w w w . C A N A D I A N L a w y e r m a g . c o m M A Y 2 0 1 8 53
He says another factor that works
against Canada's pursuit of bribery and
white collar crime in general is the time
it takes cases to get from the charge to the
sentencing stage.
"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,"
he says. "The result is Canada's record in
white collar prosecutions, at least at the
trial level relative to the United States, is
abysmal."
In 2008, former chief justice of the
Superior Court Patrick LeSage and Uni-
versity of Toronto Law Professor Michael
Code authored a "Report of the Review of
Large and Complex Criminal Case Proce-
dures" to respond and offer recommen-
dations to increasingly time-consuming
complex criminal trials.
LeSage and Code wrote that three fac-
tors had transformed the trial process from
succinct in the seventies to the present
marathon.
"These three causal events were the pas-
sage of the Charter of Rights and Freedoms,
the reform of evidence law by the Supreme
Court of Canada, and the addition of many
new complex statutory provisions to the
Criminal Code and other related statutes,"
they wrote in the report.
"All the criticism that they make of
criminal processing in Canada for large
complex trials are multiplied exponentially
in a white-collar case, which includes cor-
ruption cases because you have an extra
element of forensic accounting evidence,
which creates even more complexity," says
Barutciski.
Another factor in Canada is that, to
convict the company in Canada, the brib-
ery offence must be proven to have been
committed, beyond a reasonable doubt,
"with the knowledge or acquiescence or
under the direction of the senior officer,"
he says.
In the U.S., if authorities can show that
a lower-level employee authorized a bribe,
the knowledge does not have to reach the
upper echelons for the company to be
liable.
"So that's another reason why U.S. com-
panies, they are more exposed. They can be
convicted on the basis of the guilty actions
of a fairly junior employee," Barutciski says.
Pursuing bribery allegations with the
criminal law alone is "too blunt an instru-
ment," says Joseph Groia, principal of Groia
and Company.
What is lacking in anti-bribery is a
national financial regulator such as the
Securities and Exchange Commission in
the U.S., Canada having provincial agencies
regulating their respective capital markets,
says Groia, who is a securities litigator and
has acted in civil, criminal and administra-
tive cases including the Bre-X and Hol-
linger affairs.
"If you had a national enforcement
agency and a national regulator who
could go after public companies on a
national and international basis, then
there's a whole range of administrative
and civil powers that would be available,"
he says.
With a national securities regulator,
Canada could work on a national basis
together with the SEC, giving Canada an
enhanced status in pursuing corruption,
he says.
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