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The case for—and problem with—remediation deals like the one SNC-Lavalin wants

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The furor over deferred prosecutions and the SNC-Lavalin case has drawn attention to a new law most Canadians had never before heard of—one that aims to serve a greater good by encouraging companies to come clean about wrongdoing, while sparing enormous costs in the form of lost jobs, devalued pensions and expensive court proceedings.

But in doing so, the case has put a spotlight on the sensitive position of the attorney general when so-called “remediation agreements” come into play, as he or she must walk a fine line between preserving his or her independence from political considerations while remaining accountable to Parliament.

This is an inherent tension in the AG’s role. But it’s seldom been more apparent than in recent days, and points to an urgent need for cabinet-created guidelines to keep deferred prosecution cases like the SNC-Lavalin affair from turning into political crises.

The new provision, Section 715.32 (1) of the Criminal Code, states that the prosecutor may enter into negotiations for a remediation agreement with an organization alleged to have committed an offence if  “the prosecutor is of the opinion that negotiating the agreement is in the public interest” and “the Attorney General has consented to the negotiation of the agreement.” This section puts the attorney general at the vortex of every case where an organization seeks a deferred prosecution agreement.

RELATED: For a commission of inquiry into SNC-Lavalin and the Prime Minister’s Office

The provisions governing remediation agreements are complex, and structure both the prosecutor’s and AG’s discretion by setting out the objectives of such agreements: denouncing an organization’s wrongdoing; encouraging voluntary disclosure of it; providing reparations for harm done to victims or to the community; and reducing the negative consequences for those who did not engage in the wrongdoing—employees, customers, pensioners and others. The point is to do all this while holding responsible those who did engage in wrongdoing.

All of these purposes fall within the traditional mandate of the attorney general, but the public interest in these cases also has potential political ramifications. In a 1990 working paper on the attorney general and the Crown prosecutor, the Law Reform Commission of Canada observed that political considerations should not in normal circumstances affect prosecutorial decisions. The AG may seek the advice of cabinet, but is not bound by that advice.

With respect to the facts involving SNC-Lavalin, I have no knowledge and make no comment about what occurred or did not occur. My point is a larger one about the need for the development of transparent guidelines. Cabinet has the power to make regulations generally for the purpose of deferred prosecutions. To date, it has not done so. The role of the attorney general in remediation agreements requires careful study by a body such as a Law Reform Commission, (which no longer exists as it was abolished by previous governments. Full disclosure: I worked for the commission at the start of my career). The creation of detailed and transparent guidelines in the regulations, after careful study, would be helpful.

RELATED: Jody Wilson-Raybould fallout detonates Real Change™ brand

The commission’s Working Paper 62 identified the potential for a political storm when an attorney general is caught between the wishes of cabinet and his or her own judgement:

“Nevertheless, the federal Attorney General is appointed by the Prime Minister and so could be dismissed from office for insisting on a course of conduct that is against the advice of the Cabinet. In such circumstances the Attorney General might feel compelled to resign before being dismissed. Either event could be expected to have a serious political impact affecting even the government’s survival.”

In light of cabinet and solicitor-client privilege, we cannot draw direct parallels between present events and the above passage, but this illustrates that the tensions in the AG’s role have been debated for years.

In the discussion about the SNC-Lavalin case, we must not lose sight of the positive benefits of deferred prosecutions and the merits of the Canadian scheme. There is a judicial check or safeguard on remediation agreements: a court must be satisfied that the agreement is fair, reasonable and proportionate to the gravity of the offence. This requirement follows a model developed in the U.K. (There is however no explicit mechanism for court review of the opposite decision to not grant a remediation agreement).

As I’ve noted, one objective of a remediation agreement is to encourage voluntary disclosure of wrongdoing. Where an organization discovers misconduct that the police are not aware of, there is a need for a carrot, or incentive, for the organization to “come in from the cold”. Enforcement authorities gain the benefit of internal investigations that are funded by industry and disclosed voluntarily, which saves government time, cost and resources and brings to light misconduct that might otherwise never become public.

RELATED: Jody Wilson-Raybould’s father: ‘I think she was kicked in the teeth’

We must also remember that a remediation agreement is not a “free pass” from justice. It must include the payment of a penalty. More importantly, it requires the company to forfeit any property, financial gains, benefits or advantages arising from the misconduct to Her Majesty. The agreement can also allow the appointment of an independent monitor, selected with the prosecutor’s approval, to verify and report on the organization’s compliance—including the obligation to cooperate with and pay the monitor’s costs. This person is an embedded auditor whose role is akin to a police officer residing at a business for a period of time.

Compared to the U.S. and the U.K., Canada is a relative neophyte in the world of deferred prosecutions, which were long overdue. In drafting guidelines cabinet should look at the practice in other jurisdictions to see how they strike the delicate balance between prosecutorial independence and accountability to the public.

Kenneth Jull is the author of Profiting from Risk Management and Compliance, an adjunct professor at U of T Faculty of Law and Osgoode Hall Law School and counsel at Gardiner Roberts LLP specializing in risk management strategies to promote regulatory and corporate compliance

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List of Tourist Attractions Open Now in Ottawa

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With Ontario now in Step 3 of 2021 three-step plan for reopening, museums and other indoor attractions are allowed to reopen with capacity limited to not exceed 50 per cent capacity indoors and 75 per cent capacity outdoors.

Here is a list of Ottawa attractions you can visit starting July 16th.

Do remember to wear masks and buy tickets in advance.

Parliament Hill

Parliament’s Centre Block and Peace Tower are closed for renovation.

You can join for tours of the Senate of Canada Building (2 Rideau Street), House of Commons at West Block (111 Wellington Street) on Parliament Hill, and East Block at East Block (111 Wellington Street) on Parliament Hill.

When: Grounds open; guided tours of Parliament are suspended through the summer of 2021.
Where: 111 Wellington Street, Downtown Ottawa

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Ottawa performer leapfrogs from gymnastics to Broadway to TV

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A new AppleTV+ series set in a magical town that’s stuck in a neverending 1940s musical includes a pair of Ottawa siblings in the cast. 

Warren Yang and his sister, Ericka Hunter, play two of the singing, dancing residents of the village portrayed in Schmigadoon!, a small-screen series that takes its cues from classic musicals like Brigadoon, Wizard of Oz and Sound of Music, and skewers them with the offbeat comedic mastery of Saturday Night Live. 

In fact, you’ll recognize many of the names from SNL, starting with executive producer Lorne Michaels, creator of the late-night, live-comedy sketch show. Schmigadoon! also stars SNL cast member Cecily Strong and comedian Keegan-Michael Key, who hosted SNL in May. They play a New York couple who get lost on a hike and stumble into a strange town where everyone sings and dances. 

For Yang, a relative newcomer to show-biz, the series marks his television debut. For Hunter, the younger of his two older sisters, it’s the latest in a career path that began with dance lessons as a child more than 30 years ago. She attended Canterbury High School, Ottawa’s arts-focused secondary school. 

“Her dream was always to perform,” said Yang, 34, in an interview. “But that was never the path I thought was an option for me.” 

While his sister studied dance, Yang did gymnastics. He was an elite gymnast throughout his youth, ultimately leaving Merivale High School at 16 to train in Montreal, finishing high school through correspondence courses. He was a member of the Canadian National Team and received a scholarship to study at Penn State, majoring in marketing. 

A few years after graduation, Yang was working at an advertising agency in Toronto when he got a call from a Manhattan number. To his astonishment, they asked if he would be interested in auditioning for a Broadway revival of Miss Saigon.

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COVID-19: uOttawa to require vaccination for students living in residence

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Vaccination will be mandatory for students who want to live in residence at the University of Ottawa this year, with proof of vaccination and at least one dose required before move-in, or within two weeks of doing so if they can’t secure a shot before arriving.

Those who can’t receive a vaccine for “health-related reasons or other grounds protected under the Ontario Human Rights Code” will be able to submit a request for accommodation through the university’s housing portal, according to information on the university’s website.

Students with one dose living in residence will also have to receive their second dose “within the timeframe recommended by Ottawa Public Health.”

People who haven’t been granted an exemption and don’t get vaccinated or submit proof of having done so by the deadlines set out by the school will have their residence agreements terminated, uOttawa warns.

“Medical and health professionals are clear that vaccination is the most (effective) means of protecting people and those around them,” reads a statement provided to this newspaper by uOttawa’s director of strategic communications, Patrick Charette.

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“It is precisely for this reason that the University of Ottawa is requiring all students living in residence for the 2021-2022 academic year to be fully vaccinated. The University recognizes that some students may require accommodations for a variety of reasons and will be treating exceptions appropriately.”

Faculty, staff and students are also strongly encouraged to get vaccinated, the statement notes.

“Ensuring a high vaccine coverage in all communities is critical to ensuring an ongoing decline in cases and ending the pandemic. This will be especially important with the return of students to post-secondary institutions in our region in the fall of 2021.”

Neither Carleton University nor Algonquin College is currently mandating vaccination for students living in residence, according to the websites for both schools. But uOttawa isn’t alone in its policy – Western University, Trent University, Durham College and Fanshawe College have all implemented similar requirements. Seneca College, in the GTA, is going even further, making vaccination mandatory for students and staff to come to campus, in-person, for the fall term.

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