Law Times

Law Times • apriL 25, 2016 Page 7 www.lawtimesnews.com History of top judicial job hints at possible future T he recent retirement of Justice Thomas Cromwell will give the Trudeau government the chance to make its first appointment to the Supreme Court. In thinking about his successor, the government should keep in mind the bigger picture, which involves replacing Chief Justice Beverley McLach- lin in 2018 when she reaches the age of 75. Conventions related to the top judi- cial job have related to seniority and to English-French representation. The first three chief justices, Richards, Ritchie, and Strong, were Protestants of British descent, but on Strong's retirement in 1902, Sir Wilfrid Laurier thought it was time that a French-Canadian acceded to the highest judicial post. His choice, Sir Henri-Elzéar Taschereau, also happened to be the senior judge on the court at the time, a happy coincidence. This bit of na- tion-building was not to be repeated for more than 40 years. Two of the next four chief justices were Catholic, but both were of Irish descent: Sir Charles Fitzpatrick (1906-18) and Francis Alexander Anglin (1924-33). It appears, however, that the religious alternation between 1906 and 1944 was more by accident than design. The next French-Canadian chief justice was Thibaudeau Rinfret (1944-54), who succeeded Sir Lyman Duff af- ter the latter's term had twice been extended by Parliament beyond the normal retirement age of 75. French-English ten- sions over conscription dur- ing the war years probably prodded Mackenzie King to appoint a francophone jurist from Quebec to the top job this time, in contrast to the two previous occasions when it fell open on his watch. From Rinfret's accession onwards, a francophone justice from Quebec regularly succeeded an anglo- phone from outside Quebec, a pattern altered only once between 1944 and Chief Justice McLachlin's accession to the office in 2000. It is unclear, however, whether the linguistic or the seniority factor prevailed in these appointments. In each case, the next chief justice happened to be from the "other" linguistic group and also the most senior judge on the court at the time. Thus, Patrick Kerwin of Ontario was next senior to Rinfret when he replaced him in 1954, and likewise with the next three chief justices: Robert Taschereau from Quebec (1963-67), John Cartwright from Ontario (1967-70), and Gérald Fauteux from Quebec (1970-73). The chief justiceship re- turned to Ontario with the ap- pointment of Bora Laskin in 1973, but in a dramatic break with convention as Laskin was the second most junior judge. He was, however, a much bet- ter fit with the legal philoso- phy of both Prime Minister Pierre Trudeau and Justice Minister Otto Lang, and in- deed with enhanced public expectations of the Court's role, than the senior judge, Ronald Martland. This marked the first time judicial ideology was seen as a legiti- mate consideration in the choice of a chief justice. Laskin's death in office in 1984 led to the sole occasion since 1944 when seniority and language did not align. The senior francophone judge, Jean Beetz, was junior to Brian Dickson and Roland Ritchie, but Ritchie was due to retire. Beetz did not want the job and the other two Quebec judges were relatively recent appointees. With Charter cases about to explode on the court's docket, the govern- ment wanted an experienced judge at the helm, and thus appointed Dickson. After his retirement in 1991, the happy coinci- dence of seniority and linguistic group resumed with the appointment of Lamer and, in effect, with McLachlin. No such alignment will occur in 2018. Assuming no further retirements, Justice Rosalie Abella as the senior judge will have less than three years to go before turn- ing 75. The two next in seniority are Jus- tices Michael Moldaver and Andromache Karakatsanis, both appointed in 2011, then Justice Richard Wagner, named in 2012. History does not suggest that a Wagner appointment is out of the question. The conventions of promoting the senior judge and the rotation of anglophone and fran- cophone chief justices are fairly strong, but, in principle, both divisible and defeasible. While some have advocated appointing a judge of indigenous background to replace Justice Cromwell, a longer view might sug- gest: Appoint an Atlantic judge to his seat now; in 2018, name Justice Wagner to the top job, and appoint a judge of indigenous heritage to replace the seat vacated by the chief justice. LT uPhilip Girard is a legal historian and pro- fessor at Osgoode Hall Law School. He's also associate editor at the Osgoode Society for Canadian Legal History. His e-mail address is pgirard@osgoode.yorku.ca. COMMENT That's History Philip Girard Inoculation against a rising tide of global risk BY PETER MACKAY I n an age of massive data leaks, whistleblower boun- ties, and multimillion-dollar fines for violations of bribery and corruption laws, multinational corporate ex- ecutives and board members must prioritize the imple- mentation of robust anti-corruption compliance programs to safeguard their companies and shareholder value. Recent examples nationally and internationally of al- legations of illicit activities, in the public and private sec- tor including Canadians, has once again raised the ire of the public. Financial transactions at the highest levels can be a blind spot for the average citizen and those tasked with protecting the public interest. Recent headlines also underscore how easily confidential personal and cor- porate information can be leaked, leading to significant reputational harm and legal risk for corporations and in- dividuals. Disclosures of this nature can drive cynicism among hardworking taxpayers to new heights and also serve as a motivator to install better preventive measures. Where once bribery may have been deemed by some to be a cost of doing business in some parts of the world, in today's global marketplace, bribery is not only a viola- tion of criminal laws, it is widely accepted to be corrosive to the rule of law. Corruption distorts free markets and diverts funds away from education, health care, and oth- er critical public services, and into the hands of criminals and corrupt officials. Given the clearly negative impacts of corruption and bribery, global enforcement of anti-corruption laws is on the rise. While the U.S. Foreign Corrupt Practices Act is the world's most widely enforced anti-bribery statute and, consequently, attracts the most attention, the UK Bribery Act, and Canada's Corruption of Foreign Pub- lic Officials Act also have wide jurisdictional reach and severe penalties. Transparency International, the leading non-profit organization engaged in the fight against corruption in international business transactions, reported in its 2015 Corruption Perceptions Index that two-thirds of the 168 countries it reviewed were perceived as having a se- rious corruption problem. With a significant increase over the past two decades in the number of Canadian companies with operations abroad, combined with the devastating reputational, financial, and societal costs as- sociated with engaging in corrupt conduct, the impor- tance of anti-bribery compliance programs has never been more clear. One can add to these factors the recent efforts by the RCMP to increase its enforcement of the CFPOA under the strengthened amendments made during my time as a minister in the previous government. The RCMP's mul- tiple ongoing investigations and charges against reputa- ble Canadian companies only serve to confirm that Can- ada is not only prepared to update our laws to bring us in line with our main allies in the U.S. and U.K. but that the Canadian government is also willing to impose real consequences on Canadian corporate actors engaged in corruption around the world. In 2013, the government enacted important legislative changes to the CFPOA to strengthen the statute, includ- ing: increasing the maximum sentence of imprisonment to 14 years; implementing a new books and records of- fence to prohibit companies from keeping inaccurate financial records for the purpose of concealing bribery, punishable by up to 14 years' imprisonment; and ex- panding the jurisdictional reach based on nationality. Prior to these amendments, a CFPOA violation needed a "real and substantial" connection to Canada. In practice, this requirement meant that some part of the commission of the offence had to take place in Canada. The amended law instead deems acts of Canadian citi- zens and corporations on a global basis to be acts within Canada for the purposes of the CFPOA. Complementary to the CFPOA, the Canadian gov- ernment strengthened our public procurement policies through the Integrity Regime to ensure that companies with national or international convictions for fraud, bribery, and anti-trust misconduct are not permitted to contract with the federal government for up to 10 years. In addition, concerns are not limited to high-risk regions or the private sector. The recent Charbonneau Commission in Quebec, the Gomery Commission, or the ongoing investigations into the Senate demonstrate that the government must be vigilant in ensuring ethical conduct in all sectors here at home and abroad. As the Canadian government has increased the ju- risdictional reach and penalties contained in its anti- corruption legislation, and at the same time stepped up enforcement efforts, the U.S. has continued to lead the way in driving enforcement under the FCPA. On April 5, the Fraud Section of the U.S. Department of Justice issued new FCPA guidance. The new policies sub- stantially increase available FCPA law enforcement resources, improve co-ordination with foreign law enforcement, and add a pilot program to encourage voluntary disclosure and remediation. A renewed commitment to investigation and enforce- ment by the U.S. authorities only serves to further under- score the importance of ensuring multinational corpora- tions implement robust compliance programs. Moreover, the active encouragement by the U.S. of voluntary reporting of misconduct highlights a key dif- ference with Canadian approaches to enforcement. The existence of deferred prosecution agreements in the U.S. encourages corporate cultures of compliance by reward- ing those companies that implement strong internal anti- corruption programs and that, upon discovering bribery- related activity, report and co-operate with the authorities, as well as take steps to remedy any problem areas. Canada is ready for a robust DPA system accompa- nied by appropriate oversight, which, when employed in the right circumstances, would serve as a much-needed and balanced tool in Canada's efforts to combat corpo- rate misconduct and to encourage internal corporate cultures of compliance and good governance. This cali- brated approach allows for a carrot-and-stick response by authorities and a firm but fair insertion of discretion by authorities tasked to prosecute these cases. Much of the enforcement activities fall to RCMP and CRA public ser- vants who are in need of additional resources and a more clearly defined legislated mandate. Now, more than ever, companies must develop and implement effective anti-corruption compliance pro- grams, which should include strong leadership, rigor- ous internal policies and procedures, greater transpar- ency measures, and regular employee training. These elements must be accompanied by region- and industry- specific risk analyses, and vigorous third-party agent and supplier due diligence from one end of the supply chain to the other. The goal of any anti-corruption compliance program is to prevent and detect misconduct. However, as impor- tantly, good governance can help strengthen the rule of law and the communities in which our corporations op- erate, both here at home and around the world. LT uPeter MacKay is a partner at Baker & McKenzie in Toronto. He is a former Canadian attorney general and minister of Justice, minister of National Defence, and minister of Foreign Affairs. u SPEAKER'S CORNER

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