Canadian Lawyer InHouse

37 CANADIANLAWYERMAG.COM/INHOUSE MAY/JUNE 2019 organizational change, such as governance reform and external monitoring. Morrison notes that Canadian legisla- tion requires the company to sign a "rela- tively fulsome statement of facts" relating to criminal charges, which is then made public — unless a judge decides otherwise. Disgorgement of ill-gotten gains, restitu - tion and punitive fines are all geared to be proportional to the gravity of the offence and the combined impact could be severe, he says. Where companies fire perpetrators and adopt new governance procedures, Morri - son says, he thinks there's a strong case to be made for legal flexibility that protects the ongoing employment of the vast majority of workers uninvolved in criminal activities. He adds that "where companies are doing all the right things, remediation agreements can help hold individuals accountable" by requiring evidence of their criminal acts be turned over by the company. Keith says a DPA is, in some ways, bet - ter than a criminal conviction and a fine in that it has an ongoing impact, including "a certain rehabilitative aspect." "It's supposed to be a more tailored and sophisticated approach to holding a com - pany to account," he says. He notes that a DPA can require restitution, governance reform and an extended period of external oversight. Perhaps most importantly, he says, a DPA that prevents the failure of a company protects investors from the im - pacts of executive malfeasance. With the new law now in effect, the question for every general counsel is what to do if they become aware of criminal activity conducted under the auspices of the company. Morrison says the GC should first make immediate and careful inquiries to validate the existence of a problem, then take it to the board of directors. He says the board will typically strike a special committee to address the situation, being sure no impli - cated persons are part of the committee. Committee actions should include: identi- fying the scope of the problem; stopping all illegal activity; retaining expert outside counsel, where necessary; correcting inter- nal governance and compliance shortfalls; and, managing potential legal exposures, including whether and when to take its findings to law enforcement. "Every company is going to have its own unique set of considerations" around self-reporting, Morrison says. But he adds that "a company that elects to self-report is more likely to get a remediation agreement than one that elects not to self-report." IH I n d u s t r y S p o t l i g h t It's supposed to be a more tailored and sophisticated approach to holding a company to account. NORM KEITH, Fasken Martineau DuMoulin LLP For more information contact InHouse Roundtable Moderator Gail Cohen at gail.cohen@tr.com This year, a panel of GCs from across industries gathered in Toronto to discuss and analyze the many and varied ways in-house counsel are taking on a much greater business advisory role in their organizations. Read it and watch video coverage online June 24, 2019 at canadianlawyermag.com/inhouse COMING IN JULY 2019 14 th Annual Canadian Lawyer InHouse General Counsel Roundtable Sponsored by:

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