Category Archives: !Jurisdiction

Criminal Negligence Causing Death: Crown Asking for 5 Years in Jail for Project Manager Charged in Metron Christmas Eve Swing Stage Collapse

The tragic saga of a quadruple fatality on a construction site on Christmas Eve 2009 has finally come to legal conclusion with the criminal conviction and sentencing of the project manager overseeing the project. On June 26, 2015, following a trial, Vadim Kazenelson (Mr. Kazenelson), the project manager overseeing the project for Metron Construction Company (Metron), was found guilty of five counts of criminal negligence in relation to the accident. Mr. Kazenelson has had sentencing submissions completed before the trial judge.

The Crown argued that a penitentiary sentence of 4 to 5 years was appropriate, and that the sentence should be at the upper range. The Defence argued that the appropriate sentence in this case was 12 months to 2 years of incarceration. The Defence argued that 4 years imprisonment overshoots the mark for deterrence purposes, and that there is a real risk of sentencing imbalance, given that imprisonment is a blunt instrument. At the conclusion of submissions, Justice MacDonnell commented that there is no sentencing precedent that could easily be applied to this case, and as a result, sentencing would require much more thought. Justice MacDonnell did note that it is common ground that incarceration should be imposed; the only question remaining is the length of incarceration. Justice MacDonnell adjourned the sentencing decision until January 11, 2016.

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How Canada’s New Debarment Policy Impacts Criminal Investigations

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 [1] 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.

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New era of White Collar Crime enforcement in Canada

Recent trends have seen legislative penalties increase, prosecutors cracking down, and more individuals going to jail.  We have entered a new era of white collar crime enforcement in Canada.

In mid-2013, the Corruption Foreign Public Officials Act (CFPOA) was amended by the Federal Government.  It introduced a “new books and records” offence, increased the maximum jail time to 14 years for individuals, and promised to phase out the legality of facilitation payments.  The Royal Canadian Mounted Police (RCMP) was assigned the exclusive jurisdiction over investigation and laying charges under the CFPOA and given an enhanced increase in their mandate to investigate and prosecute more corporations and individuals, which it is doing.

Following this, the RCMP prosecuted Nazir Karigar, a Canadian-Indian business man, under the CFPOA. At his lengthy trial it was never proven that he gave a bribe to an Air India (foreign) official, as alleged; the Crown did prove, to the court’s satisfaction, that he intended to pay a bribe to secure business with Air India for an American company. That was enough to convict and send him inside for 3 years.

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Enforcement activity by U.S. FCPA Regulators

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.

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