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.
The Ontario Securities Commission (OSC) is also ramping up its white collar crime enforcement by increased use of Administrative Monetary Penalties (AMPs), trading bans, and disgorgement orders. This relatively new power of the OSC is not burdened with the presumption of innocence, due process, and Charter safeguards for the accused. Enter former Bay Street lawyer, Michael Finklestein and his alleged co-conspirators Korain Bobro, Howard Jeffrey Miller, and Francis Cheng, who were all brought before the OSC, rather than the courts, for an alleged insider trading and tipping scheme (PDF). After a hearing, they were given a total of $2,859,698.00 in AMPs, costs, and disgorgement Orders. Welcome to the new era of OSC enforcement.
In other white collar prosecutions, directors and officers are facing increased risk of conviction and spending serious time in jail. Mr. Kazenelson is awaiting sentencing after being convicted of five (5) criminal charges relating to the Christmas Eve quadruple fatality in Toronto when a high rise scaffold system failed, four men fell to their death and one was seriously injured. He could be sentenced to life imprisonment for his responsibility as the Project Superintendent on the Metron Construction project when disaster struck. Individuals have also been jailed for environmental contraventions, workers’ compensation fraud, and falsely representing the value of a company’s assets.
In this new era of white collar crime enforcement, companies large and small must be aware of the laws, the current enforcement priorities of government regulators, and be prepared to assert their Charter rights when being investigated. Corporate executives needs to know how to ensure their organizations can achieve compliance, conduct internal investigations when issues arise, and what steps to take to mitigate legal risk. Fasken Martineau’s White Collar Crime, Investigation & Compliance group can assist in all these areas; we have written the book on corporate crime, helped high profile clients avoid prosecution, acted in some of the longest criminal jury trials in Canadian history and recently kept a government engineer from testifying against our client as an expert at trial.[1] Our legal team also understands that many white collar crime matters involve public and business relations issues, and has unique experience in managing such matters.
[1] R. v. Advance Construction Techniques, unreported decision of Knazan J., May, 2015