the measures it took include an antitrust and competition policy, a whistleblowing policy, a political contribution policy, appointing compliance officers in every business sector, and obligatory compliance training and certification for all employees.
This is a significant step towards addressing what many companies and legal advisors believe to be a harsh policy. Until now, the Integrity Regime allowed very little discretion to the government to create an alternative to debarment of the accused, pending a judicial decision on criminal charges. While on its face, the Integrity Regime remains rigid, in practice, it now appears that companies facing criminal charges or under investigation may have other options.
On July 3, 2015, the Government of Canada introduced a new and controversial procurement policy with serious repercussions should a company be charged with certain criminal offences.
The Department of Public Works and Government Services Canada’s (PWGSC) Ineligibility and Suspension Policy  states that if a person or company is charged criminally, they may be barred (also known as “debarment”) from doing business with the federal government for up to ten years.
For individuals and corporations who do, or want to do, business with the Canadian government, this policy is a game changer. Such companies must now consider if and how they can avoid being charged.
Many companies already take steps to avoid criminal prosecution. But in an increasingly complex business world, where companies have operations globally, the risk of running afoul of the law, both at home and abroad, cannot be eliminated. Recent changes to Canada’s Criminal Code, which have expanded who within a company can create criminal liability for a corporation, have increased this risk.
There were three FCPA enforcement actions brought or announced in August 2015.
BNY Mellon became the first – of what is expected to be several financial services companies – to pay millions ($14.8 million to be precise) in an SEC enforcement action based on its alleged internship practices. This flagged various issues to consider from the enforcement action including that it was the first SEC FCPA enforcement ever not to include allegations or findings of books and records violations. This recent BNY Mellon enforcement action highlight why the meaning of “foreign official” matters.