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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.

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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.

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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.

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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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Ottawa sets monthly record for total COVID-19 cases with 99 new cases on Friday

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Sixteen days into October, Ottawa has already set the record for most cases of COVID-19 in a single month.

Ottawa Public Health reported 99 new cases of COVID-19 in Ottawa today, and three more deaths linked to novel coronavirus.

Ontario’s Ministry of Health had reported 108 new cases of COVID-19, but there is sometimes a lag in COVID-19 case reporting between Ontario and Ottawa Public Health. On Wednesday, Ontario reported 39 new cases in Ottawa, while Ottawa Public Health reported 45 new cases.

There have been 1,511 laboratory-confirmed cases of COVID-19 in Ottawa in October, surpassing the September record of 1,413 new cases.

Since the first case of COVID-19 on March 11, there have been 5,908 laboratory-confirmed cases of COVID-19 in Ottawa, including 301 deaths.

Across Ontario, there are 712 new cases of COVID-19 on Friday. Health Minister Christine Elliott reported 213 new cases in Toronto, 135 in Peel Region and 62 in York Region.

HOSPITALIZATIONS IN OTTAWA

One more person was admitted to an Ottawa hospital with COVID-19 related illnesses on Friday.

Ottawa Public Health reports 47 people are currently in hospital with COVID-19, including eight in the intensive care unit.

ACTIVE CASES OF COVID-19 IN OTTAWA

The number of active cases of COVID-19 increased on Friday.

There are 792 active cases of COVID-19 in Ottawa, up from 777 active cases on Thursday.

A total of 4,806 people have recovered after testing positive for COVID-19.

The number of active cases is the number of total laboratory-confirmed cases minus the numbers of resolved cases and deaths. A case is considered resolved 14 days after known symptom onset or positive test result.

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Ottawa mayor rejects possible return of Ottawa-Gatineau border checkpoints, ‘I really don’t think they work’

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Mayor Jim Watson does not want to see police checkpoints return to the five interprovincial crossings between Ottawa and Gatineau, saying “I really don’t think they work.”

Earlier this week, Gatineau Mayor Maxime Pedneaud-Jobin told the Ottawa Citizen that police checkpoints could return to the Ottawa-Gatineau border at “any time,” with the final decision in the hands of the Quebec Government. Earlier this month, Dr. Brigitte Pinard of the Centre Integre de sante et de services sociaux de l’Outaouais said border checkpoints were “possible,” adding “right now, our message is to limit large gatherings.”

When asked by CTV Morning Live host Leslie Roberts about the possibility of police checkpoints returning to the Ontario-Quebec border, Watson said he did not think they worked back in the spring.

“There were so many gaps when the police were not there, and people just figured out I’ll go at an earlier time or a later time. We saw police officers sticking their heads in the car with no masks, so that was not healthy for those individuals,” said Watson Friday morning.

“It’s a costly expense when our police are stretched already to the limit trying to do the work, to have them set up at five different bridge points potentially 24 hours a day would cost hundreds of thousands of dollars every month and I think the money is better spent.”

On April 1, Gatineau Police and the Surete du Quebec set up checkpoints along the Ottawa-Gatineau border to limit non-essential trips into Gatineau. Gatineau Police estimated the random police checkpoints between April 1 and May 17 cost the service more than $400,000.

Mayor Watson tells CTV Morning Live that the Quebec Government’s decision to move Gatineau into the “red zone” two days after Ontario moved Ottawa to a modified Stage 2 should help.

“We are a close relationship and when things happen in Gatineau there’s often a trickle effect over here and I think the fact that we’re both in the red zone, and Quebec of course is the worst hit province, at least levels the playing field for our restaurants and bars,” said Watson.

“I think in the past what had happened was our restaurants and bars would close and then the ones in Gatineau would stay open, and then people from Ottawa would go over there irresponsibly, in my opinion, and then come back potentially with the virus and spread it here.”

While border checkpoints would limit the non-essential travel across the Ottawa-Gatineau border, Watson says that’s not the way to beat COVID-19.

“The message is very clear, stick to your household. This is not the time to have an AirBNB party or a keg party in your backyard, or have 20 people or 30 people in for an engagement party. I know a lot of these get-togethers are important socially for people and emotionally, but we have to ask people to be reasonable and responsible, and this is not the year to do those kinds of things.”

Roberts asked the mayor if he would have a conversation about border checkpoints with Gatineau’s mayor.

“I had it the first go-around, but at the end of the day I also respect their jurisdiction and their autonomy. It is the province that would have to impose that, not the municipality,” said Watson.

“From our perspective, we don’t think it’s an effective use of resources. We want to continue to get the message across that we can win this battle against COVID-19 if we socially distance, we wear a mask, we actually follow the simple rules that are put forward.”

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Ottawa woman breaks 14-day quarantine rule to work at long-term care home: police

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OTTAWA — A 53-year-old Ottawa woman is facing charges under the federal Quarantine Act after Ottawa police say she failed to self-isolate for 14 days after travelling abroad and returned to work at a long-term care home.

Ottawa Police say information was received indicating that an Ottawa woman had travelled abroad. She returned to Canada on Sept. 26, so she was required under federal law to quarantine for 14 days, until Oct. 9

“The woman decided not to respect this order and went to work on Sept. 30 at a long-term health facility in Ottawa,” police said in a news release. “When management was apprised of the situation, she was immediately sent home. The facility immediately activated mitigating self-isolation and cleaning protocols and informed all persons that had been in contact with the subject.”

Police say none of the residents of the long-term care facility have tested positive for COVID-19 as a result of the woman attending work.

Ottawa police say this is the first person they have charged under the Quarantine Act during the pandemic.

The woman is charged with failing to comply with entry condition under section 58 of the Quarantine Act and cause risk of imminent death or serious bodily harm under section 67 of the Quarantine Act.

The maximum penalty for causing risk of imminent death or serious bodily harm is a $1 million fine and three years in prison. For failing to self-isolate for 14 days, she faces a $750,000 fine and up to six months in jail.

Police did not release the name of the woman, nor where she worked. The woman is due in court on Nov. 24.

Ottawa Mayor Jim Watson’s office issued a statement following the announcement of the charges.

“Mayor Watson was disturbed to learn about the alleged carelessness of the individual in question. This type of reckless behaviour could have harmed their colleagues, and more importantly, the residents of the long term care home. We must all do our part to limit the spread of COVID-19 in our community.”

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