Canada: The International Investigations Review - Canada Chapter

Last Updated: August 2 2013
Article by Wendy Berman and Jonathan Wansbrough


In the aftermath of the global financial crisis, high-profile corporate scandals and growing public mistrust, there is a trend in Canada towards broadening the scope of corporate liability and strengthening the enforcement tools used to detect and prosecute corporate wrongdoing.

A regulatory or law enforcement investigation or prosecution against a corporation or a single individual within the corporation can be devastating and cause significant business disruption. Corporations facing allegations of wrongdoing should be prepared to react and respond in a timely and effective manner. The form of reaction and response will depend heavily on the nature and severity of the allegations; however, in all circumstances, the corporation must consider appropriate and necessary steps to mitigate potential business, legal and reputational risks.

There are a number of regulatory and law enforcement agencies in Canada empowered to investigate and prosecute not only corporations, but also their directors, officers and employees for corporate misconduct. The overlapping jurisdiction of these agencies has created a dense enforcement mosaic.

Federal, provincial and municipal police agencies are empowered to investigate suspected violations of Canada's Criminal Code,2 such as fraud and insider trading, in addition to criminal offences under various other statutes.3 Recent legislative amendments give exclusive authority to the federal police agency, the Royal Canadian Mounted Police ('RCMP'), to investigate and lay charges for foreign corruption and anti-bribery offences.4 The RCMP currently has special investigation units in two major cities dedicated to the investigation of corruption offences.

Federal and provincial prosecution agencies in Canada also share jurisdiction to prosecute certain criminal offences arising from corporate misconduct, including fraud. There are standing and ad hoc cooperation arrangements between the federal prosecution service, the Public Prosecution Service of Canada5 ('PPSC'), and provincial prosecution services to enable cooperation and coordination over such criminal prosecutions. The PPSC has exclusive responsibility for prosecuting offences under more than 50 federal statutes, including the Competition Act,6 the Income Tax Act7 and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act.8

In an effort to strengthen and streamline the investigation and prosecution of capital market fraud offences, the Government of Canada established the RCMP Integrated Market Enforcement Team ('IMET') in 2003.9 IMET currently has 10 specialised investigative teams operating in four major financial centres.10 However, 10 years after its implementation, the IMET programme has been heavily criticised for its lack of effectiveness and poor track record,11 including its low conviction rate.12

During a criminal investigation, law enforcement agencies may exercise a range of powers, including searching corporate offices, searching and seizing electronic and other documents, and engaging in electronic surveillance. The investigatory powers of police are not without limitation and under ordinary circumstances, prior authorisation, in the form of a warrant, is required and the investigating officers must show that they have 'reasonable grounds' to conduct the search.13 In the case of more extreme measures such as wiretapping, in the absence of imminent harm, investigators must seek prior authorisation and demonstrate that the surveillance is in the best interests of the administration of justice and that there is 'investigative necessity'.14 Police authorities are also increasingly using production orders, which are court orders used to obtain disclosure of relevant documents or electronic information from organisations and individuals not under investigation.15

There is no national securities regulator in Canada. Each of the 13 provincial and territorial securities commissions has the power to investigate and prosecute securities-related misconduct.16 These provincial regulators also provide assistance and cooperation to each other under various voluntary cooperation protocols and through an umbrella organisation, the Canadian Securities Administrators. Each of the provincial and territorial securities commissions has broad powers for both the commencement and conduct of an investigation under separate securities statutes.17 Investigators and examiners appointed by the securities commission have the right to (1) examine documents, (2) enter into the business premises of any person or company named in an investigation order to inspect documents or other things used in pursuit of the company's business, (3) compel testimony or the production of documents or other information or things, and (4) apply to the court without notice for an order authorising the search of any premise or place and the seizure of any item specified in the order. The provincial and territorial securities commissions have jurisdiction to prosecute securities law violations administratively or quasi-criminally.


i Self-reporting

Self-reporting or voluntary disclosure of corporate misconduct is encouraged by various regulatory and law enforcement agencies in Canada, including through the use of leniency or immunity programmes for self-reporting as a means to increase the detection of criminal misconduct. In certain circumstances self-reporting is required, such as the duty to report the spill of pollutants under the Environmental Protection Act.18 Apart from self-reporting, a public company may otherwise be required to disclose corporate misconduct or the fact of an internal investigation as part of its continuous disclosure obligations under provincial securities law regimes.

In the securities regulatory context, some Canadian securities regulators have formal policies which recognise and encourage self-reporting.19 The Ontario Securities Commission ('OSC') has a formal Credit for Cooperation programme, which allows potential respondents to benefit from a variety of leniency measures if they have acted responsibly during the course of the investigation and have self-policed, self-reported and self-corrected the matters under investigation. In particular, the OSC may reduce sanctions or refrain from prosecutions altogether.20 Leniency under the Credit for Cooperation programme is not available in certain circumstances, including when the corporation puts its own interests (or the interests of its officers, directors or employees) ahead of its obligations to shareholders or the integrity of the capital markets, arranges its affairs to delay reporting a matter or claims privilege to avoid providing details of potential breaches of Ontario securities laws.21

Since its enactment, there has been limited use of the Credit for Cooperation programme and it is generally viewed as ineffective.22 The investigation of CP Ships Ltd remains the best example of a corporation receiving credit for cooperation from the OSC. Largely due to the credible process undertaken by the corporation, the OSC did not institute legal proceedings against CP Ships Ltd, notwithstanding that the company failed to disclose a material change in a timely manner and several of its insiders engaged in insider trading. In granting credit for cooperation, the OSC favourably considered the steps taken by CP Ships Ltd, including establishing a special committee of the board of directors to investigate the issues, providing the findings of its internal investigation and other relevant information to the OSC, publicly disclosing the investigation, and undertaking a voluntary review of its insider trading and corporate disclosure policies.23 In Re Nortel Networks Corp, a case involving misleading and inaccurate financial statement disclosure, the OSC approved a settlement agreement and did not order any monetary penalty against Nortel Networks Corporation ('Nortel'). Nortel was cooperative throughout its review of the matters, conducted an internal independent review, provided periodic reports to the OSC on the status of the review, implemented new accounting measures and procedures, and assisted the OSC in its investigation.24 Similarly in Re Research in Motion et al, a matter involving improper stock option practices and inaccurate financial reporting, no administrative or other monetary penalties were ordered against the corporation, largely as a result of the credible voluntary internal investigation, cooperation and remediation undertaken by the corporation.25

Although encouraged under Canada's foreign corrupt practices regime, there are no formal programmes, protocols or guidelines for self-reporting, leniency or immunity. Two recent high-profile cases may provide some indication of the benefits of self-reporting. In R v. Niko Resources Inc,26 Niko Resources Inc ('Niko') was fined $9.5 million for providing gifts to a foreign public official worth approximately $200,000. Niko cooperated with the police investigation but did not self-report. In R v. Griffiths Energy International Inc,27 a new board and management team discovered the company had previously made payments in excess of $2 million and provided certain securities to a company controlled by the wife of a foreign official while the company was negotiating with the foreign government for the grant of oil concession rights. The company commenced an independent internal investigation, self-reported and shared the results of their internal investigation with the police and the PPSC and implemented a robust anti-corruption compliance programme. Griffiths Energy International Inc ('Griffiths') paid a fine of $10.35 million, an amount just slightly more than the fine paid by Niko even though the value of the bribe was more than ten times greater than the bribe made by Niko.

In contrast, under the Competition Act, two distinct programmes of selfreporting are available: the Immunity Programme and the Leniency Programme.28 The Competition Bureau has described the Immunity Program as its single most powerful means of detecting criminal activity.29 Under the Immunity Program, the Competition Bureau may make a recommendation to the PPSC that immunity be granted. The PPSC may then grant such treatment on the basis of its assessment of the public interest.30 The Competition Bureau will only recommend immunity in situations where a party discloses an offence of which the Competition Bureau is unaware or, where the Competition Bureau is already aware of an offence, the party is first to come forward before there is sufficient evidence to warrant a referral of the matter for prosecution.31 In both situations, the requirements for a party to be eligible for immunity include the following: the requesting party must terminate its participation in the activity; the requesting party must not have coerced others to be a party to the activity; the requesting party cannot be the only party involved in the activity; the requesting party must cooperate with the Competition Bureau's investigation and subsequent prosecutions; and such cooperation must be at its own expense.32 If the PPSC accepts the Commissioner's recommendation for immunity, the PPSC will execute a formal immunity agreement with the requesting party.33 Such an agreement typically ensures that the allegations against the party will not be made public. In cases involving multiple parties, where immunity has been granted to the first-in requesting party, second-in and later applicants may seek leniency under the Leniency Program.

Under the Leniency Program, the Competition Bureau may make a recommendation to the PPSC that a cooperating party who has breached a criminal provision be granted leniency provided that the party has fully cooperated in a timely manner at its own expense, has terminated its participation in the criminal conduct and agrees to plead guilty.34 Where the PPSC accepts the recommendation, the PPSC and the cooperating party will make a joint sentencing submission to the court.35 Multiple parties may be eligible for a recommendation of leniency. The first applicant is typically eligible for up to a 50 per cent reduction of the fine that would otherwise have been recommended, the second is typically eligible for a reduction of up to 30 per cent, and the reduction available to any subsequent applicants will depend on when the application is sought in comparison to the previous applicant, as well as the timeliness of that applicant's cooperation and quality of information being provided.36 Leniency will not be available once the Competition Bureau has referred the results of its investigation to the PPSC for the purposes of a prosecution.

While many Canadian regulatory and law enforcement agencies state that voluntary disclosure will result in a more lenient resolution, few provide any specific guidance or guidelines. With little or no assurance as to the likely benefit from self-reporting, such as the amount of any reduction on sanction or the circumstances that would warrant no enforcement action, corporations are faced with uncertainty as to whether their cooperation will be appropriately or fairly recognised. In addition to this uncertainty as to the likelihood or extent of leniency, corporations must consider the costs of voluntary disclosure, including reputational damage and the consequences of such admissions on other potential or existing civil proceedings, such as class actions, or other cross-border investigations or proceedings in determining whether and how to voluntarily disclose.

ii Internal investigations

At a time of greater scrutiny of corporate conduct by law enforcement agencies, regulators, stakeholders and the general public, corporations are increasingly undertaking internal investigations of suspected corporate wrongdoing. The need for an internal investigation may be triggered by internal developments, at the request of external auditors, or by external developments such as regulatory or criminal investigations, media reports and whistle-blower complaints. The decisions whether to commence an internal investigation and how to conduct such an investigation are important ones for a corporation. Depending on the circumstances, the internal investigation may be handled by senior management, the board of directors, the audit committee or a special committee of the board of directors. Current governance best practices dictate that the internal investigation should be led by the board where the alleged wrongdoing involves the conduct of senior management or where the corporation is the focus of a regulatory or criminal investigation, to ensure that the investigation and its results are, and are perceived to be, credible.

When a corporation determines that the internal investigation should be handled by the board of directors, the board typically forms a special or independent committee with a mandate to conduct the investigation. In certain cases (such as those where the quality of financial reporting is at issue) an existing committee such as the audit committee may undertake the investigation. In each case it is crucial that the members of the reviewing committee are independent and have the time and expertise to fulfil the committee's mandate. In circumstances involving serious misconduct, the failure to establish a committee independent of management or of any directors whose conduct is at issue may significantly impede the company's ability to credibly 'get to the truth' and address external threats. The findings and recommendations of an independent committee investigation are more likely to be accepted by government prosecutors, regulators, courts, private litigants and the media.37

Where an independent committee is established to conduct an internal investigation, the board should approve a mandate for the committee that authorises the committee to conduct the investigation, sets out the scope of the committee's authority and provides the committee with the resources necessary to discharge its responsibilities (including the authority to retain independent external legal and other advisors) and to report its ultimate findings to the board. The independent committee will need to develop an investigation plan to gather all necessary information and facts in a timely manner, which will typically include recovery, preservation and review of documents and witness interviews.

The preservation and gathering of electronic and hard copy documents may require external forensic experts. As an important first step, a corporation should implement a clear directive to all relevant employees, officers, directors and consultants to preserve and hold all potentially relevant records and take all necessary steps to suspend any document destruction under standard document retention and destruction policies. Any document destruction could negatively impact the credibility of the investigation.

The most common witness interviews are internal interviews of employees, directors and officers with knowledge or involvement in the matters at issue. Such individuals owe a duty to the corporation to submit to an interview and may retain their own legal counsel to represent them at the interview. The corporation may be obligated to reimburse or advance any legal fees incurred by the employee or officer depending on the terms of any contractual indemnities. The corporation is also obligated under statute to indemnify directors for such legal fees unless the director failed to act honestly, in good faith and in the best interests of the corporation.38 The corporation should advise any employee, officer or director prior to the interview of the confidential or privileged nature of the investigation, that the information obtained during the interview may become public or shared with external parties such as government authorities (if that is a possibility) at the sole discretion of the corporation and may be used in the determination of any necessary disciplinary action. For those employees, officers or directors who are targets or potential targets of the investigation, it may also be necessary to advise of their right to counsel.

The investigation plan may also include interviews of external parties, such as consultants, advisers or business partners with knowledge or involvement of the matters at issue, to the extent that such external parties agree to voluntarily submit to an interview. Any such witnesses should be advised that the information obtained during the interview may become public or shared with government authorities (if that is a possibility).

A corporation may decide to share the existence and results of an internal investigation with government regulators, agencies or other external parties, and, in some circumstances, the independent committee may have an important role in the communications with such external parties. Depending on the nature of the investigation, a public company may be required to disclose the establishment of an independent committee and the results of its investigation pursuant to continuous disclosure obligations under Canadian securities laws.

The corporation may also be subject to production demands or orders from government authorities or through civil litigation, including class actions, and the corporation and its independent committee should consider and obtain advice on the scope of any privilege protection available over the work product and results of the investigation. Although the corporation may ultimately decide to share the results of the investigation with external parties, it is important to obtain such advice and to implement any appropriate privilege protocols for the conduct of the investigation at the outset of the investigation. If the internal investigation is conducted by external counsel for the purpose of advising the independent committee or is undertaken in anticipation of litigation, the work product and results of the investigation may be protected by solicitor– client privilege or litigation privilege. If the work product or results of the investigation are shared with external parties, such as government authorities, any privilege is likely waived and no longer available to protect from disclosure in any civil litigation.

iii Whistle-blowers

Employees who report suspicions of illegal activity on their own initiative have statutory protection from reprisal in certain circumstances. Under the Criminal Code, it is an offence for an employer to take any disciplinary measures, or threaten to do so, with the intent to compel an employee to abstain from whistle-blowing to a federal or provincial law enforcement official.39 Anyone found guilty of this offence is liable to imprisonment for a maximum of five years. Current governance best practices favour corporations implementing internal whistle-blower policies, which provide protections for whistleblowers and a clear regime for effective and independent investigation of complaints.

Protection is also afforded to whistle-blowers through certain specific legislative regimes. For instance, the Competition Act prohibits employers from retaliating against employees who report offences, refuse to conduct illegal activities or declare their intention to comply with the Act.40 Recently, the Competition Bureau launched a 'Criminal Cartel Whistle-blowing Initiative' to encourage members of the public to alert the Bureau to possible violations of the criminal provisions of the Competition Act.41 A key feature of the Competition Bureau's whistle-blower regime is that the Competition Act provides for the protection of the identity of the whistle-blower.42 In other contexts, whistle-blowers are protected by specific legislative regimes including the Canadian Environmental Protection Act,43 the Ontario Occupational Health and Safety Act44 and the Employment Standards Act45 (Ontario), which prohibit employers from retaliating against workers who have complied with, or seek the enforcement of, the legislation.

Canadian legislation does not yet provide financial rewards for whistleblowers, although several regulators are reviewing and considering such incentives. The OSC has sought comments on a proposed whistle-blower programme, which would introduce incentives for individuals who provide the OSC with information about misconduct in the marketplace.46 In addition, the Canada Revenue Agency ('CRA') recently announced that it will launch its Stop International Tax Evasion Program, under which it will pay rewards to individuals with knowledge of major international tax non-compliance when they provide information to the CRA that leads to the collection of outstanding taxes exceeding $100,000.47


i Corporate liability

In Canada, corporations may be held criminally liable for both absolute or strict liability offences and for true criminal mens rea offences (offences requiring guilty intent). For absolute and strict liability offences, including most regulatory offences, corporations are vicariously liable for the acts or omissions of their employees and agents regardless of intent, subject to limited defences.48

For true criminal offences, corporations in Canada were traditionally held liable based on the 'identification theory', which identified the fault of a corporation by the actions and intent of the senior officers and directors considered to be the 'directing minds' of the corporation.49 Under amendments to the Criminal Code enacted in 2004, corporations may now attract criminal liability for the actions or omissions of a range of individuals wider than simply those individuals who would constitute 'directing minds' of the corporation.50 Corporations will be held criminally liable for the actions or omissions of 'senior officers'51 including directors, officers, senior managers and any individual, partner, employee, member, agent or contractor having an important role in the establishment of the organisation's policies or responsible for managing an important aspect of the organisation's activities. Liability for such actions or omissions is also limited to circumstances where such individuals act or fail to act with the intent at least in part to benefit the corporation. There is only one case to date that has interpreted the scope of these organisational liability provisions of the Criminal Code. In R v Global Fuels Inc52 the Quebec Court of Appeal confirmed a broad approach to corporate criminal liability and interpreted the term 'senior officer' as extending beyond senior management to encompass lower level employees that meet certain criteria. Relevant factors include the individual's title, duties, the extent of his or her authority and the importance of the activities that the individual manages on behalf of the corporation.

ii Penalties

Under Canadian law, corporations are subject to various sanctions and penalties for criminal and regulatory misconduct, including violations of the Corruption of Foreign Public Officials Act53 ('CFPOA'), the Competition Act and provincial securities legislation. These sanctions may include monetary penalties such as fines and disgorgement, in addition to other orders made in the public interest. Although not necessarily an automatic consequence of a breach of statute, companies may also face debarment under Canadian government purchasing guidelines.

In accordance with its international obligations under the Organisation for Economic Co-operation and Development ('OECD') Convention on Combating Bribery of Foreign Public Officials in International Business Transactions ('OECD Bribery Convention'), the Government of Canada has introduced strict penalties for breaches of the CFPOA. Individuals found guilty of bribing a foreign public official, either directly or indirectly, may face a term of imprisonment of up to 14 years. The CFPOA does not specify a maximum fine for corporations; however, the Criminal Code provides that in lieu of a prison sentence, corporations convicted of an indictable offence, such as a breach of the CFPOA, are subject to a fine at the court's discretion.54

In assessing the financial penalty to impose on a corporation for breaches of the CFPOA or other criminal misconduct, including fraud, the court will consider a number of factors, such as the advantage realised as a result of the offence.55 Courts will also consider mitigating factors such as whether the organisation has taken steps to reduce the likelihood of a subsequent offence. In the context of a breach of the CFPOA, this could include the implementation of a rigorous compliance and training programme. In the Griffiths case, mitigating factors included the fact that the company's new management took steps to implement a robust anti-corruption compliance programme and that many of the steps in furtherance of that programme were already initiated at the time the unlawful bribery was discovered and reported to authorities.56

Under the Competition Act, a corporation faces a range of sanctions depending on the offence. For more serious offences, including anti-competitive behaviour such as price fixing, the Competition Act imposes a fine of up to $25 million.57 In the case of bid rigging, there is no upper limit on the fine that may be imposed and such a fine is at the discretion of the court. In addition to monetary penalties, the Competition Act empowers the Federal Court of Canada to impose special remedies where intellectual property rights have been improperly used in the restraint of trade.58 Furthermore, individuals convicted of breaching the Competition Act may be subject to a term of imprisonment. For instance, conspiracy and bid rigging are punishable by up to 14 years in prison.59

Breaches of provincial securities legislation also attract a range of sanctions, both financial and non-financial, depending on the severity and nature of the breach. The OSC has the power to order an administrative penalty of up to $1 million for each breach of Ontario securities law, disgorgement of any amounts obtained as a result of noncompliance with securities law and various non-monetary sanctions including, among others, suspending the trading of a company's shares (either temporarily or permanently), restraining a person or company from trading in securities, and preventing an individual from acting as a director or officer of a company.60

As discussed, securities regulators can elect to prosecute certain violations of securities law either administratively or quasi-criminally. In Ontario, where the OSC proceeds quasi-criminally, the Securities Act provides that individuals may be imprisoned for up to five years, less one day. Where the breach of securities legislation is pursued as a quasi-criminal offence, the maximum fine is $5 million or, in cases of insider trading or tipping, the greater of $5 million or an amount equal to three times the profit made or loss avoided.61 The federal government has also criminalised certain financial misconduct under the Criminal Code, such as insider trading and tipping, which is punishable by a prison term of up to 10 years. To date, there has only been one conviction for criminal insider trading,62 although there are indications that, in conjunction with provincial prosecutors, securities regulators may seek to bring more insider trading charges under the Criminal Code.

While debarment is not a statutory penalty under statutes such as the Criminal Code or the CFPOA, the procurement policy of Public Works and Government Services Canada ('PWGSC'), the federal department primarily responsible for the purchase of goods and services, restricts PWGSC from accepting bids from a company convicted of certain offences, including various fraud, bribery and corruption offences.63

iii Compliance programmes

Corporate compliance programmes are a critical component of responsible corporate governance practices in Canada, and necessary to assist corporations in mitigating legal, economic and reputational risks. When a corporation is the subject of a criminal or regulatory investigation, a robust compliance regime helps to establish credibility with investigators and may ultimately assist in avoiding prosecution.

Even where charges are levied against a corporation, a compliance programme implemented prior or subsequent to the investigation may help mitigate a corporation's exposure.64 A court imposing a criminal sentence on an organisation must consider a number of factors, including whether the organisation has taken any measures (such as implementation of a compliance programme) that would reduce the likelihood of it committing a subsequent offence.65 Similarly, the willingness of a corporation to proactively implement, or improve, a compliance programme following an investigation would likely be looked on favourably by regulators and prosecutors. In respect of strict liability offences, a compliance programme may even serve as a complete defence.66

iv Prosecution of individuals

Individuals may also face criminal, regulatory or civil liability for corporate misconduct. Individuals may be criminally liable for their own misconduct, for facilitating the corporate misconduct or as parties to the corporate misconduct. In the securities regulatory context, for instance, a director or officer of a corporation who authorised, permitted or acquiesced in a securities violation shall also be deemed not to have complied with securities law.67

Given the inherent potential for conflict, corporations and their individual directors, officers and employees are typically represented by separate legal counsel from the outset of any criminal and regulatory investigations and proceedings. Notwithstanding the potential for conflict, there will often still be a shared interest between the corporation and the individual director, officer or employee in the outcome of the investigation or proceedings and, in appropriate circumstances, a joint defence arrangement may be established to permit the corporation and the individual to continue to confer, coordinate, strategise and share privileged information.


i Extraterritorial jurisdiction

Canadian authorities may assume jurisdiction over conduct that occurs outside of Canada if authorised by statute or if such conduct has a 'real and substantial connection'68 to Canada. Canadian authorities will also consider the requirements of international comity before assuming extraterritorial jurisdiction.

A company may be subject to Canadian jurisdiction for the actions of its employees, officers and directors while they are working in Canada. Moreover, where Canadian law explicitly covers the conduct of its citizens or residents while abroad, a company may be liable for the actions of those employees even though they are acting outside of Canada.

In the context of foreign corruption, under the CFPOA Canadian authorities currently assert jurisdiction where a significant portion of the actions or omissions constituting a corruption offence are committed in or connected to Canada. It should be noted that jurisdictional scope under the CFPOA has yet to receive judicial consideration. Recently and in response to pressure from the OECD, Canada has amended the CFPOA to extend jurisdiction to cover the actions of Canadian companies, citizens and residents, regardless of where they occur. This is consistent with the law of many parties to the OECD Bribery Convention, such as the United States and the United Kingdom.

Under Canadian competition law, there are no specific statutory provisions establishing extraterritorial jurisdiction. There are several provisions in the Competition Act that appear to authorise remedies for conduct outside of Canada that has affected or threatens to adversely affect competition in Canada, such as the price maintenance provisions. However, in practice, the Competition Bureau generally takes an effects-based approach to jurisdiction and considers the effect of alleged unlawful conduct on Canada or Canadian companies.69 For instance, the Competition Bureau takes the position that the conspiracy provisions of the Competition Act authorise remedies against foreign or domestic participants in a conspiracy when the conduct has local effects in Canada even though the agreement to conspire was made outside of Canada.70 The extraterritorial application of the conspiracy provisions was considered in Vitapharm Canada Ltd v. F Hoffmann-La Roche Ltd71 in the context of an application for certification of a class action under of the Competition Act. The court rejected the notion that a conspiracy to fix prices is an offence only when the agreement to conspire was made within Canada.72 ii International cooperation Canadian government agencies, both federal and provincial, actively cooperate with law enforcement agencies of other countries through formal and informal means, including multilateral agreements. Canadian law enforcement and regulatory agencies may also engage in the informal sharing of information with their foreign counterparts, without the need to trigger formal processes.

In the criminal law context, Canadian law provides for both extradition and interstate cooperation and collaboration in criminal law matters. In the case of extradition, Canada's Extradition Act provides that a person may be extradited from Canada on request from an extradition partner under circumstances such as where the underlying offence is punishable by a term of imprisonment of two or more years (or by more severe punishment) in both the requesting country and Canada (if the offence had occurred in Canada).73

With respect to non-extradition cooperation, the Mutual Legal Assistance in Criminal Matters Act74 provides that Canada may request assistance or provide assistance to other countries through various means, including conducting search and seizures, facilitating the examination of witnesses under oath and transferring detained persons abroad to assist foreign criminal investigations. A request for assistance under this legislation must generally be made pursuant to an existing agreement, such as a treaty, convention or other international agreement.75 To that end, Canada has entered into mutual legal assistance treaties ('MLATs') with a number of countries. MLAT requests can be used to obtain assistance at all stages of an investigation, including before and after charges have been laid.76 Additionally, many MLATs permit the requesting state to obtain commission evidence.77 It is important to note that Canada may also request assistance from a foreign state or entity in the absence of a formal treaty.78

Canada also cooperates with its international counterparts in respect of foreign corruption, and is a member of the United Nations Convention against Corruption (the 'UN Corruption Convention'),79 the OECD Bribery Convention, and the Inter-American Convention against Corruption. Cooperation is formalised under these conventions. For instance, the UN Corruption Convention sets out a comprehensive framework for international cooperation with respect to extradition, the transfer of sentenced persons, mutual legal assistance, the transfer of criminal proceedings, law enforcement cooperation, joint investigations, and special investigative techniques (such as electronic or other forms of surveillance and undercover operations).80 Similarly, under the OECD Bribery Convention, parties, including Canada, are to provide mutual legal assistance (to the extent possible) to assist with both criminal and non-criminal corruption proceedings brought against individuals and companies.81

In antitrust cases, Canada has entered into cooperation agreements with a number of countries including the United States, Brazil, Australia, Japan and the European Union. These cooperation agreements provide for, among other things, positive comity, meaning that a requesting party may request the competition authorities of a requested party to investigate and, if warranted, remedy anti-competitive activities in accordance with the requested party's competition laws. Such a request may be made regardless of whether the activities also violate the requesting party's competition laws and regardless of whether the competition authorities of the requesting party have commenced or contemplated taking enforcement activities under their own competition laws. The Competition Bureau is currently coordinating an investigation into an international bid-rigging scheme involving the supply of motor vehicle components with several of its international counterparts.82

As the global financial crisis demonstrated, international collaboration and cooperation among securities regulators, especially in the areas of financial stability and enforcement, is necessary for the effective protection of investors and the integrity of capital markets. Canadian securities regulators have a history of collaboration and cooperation domestically and with their international counterparts, and a stated intention to further increase the level of intelligence sharing and assistance with enforcement investigations.83 For example, the OSC is a party to a number of memoranda of understanding ('MOUs') with securities regulators from around the world, including the United States, Australia, Hong Kong, Italy and France. The OSC is also a member of multilateral organisations, including the International Organization of Securities Commissions ('IOSCO'),84 the North American Securities Administrators Association ('NASAA'), and the Council of Securities Regulators of the Americas ('COSRA').

The specific level of cooperation under these MOUs may vary; however, the arrangement typically facilitates the sharing of information on organisations and individuals under the supervision of the different regulators, inter-jurisdictional collaboration on investigations and enforcement activities, and assistance to provide the regulators with a more fulsome understanding of particular market activity.85

IOSCO members are committed to providing each other with a significant level of assistance. This includes (among other things) sharing records and information that enables the reconstruction of securities transactions, providing information that identifies persons who beneficially own or control companies, and taking or compelling statements or testimony regarding a potential offence. Canadian provincial securities regulators, such as the OSC and the Autorité des marchés financiers (Quebec), are members of IOSCO.

iii Local law considerations

Canada's laws do not typically impede foreign or multi-jurisdictional investigations and as discussed above, Canadian law enforcement and regulatory agencies are very receptive to international cooperation.

Under Canada's Personal Information Protection and Electronic Documents Act, personal information (as defined under that act) may be disclosed without consent if such disclosure is made to a Canadian government institution having received a request from a foreign government carrying out an investigation relating to the enforcement of its laws or gathering intelligence for the purpose of enforcing its laws.86

Under the Foreign Extraterritorial Measures Act87 ('FEMA'), the Attorney General of Canada may take certain steps to hinder the actions of a foreign tribunal where there is an adverse effect or there is likely to be an adverse effect on significant Canadian interests in relation to international trade or commerce. In particular, the Attorney General may, by order, prohibit or restrict the production or disclosure of records to a foreign tribunal and prohibit any person in Canada from complying with measures (including, laws, judgments and rulings) taken by a foreign state or tribunal.

To date FEMA has only been used to prevent Canadian companies and citizens from complying with extraterritorial measures taken by the United States concerning Cuba.

Despite the strong and demonstrated commitment to cooperation of Canada's securities regulators, such cooperation is not without limitation. A notable limit is in the sharing of information gathered by way of compelled testimony. For instance, under the Ontario Securities Act, investigators have the power to summon and enforce the attendance of any person and to compel that person to testify under oath.88 Given the potential infringement of a person's right against self-incrimination associated with compelled testimony, information gathered in this manner cannot be shared with a person responsible for the enforcement of the criminal law of Canada or of any other country or jurisdiction.89 A potential area of conflict arises where the OSC is asked to share information gathered by way of compelled testimony with a foreign securities regulator. There is ambiguity surrounding whether such information can be shared by the OSC given the potential for infringement of the individual's protection against self-incrimination. In the absence of a special agreement with the OSC, there is a risk that the foreign securities regulator may share this information with a criminal law enforcement authority for use in a criminal proceeding against the individual who gave the compelled evidence.


Developments over the past year have demonstrated the continued focus of Canadian governments, law enforcement agencies and regulators on corporate liability for misconduct, yet have also drawn attention to the difficulties associated with effective and successful enforcement.

From a policy perspective, the RCMP has recently committed to vigorously pursue both corporations and individuals for corporate criminal misconduct through the use of traditional police investigative techniques and methods, including wiretaps and undercover operations, to achieve its goals.90 While it remains to be seen whether this will translate into more convictions in Canada, such techniques have been utilised with significant success in a number of high-profile white-collar criminal investigations in the United States.91

In 2012, the fraud trial against three former executives of Nortel proceeded and attracted widespread attention. Nortel was once one of the largest and most valuable companies on the Toronto Stock Exchange and filed for bankruptcy protection in 2009. The criminal fraud allegations of deliberate misrepresentation of Nortel's financial results during the period between 2000 and 2004 were triggered by an internal investigation of Nortel's accounting practices and subsequent restatements of its financial statements. In January 2013 following a lengthy trial involving numerous witnesses and voluminous documentary evidence, the three former executives were acquitted on all charges. This case highlights many of the difficulties and complexities of corporate fraud allegations against global corporations, including resources, evidentiary issues and the involvement and roles of multiple individuals, including external auditors, advisors, employees, directors and other officers in the conduct at issue.92

There were also a number of high-profile charges in 2012 against corporations (and their directors and officers), in matters involving foreign and domestic corrupt practices, and securities law violations.

In 2012, an investigation was conducted into allegations that the previous management of Griffiths violated the foreign corrupt practices regime in the process of obtaining oil and gas contracts in the Republic of Chad. The investigation was triggered by Griffiths' self-reporting of the unlawful conduct and ultimately culminated in a conviction and a $10.35 million fine.93 This was the second significant prosecution for a breach of the CFPOA and highlights the potential benefits on sentencing to be derived from self-reporting and implementation of a robust compliance regime.

SNC-Lavalin Group Inc, a Canadian engineering and construction company, was the subject of widespread international media attention after allegations surfaced that it bribed foreign public officials to secure contracts in a number of foreign countries, including Bangladesh and Cambodia. Although the investigation is still ongoing, so far two individuals from SNC-Lavalin have been charged under the CFPOA and are awaiting trial. In addition, an SNC-Lavalin company has been debarred by the World Bank for up to 10 years.94 Domestically, SNC-Lavalin is embroiled in a corruption scandal related to the construction of a $1.3 billion hospital in Montreal, with two senior executives facing fraud charges.95

In May 2012, the OSC commenced proceedings against Sino-Forest Corporation ('Sino-Forest'), a Canadian listed China-based company involved in the purchase and sale of timber.96 Allegations of fraud involving Sino-Forest were first raised in June 2011 by a market analyst, and shortly thereafter the OSC issued a temporary cease trade order against the company. Sino-Forest, which once had a market capitalisation of approximately $6 billion, has since filed for bankruptcy. While OSC proceedings remain ongoing, this matter highlights the inherent difficulty in prosecuting emerging

market issuers for securities violations, since management, records, assets and witnesses are mostly located abroad.

As a result of market concerns arising from the Sino-Forest matter, the OSC in March 2012 completed a review of 'emerging market issuers'97 to evaluate their compliance with disclosure and other regulatory requirements and, notably, the role played by gatekeepers (including auditors, underwriters and exchanges).98 The OSC's review indentified concerns with respect to corporate governance practices, corporate structures, related party transactions and risk management and internal controls. Of the 24 emerging market issuers selected for review, the OSC identified material deficiencies in the disclosures of 15 of those issuers.99 To address these concerns, the OSC has adapted its internal processes and provided additional guidance to emerging market issuers and their directors and management that is more targeted at the unique nature of the compliance issues they face.


Corporations and their officers and directors are subject to increasing scrutiny and prosecution by Canadian regulators and law enforcement agencies empowered to investigate and prosecute corporate wrongdoing. There is no indication that this trend is likely to abate in the near future, creating significant implications for foreign and domestic corporations operating in Canada or subject to Canadian jurisdiction.

A criminal or regulatory investigation against a corporation or an individual within a corporation can be devastating, causing disruption to the corporation's business and damage to its reputation. These investigations frequently trigger external scrutiny and criticism of the corporation's policies, ethics and compliance systems by government agencies, the media, investors, customers and business partners. By commencing its own internal investigation, a corporation may avoid or proactively respond to potential regulatory or criminal charges, civil lawsuits and negative publicity. Depending on the circumstances, a corporation may seek to cooperate as fully as possible with the external government investigation.

A number of recent developments suggest an increased criminal focus on investigations and prosecutions of corporate misconduct, and a drive to seek prison sentences for those individuals involved. Canadian police agencies and securities regulators have announced their intention to use a broader range of enforcement tools, including search warrants, wiretaps and informants, to investigate corporate misconduct, and corporations may soon face more aggressive investigations. In addition, Canadian securities regulators have announced an increased focus on criminal enforcement through quasi-criminal prosecutions rather than administrative prosecutions for certain misconduct, including fraud.100

In the context of anti-corruption enforcement, the Canadian government has recently passed amendments to strengthen Canada's foreign corrupt practices regime, which include the creation of a books and records offence, eliminating the facilitation payment exemption, increasing the maximum length of imprisonment and expanding jurisdictional reach. These legislative amendments, recent high-profile corruption investigations and prosecutions, and public statements by the Canadian government regarding its commitment to combat foreign corruption, raise the spectre of a significant increase in corruption enforcement activity.

This article was first published in The International Investigations Review, 3rd edition by Law Business Research Ltd.


1 Wendy Berman is a partner and Jonathan Wansbrough is an associate at Cassels Brock & Blackwell LLP. The authors have benefited from the helpful comments of their colleagues Chris Hersh and Imran Ahmed regarding the competition law matters in this chapter, and the assistance of Jeffrey Mikelberg (articling student) and Laura McGee (summer student).

2 RSC 1985, c. C-46 ('Criminal Code').

3 In Canada, constitutional jurisdiction over law enforcement is delegated to the provinces. In turn, the provinces typically delegate authority to large municipalities to establish police forces through provincial Police Acts. While the federal government does not have primary authority over police services, provinces may contract the RCMP to provide policing services.

4 An Act to amend the Corruption of Foreign Public Officials Act, SC 2013, c 26.

5 See PPSC, 'About the Public Prosecution Service of Canada', online: Public Prosecution Service of Canada,

6 RSC 1985, c. C-34 ('Competition Act').

7 RSC 1985, c. 1.

8 SC 2000, c. 17.

9 See RCMP, Integrated Market Enforcement Teams, online: Royal Canadian Mounted Police,

10 Ibid.

11 According to a recent news article, as of 23 November 2012, the RCMP reported that it obtained the following results: 19 investigations led to criminal charges; 52 individuals had been charged; 11 individuals were convicted; 9 investigations were before the courts; and 29 individuals continued to be the subject of pending court proceedings. See Douglas Quan, 'RCMP to use more undercover agents, wiretaps to go after white-collar criminals', National Post (25 November 2012),

12 See Jeff Gray, 'After Nortel verdict, RCMP's fraud unit racks up dismal conviction record', The Globe and Mail (14 January 2013), online: Two of the most noteworthy acquittals include former executives of Nortel Networks Corp and Royal Group Technologies Ltd. See R v. Dunn 2013 ONSC 137, 104 WCB (2d) 1271; and R v. De Zen 2010 ONCJ 630.

13 Criminal Code, supra note 2, s. 487.

14 See R v. Araujo, 2000 SCC 65, at paras. 24–26. 'Investigative necessity' reflects Section 186(1) (b) of the Criminal Code, which requires that other investigative procedures have been tried and have failed, other investigation procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

15 Criminal Code, supra note 2, s. 487.012.

16 These securities regulators have also delegated some of their responsibilities relating to investigations and prosecutions of certain conduct to self regulatory organisations.

17 For example, see s. 11, 12 and 13 of the Securities Act, R.S.O. 1990, c. S.5 ('Securities Act'), which establish the investigative powers of the Ontario Securities Commission ('OSC') and s. 19 and 20, which establish the power of the OSC to require production of books and records and conduct compliance reviews of market participants, including public companies.

18 RSO 1990, c. E-19, s. 92(1) ('Environmental Protection Act').

19 For example, see Ontario's 'Credit for Cooperation' programme, Staff Notice 15-702 – Credit for Cooperation (28 June, 2002) 25 OSCB 3949; and British Columbia's 'Credit for Assistance in Investigations' programme, BC Securities Commission Notice 2002/41 – Credit for Assistance in Investigations (18 October 2002) SECPOLY 88801723001.

20 OSC Staff Notice 15-702 – Credit for Cooperation, 28 June 2002 (2002) 25 OSCB 3949.

21 Ibid. s. 12.

22 OSC Staff Notice 15-704 – Request for Comments on Proposed Enforcement Initiatives,

21 October 2011 (2011) 34 OSCB 10720. In this Request for Comments, the OSC noted: 'In reviewing the incidence of market participants requesting credit for cooperation under the Program in recent years, Staff have observed that the Program has not been widely accessed by market participants, or other parties, and the benefits listed above have not been achieved.'

23 Ontario Securities Commission, 'Perspectives' (2005) Vol. 8 Issue 2, p. 4.

24 Re Nortel Networks Corporation and Nortel Networks Limited (Settlement Agreement) (2007) 30 OSCB 4747 (Ontario Securities Commission), para. 49 (Nortel).

25 Re Research in Motion (2009), 32 OSCB 1421.

26 [2012] AWLD 4565 (Niko).

27 [2013] AJ No. 412 (Griffiths).

28 See 'Immunity Program' Competition Bureau Bulletin, online: Competition Bureau, ('Immunity Program') and 'Leniency Program' Competition Bureau Bulletin, online: Competition Bureau, ('Leniency Program').

29 Immunity Program, supra note 28.

30 Assessment is guided by the factors enumerated in part VII, chapter 35 of the Federal Prosecution Service Deskbook, available at ('Prosecution Deskbook'). Consultation with the Bureau and giving due consideration to the Bureau's recommendation should be an important part of this assessment. See sections and 54.4 of the Prosecution Deskbook.

31 Immunity Program, supra note 28, para. 13.

32 Ibid. paras. 14–18.

33 Ibid. para. 25.

34 Leniency Program, supra note 28, paras. 8–11.

35 Ibid. para. 31.

36 Ibid. paras. 12–15.

37 In Re YBM Magnex et al (2003) 26 OSCB 5285, the Ontario Securities Commission held that the board could not rely on the work of a special committee set up to investigate allegations of criminality and fraud because a member of the committee was not independent, stating at para. 250: 'If the independence of one's mandate is threatened, then the reasonableness of one's judgment becomes questionable.'

38 For example, see subsection 136(4.2) of Ontario's Business Corporations Act, RSO 1990 c. B-16, and subsection 124(5) of the Canada Business Corporations Act, RSC 1985, c. C-44.

39 Criminal Code, supra note 2, s. 425.1.

40 Competition Act, supra note 6, s. 66.2.

41 See Competition Bureau, 'Whistleblowing Initiative' (28 May, 2013), online: Canadian Competition Bureau,

42 Competition Act, supra note 6, s. 66.2.

43 Environmental Protection Act, supra note 18, s. 16.

44 RSO 1990, c. 0.1, s. 50.

45 SO 2000, c. 41, s. 74.

46 OSC Staff Notice 15-704 – Request for Comments on Proposed Enforcement Initiatives (21 October 2011), (2011) 34 OSCB 10720.

47 The programme was first announced in Canada's Economic Action Plan 2013: Jobs, Growth and Long-term Prosperity, at p. 154, available at It is expected that more information about the programme will be released in the coming months.

48 For regulatory offences, vicarious liability is often imposed by the statute explicitly or by statutory construction. For example, Sections 32 and 45 of the Competition Act, supra note 6, state that a 'person' (which is defined to include a partnership or corporation) is liable for a violation or offence of the Act that is 'committed by their employee acting within the scope of their employment or their agent or mandatory acting within the scope of their authority, whether or not the employee, agent or mandatory is identified or proceeded against.'

49 See R v. Canadian Dredge and Dock Co, [1985] 1 S.C.R.662; and The Rhone v. The Peter A.B. Widener, [1993] 1 S.C.R. 497.

50 Criminal Code, supra note 2, s. 22.2.

51 See definition of 'senior officer' ibid. s. 2.

52 R v. Global Fuels Inc (30 May 2012), Saint-Francois 450-73-000633-085 (002) (Court of Quebec).

53 SC 1998, c. 34 ('CFPOA').

54 Criminal Code, supra note 2, s. 735(1).

55 Criminal Code, supra note 2, s. 718.21

56 See Griffiths, supra note 27, para. 19.

57 Competition Act, supra note 6, s. 45.

58 Ibid. s. 32.

59 Ibid. s. 45(2) and 47(2).

60 Securities Act, supra note 17, s. 127.

61 Ibid. s. 122.

62 On 6 November 2009, Stan Grmovsek pleaded guilty to illegal insider trading contrary to Section 382.1 of the Criminal Code and was sentenced to 39 months in prison (in addition to monetary penalties in Canada and the United States). See Grmovsek, Re (2009), 32 OSCB 9038.

63 See GOC, Integrity Provisions, Policy Notification PN-197, Government Contracting Regulations, SOR/87-402, para. 18(2)(b), and the PWGSC Code of Conduct for Procurement (2012), online: A high-profile corruption investigation is ongoing in Canada against SNC-Lavalin Group and while it remains to be seen what action the Canadian government will take, the World Bank announced on 17 April 2013 that SNC-Lavalin Inc (and over 100 affiliates) has been debarred from World Bank funded projects for 10 years. The debarment can be reduced to eight years if the company complies with the conditions of a Negotiated Resolution Agreement. It is also important to note that under the resolution agreement, the remainder of the SNC-Lavalin Group is not debarred but will face debarment if it fails to comply with the terms of the resolution agreement. See 'World Bank Debars SNC-Lavalin Inc and its Affiliates for 10 years' (17 April 2013), online: The World Bank,

64 See, for example, Griffiths, supra note 27, para. 19.

65 Criminal Code, supra note 2, s. 718.21.

66 A robust compliance programme may serve as evidence establishing a due diligence defence to a strict liability offence. A strict liability offence is one in which there is no necessity for the prosecution to prove the mens rea (or intent) element of the offence; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that it took all reasonable care. This involves consideration of what a reasonable person would have done in the circumstances. The defence will be available if all reasonable steps were taken to avoid the particular event. See R v. Sault Ste. Marie (City), [1978] 2 SCR 1299 (SCC) at para. 60.

67 See, for example, Ontario's Securities Act, supra note 17, s. 129.2.

68 R v. Libman, [1985] 2 S.C.R. 178, at para. 74.

69 On 18 April 2013, the Competition Bureau announced that a $30 million fine was levied against a Japanese supplier of motor vehicle components. The Japanese supplier pleaded guilty to violating the bid-rigging provisions of the Competition Act for its involvement in a cartel involving other Japanese suppliers, who conspired to enter bids for the supply of vehicle components to vehicle manufacturers for use in vehicles sold in Canada. The fine was the largest to date for a bid-rigging offence. See 'Record $30M Fine Obtained by Competition Bureau Against Japanese Auto Parts Supplier' (18 April 2013), online: Competition Bureau,

70 Competition Act, supra note 6, s. 45 and 46.

71 [2002] OJ No. 298 at para. 95 (Ont. Sup. Ct.), affirmed [2002] OJ No. 1400 (Div. Ct.) (Vitapharm).

72 Ibid. paras. 59 and 60.

73 Extradition Act, RSC 1999, c. 18, at s. 3(1).

74 Mutual Legal Assistance in Criminal Matters Act, RSC 1985, c. 30.

75 Ibid. s. 8.

76 Prosecution Deskbook, supra note 30, s. 43.3.1.

77 Ibid.

78 Ibid. s. 43.3.2.

79 United Nations Convention against Corruption, United Nations, 31 October 2003, online:

80 Ibid. arts. 44–50.

81 Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, OECD, 21 November 1997, online:, art. 9.

82 Competition Bureau Press Release dated 18 April 2013, supra note 69.

83 See CSA, 'Regulatory Cooperation', online: Canadian Securities Administrators,

84 IOSCO's members regulate 95 per cent of the world's securities markets.

85 International Organization of Securities Commissions, 'Multilateral Memorandum of Understanding Concerning Consultation and Cooperation and the Exchange of Information' (May 2012), online:

86 Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 at s. 7(3)(c.1)(ii).

87 R.S.C. 1985, c. F-29.

88 Securities Act, supra note 17, s. 13. Failure to cooperate with a compelled examination can result in contempt proceedings before the Ontario Superior Court of Justice.

89 Ibid. s. 17(7).

90 Douglas Quan 'RCMP to use more undercover agents, wiretaps to go after white-collar criminals', Post Media, published 25 November 2012,

91 See, for example, United States v. Rajaratnam, 802 F. Supp. 2d 491 (SD NY Dist. Ct. 2011).

92 R v. Dunn 2013 ONSC 137.

93 See Griffiths, supra note 27, para. 28.

94 World Bank Press Release dated 17 April 2013, supra note 63.

95 See Louis Egan and Susan Taylor, 'Former SNC-Lavalin CEO faces new corruption charges' Reuters Canada (27 February 2013), online:

96 Re Sino-Forest et al, Statement of Allegations (22 May 2012), online: Ontario Securities Commission,

97 According to OSC Staff Notice 51-719 'emerging market' issuers include issuers whose mind and management are largely located outside of Canada; and issuers whose principal active operations are outside Canada, in regions such as Asia, Africa, South America and Eastern Europe.

98 OSC Staff Notice 51-720 at 4.

99 Ibid. at 4 and 5.

100 OSC Notice 11-768 – Statement of Priorities, 4 April 2013, 36 OSCB 3423; 2012 ASC Annual Report (2013), online: Alberta Securities Commission,, at p. 22; and British Columbia Securities Commission, BCSC Annual Report 2011–2012 (2012), online: British Columbia Securities Commission,, at p. 4.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Jonathan Wansbrough
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