Canadian Lawyer

52 M A Y 2 0 1 8 w w w . C A N A D I A N L a w y e r m a g . c o m wa are supplemented with "23 additional resources assigned to support these inves- tigations." As to why the RCMP no longer states the number of ongoing investiga- tions, Vaughan replied, "The RCMP will not confirm an investigation unless charges are laid and it is a matter of public record." Keith says that if Canada was truly cracking down on foreign bribery there would be more than four cases to cite. "There are no current trials going on, no recent cases. I don't know anybody who actually has evidence to support a position that they're ramping up." In Canada, there has not been a CFPOA conviction since 2013. In total, Canada has levied $19,874,000 in fines for CFPOA convictions. In the United States, 2017 saw nearly US$1 billion in fines with an average fine of US$77,819,743. The biggest year in the his- tory of the FCPA was 2008, with more than US$2.6 billion in fines, with an average fine of US$188,880,139, according to a Stanford University study. John Boscariol, a partner at McCarthy Tétrault LLP, says to compare Canadian enforcement of anti-corruption with the U.S. is naïve, as our southern counterparts have more tools with which to investigate and prosecute violations of the FCPA. One such tool is a deferred prosecution agreement. In a DPA, an offending party has their prosecution suspended provided they co-operate with authorities. The U.S. has had DPAs for more than 25 years and the U.K. since 2014. In the U.K., the co- operator may be fined, pay restitution to victims or be made to implement a compli- ance regime. On March 27, the Government of Can- ada announced it is introducing legislative amendments to create a Canadian form of the DPA regime called a remediation agreement regime. The move comes after public consulta- tions last fall and will come into force 90 days following the Royal assent of the 2018 budget. The agreements would be sub- ject to prosecutorial discretion and judicial approval, the government said. DPAs will be a "game changer," says Boscariol. "It's important when you look at Can- ada's history of enforcement and convic- tions that because we have a different regime than the United States our num- bers are much smaller. "I think the DPA will go a long way to changing the perception that we're so far behind the U.S. in this area," says Boscariol. Proponents of DPAs say they would multiply the number of corruption and commercial crimes brought to the atten- tion of law enforcement and help inves- tigators and prosecutors develop tech- niques, knowledge and expertise in pur- suing those cases, as well as enhance the amount of restitution for victims. The early resolution of these cases would free up judicial resources, according to a 2017 report by Transparency International Canada. Brenda Makad is a sergeant with the RCMP's International Anti-Corruption Teams. She says if a DPA regime is insti- tuted, it will not alter the way the RCMP investigates cases of foreign bribery. "So, this isn't going to be like somebody knocks at the door and discloses informa- tion and then a deal is cut and then it saves us a bunch of time and we don't have to do the investigation," she says. "We're still going to have to go about our duties and our job investigating the offence." Another difference between the U.S. and Canada is that Canadian foreign brib- ery can only be pursued as a criminal matter, whereas the U.S. Department of Justice and the Securities and Exchange Commission often tag-team bribery cases using both criminal and administrative law. "In Canada, the only tool is prosecu- tion in a criminal court beyond a reason- able doubt," says Milos Barutciski, a part- ner and co-head of international trade at Bennett Jones LLP. "And what that means is that they don't have the leverage that the U.S. has to take administrative action on a balance of probabilities. So that's the big- gest difference." L E G A L R E P O RT \ W H I T E C O L L A R C R I M E CRIMINAL TRIALS IN CANADA ARE MORE CUMBERSOME AND THE CRIMINAL PROCESS IN CANADA IS MORE CUMBERSOME AND TIME-CONSUMING THAN IT IS IN THE UNITED STATES. THE RESULT IS CANADA'S RECORD IN WHITE COLLAR PROSECUTIONS, AT LEAST AT THE TRIAL LEVEL RELATIVE TO THE UNITED STATES, IS ABYSMAL. MILOS BARUTCISKI, Bennett Jones LLP Voting is open April 30-May 22 V i s i t WWW.CANADIANLAWYERMAG.COM/SURVEYS MOST *NkUENTIAL TOP 2 5 Untitled-3 1 2018-04-23 9:12 AM

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