Law Times

LaW TIMeS • SePTeMBeR 21, 2015 Page 3 www.lawtimesnews.com Federal prosecutions New report shows increased focus on competition, corruption cases BY DALE SMITH For Law Times T he director of public prosecu- tions' annual report is ref lecting a trend toward more prosecutions in the area of competition cases as well as matters involving the corruption of foreign public officials. "There's a clear trend toward more tri- als in this area that you can identify," says Michael Osborne, a partner with Aff leck Greene McMurtry LLP in Toronto. The report shows that in 2014-15, the Public Prosecution Service of Canada han- dled 79,987 files with 47,521 opened that year. Of those, 7,362 files involved regula- tory and economic offences, 3,285 of which were dated back to previous years. Of those cases, 57 dealt with competition law, many of which involved bid rigging and fraud. Osborne says most criminal files con- clude by the way of plea agreements but he notes the number of trials has been in- creasing. He adds that the 57 cases might also include files forwarded to the pros- ecution service where it decided not to go ahead with a trial because they failed the test on the merits or of whether it's in the public interest to prosecute. "Even if you have a good case, occasion- ally it's not in the public interest to pros- ecute," says Osborne. University of Ottawa Faculty of Law Prof. Jennifer Quaid says the report tells her that there's a period of heightened ac- tivity around economic crime as well as a change in tone at the Competition Bureau in terms of the kinds of issues it will look at. But she was surprised that the report didn't mention the fact that the prosecution ser- vice won a major contested sentencing de- cision in April against a company involved in a gas price fixing case. "That is one that they had to fight for," says Quaid. "This was a big figure because it was a local company, one of the companies in- volved in the gas price fixing conspiracy. I'm surprised they didn't highlight it be- cause that is a major feather in their cap. They made strong arguments to have the judge really apply all of the criteria added to the Criminal Code in 2004." The fact that the report also mentioned the acquittal in April in a major bid-rigging case also shows that sometimes the Crown has to bring these matters but isn't always in it to win, says Quaid. The move toward prosecutions around corruption crimes ref lects a trend of people paying more attention to the conduct of corporations, including when it comes to governance and how they behave abroad. "For the longest time, nothing hap- pened in this country and now in recent years we've had a number of cases," says Osborne. "They have tightened up the statute. It was made broader in its application by including express extraterritoriality pro- visions, so we can take jurisdiction over a corruption offence by a Canadian com- mitted anywhere in the world, and the penalties were increased at that time." The added factor in those prosecu- tions that the report doesn't mention is the administrative consequences that have a bearing on how the cases proceed. "Now that they've got these administra- tive prohibitions that will kick in, it's far from clear that access to the immunity and leniency program will shelter you from those consequences," says Quaid. "Many are openly speculating whether the Crown's success in that area is about to vaporize." Quaid notes that typically the Ameri- can criminal liability provisions would nab those companies and the Canadian government would negotiate a plea on the back of that. But with companies now fac- ing being unable to bid on contracts for 10 years, they have a greater incentive to fight the case in court. According to Osborne, the emphasis on economic crimes has to do with the fact that the public is paying more attention to the impact of those offences. "In the past, there was a feeling that no one got hurt, this is just money shifting around in the economy," he says. "But cartels do cause economic harm. Corruption causes potentially serious eco- nomic harm in the developing world. All of these things, we're now starting to rec- ognize that these are not victimless crimes and the authorities are responding by be- ing more aggressive." Quaid notes the added attention on bid- rigging cases is also in part due to the Char- bonneau commission in Quebec as well as more visible activity by the Competition Bureau. "The public attention to things like cor- ruption — and bid rigging is a very close cousin to corruption — is shifting to where the focus and attention is going," she says. "I think in years to come, the foreign corrupt practices section is going to get more significant." LT NEWS NEW VERSION PEEL BACK THE LAYERS WITH CASE LOGISTIX® One of the most intuitive document-review tools available, Case Logistix® will help your discovery teams organize, analyze, and produce anything from paper to Electronically Stored information (ESI). And now you can supercharge your speed and accuracy with a new user interface, advanced search, and analytics. For more information, please visit carswell.com/caselogistix Or call 1-866-609-5811 00228WI-49494 'For the longest time, nothing happened in this coun- try and now in recent years we've had a number of cases,' says Michael Osborne.

• Cover