Canadian Lawyer InHouse

MARCH 2018 18 INHOUSE you are trying to solve," is what Kwinter says should be the focus of the rationale for changes to the process. While there have been cases that have ended without the outcomes that the Bureau likely hoped for, that does not mean the ex - isting framework has been unsuccessful, sug- gests Danielle Royal, a partner at Stikeman Elliott LLP, whose practice focuses on com- mercial and competition-related litigation. "The current immunity program has been an overwhelming success and has enabled the Competition Bureau to secure guilty pleas, collect significant fines and enforce the cartel provisions of the Competition Act in a cost-effective manner," says Royal. "It is puzzling why the Bureau is proposing significant changes which may change significantly the risk analysis of a company that discovers potential cartel behaviour and is considering seeking immunity," she adds. Coincidentally, the immunity program was thrust into the spotlight a few days after the proposed revisions were released last British model, they apply to specific listed offences such as bribery and money laundering and there is a greater oversight role for the courts. A report issued by Transparency International (Canada) last summer analyzed the process in place in different jurisdictions and suggested that the framework in Canada should lean more toward the British model. Morrison, who is on the board of the organization, says that "on balance" the U.K. process is more effective. "For a DPA regime to be effective, there has to be transparency. In the U.S., there is no real third-party oversight," he says. At the same time, any new framework that is established in Canada should focus on what would be most effective in this country and not simply adopt the model from another country, says Morrison. Reviewing how these frameworks have played out in other jurisdictions is something the federal government should do carefully, agrees Matheson. The U.S. model, for example, gives a lot of discretion to prosecutors. Any Canadian framework might benefit from a certain amount of judicial oversight, says Matheson, as long as the role of the court is set out clearly. "I see the argument for enhanced oversight but not adjudication. The court is not being asked to adjudicate as in a contested hearing, only to decide on reasonableness," he says. In a comparison to a plea agreement in a traditional criminal proceeding, Matheson says the legal threshold "should be at least as high or higher" for a judge to decline to approve the terms of a deferred prosecution agreement. Some court oversight will assist in addressing concerns that these agreements are in the broader public interest, Morrison says. The overarching goal of a deferred prosecution framework should be to "incentivize" companies to develop stronger compliance, he states. That requires some benefit in exchange for self-reporting. "Under the current regime, if a company fixes the problem, why would it also die on the sword?" he says. IH WE CAN HANDLE ANY PITCH. LITIGATIONBOUTIQUE.COM WOODS LLP LITIGATION, ARBITRATION AND INSOLVENCY BOUTIQUE 2000 McGILL COLLEGE AVE. SUITE 1700, MONTREAL, QUEBEC H3A 3H3 T. 514-982-4545 Untitled-2 1 2016-10-04 2:21 PM

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