Corporate Exceptionalism

Corporate Exceptionalism In The SNC Lavalin Affair – Why Corporations And Individuals Treated Differently Under The Law

Presenter: John Pope

March, 2019

An important point that has been brought to light as a result of the SNC Lavalin controversy, is that there is now a legal provision for corporations to apply for leniency in prosecution for their criminal offenses. 

As part of a multi-faceted approach to addressing corporate wrongdoing, the Government of Canada introduced Criminal Code amendments to create a new tool called a remediation agreement.  https://www.canada.ca/en/department-justice/news/2018/03/remediation-agreements-to-address-corporate-crime.html

In the fall of 2017, a public consultation was launched about the viability in Canada of deferred prosecution (remediation) agreements (DPAs).  Here is the report: https://www.tpsgc-pwgsc.gc.ca/ci-if/ar-cw/rapport-report-eng.html

DPA legislation was enacted in June 2018 through provisions in the omnibus budget implementation Bill C-74, that amended the Criminal Code.  https://en.wikipedia.org/wiki/Deferred_prosecution_agreement_(Canada) 

Some say this was directly related to, and came as a result of the SNC Lavalin criminal prosecution for bribery and fraud. 

On Sept 4, 2018, The Public Prosecution Service (headed by Wilson-Raybould) tells SNC-Lavalin in writing it will not invite the firm to negotiate a remediation agreement.  This was the catalyst for a major lobbying campaign by the company and also government officials and cabinet ministers including Trudeau himself to provide Wilson-Raybould with ‘advice’ or ‘information’ about the consequences of her decision.  This is the ‘pressure’ Wilson-Raybould refers to in this issue.

Here is the timeline of events.  Please read this article so that you can participate more effectively in our discussion: https://www.cbc.ca/news/politics/timeline-snc-wilson-raybould-1.5027249

QUESTIONS

1. Should corporations be treated differently under the law than individuals?  Why or why not?

2. Should an important change to the criminal code be inserted into an omnibus bill?

3. What is the definition of ‘pressure’ in this case?

4. Did you hear about the public consultations refereed to above? (I didn’t!)

5. What other ways does the government have for holding corporations to account for their criminal (or ethical)  behaviour?

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