Proposal incentivizes companies to report corporate crime

Jun 3, 2018 By Matthew Friedberg
A federal proposal that would allow prosecutors to suspend criminal charges against companies in certain types of corporate crime cases may provide the right kind of incentive for self-reporting wrong-doing, Toronto criminal lawyer Matthew Friedberg tells AdvocateDaily.com.

“In principle, this may be a very good thing to help fight corporate crime,” he says.

Friedberg, a partner with Caramanna Friedberg LLP, comments after the Canadian Press reported that the new proposal is included in the federal government’s 582-page budget legislation. The proposal indicates that Ottawa intends to move forward with an amendment to the Criminal Code that would create an optional tool called a “deferred prosecution agreement” for the Crown, says the article.

“Such agreements are designed to encourage more companies to come forward to self-report corporate crimes and to identify individuals for prosecution. If it lives up to its end of the bargain, the company as a whole would avoid facing serious criminal charges, which could include bribery, corruption and insider trading,” says the newswire.

The proposal has raised the concern of some lawmakers, who maintain that such a significant change in the Code requires more analysis, and some called for the provision to be studied by the House of Commons Justice Committee, says the article.

Friedberg agrees that the proposal is major and it is critical to ensure due-diligence is done before it’s brought into effect.

“I think it would be reasonable to complete more analysis of the concept because it’s new,” he says.

“As long as it’s subject to further debate and input, I don’t think there’s a problem with it. I would have an issue with this if the government was going to slide this through without any discussion or study.”

Friedberg suggests the government look at how the concept of a “deferred prosecution agreement” has been used in other countries.

“I think they should look at the analytics from other jurisdictions that have used this concept to see what effect it has had on corporate crime,” he says.

Friedberg says the idea of the proposal seems to make sense and could result in companies providing more information about corporation crimes.

“This appears to incentivize companies to come forward and give information about individuals to be prosecuted,” he says.

“This proposal would allow the corporation to avoid serious criminal prosecution and to continue to operate. It sounds to me to be somewhat similar to a whistleblowing mechanism to give corporations an incentive to come forward.

“And from a crime-prevention and investigation perspective, it may be a great idea.”