Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 44 - Evidence - May 24, 2018
OTTAWA, Thursday, May 24, 2018
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-74, An Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures, met this day at 10:34 a.m. to consider the subject matter of those elements contained in Divisions 15 and 20 of Part 6 of this bill.
Senator Serge Joyal (Chair) in the chair.
[Translation]
The Chair: Honourable senators, I am pleased to welcome you this morning along with others who are closely following the committee’s proceedings as we begin our consideration of certain provisions of Bill C-74, a bill implementing the budget provisions related to the Judges Act in particular, and certain provisions of the Criminal Code that are within the committee’s purview.
[English]
Senator Batters, you had a point that you wanted to raise?
Senator Batters: Yes, at the outset of this, because we’re now starting the study of this particular significant section of the budget implementation act. I was wondering when we can expect to hear the Minister of Justice. I thought perhaps she may be here this morning to kick off the study.
The Chair: As you know, normally our procedure is to have the minister responsible for the bill in front of us. We have, through the clerk of the committee, extended the invitation to the Minister of Justice. She has informed us that she was not available this morning, and we are trying to find an opportunity for her to appear next week when we will resume on Wednesday our discussion and study of Bill C-74.
Senator Batters: I bring up that point because I watched her on television this morning, on “Your Morning” on CTV, talking about the new Divorce Act provisions at 8:10 a.m. right before I walked to the Senate. She was in Ottawa at that point, so I’m not sure why she is not available. But thank you, because typically the procedure is, no minister, no bill. We’ll look forward to seeing her soon.
The Chair: Do any other senators wish to comment on this point before I move on? Thank you. I think the point has been noted.
[Translation]
Let us return to the main topic of our meeting this morning, the consideration of certain provisions in the budget that pertain to the Judges Act. This morning, we are pleased to welcome Marc A. Giroux, Commissioner, Officer of the Commissioner of Federal Judicial Affairs. Welcome, Mr. Giroux.
[English]
I’m sure you know what section of Bill C-74 pertains to the Judges Act. We will be listening to your presentation. I think all the senators have the information related to that very section of Bill C-74.
[Translation]
Mr. Giroux, we look forward to hearing what you have to say.
Marc A. Giroux, Commissioner, Office of the Commissioner of Federal Judicial Affairs: Thank you, Senator Joyal.
[English]
Thank you for having me this morning.
[Translation]
I am pleased to be here with you.
[English]
I was invited to speak to Bill C-74, the budget implementation act, and more particularly Division 15, which creates 47 new positions in the Superior Courts, namely to the Federal Court, the Superior Court of Ontario, the Court of Appeal of Saskatchewan, and also 39 pool positions, which I can speak to later if you wish.
I should start by giving a brief overview of my office, as I imagine some of you may not be familiar with our work. My office was created under the Judges Act. The commissioner acts as the deputy of the Minister of Justice to administer Part 1 of the act. The mission of our office is to safeguard judicial independence. To that end, we are independent from the Department of Justice.
We are also responsible under the act for providing services to the Canadian Judicial Council, which is comprised of 39 chief justices across the country, and we provide services in terms of personnel and office space, for example.
Finally, we may be delegated other duties by the Minister of Justice under the Judges Act. These are other duties that are related to the better administration of justice. It is under this provision that we administer the Supreme Court of Canada appointment process on behalf of the Prime Minister and the Minister of Justice. We serve the advisory board chaired by the Right Honourable Kim Campbell. It is also under this provision that we administer the judicial appointment process for all Superior Court appointments, keeping up the list of vacancies and administering the judicial advisory committees across the provinces.
[Translation]
I received a list of questions from your clerk, some of which actually fall under the responsibility of the Department of Justice. I understand that our colleagues from the department are here to answer some of those questions. For example, I should say at the outset that requests from the provinces for new judicial positions are evaluated by the Department of Justice, which evaluates the needs of the courts.
I have been asked to talk about the resources of my office, essentially in order to address the creation of new positions and the subsequent appointment of judges. In this regard, I would say first that our office is very small. We have 70 employees who serve in various roles.
While my office had a constant mandate in the past, we have been entrusted with many new responsibilities in recent years. That is why we have begun consultations with Treasury Board and the Department of Justice officials to ensure that we can fulfill the new responsibilities assigned to us.
[English]
Treasury Board officials and the minister’s office are very receptive and aware of the new responsibilities that we have. We are working very collaboratively in identifying the proper resources for taking on those new challenges.
These new challenges include not only responding to the creation of new positions found in the budget implementation act, but it includes other responsibilities. I’ll simply name a few: We play a more important role, as I said, in the administration of the Supreme Court of Canada appointment process; we have increased responsibilities in the appointment process for Superior Courts, which was revised a year and a half ago; we have a new role for serving Federal Court prothonotaries and seeing to the appointment process for those; we are implementing the government action plan on official languages in terms of what it implies for the judicial appointment process; further to private member’s Bill C-337, we are preparing a tool for training in the area of sexual assault law for candidates who apply to become judges; and last but certainly not least, we are preparing for Bill C-58 and the new requirement imposed in that bill upon the commissioner to publish judges’ expenses.
This bill does raise significant substantive and administrative challenges. For example, there are 1,160 federally appointed judges across the country. We receive about 20,000 claims a year from them, and we have to determine how to publish the information in an organized manner. Perhaps more importantly, the bill includes an exemption for judicial independence. In essence, if the publication of an expense shall compromise judicial independence, then we shall not publish it. We have to come up with a clear way of addressing that. We are speaking to judges. I have created an advisory board as well, made up of various people, not only judges, but for example, the Privacy Commissioner, to have varying viewpoints on the matter and to guide us in how we shall take on the challenge of addressing the publication of judges’ expenses. The objective is to strike the right balance between complying with the act and ensuring proper respect for judicial independence and the privacy of judges.
[Translation]
In closing, it is not only owing to the creation of new positions pursuant to Bill C-74 that our office will have to increase its resources; in fact, it is because of all the new initiatives we have undertaken that we are already in discussions with Treasury Board.
The Chair: Thank you very much, Mr. Giroux.
[English]
I have no doubt your presentation will trigger many questions from senators.
[Translation]
Senator Boisvenu: Thank you, Mr. Giroux, for being here with us. First of all, like Senator Batters, I lament the fact that the minister is not here this morning. We learned at the steering committee this morning that she will be absent all week. Yet, she will be addressing the other chamber this afternoon. It is incomprehensible to me that she is not here to answer questions about such an important bill. I hope she will be here next week. Otherwise, we will have to suspend our work until she can appear before the committee.
Last year, we considered the issue of judicial positions in relation to Bill C-44. I am trying to understand your position. Perhaps this is something that I should ask the minister, since it is a more political question. Quebec has been calling for the appointment of additional judges for years. In the bill, you identified a predetermined number of judges for Ontario and Saskatchewan. That privilege was not extended to Quebec, however. We will have to continue drawing on the pool of judges in Canada to replace retiring judges. Should the bill not stipulate a predetermined number of judges so that Quebec does not have to keep begging the federal government for judges, especially considering the excessive delays in Quebec’s justice system, which is the worst one in Canada? I do not understand why you did not use this opportunity to address this matter in the bill before us.
Mr. Giroux: Thank you, senator. I am fully aware of the situation in Quebec. That falls under the responsibility of my colleagues from the Department of Justice. As I said earlier, the requests from the provinces and the needs of the court are evaluated by the Department of Justice, a section of which is responsible for policies pertaining to the judiciary. I know my colleagues will be able to provide further details.
Senator Boisvenu: As commissioner of judicial affairs, what influence do you have to get the minister to stipulate a predetermined number of judges for Quebec in the act, once and for all?
Mr. Giroux: There is a specialized group of officials at the Department of Justice that could answer that. Once the judges have been appointed and the positions have been created, it becomes our responsibility, but her department is responsible for making appointments.
Senator Boisvenu: Thank you. We will wait for the minister to appear before the committee.
The Chair: We will be hearing from Department of Justice officials this morning.
Senator Dupuis: Thank you for being here, Mr. Giroux. Do you have any comments on this part of the bill, other than that you have just 70 employees, new responsibilities, and need additional resources? What about the content, the management involved, the teams responsible for unified family courts?
Mr. Giroux: Other than the additional resources and meeting the demand for new judges once they are appointed, the departmental officials who developed the bill could answer your question.
Senator Dupuis: Do you not have specific responsibilities for the management of judicial positions for Saskatchewan’s Superior Court as regards the unified family court?
Mr. Giroux: I wish I could provide a more gracious answer, but it is not up to me to determine which court needs more resources.
Senator Dupuis: Does the management of those positions involve certain responsibilities for you, whether for Superior Court judges or unified family court judges, or their assignment to that type of court?
Mr. Giroux: No. There might be a bit more work with the appointment of new judges, but there is really no difference otherwise.
Senator Dupuis: In your annual report, is there a table showing the exact number of positions that you manage? Do you have any information about the management roles assigned to you?
Mr. Giroux: On our website, there is an item that shows the number of sitting judges in each province, the number of vacant positions, the number of supernumeraries, and the number of women judges. You will also find a lot of statistics on the number of requests made and a table showing whether people belong to a visible minority, for instance, or if they are men or women. There is more information there.
Senator Dupuis: Is there also information about the 39 unified family court judge positions? Where can we find information about the unified family court initiative? I understand that four provinces have requested access to that initiative. Can we have more information about that? Is it available?
Mr. Giroux: I am trying to remember if there is something on our website. I would refer instead to section 24 of the act, which provides for a pool of judges who can be assigned to the Superior Courts, the trial division, the appeal courts, or to the unified family court. I am not sure if our website indicates the exact number of those positions or of positions that will be allocated. I could check and get back to you though.
Senator Carignan: My question pertains to the pool of judges. How will they be distributed among the provinces? The pool does not appear to address other concerns, as to the unified family courts in particular. I would also like to know when it ends. The assignments appear to be temporary. Judges do not change courts until a judge retires or until the needs are determined. What will the mechanism be?
Mr. Giroux: The previous sections of the Judges Act establish the number of judges per court in each province. The number of positions indicated in the Judges Act must be considered together with the relevant legislation in each province, and with the Courts of Justice Act in Quebec. We have to make sure that the number of judges is at least equivalent or that the provincial act establishes a higher number of positions for a specific court.
Over and above the positions allocated to each provincial court in the Judges Act, section 24 provides that the minister may decide, from time to time, to assign a position to the court of appeal, the Superior Court or the unified family court to address the needs of a specific court.
At present, I think there are two remaining positions in the pool for appeal courts and six for Superior Courts. Before Bill C-74, I do not think there were any for the unified family court, but perhaps my colleague will correct me. When an act such as Bill C-74 orders the creation of new positions in the pool, such as for the unified family courts, the 39 positions remain until the minister makes a determination, with her department’s help, as to needs of a specific court, namely, how many positions will be assigned to one court and how many to another. The minister has a team that evaluates these positions.
Once a position has been assigned to a province or a specific court, the province retains that position. If for example Bill C-74 is passed and 39 unified family court positions are created, and Ontario requests a number of those positions, the Department of Justice will evaluate that request. It will make a recommendation to the minister, who in turn will determine how many positions should be assigned to Ontario. When the appointed judge retires, a position is vacated and remains with that court.
I am trying to explain this provision is the simplest terms possible. I hope I have been clear. That is essentially how the mechanism works for the positions. The department evaluates the court’s needs.
Senator Carignan: So it is not temporary. Once a position has been assigned, even after the judge retires, a replacement will be assigned. So, the assignments are based on current needs, but not necessarily on what will be needed in five or 10 years.
This creates an acquired right, however, which can affect the volume. For example, the volume of Prince Edward Island’s court of appeal is not the same as that of Quebec’s court of appeal. There is no mechanism that would direct those judges to take the overflow of another court. They are not part of a pool whereby they could be moved around from province to province, depending on the volume in a province, to meet an ad hoc need.
Mr. Giroux: That is right. Once a judge is appointed in New Brunswick, for instance, to the trial court, they might be an ex officio member of the court of appeal, but they will serve in New Brunswick only. There is just one exception. In the territories, there are deputy judges because the number of judges is very limited. Conflicts can arise. For example, a judge might face a conflict as to hearing a case. Under the law, it is possible to be a judge in New Brunswick and a deputy judge in Nunavut. If there is a need in Nunavut, the judge might ask the chief judge to go there to hear a case. Those are the only jurisdictions where this occurs.
The idea has been discussed in the past, that is, borrowing a judge from another court to hear a case in another jurisdiction. That is not done at this time.
Senator McIntyre: Thank you for your presentation, Mr. Giroux. New Brunswick, Nova Scotia, Ontario and Manitoba currently have unified family courts. Why do only certain provinces have that type of court? What are the pros and cons or those courts?
Mr. Giroux: I know which provinces have unified family courts. I think my colleague from the Department of Justice would be in a better position to explain that. My understanding is that a need was identified in certain provinces to deal with family law cases, a need for this kind of special court to lighten the load on the provincial court or the Superior Court and to have judges assigned accordingly. I believe there is a unified family court in Ottawa, for instance. A provincial court judge does not hear family law cases in Ottawa. In another part of Ontario where there is no unified family court, the work would be divided up according to the respective responsibilities of the provincial court and the Superior Court. Beyond that, I do not have any expertise in that area, unfortunately.
Senator McIntyre: Similarly, do the provinces that have these courts have the benefit of more federally-appointed judges?
Mr. Giroux: I would say not. The needs are still assessed by the departmental team. It is my understanding that they are responsible for the administrative management of the court to determine whether a unified family court would be a more effective way of managing the case load.
Senator McIntyre: I have one last question. I understand that the proposal is to create an additional 39 judge positions for unified family courts, and that this proposal would not take effect until April 1, 2019. Is that correct?
Mr. Giroux: That is my understanding of the bill.
Senator McIntyre: That seems to be an unreasonable delay, given the shortage of judges and need for judges across the country.
Mr. Giroux: My apologies, senator, but I was not involved in developing the bill. I am not really able to answer.
Senator McIntyre: The minister could answer that question.
Mr. Giroux: And my colleagues from the department might be able to provide further information later on as well.
Senator Eaton: Mr. Giroux, thank you for being here today.
[English]
I was not on this committee at the time. I’m a new member, but they issued a report last year talking about the shortage of judges. It seems that the shortage has just increased since last year. There are now 13 vacancies in federally appointed courts. Unified family court judges — yes. So could you tell me why there are so many vacancies? As you know, judges retire at 75. You know they will start working part-time at 70. Do you not have a list of people you can pull on or look at?
Mr. Giroux: Again, I don’t know if I’ll get in more trouble with this committee or with the minister by saying this is the minister’s purview, but I can speak somewhat to appointments.
The government initiated a new process for Superior Court appointments in October 2016 whereby all previous candidates had to reapply for appointment — filling out a new form, providing more information — and this process, I think, has been viewed as more helpful for the government to make appointments and has been received well.
Since then, there have been many appointments, and since the government came into power, one year before then, just to give you some numbers, there have been 225 appointments to the Superior Courts, which is in itself a lot considering that the average in previous years has been in the area of 50 appointments.
That being said, there are 59 vacancies at the current time, and I do understand that the minister is working hard to make those appointments. That’s the extent to which I can comment on that question.
Senator Eaton: No, I was hoping if there were practical impediments where you could say, this has stopped us or this is a challenge.
Mr. Giroux: The only comment I would make is that since moving to a new revised process, because people had to reapply for the bench, the number of applications received after October 2016 took a little bit of time coming in. I must tell you that when they did come in, they came in at a very high volume, and since then a lot of progress has been made in making appointments. However, there remains 59 vacancies.
Senator Eaton: I’ll just make a comment. Most law firms now insist that their partners retire at 65, so there must be a lot of unemployed senior partners probably looking for a nice way to end their careers.
Since the Jordan decision, which has given you a timeline to come in, have the judges vacancies impacted the number of people who have had their charges dropped because of the timeline?
Mr. Giroux: I can’t speak to the legal consequences of Jordan. I can speak to the impact it has had on appointments and the pressure to make more appointments. I think that there were indeed a lot of appointments since the Jordan decision. As to the practical consequences, that would not be in my purview.
Senator Eaton: So you don’t know how many applications for stay of proceedings due to unreasonable delays there have been and how many have been successful?
Mr. Giroux: That I wouldn’t know.
Senator Eaton: Thank you.
Senator Batters: Thank you for being here, Mr. Giroux. I have a few questions for you.
First of all, I’m from the province of Saskatchewan. I have a particular interest as to why, in this particular bill, the number of judges on the Saskatchewan Court of Appeal is being raised from six to seven. I’m wondering how that compares, now with the court of seven in the Saskatchewan Court of Appeal after this act is passed, to Courts of Appeal in comparably sized provinces?
Mr. Giroux: Again, senator, the request would have been made from the province to the minister and would have been analyzed in detail by the minister’s department. Before this number being increased in the bill, there would have been a solid business case made to the minister’s officials to make that determination. Again, I apologize.
Senator Batters: Could you answer concerning comparable-sized provinces and how many judges sit on the Court of Appeal in comparably sized provinces? For example, the province of Manitoba or some of the Maritime provinces?
Mr. Giroux: It varies from one province to another.
Senator Batters: How many people sit on the Manitoba Court of Appeal?
Mr. Giroux: I don’t have an exact number with me.
Senator Batters: Could you give us those numbers?
Mr. Giroux: Sure.
Senator Batters: Thank you. Maybe for all the provinces in Canada; it would be helpful if we had that.
I think it was in last year’s budget that the Government of Canada announced the creation of a certain number of additional judicial positions across Canada. How many was that? This long after that — it has now been more than a year since that announcement was made — how many of those particular new positions continue to be vacant? Is that number included in the 59 vacancies you just referenced, or is that in addition to it?
Mr. Giroux: I understand under Bill C-44, the budget implementation act of 2017, there were 11 positions allocated to the Alberta Court of Queen’s Bench, 1 to the Yukon court and 3 to the pool positions for Courts of Appeal across the country, as well as 12 for Superior Court pool positions, or trial instance positions.
Now, the number of how many have been allocated is more difficult to ascertain. In Alberta, I can tell you that about six of these positions have been filled, and a few of them remain vacant. I believe that the position in Yukon was filled. As to the pool positions for the Court of Appeal, there were three and two of them remain, and of the Superior Court pool positions, six of those remain.
Senator Batters: So it looks like 27 new positions in total that were arising from that. Of the ones that you were running down right now, it sounds like 15 of those might be filled now. Is that correct?
Mr. Giroux: Yes, there were 27 positions filled. I’m sorry, there were 27 positions created. But I should say that in terms of filling positions, the minister will usually fill the vacancy that is most long-standing. These ones are relatively new, or not, depending on the province. I can’t speak to what the situation was in Alberta, for example, before the adoption of this bill, whether there were a lot of unfilled vacancies or not. I guess what I’m trying to say is that even if some of these have not been filled, it doesn’t mean others weren’t filled in those courts.
Senator Batters: Yes. For those 12 remaining positions that were created last year but not yet filled, are those included within the 59 vacancies or is that in addition to it?
Mr. Giroux: Yes, they would be included.
Senator Batters: You’re certain about that?
Mr. Giroux: I’ll have to check, but I’m pretty sure they are.
Senator Batters: Thank you.
Then you referenced in your opening statement Bill C-337. That’s a bill that was passed unanimously in the House of Commons, and it’s currently at second reading in the Senate, awaiting study. You spoke about how you’re preparing for the sexual assault training for would-be judges, and I’d like you to tell us about the preparation for that important training that you’re currently undertaking.
Mr. Giroux: I won’t take too much time. I appeared twice before the Status of Women Committee in the House of Commons to say that I certainly supported the idea behind the bill, but the mechanism found in the bill did raise some concerns. People had to have received comprehensive training in the area of sexual assault law before having been appointed. The concerns that I raised were twofold. One, I wanted to make sure that people received proper training, and there was not a lot of time to do that.
Senator Batters: Sorry, before the chair cuts me off, I wanted you to go right to what preparation you’re doing, as you referenced in your opening statement, rather than talk about the merits of it.
Mr. Giroux: My other concern, because it does impact the training I want to speak to, was that I wanted to make sure that the training would not unduly stall the appointment process. In light of those concerns and in light of the bill having been appointed at the house, because there’s no coming into effect date of this training, which meant for me that if the bill were adopted very quickly, the training would have to be applicable right away, we have contracted with the National Judicial Institute, which you probably know well, which provides training to judges specialized in this area. We have consulted with various sexual assault support organizations, as well as survivors, to get their input as to how we could best do that. It’s tricky, as I said, because the time for doing so is very limited. We have come up with a tool that we continue to work on as the bill has not yet been adopted. We continue to work on it to ensure that it is as comprehensive as possible, that candidates will not only take up training but they would be tested in order to ensure that they have received the training and would have to pass a certain mark. To respond to your question in a nutshell, we’ve thought carefully about how to do that. I think we’re coming with the most useful tool in the conditions that are given to us.
Senator Batters: Thank you.
[Translation]
Senator Carignan: Have you considered the possibility of appointing ad hoc judges, as they do in England, to help with an overload of cases and perhaps obviate the need for a pool whereby positions remain in a jurisdiction once they are created, even if they are not needed? That would involve appointing ad hoc judges, prominent lawyers in a field, for instance, who could serve for a certain period of time. Have you considered that approach?
Mr. Giroux: I know some people have raised similar issues, people within the judiciary. This would have to be studied by the departmental unit that is responsible for judicial policies and would of course lead to an amendment to the Judges Act. Given the delays, the situation in certain provinces, and the decision in Jordan, my role in the discussion would be to answer any questions I am asked and to comment where appropriate, but the Department of Justice would be responsible for the work or deciding on the approach in terms of related amendments to the act.
Senator Carignan: Thank you.
[English]
The Chair: Before I have the pleasure of thanking you, Mr. Giroux, I have two questions to address to you. The first is in relation to the report that this committee released a year and a half ago — Delaying Justice is Denying Justice. I’m sure you are aware of the second priority recommendation, which deals with the appointment of judges. I would like to read it to you and get your reaction to it. I’ll read it in French:
[Translation]
The committee recommends that Superior Court judges be appointed on the day of a known retirement of a judge and the only exceptions to this immediate replacement would be an unexpected death or unexpected early retirement of a sitting judge.
[English]
My question to you is why the system is not able to plan for better replacement of judges. We know they will retire at a specific time. For instance, in the Senate, because we have compulsory retirement at 75, we know how many senators will retire this year, and how many next year, and how many the following year. It seems that the system is not able to manage a very simple fact of retirement on a specific date, although we know that ahead of time. Why is the system not able to better plan its fulfillment of judges, making them available the date they need to be on the bench?
[Translation]
Mr. Giroux: My office is involved in this to the extent that it prepares a list of vacant positions for the minister, and indicates the date upon which a position will become vacant. The minister has staff to conduct consultations and make recommendations for the appointments. In an ideal world, appointments would of course be made immediately. Since I have done this type of work in the past, I can tell you that there are cases where a court may indicate that a position does not need to be filled immediately because the chief justice, for instance, indicates that the need is not urgent. This may change, however, given the Jordan decision.
There are situations where a court might have a specific need in a specific legal area after the departure of a judge that had that competency, and where the pool of candidates does not meet those requirements. Of course, in the larger provinces, there is a larger pool of candidates, but the situation is different in the smaller provinces. I feel I am not directly answering your question, senator.
[English]
The Chair: As we say in French, you are circling around.
[Translation]
Mr. Giroux: In an ideal world, positions would be filled immediately, but it is not abnormal that there are a certain number of empty judicial positions in the country at any given time.
[English]
The Chair: I agree with you, but if I look at the statistics that are available on your site, since May 2016, which is two years ago, there were 45 vacancies, and now we have 59 vacancies. During those two years, the number has changed from 57, 62, 62, 53, 57, 54, 63. It seems there is a backlog, a clog of around 55 to 62 vacancies, and that the system has not been able to catch up in the last two years. What is the explanation for that? Is it the fact that the recruitment system is not working? Is it the fact that there’s a lack of political will to make the appointments? Why is it that for the last two years we have been faced with a need to fill, as I say, between 50 and 60 judges’ positions that are now unfilled? Of course with the Jordan decision, as you know, the system has to show that it is effective; otherwise the rights are denied. This seems to be a very serious situation that the system should be able to explain and have the capacity to address. Now we see that we trail with 50 or so vacancies for two years and we don’t see the light at the end of the tunnel. Nobody around this table has the assurance of when those 50 or 60 positions will be filled for the years to come?
[Translation]
Mr. Giroux: I can answer regarding my office’s jurisdiction and our work regarding appointments.
Since the implementation of the new process in October 2016, we sat on a large number of advisory committees in every province. There were 87 meetings throughout the country. We received 1,151 requests and 909 have been evaluated to date. When the new process was first implemented and our office received a large number of requests, the advisory committees were created. Emergency meetings were held and we examined the backlogs that affected nominations. In most provinces we have caught up with the backlogs, except for a certain number of committees where there are more requests, particularly in the more populous provinces such as Ontario, Quebec and Alberta. In most cases, the system works and the nominations are assessed on time, but there remain some vacant positions to be filled. And on that point, I am not in a position to answer you.
[English]
The Chair: But you cannot tell us how many candidates have been qualified by you and are waiting for a decision to be appointed by the government?
[Translation]
Mr. Giroux: Among the nominations that are assessed, approximately half come recommended or highly recommended, and the other half do not. On average, from 400 to 500 nominations were evaluated. Of course not all of the people who are appointed were recommended or highly recommended, but that is the type of pool at our disposal currently.
[English]
The Chair: In other words, the candidates are available?
[Translation]
Mr. Giroux: Yes. In some provinces, particularly the smallest ones, there are fewer requests and the pool of candidates is smaller. Sometimes we need candidates who have certain specialized legal skills or language skills. It also happens that judges come from the same region. We have to strike a certain balance. We sometimes need other candidates to meet certain specific needs.
Senator Boisvenu: I want to remind you, Mr. Giroux, that it is in the small provinces that the timeframes are the most respected with regard to the Jordan decision. In the more populous provinces, the delays are longer.
I am calling on you to intervene with the Minister of Justice. A month ago, Quebec suspended 400 cases and stayed proceedings on close to 2,000 cases over three years. And who pays the price for this? The victims do.
I am calling on you to use your skills to make this minister aware that she is delaying the settlement of the problem in Quebec. She is part of the solution, just like the Quebec Minister of Justice. She is completely deaf. I’ve looked at judicial appointments in Canada over the last six months. In Quebec, appointments are made at a trickle, whereas the situation has been settled in several other anglophone provinces in Canada.
I am asking you to make the minister aware of the problem in Quebec. It is crucial that it be solved so as to protect the rights of victims to have access to a fair and equitable process. Fifty per cent of the victims of sexual assaults abandon legal action because of undue delays. That is unacceptable in Canada. I am asking you to please appeal to the minister, to ask her to wake up and shoulder her responsibilities.
[English]
The Chair: If there are no other interventions, no other questions, thank you very much, Mr. Giroux, for having made yourself available.
[Translation]
We very much appreciated your contribution to our reflection and our work. Thank you, and until next time.
Mr. Giroux: Thank you very much.
The Chair: We are going to proceed with the second part of today’s meeting. I am going to ask our clerk to identify our next witnesses, from the Department of Justice and the Royal Canadian Mounted Police.
From the Department of Justice, we welcome Ms. Catherine McKinnon, Senior Counsel, Public Law and Legislative Services Sector, Judicial Affairs, Courts and Tribunal Policy. We also welcome Ms. Ann Sheppard, Senior Counsel, Policy Sector, Criminal Law Policy Section.
[English]
Good morning, Ms. Sheppard and Ms. McKinnon.
We will also have witnesses from the RCMP.
[Translation]
We welcome Ms. Joanne Crampton, Assistant Commissioner, Federal Policing Criminal Operations, and Inspector Gordon Aristotle, Financial Crime, Federal Policing Criminal Operations.
[English]
Welcome, commissioner and Mr. Aristotle.
I know all of you are familiar with the procedure. Some of you have already appeared at this table, and we’re happy to welcome you back. We will invite you to make your opening statements, and after that there will be a free exchange of ideas and questions with the honourable senators attending this morning.
Catherine McKinnon, Senior Counsel, Public Law and Legislative Services Sector, Judicial Affairs, Courts and Tribunal Policy, Department of Justice Canada: Thank you for providing us with the opportunity to speak to Part 6, Division 15 of the bill, which contains amendments to the Judges Act and the Federal Courts Act to create new judicial positions to the provincial Superior Courts and the Federal Court.
Before speaking more specifically to those proposed amendments, I would like to provide a bit of context in relation to the process that is followed in assessing requests for more judges from the provinces and territories.
The Judicial Affairs Section, of which I am a member, supports the Minister of Justice in responding to requests for more Superior Court judges. When requests come to us, we work closely with officials in the requesting province or territory to develop a thorough understanding of the court’s workload. In particular, we focus on how the courts are dealing with the workloads before them, and we’ll look at case backlogs, delays and factors such as wait times in scheduling trials and other matters and the age profiles of inventories.
In addition to these types of workload indicators, we’re also interested in more qualitative factors, such as the extent to which demographic, geographic or social conditions may impact the court’s ability to manage its workload. By way of example, geography can be a significant consideration, as additional judge time may be required for the court to travel on circuit to remote areas.
The needs and demands of each province and territory can be very different. For this reason, we don’t make broad comparisons as between provinces and territories on the basis of metrics such as judges per capita.
Once the province or territory has completed its business case, we provide our confidential advice to the Minister of Justice as to how many additional judges it appears the court requires to effectively manage its workload. This informs the minister’s decision as to whether to seek cabinet approval for new judicial positions.
In terms of the specific requests, the current amendments proposed in clauses 298 and 299 are responsive to requests for more judges from the Ontario Superior Court of Justice and the Saskatchewan Court of Appeal.
Ontario requested additional judges for its Superior Court to better manage increased caseloads and demands. In particular, the court has been facing increasing pressures in its criminal workloads and, as judges have been diverted to deal with those criminal matters within mandated time frames, there have been substantial increases in the pending civil and family caseloads.
For its part, the Saskatchewan Court of Appeal is facing increasing caseloads in both civil and criminal appeals, increased complexity of matters and growing criminal appeal wait times.
The six new judicial positions for the Ontario Superior Court of Justice and one for the Saskatchewan Court of Appeal will assist the courts in responding to these pressures and in dealing with their caseloads in a more timely manner. The funding for these new judges is effective immediately so that appointments can be made if and when the necessary legislative amendments have been made.
As you know, the proposed amendments would also create 39 new judicial positions for unified family courts, or UFCs, across Canada. The UFC model is designed to enhance access to the family justice system by consolidating jurisdiction over all family law matters in a single level of court. It provides a corps of specialized judges, promotes simplified procedures and offers a full range of family justice and community support services.
The UFC model is currently found in some Canadian provinces, namely Saskatchewan, Manitoba, Ontario, New Brunswick, Nova Scotia, P.E.I., and Newfoundland and Labrador. As you have observed, it’s not in all of them. It’s for each province and territory to determine what court structure best meets their needs. Provinces and territories pay the administrative costs associated with the UFC, while the federal government appoints and pays the UFC judges.
All provinces and territories were invited to express their interest in participating in this UFC initiative. Ultimately, four provinces — Alberta, Ontario, Nova Scotia, and Newfoundland and Labrador — submitted detailed proposals to support their request for UFC judges. These proposals included information on the family law caseloads that arise in the proposed UFC sites, the number of judges currently handling family law matters, and the range of support services and dispute resolution mechanisms that would be offered in association with the UFC. These details informed the Budget 2018 decision to approve funding for the 39 new UFC positions.
The amendment to subsection 24(4) of the Judges Act, as you have been discussing, authorizes a pool of UFC judicial positions that can be allocated to any UFC in Canada. The provision does not speak to the specific allocation among the interested provinces and territories. However, based on the information contained in the business cases, the 39 new positions are intended to support the introduction of the UFC model in key sites in Alberta, the next expansion of UFCs in Ontario and completion of the model province-wide in Nova Scotia and Newfoundland and Labrador.
The funding for the UFC positions is effective as of April 1, 2019. The bill includes a coming-into-force provision in clause 309 to this effect so that judicial appointments to the new UFC positions would be authorized after this date.
The intervening period will allow time for the necessary steps to be taken to implement the UFC in the new sites. The minister will be working to make these appointments as quickly as possible, with the full support of her staff, who are already taking steps to support an expeditious selection process.
I’ll speak briefly to the amendments related to the Federal Court, which would authorize the salaries for a new Associate Chief Justice position and one new puisne judge for the Federal Court and create these judicial positions in the Federal Courts Act.
A new Associate Chief Justice would share the managerial and leadership responsibilities that are currently borne by the Chief Justice of the Federal Court alone, and factors that would have supported the need for the new Associate Chief Justice include increasing workload volumes and case complexity that have raised the associated administrative responsibilities, changes to the body of federal law over which the Federal Court has jurisdiction and the expansion of extrajudicial responsibilities. Adding a new Associate Chief Justice to the Federal Court will also allow the Chief Justice to devote more time to hearing cases and writing judgments, which are important components of providing effective leadership to the court.
The position is being created through the conversion of a puisne judicial office into the Associate Chief Justice office. At the same time, an additional judge is being added to the Federal Court, and this is to address projected increases in workload, particularly in relation to immigration matters.
That concludes my opening remarks. I would be happy to take questions.
The Chair: Thank you very much.
Joanne Crampton, Assistant Commissioner, Federal Policing Criminal Operations, Royal Canadian Mounted Police: Good morning, Mr. Chair and honourable members of the committee.
[Translation]
I thank you for having given me the opportunity to speak to you today about the role the Royal Canadian Mounted Police plays in protecting Canada’s economic security.
[English]
The RCMP has a mandated responsibility to investigate serious and organized crime, financial crime and criminal activity related to national security. These sorts of crimes threaten the safety and security of Canadians and put the integrity of our economy at risk. Consequently, the RCMP has made economic integrity a national strategic priority. Our goal is to prevent, detect and deter crimes that affect our Canadian economy.
From money laundering, fraud, and proceeds of crime to corruption, the RCMP investigates financial crimes that pose the greatest risk to Canada, its institutions and its citizens. An example of the way we investigate is through units such as Integrated Market Enforcement Teams, or IMETS. The IMETs are a partnership between the RCMP, the Public Prosecution Service of Canada, Justice Canada, Finance Canada and provincial and municipal police. Our IMET teams in Toronto, Montreal, Vancouver and Calgary are responsible for investigating market manipulations, insider trading and security frauds that are of a regional or national significance and threaten investor confidence or economic stability in Canada.
Every year, the RCMP pursues an average of 10 major Corruption of Foreign Public Officials Act investigations, including the provision of assistance to international investigations that have a Canadian nexus. Under this act, the RCMP is the only law enforcement agency mandated to investigate foreign officials suspected of undertaking criminal activities in Canada.
In summary, the role of the RCMP in investigating serious financial crime means that we play a key role in Canada’s economic integrity regime.
The addition of a remediation agreement regime applicable to a broad range of serious financial crime will call upon the RCMP’s investigative capacity. The remediation agreement regime is expected to increase the occurrences of self-reporting of corporate wrongdoing but may also simplify the process of collecting information for these types of investigations.
The RCMP is supportive of the new regime as a means of increasing the tools available to Canada to prevent and address corporate wrongdoing and will be assessing its capacity to support the new regime as it is developed and put into practice.
Thank you very much for your time. I would be happy to take any questions you may have.
The Chair: I understand that Ms. Sheppard wants to add to those sections of Bill C-74 that are under consideration here.
Ann Sheppard, Senior Counsel, Policy Sector, Criminal Law Policy Section, Department of Justice Canada: Thank you very much for inviting me here today. The committee has asked that I give some background to the proposed remediation agreement regime and outline some of its key features.
Stemming from its concern about the impact of corporate wrongdoing on market integrity, economic growth and public and investor confidence, the government launched a public consultation last fall, from September 25 to December 8, on expanding Canada’s tool kit to address corporate wrongdoing.
The consultation sought stakeholders’ views on potential enhancements to the integrity regime, which governs eligibility for procurement with the Government of Canada, and also on deferred prosecution agreements, or DPAs, as a potential additional tool for prosecutors to use to address corporate criminal wrongdoing.
During the course of the consultation, feedback was obtained from a wide range of justice, business and civil society stakeholders. A total of 75 online submissions were received, of which 45 addressed DPAs, and approximately 40 meetings were held with over 370 participants across Canada, the majority of whom advocated in favour of adopting DPAs.
Following up on the government’s Budget 2018 commitment, Division 20 of Part 16 of Bill C-74 contains proposals which, if passed, would amend the Criminal Code to include a made-in-Canada DPA regime to be known as a remediation agreement regime.
A remediation agreement would be an additional tool that could be used by a prosecutor in his or her discretion in appropriate circumstances. It would be an agreement between a prosecutor and a legal person or an organization that is charged with an offence set out in a schedule to a new Part 22.1 of the Criminal Code. The offences in the schedule include Criminal Code fraud and bribery offences, and Corruption of Foreign Public Officials Act offences, as my colleague has mentioned, such as the bribery of a foreign public official, so it is in the class being serious economic crimes. If the accused complied with the terms of the agreement, charges would be stayed upon its completion, but if not, the prosecution could be resumed.
The features of the proposed regime are informed by the results of the consultation and comparative analysis of, in particular, the U.S. policy-based DPA regime, the U.K. DPA consultation and experience to date with its 2013 statutory regime, and the results of the Australia’s DPA consultation. They have legislation in Parliament now.
The proposed regime includes a set of objectives. These include denouncing wrongdoing; holding the accused to account through effective, proportionate and dissuasive penalties; promoting a culture of compliance; enhancing the detection of related crimes by encouraging the voluntary disclosure of wrongdoing and also requiring that the organization help identify human actors so that they may be prosecuted for their conduct; providing reparations for harm done to victims or the community; and reducing the negative consequences of prosecution and conviction of an organization for those who are innocent of the wrongdoings, such as employees, customers and pensioners.
The bill describes the conditions that would have to be met before the prosecutor could invite an organization to negotiate a remediation agreement. In essence, there would have to be a reasonable prospect of conviction, and the remediation agreement would have to be in the public interest and appropriate, taking into account factors such as: How did the authorities become aware of the misconduct? What was the nature and gravity of the offence? What was the level of involvement of senior officials in the organization in committing the offence? Has the company taken disciplinary action and made efforts to remediate the effects of its wrongdoing?
A remediation agreement would not be available where the conduct caused serious bodily harm or injury to national security or national defence, or in cases that involved organized crime or terrorism.
The proposals set out what would have to be included in the prosecutor’s invitation to negotiate an agreement. The invitation would set out the legal effect of the remediation agreement, the voluntary nature of the negotiation process and the use that may be made of information disclosed by the organization during negotiations, among other things.
While a remediation agreement would be tailored to suit the circumstances, the proposed regime lists certain terms that would have to be included in every agreement. These include an agreed upon statement of facts, an admission of responsibility for the wrongdoing, a requirement to cooperate with authorities, disgorgement of profits and payment of a financial penalty.
As well, the regime would set out key optional terms such as a requirement to implement or improve compliance within the organization and a requirement to appoint an independent compliance monitor. It’s not a limited list, but those are some examples.
The regime would address victims by requiring that all remediation agreements provide for victim reparations where viable and would include payment of a victim surcharge in respect of a Criminal Code offence. There would be a duty on the prosecutor to make reasonable efforts to identify victims and, in approving a remediation agreement, the court would be required to consider reparations, the victim surcharge and any victim or community impact statement provided to it.
Consistent with what was heard during the consultation, for transparency and because the remediation agreement is part of a criminal proceeding, or would be part of a criminal proceeding, the proposed regime features a meaningful role for the judiciary at several key points in the process, and a generally supervisory role throughout the lifetime of a remediation agreement. Further, the court would be required to publish all remediation agreements that are approved and also its orders approving, varying, terminating or declaring their successful completion.
While being a discretionary criminal enforcement tool whose objectives included the detection of additional wrongdoing and the imposition of effective, proportionate and dissuasive penalties, the proposed regime could benefit the economy in two ways. It could mitigate the negative economic consequences of trial and conviction of a company on innocent third parties, as mentioned, and, by emphasizing remediation, compliance and improved corporate culture, the regime could help rehabilitate corporations so that they are able to play a meaningful role in a healthy, competitive marketplace.
The regime would be applicable as long as an organization has been charged with a listed offence at any time before or after the regime comes into force, as long as the charges have not been resolved at the point where the remediation agreement is before the judge for approval.
Thank you, and I would also be pleased to answer questions.
The Chair: Thank you for that brief summary that outlines the substance of the provisions that are included in Bill C-74.
[Translation]
Senator Boisvenu: Thank you to our guests. I will be focusing on Bill C-74 rather than on the judges issue; on that topic, we will have questions for the minister.
I have a question for the RCMP, and a question that Ms. Sheppard could perhaps answer.
This regime is one of deferred prosecution, and basically represents a more lenient approach; it represents the introduction of diversion measures into the system, correct? Have you followed the work of the Charbonneau commission in Quebec? Ms. Sheppard, did you work on the development of Bill C-74?
[English]
Ms. Sheppard: Yes, I did.
[Translation]
Senator Boisvenu: Did you follow the work of the Charbonneau commission in Quebec?
[English]
Ms. Sheppard: To a degree, but our primary inspiration, as I mentioned, was the public consultation on deferred —
[Translation]
Senator Boisvenu: Did you consult the experts of the Charbonneau commission? This commission dealt with this type of offence, such as interference, bribery, and just about any type of possible crime, and many companies were involved. The work of the Charbonneau commission was aligned with this bill, in my opinion. Did you consult the experts of the Charbonneau commission in developing this bill?
[English]
Ms. Sheppard: We did not consult the experts of the Charbonneau commission. We participated in meetings on request with interested stakeholders. We had 40 meetings across Canada, but not with the Charbonneau commission though.
[Translation]
Senator Boisvenu: Did you consult any other provinces in preparing this bill, given that this type of fraud is not limited to Quebec? Did you consult the ten Canadian provinces?
[English]
Ms. Sheppard: Yes, we consulted with justice sector participants and also with industry representatives at the provincial and territorial levels through existing consultation.
[Translation]
Senator Boisvenu: But you did not consult the Charbonneau commission experts.
[English]
Ms. Sheppard: No, we did not. The Quebec legislation is a complementary process, but it is separate from a DPA-type regime. The remediation agreement is more of a civil proceeding.
[Translation]
Senator Boisvenu: My next question is for the RCMP representatives. How many court cases did you launch against fraudulent companies over the past few years?
[English]
Ms. Crampton: I’m sorry, but I don’t have that number with me right now. We could certainly look into that. What time frame are you thinking?
[Translation]
Senator Boisvenu: Has the RCMP, given its knowledge of this type of crime, decided whether it has the necessary resources to conduct all of the investigations in this area? Because of the Charbonneau commission, we know that crime is rife in this sector. Does the RCMP have enough resources to conduct all of the possible investigations in this area?
[English]
Ms. Crampton: At this time, I wouldn’t be able to answer exactly how many resources we would require until the legislation would be put in place. It’s hard to speculate at this time in terms of number of investigations.
[Translation]
Senator Boisvenu: My question is not related to the bill. Forgive me, perhaps I was not specific enough. We know that there is a lot of crime in this sector. You tell me that you don’t have any information on the number of investigations that were carried out. You probably don’t have any data either on the rate of success of those investigations.
To your knowledge, does the RCMP have sufficient resources to conduct all of the necessary investigations in this sector? Regardless of Bill C-74, I am talking about crime in this area. Do you do all of the investigations, or only some of them?
[English]
Ms. Crampton: Thank you again. We are carrying out all the investigations involved. Currently we have 10 investigations on the go across Canada. We have two different units that look after these types of investigations, corruption, at this level. They are fully engaged, yes.
[Translation]
Senator Boisvenu: This bill seems to make the Criminal Code much more flexible regarding enterprises. If that is the case, may we assume that the RCMP will be carrying out more investigations?
[English]
Ms. Crampton: I would suggest that we would anticipate that there would be more investigations; however, it would be a different type of investigation because the corporation would be opening their books, so to speak, as opposed to us requiring judicial authorizations in order to obtain all the information we need. I think it would be a different type of investigation. It should be not as onerous as a regular criminal investigation, in our mind. Again, we need to see how it will play out.
[Translation]
Senator Dupuis: Thank you for your presence here this morning. I’d like to continue in the same vein as Senator Boisvenu. What triggered the consultation? You spoke of the experience of the United Kingdom and the United States since 1990. There must be reasons that led the Department of Justice to launch this consultation. At the outset, what triggered this consultation, and who took part in it? We are talking about important economic crimes in the commercial sector, such as money laundering, and we are also talking about the victims. In the broad categories, whether we are talking about law enforcement, financial market authorities or victims’ groups, were such groups or organizations included in the consultations that were carried out?
[English]
Ms. Sheppard: Thank you very much for the question. You’re right. The Department of Justice has been looking at this issue for a number of years. We have been following international trends, particularly in the context of bodies such as the OECD where they are being studied in detail.
The consultation came about last fall. It was a combination of two processes, one which was justices, and it was really a whole-of-government study of DPAs. It started out that different departments were looking at it. It was chosen to bring them all together under the same consultation because of the complementarity of the two processes — the integrity regime consultation and the question of deferred prosecution agreements. Some countries have done them in two phases bit, because we thought we had learned a fair bit from the experiences of other countries’ consultations, it was decided to combine them.
It was a whole-of-government public consultation with online and meeting components. The two discussion streams were led by Justice on the DPA side and Public Services and Procurement Canada, formerly Public Works, on the integrity regime side. There were other departments, such as Global Affairs Canada and innovation services that were also supportive and participated in the consultation meetings as well. It was really a very collaborative process.
The discussions were inter-related on the impacts of building flexibility into the integrity regime, and, at the same time, contemplating introducing a deferred, prosecution-like arrangement in Canada. That gives you a bit of a sense of it.
[Translation]
Senator Dupuis: Thank you for your answer. I will put the same question to the RCMP. You have experience with the Integrated Market Enforcement Teams. According to what you said, they are a federal-provincial-municipal partnership. How did you participate in developing the remediation agreement we have before us in the bill? Did you take part in that consultation? Did you come to any particular conclusions, given your experience? You are already carrying out investigations. Did you take part in this process? If so, how did you participate?
[English]
Ms. Crampton: Thank you for the question. Yes, we did participate. The RCMP was part of a working group in providing consultative advice and an opinion from a policing perspective. Absolutely.
[Translation]
Senator Dupuis: You spoke about different types of investigations. What would trigger this type of agreement? In other words, can we take it for granted that it would be a different type of investigation, or, in the context of your current investigations, would a small difference trigger that possibility? What is the element that would trigger this type of agreement?
[English]
Ms. Sheppard: At the end of the day, it’s a tool to be used at the prosecutor’s discretion. They have to be satisfied that the prosecution threshold has been met. There has to be a reasonable prospect of conviction.
The information would flow from the police to the prosecutor. They would look and assess the case against the statutory criteria to determine whether it would be appropriate. It may well be that the companies come forward and self-disclose and open their books and records more willingly because of the prospect that they may be invited to negotiate the terms of a remediation agreement.
But at the end of the day, it’s a very high, in Canada’s case compared to other countries, criminal threshold that has to be met in order for it to be appropriate for the prosecutor to invite the corporation to negotiate, and they set a time limit for when the invitation is to be accepted, and it flows from there.
Senator Gold: Thank you for being here. I find this intriguing — “this” being the deferred prosecution agreements. I know that they are controversial in the sense that they could be said to, in some sense, remove criminal prosecutions from the justice system to something more consensual. I appreciate that the court will publish the results.
I understand that in your consultations, you heard concerns that somehow large companies would be favoured here, too big to fail — that was the phrase used — and that it would change the role of the prosecutor at least at some point, and they would be negotiating matters that are normally not negotiated. Could you tell us about how the bill addresses those concerns and if you’re satisfied that they are properly addressed?
Just en passant, to what degree, if at all, once the mediation agreement is published by the court, is there going to be an ongoing publication of compliance? Or is it only if it’s over or if it fails? Is there any sort of ongoing public exposure of the degree to which the company is continuing to comply?
Ms. Sheppard: That gives me a lot of material to talk about.
Senator Gold: Good.
Ms. Sheppard: We did listen to concerns, and we were also cognizant of concerns that have been raised with respect to other countries’ use of them. Each country, as it looks at these, tries to learn from the experience of other countries and tries to address in their statutes factors that will make it work better and address those issues.
One was transparency. We heard from companies and from members of the public that these sorts of agreements should not be seen as side deals that are cooked up in private and no one knows about them. The companies themselves said, “Well, we may be interested in coming forward, but we want to know what’s going to happen to us.” So there had to be a certain amount of predictability of outcomes as well as judicial oversight. A strong role for the judges was emphasized repeatedly throughout the process. We heard: Make it more like the U.K. regime.
The supervisory role of the court carries throughout the lifetime of the remediation agreement. The agreements have to be approved by the court before they can take effect. There would be a minimum of two court appearances. At the end of the process, if all goes well and all the terms are complied with, then the prosecutor would apply to the court for a declaration of successful completion.
There are two other possibilities throughout the lifetime. One is that the prosecutor could return to court and seek a variation. If they think that the company is on track to comply but they need more time to enhance their compliance measures within the organization, they may seek an extension. The original agreement may have been intended to run for three years, and they may say they need an extra year. So that’s a variation. If circumstances change and the terms may not be appropriate, that could be another case where that may happen.
If it appears to the prosecutor that there is simply no co-operation and there are violations of the terms, then the prosecutor could return to court and seek for a termination of the agreement and then could resume the prosecution. That is the hammer that hangs over the company’s head throughout.
Some people have said this is just a slap on the wrist with no consequences to the companies. The mandatory terms — and I should say, of course, that each one would be tailor-made to suit the circumstances. A smaller company might have a smaller fine; the object is not to put them out of business. But the mandatory terms include disgorging all profits and monies made as a result of wrongdoing, and paying a fine, which is often significant. Also, in the case where an independent compliance monitor is required, those costs, as we learned from the U.S. experience, can be quite substantial.
It’s by no means something trivial. The company has to be fairly serious about going into it, because there is a prospect that the prosecution could be resumed at any point in time until there’s a declaration of successful completion.
It’s intended to be rigorous but also promote other objectives, such as reparations to victims. That could include things beyond restitution in the Criminal Code, which is limited to quantifiable damages and identifiable victims. In this case, the company and the prosecutor could negotiate, for example, that, in the case of a Corruption of Foreign Public Officials Act offence, if a Canadian company caused damage in another country, they could be required to build a well if the water was contaminated, or it could be something even less directly related. We’ve seen in other countries where they have had to do programming in schools on corruption, or how to prevent corruption, I should say. It really puts an emphasis on that, which is not necessarily always the case with a standard prosecution.
Changing the role of the prosecutor — one of the things that was of concern is this corporate compliance monitoring and what happens if you get a 3,000-page technical report and you need to hire forensic accountants to digest that. One of the things the regime includes, and you’ll see it in the optional conditions, is the possibility for the Crown to seek reimbursement for its costs. It could require that the compliance monitoring report be made in a simple way and only a certain number of pages, but it also could say this is a very complex matter and we need to hire our own internal people or consultants in order to be able to appreciate the significance of it, and then those costs could be reimbursed as well. So the role of the prosecutor is the same, but there may be additional components to it if compliance monitoring is involved.
I think those are most of your points.
Senator Gold: A quick follow-up: I just want to know, on the latter point, whether the question of reimbursement of costs is something that can be imposed upon the company and at what stage. Or is that something negotiated along with other issues as to how many private details are disclosed in the agreement or not? I’m thinking of the analogy with mediation and arbitration, which was an area I did before I came to this place. There’s always that balance between the public disclosure of all the warts and so on.
Ms. Sheppard: That’s a really good point. To a degree, it can be negotiated in the agreement, but there are two provisions, one at the negotiation stage and one at the lifetime of the agreement stage. I’ll read:
No admission, confession or statement accepting responsibility for an act or omission made by the organization during the negotiations in this case is admissible in evidence against the organization in any civil or criminal proceedings related to the act or omission except those contained in the agreed statement of fact or admission of responsibility which is made public as part of the remediation agreement that the court will publish.
It attempts to balance the confidentiality of the negotiation process. It will end up in an agreed statement of facts that will be made public, so there’s the transparency side balancing against the privacy side.
Senator Pratte: I’m concerned by the possibility that some of the agreements might not be made public, that the judge might decide, for a series of considerations, not to make the remediation agreement public. Of course, it will be up to the judge’s discretion, according to a series of factors that are listed in the law. I’m concerned because, of course, the purposes of these agreements, as stated by the act, are to denounce an organization’s wrongdoing and the harm that the wrongdoing has caused to victims, and to hold the organization accountable for its wrongdoing through effective, proportional and dissuasive penalties. For this to happen, publication is extremely important. Now, I understand that there may be circumstances, the investigation, for instance, that make publication less desirable at the moment.
I’m wondering whether you have examined the possibility that publication may be mandatory at some point. You don’t have this in the act now, but that publication, for instance, when the agreement is deemed to be completed, may be made mandatory. Because in what I see now, a judge might decide that the agreement is not published and even his or her decision not to publish is not made public, and the agreement will remain, in my understanding, secret forever. Am I mistaken?
Ms. Sheppard: Yes and no. There is a publication requirement, as you probably studied. There is, you’re correct, a possibility that the court would decide not to publish if it would not be in the interests of the administration of justice. That’s a fairly high standard, I would suggest.
What we’ve seen in other countries is it’s possible that the publication of an agreement involving the company might be delayed if there are related proceedings against an individual and it would violate their presumption of innocence. So your threshold of, say, three years, if the agreement is completed in three years, may in fact be too soon if the publication could still compromise the presumption of innocence against an individual. There would be a point where that wouldn’t be the case.
Certainly the non-publication would be dealt with in the context of a proceeding, and the court would have to publish its reasons for decisions made in the course of the hearing. They would, presumably, publish something without violating the confidentiality, which would sort of defeat the purpose of it, but they would have to address that in the hearing.
Senator Pratte: Maybe I read incorrectly. In reading this, I have the impression that the court could decide not to publish the decision not to publish the agreement. Am I mistaken?
Ms. Sheppard: No. The court has to publish its reasons. If the very publication of its reasons would undermine the administration of justice, then that part could be exempted, I suppose.
We have tried to highlight the importance of transparency and publishing. I would think that the necessary in the proper administration of justice would be a fairly high threshold to be met, but where there’s a countervailing interest, such as presumption of innocence, a deferral might be justified.
Senator Pratte: Forgive my ignorance. This standard for the proper administration of justice, you say it’s a very high standard. I’m not a lawyer. I suppose there are court interpretations of that standard. Where do I find that? Is there a decision by the Supreme Court? What is that standard?
Ms. Sheppard: We’ve taken it from other legislation. One of the things that we heard in the consultation was the importance of having transparency and guidance, so we tried to put a lot of detail in to assist those using it. What we’ve done at 715.42 (3) is said to decide whether the proper administration of justice requires making the decision not to publish or defer publication, the court must consider, and we’ve put together all the factors that we found in other legislation.
It’s society’s interest in encouraging reporting of offences and participation of victims. So if it would put victims in a dangerous position, that might be one thing. Whether it’s necessary to protect the identity of victims, prevention of adverse effect to ongoing investigations, whether alternatives are available in the circumstances, that’s where you might have a more targeted publication or some way of getting the information out while excising the sensitive information, and the deleterious effects of making the decision not to publish. The court would be guided by all of these criteria in making the decision whether it’s in the public interest.
[Translation]
Senator Carignan: I would have a lot of questions to ask on remediation. Concerning the compensation agreement for the victims that would be negotiated by the prosecutor, possibly with a victims’ representative, will this prevent eventual victims from exercising their recourse before civil courts to obtain full compensation for the damages they incurred?
[English]
Ms. Sheppard: I don’t see that the two would be linked in any way.
Senator Carignan: You don’t see that this could be linked? Seriously?
Ms. Sheppard: You have to look at the agreement as being more like a contract that’s negotiated between the prosecutor and the company. The prosecutor has a positive duty to notify the victims of the proceeding, and the approval of the agreement would be in open court so the victim could present a victim impact statement if they wished to do so.
The requirement is that reparations be considered and that the parties negotiate whatever would be appropriate in the circumstances. We have to keep in mind the broad nature of the offence. In some cases, it could be an offence that’s commited overseas and the victim is an entire country. In that case, it might be a different type of measure negotiated than if it was one specific individual who was identified as a victim.
It’s an expansion on the concept of restitution. It gives scope for the parties to negotiate that as part of the overall package of terms that would be considered to be fair and proportionate. The judge would have to find that, but it would be up to the parties to negotiate.
The victim in some cases might be involved in the negotiation, and in some cases wouldn’t be. Part of that is because while there has to be a live charge at the point that the agreement is approved by the court, charges may have been laid years ago and the victims are aware, or the charges may not have been laid yet and the victims are only notified in the course of this proceeding. The degree of involvement depends on the case, where it’s at in the investigation and what’s appropriate in the circumstances.
The court is not ordering this to happen. It’s the parties who are agreeing that this will happen, and the court approves that as being fair in the circumstances.
[Translation]
Senator Carignan: Have you imagined a scenario where the enterprises could, if they are taken to civil court, invoke the principle of res judicata if there was an agreement with a victims’ representative, and if the victim did not agree with his representative or the negotiated amount, and decided to sue the business under Quebec’s class action legislation? At that point, a duly negotiated compensation agreement that was struck with a victims’ representative you chose could be invoked as a defence. Did you examine that possibility?
[English]
Ms. Sheppard: We considered it, but this is a criminal proceeding and that’s a civil proceeding. Certainly the defence would argue that. They would be considered as separate proceedings, while, of course, representations would be made. In fact, vice versa. One of the considerations that must be taken into effect in deciding whether to offer to negotiate is whether reparations have been made. I don’t mean to say that one wouldn’t influence the other, but they are distinct proceedings. One is a civil proceeding, and this is a criminal proceeding.
[Translation]
Senator Carignan: My question is for the RCMP. I was surprised to hear that there are only 10 ongoing investigations for this type of unfair competition or money laundering offence. Can you confirm that and clarify the figure? Did you assess the number of cases that are currently before the courts and could be subject to this agreement? Can you give us the list of cases that are ongoing and which could be suitable for this type of agreement?
[English]
Ms. Crampton: In terms of the 10 cases that were referred to, that’s with respect to the corruption of foreign public officials only, not with respect to money laundering, bribery or other areas. It’s a specific act that I was referring to.
In terms of other ongoing investigations with regard to financial crime that you were suggesting, it’s a rather large area, and I certainly do not have a number at hand as to how many cases are before the courts right now.
[Translation]
Senator Carignan: So, you have not evaluated the number of public cases that are before the courts at this time and to which these provisions could apply.
[English]
Ms. Crampton: No, we have not yet at this time. I think it would be very difficult to do, because we simply bring the case forward and then, as my colleague has described, it would be up to the prosecutor to decide whether or not that case would be eligible for this legislation. It would not be the role of the police of jurisdiction or the RCMP to make that determination. We simply put the case together, so to speak, investigatively, and submit all the documents, and then Public Prosecution would make that decision.
[Translation]
Senator Carignan: Did the Department of Justice assess the number of cases that are before the courts and which could be subject to this new remediation procedure, and can you give us that number?
[English]
Ms. Sheppard: As my colleague mentioned, the Public Prosecution Service of Canada would be the ones doing that, not Justice. We’re quite separate. I understand, from talking to the PPSC, that they are looking through files now in anticipation that the regime could be passed. They’re looking at the appropriateness of their cases. They wouldn’t discuss with us their findings, but I know that assessment is ongoing.
[Translation]
Senator Carignan: We will ask Public Safety.
[English]
Senator McIntyre: Thank you for your presentations.
The remediation agreement is for organizations accused of certain economic offences under the code. As I understand, these offences include fraud, possession of stolen property, insider trading and bribery of a foreign public official. I further understand that in the United States and in the United Kingdom there is a deferred prosecution remediation agreement to be used for money laundering. My question is this: Does the bill allow for a remediation agreement to be used for money laundering?
Ms. Sheppard: Yes. You won’t see it on the list, unless it’s been reprinted since last night, but it will have it in when it is reprinted.
Senator McIntyre: But it was not in the past.
Ms. Sheppard: It was not in the past. As I explained to the Finance Committee, the basket of offences is serious economic crimes, which would in other regimes include money laundering. There were some who were concerned about the possibility that organized crime could be involved in money laundering and that this regime shouldn’t be used in cases where organized crime is involved, so it was initially left off the list. But there is a provision in the statute that says that the regime can’t be used for organized crime, so that concern has been dealt with and a motion was made to put it on the list. It was accepted, on division, but I guess it should be on the next publication.
There also is, I should point out, a provision where, by order-in-council, offences may be added to or deleted from the list. While the majority of views were to the effect that we should keep it focused on economic crimes at this point, if the regime proves over time to be something that could be useful for other types of crime, then that could be added subject to the proviso that it cannot be used for organized crime or terrorism or where serious bodily harm or death is involved.
Senator McIntyre: Providing a remediation agreement to an organization is one thing. That said, what about the individuals behind that organization? These are the people who are responsible for these acts. In your opinion, will deferred prosecution agreements encourage voluntary disclosure of wrongdoing, including acts committed by senior business executives?
Ms. Sheppard: The willingness to identify individuals who have been implicated comes up in two places. It’s something that would be considered by the prosecutor, whether they have identified and whether they have taken disciplinary action, even at the invitation-to-negotiate stage. One of the mandatory terms that must be included is the making of reasonable efforts to identify individuals who have been implicit in related conduct. That’s for the reason that one of the objectives is to not so much let companies off the hook but to make them subject to significant penalties, short of conviction, but with the understanding that they would identify or help identify individuals who could then be prosecuted.
So the idea is in fact to enhance the enforcement against these offences by having the remediation agreements only available for the companies. The prosecutor would identify the victims. They would have to identify the implicated individuals.
Senator McIntyre: We’ve talked a lot about the role of the prosecutors. As I understand, the prosecutor could be a federal prosecutor or a prosecutor arising from the provinces or one of the territories.
Ms. Sheppard: That’s correct.
Senator McIntyre: Do you think that regulatory authorities, such as securities commissions, are better positioned than the prosecutors to implement corrective measures at businesses?
Ms. Sheppard: This is a federal criminal measure, so that’s the lens that we were looking at it through. Yes, you’re right, provincial prosecutors could be involved and likely would be involved in the case of some of the Criminal Code offences where they conduct the majority of the prosecutions.
Senator McIntyre: Perhaps a final question: This was raised by my colleague Senator Carignan. The number of convictions of organizations for economic crimes in Canada is rather small. That said, do you believe that the agreements will increase the number of convictions for corporate crimes?
Ms. Crampton: Thank you for your question. I don’t know that it would increase the number of convictions, because these would be deferred, but I would like to think that it would enhance the self-disclosure by corporations and would hopefully strengthen our economic regime.
Senator Pate: Thank you very much to all the witnesses.
We’re in a moment where there are lots of questions about things like mandatory minimum sentences and the role prosecutors play in terms of having discretion to proceed or not proceed and therefore shifting the discretion from the judge to a prosecutor. I’m curious as to what kinds of discussions you’ve had about that, and in terms of this issue, why you believe this shift is appropriate in these circumstances.
Then to pick up on the questions of Senators Carignan and McIntyre, if you could give us some examples where justice would have been served previously, in cases that you’ve already dealt with, had the prosecutor had the ability to negotiate one of these agreements.
Ms. Sheppard: If you were to speak to the prosecutors, I don’t think they would think it so much a case of shifting to their discretion, because this is really another tool that they could use or not use at their discretion. So it’s like a guilty plea in that sense.
There are currently, in other circumstances for cases of individuals, ways of diverting from the formal criminal processes. It’s not necessarily that new, although the application, like the U.S. regime was initially applied to individuals and arose from very different circumstances, but it’s now being applied increasingly to corporations.
I can’t really comment on circumstances where justice may have been better served because that’s really more the ins and outs of all the factors that were at play in deciding how the prosecutors chose to proceed and are in their knowledge alone. Again, Justice is independent from the Public Prosecution Service of Canada and they don’t discuss details of cases with us. Whatever is on the public record, maybe we would know about, but as far as going forward, deciding whether to use the tool or not, it would really be up to them to apply the criteria in their discretion.
Senator Pate: So perhaps I’m wrong then. I would presume some of the consultations would have involved case “X” that might have been better dealt with had we had this tool as part of the discussion as to why to bring this provision in. I’m not sure if the RCMP can provide an example? I’m not asking for names of cases, just you know, an example of the types of situations that caused you to think this is a good idea?
Ms. Crampton: I’m sorry, I don’t have any at this point.
Ms. Sheppard: They discussed with us, not naming cases, but just situations that they thought might have been —
Senator Pate: So the list of —
Ms. Sheppard: Yes, that’s where we — as my colleague said, when I talked about the formal consultation in which departments were supporting, we also had working groups where we talked in more detail with the RCMP and PPSC on how this would work or could work in practice and operational considerations that they would have, so that very much informed the criteria that we came up with. We certainly reviewed proposals with them on an ongoing basis throughout development.
[Translation]
Senator Boisvenu: I would like to make a comment of a general nature; these are major changes to the Criminal Code, and I am surprised that this was included in an omnibus bill. There should have been a separate bill so that it could be analyzed in much more depth, rather than having to do an overview like the one we are doing now, because this has an important impact on victims. In all judicial processes, when the defendant pleads guilty, the great fear victims have is that they will not have access to information. We see this often, especially in trials for offences of a sexual nature. The defendant pleads guilty, but the information concerning the modus operandi is never made public; everything is kept secret because there is an agreement between the Crown and the defence to make nothing public. We have seen that in many cases in Quebec involving important public figures involved in sex scandals; everything was hidden from the victim and their family.
I will quote clause 715.36, which states that:
The prosecutor must take reasonable steps to inform any victim . . .
Are you aware that Canada adopted a Victims Bill of Rights Act in 2015, which recognizes four fundamental rights: the right to information, the right to participation, the right to compensation and the right to protection? When your bill talks about “reasonable steps,” this does not at all sound like a right. It corresponds to something that would be negotiated between the defence and the prosecutor. This clause should have recognized a victim’s right to be informed and compensated and to take part in the legal decision-making process. That is what is contained in the Victims Bill of Rights. It does not talk about reasonable measures; it talks about rights, just as the offender has the right to a fair and equitable trial.
I think that clause 715.36 does not comply with the Victims Bill of Rights. What do you think?
[English]
Ms. Sheppard: We consulted with the Policy Centre for Victim Issues who worked on the Canadian Victims Bill of Rights. They are satisfied that this is at least the equivalent of that. In fact, the Criminal Code measures are somewhat more limited than what is here. That’s partly because this regime can take place before charges are laid.
[Translation]
Senator Boisvenu: The wording that should have been used is “obligatory measures to inform the victims,” and not “reasonable steps.” Reasonable steps means that it is possible that they will be informed, but it is also possible that they will not be informed. The Bill of Rights talks about the right to be informed. The expression should have been: “takes obligatory steps to inform the victims.”
I am sorry, but this bill violates the Victims Bill of Rights.
Senator Dupuis: I would like to be sure I understand what this introduces with regard to the integrity of our criminal law system, where an individual may be charged and may plead guilty or not guilty, and may negotiate a plea deal with the Crown and receive a lesser sentence. All of that can be done publicly, because there is no way of hiding it, and ultimately a judgment will be handed down. If I understand this part of the bill correctly, we are dealing with a system whereby the trigger, the prosecutor’s decision to conduct a negotiation, will not necessarily be known to anyone aside from the company, because this is an agreement that is only open to organisations, and which excludes individuals. Did I understand correctly?
[English]
Ms. Sheppard: That is correct. The agreement can only be made between a prosecutor and a legal person, not a natural person or an organization as defined in the Criminal Code and not an individual.
[Translation]
Senator Dupuis: What is not clear to me is whether this type of agreement with an enterprise or organization prevents the prosecutor from suing the leaders of the organization.
[English]
Ms. Sheppard: No. In fact, the idea is that it would enhance enforcement by requiring the company. I mean, it would be up to the prosecutor whether to prosecute. That would be a separate decision. They would have, theoretically, more information to go on, and more conduct would be disclosed as a result because the company would have to identify individuals who have been implicit in related conduct.
On your comments about making it public, I just wanted to clarify how the process would work in that regard. If charges have been laid, obviously it’s in the public domain. This could apply in that case. It could also apply in the case where charges haven’t been laid yet but the investigation has produced enough evidence that the prosecutor is convinced that the prosecution threshold has been met. In that case, the negotiations would not themselves be made public, but the agreed statement of fact that results from them that would be part of the agreement, as well as all the terms of the agreement, would be made public. The court would have to publish them. The court hearing at which the agreement would be approved would be a public hearing. As well, the victims would have been identified as early on in the process as possible but not later than the time when they are in court, so the court has an obligation to consider the victims and, as specifically mentioned in the statute, any impact statement that has been provided.
[Translation]
Senator Dupuis: Before the text of the agreement is drawn up, there are negotiations. The prosecutor will determine who the victims are and whether they can be contacted or identified. But all of that is done without the people concerned necessarily knowing that such a process is going on. You may not have any inkling that all of this is happening, and have the impression or be convinced that you are a victim, but you will never know. Ultimately, this may lead to a judgment, a decision or an order, and the judge, pursuant to clause 715.42, in light of all the factors, may decide to not publish this order or decision, nor the grounds involved. So, without wanting to caricature this, we arrive at a process where victims may potentially not be identified, not be able to identify themselves, and not be aware that any of this has taken place. They may not even find out that there was an agreement.
I understand, and you explained the fact very well, that while an investigation is ongoing, you may not want to hinder the administration of justice. So, you may want to prevent publication of a decision or order. But at the end of the process, it seems to me that there should at least be something, if only to allow people to determine, as citizens and taxpayers, whether the system functions well and is economical.
[English]
Ms. Sheppard: The point I would like to make is that if you look at the list of offences, Corruption of Foreign Public Officials Act offences are on the list. In fact, it’s in this context that a lot of the discussions have been ongoing at the international level.
In those cases, the requirement to notify victims is to be interpreted in a reasonable manner. Part of the reason it was expressed the way it was is because there may be cases under the Corruption of Foreign Public Officials Act where the victims are an entire city or country in a foreign jurisdiction. It may not be practical to notify the victims in those cases and it may not be possible for them to come to the hearing, but we did try and provide for third parties acting on their behalf, so there is a possibility for that. It was expressed the way it was not to exclude victims in Canada but to try to provide for the possibility that the victims could be overseas and it wouldn’t be practicable to notify them. In that case, the prosecutor would have to explain why and that would have to be presented to the court. The court has an obligation to consider any statement made and to push a little bit on that and say, “Did you make all reasonable efforts?” The attempt to involve victims in the process is subject to viability in the case of CFPOA offences. That’s really why you’re seeing some wording that doesn’t sit as easily as it might if they were just purely victims in Canada.
Senator McIntyre: My question is a follow up to a point raised earlier by Senator Gold, and it has to do with perception. There is no question that the idea of a remediation agreement for organizations has been heavily criticized. In answer to that criticism, I understand, the bill now includes two important measures, as you have indicated: the appointment of an independent monitor, and court approval of the DPA. The bill draws mainly from the U.S. and United Kingdom models, but there are differences. My question is this: Are you confident that the Canadian model is better, stronger, or even superior to the U.S. and United Kingdom models?
Ms. Sheppard: I wouldn’t categorize it as a question of inferiority or superiority.
Senator McIntyre: Does it have teeth?
Ms. Sheppard: Well, we believe it has teeth. We believe it addresses some of the shortcomings that have been identified in the operation of those models insofar as we can imagine them applying in our jurisdictions. Because Canada is different. Our prosecution threshold is higher, for example. That mitigates against requiring going to court before assessing whether it’s appropriate. There are certain differences that take into account our legal system.
We were inspired by comments from participants that we like the openness of the U.K. system, which tried to include measures that countered some of the concerns about the U.S. system. However, the U.S. system was developed in a different context to suit their organizational structures, so it’s not fair to comment on that.
We looked at how we can have a strong role for the court, while at the same time respecting prosecutorial independence. How can we make sure that the agreements are fair and that there is not a possibility for them to extract terms from the companies that maybe are disproportionate? We really tried to tailor it to the Canadian system, taking into account concerns about transparency, and providing guidance. We tried to provide as much guidance as we could in the bill by setting out criteria that should be considered. We won’t know the result until we see how it’s used. We have tried to set up the regime to provide for eventualities and hope to ensure that it could be applied —
Senator McIntyre: In the end, we want results. I agree with my colleagues around the table. We have to do something about white-collar crime. That’s the bottom line.
Senator Gold: My question was a follow up to mine, which my colleague already asked. Thank you for a very fulsome explanation. It was very much appreciated.
[Translation]
Senator Boisvenu: Ms. Sheppard, could you provide a list of victims or victims’ groups that were consulted in the preparation of this bill?
[English]
Ms. Sheppard: We did not publish the list of our justice stakeholders. I’ll see what I can do about that. We invited participation, and not everyone who we invited wanted to meet with us. I’ll have to look and see what information I can provide to you.
[Translation]
Senator Boisvenu: The committee needs this information. There are fundamental elements in this bill that impact the rights of victims, and that is why I would like to know which victims or victims’ groups were consulted. If the Minister of Justice is the only one to have been consulted, to my mind, she is not a victim of a criminal act. In my opinion, you should provide this to us, at the very least.
[English]
Ms. Sheppard: I’ll certainly provide that to you. Part of the difficulty is in some cases there are consultative bodies that represent victims. I need to get to the bottom of it. I will get back to you on that.
The Chair: Thank you.
If I may make a comment: The perception of the public is generally that the companies, or the taxpayers in the 1 per cent group of favoured people, always have an opportunity to make a deal and not face the court. You know very well, Ms. Sheppard, the reality that following the Panama Papers the government opened a window of X number of months and giving the opportunity to come back and have a deal with Revenue Canada, and nobody knows about that deal. It’s private.
The perception is created that the system is responsive to manage a capacity for the affluent companies and the affluent people to finally deal with the justice system and the obligation that average persons who face a criminal charge would have to go through a full trial. What is not clear in the bill is the impact that the agreement entered into with a company and the court would have on the officers of that company, who are in fact the responsible. The company is an abstract idea. The company doesn’t act without people under it to negotiate the bribe and the deal and have the benefit that ensues from that kind of illegal or criminal activity. The bill is not clear on the impact that it would have on the officers of that company, the authors of the crime that the company is alleged to have perpetrated. It’s difficult for you to answer that specific question, but the perception of the public will be that there is again another window of opportunity for big people to evade the justice system in a sweet deal.
As Senator Dupuis and Senator Pratte have been outlining, the fact that there is a possibility that the agreement would remain confidential is the big loophole in this bill. The criticism and the cynicism of Canadian public who watch for that kind of opportunity will see that finally it is in the Criminal Code. It’s not in any ordinary legislation or statute. The Criminal Code is applicable to everybody, and everybody should be submitted to the same measure of justice. From listening to you and my colleagues’ questions around the table, I still have that question that this bill might have a negative impact on the trust that Canadians have on the equality in front of the law in relation to the criminal justice system.
Ms. Sheppard: I would like to emphasize one point. You’re right; these agreements may only be negotiated between a prosecutor and an organization, not a legal person. But there is an obligation. In order for the corporation to avail itself of the opportunity to participate in this, they have to assist in identifying. It says right here in the mandatory contents of the agreement under 715.34(1)(c) that there is an obligation for the organization to provide information that will assist in identifying any person — and that includes CEOs — involved in the act or omission, or that the organization becomes aware of or can obtain through reasonable efforts after the agreement has been entered into. So there is an ongoing obligation to cooperate and, in particular, to help identify individuals that have been involved in the misconduct. Then the prosecutor would look at the case against them separate from the organization.
The idea is that it would help unearth some of this. Companies wanting to cleanse their books after they have changed their executive may say, “Look, these individuals are responsible.” If they haven’t cleansed themselves and taken disciplinary action, that would weigh against being offered the opportunity to negotiate as set out in the criteria.
I’m not sure if that’s what you’re getting at.
The Chair: What I have as a scenario is that, in fact, the prosecutor is negotiating with the author of the crime because the company acts through officers. The company is not an abstract holy spirit. The company acts through officers, and those officers are the ones who perpetrated the bribery. Then the prosecutor will negotiate with those who did the bribery and could then also face further charges.
There is an element there that, as I say, raises questions for any outside observer that, in fact, the system works fairly and with equal weight of the criminal responsibility for those who have committed the crime. That’s essentially the element, in my perception. I don’t want to argue with you, but I just express to you what an outside observer would have as a reaction when you see how that kind of deal would function and who would be negotiating, and who, at the end, would benefit from it. When you draw the line, who is finally cashing in on this?
I’ll leave that question open. I don’t doubt the fact that it exists in the United States and in the U.K., but that reality is part of the perception that is created in relation to fiscal legislation and white-collar crime.
Senator Gold: I want to make sure that I understand your question. Do I understand correctly, however, that when there is an investigation, if they determine that an individual — the CEO or the CFO, current or past — has, he or she himself or herself, committed the crime, that’s a separate question about whether or not the prosecution of the company would proceed in court or through this agreement? If I understand it, this bill does not immunize an official from being pursued individually for any criminal acts that they may have committed.
My question, and your comment, do speak to the larger public perception of whether there is one deal for the rich, and that’s a perception that nothing can dislodge, because it’s sort of true in many respects.
But am I right in understanding that this bill does not immunize individuals who have committed crimes? Concurrent with whatever deal is struck with an organization, they could still be pursued — assuming that the investigation reached that threshold and the prosecutors decided to proceed criminally — and the individuals could not benefit from any of these deferred prosecution agreements?
Ms. Sheppard: That’s absolutely correct. Perfectly correct. It would be up to the prosecutor to determine concurrently. They would have to look to the evidence, because the corporate criminal liability is separate from individual liability.
Senator Gold: Law school 101.
Ms. Sheppard: Yes. You would have to look at each case and say that, in some cases, maybe there is one CEO and they are the person who acted and only them. It may not be a case where it’s practicable to contemplate how it would work in practice.
There are other cases where companies have said, “Look, there was one bad actor. We fired the CEO, and we have reformed, and we have taken all these efforts to remediate.” That might be a case where it might be appropriate, and they might help identify — not just throwing the old CEO under the bus, but they might cooperate in identifying other conduct.
So you really have to look at the case and separate the corporate criminal liability from the individual criminal liability, which this regime would aim to enhance the detection of.
The Chair: Thank you very much. As you see, it’s not an easy issue. I cannot but express the views of Senator Boisvenu. I’m amazed that such an amendment to the Criminal Code is in a budget implementation bill. But that’s not for you to decide.
Senator Carignan: Omnibus bill.
The Chair: That’s part of the reality we have to deal with in this committee in relation to Bill C-74.
Thank you very much, all of you. We appreciate very much your availability and contribution to our reflections.
(The committee adjourned.)