White collar defence and investigations: 2016 year in review

Overall, 2016 cannot be considered a robust year for the prosecution of white collar criminal cases in Canada. There was little new observable activity in the areas of foreign corruption, competition or quasi-criminal securities prosecutions. However, there were still a number of notable developments and decisions over the past year that we will canvass in this year-end review.

Foreign Corruption

The SNC-Lavalin related prosecutions still dominate the landscape of foreign corruption prosecutions in Canada.

In one of those prosecutions, in an April 2016 decision, the Supreme Court of Canada upheld the immunity status and independence of international organizations by rejecting an attempt by a group of accused individuals to compel personnel of the World Bank Group (an international organization based in Washington D.C.) to appear in court and produce various documents. The World Bank Group v Wallace, et al. decision arose in the context of a criminal proceeding under the Corruption of Foreign Public Officials Act. The decision concluded that personnel of the World Bank Group could not be compelled to attend in court as a result of a "personnel immunity", and production of World Bank Group documents could not be compelled on the basis of an "archival immunity". Both immunities were conferred in Canada pursuant to two Orders in Council and the Bretton Woods and Related Agreements Act.

Although decided in the context of specific legislative provisions, World Bank Group v Wallace suggests more generally that courts will be reluctant to grant production of documents in the possession of international organizations or compel the attendance of its personnel in court if the organization is subject to an immunity.

Numerous other individuals continue to face charges in connection with the various SNC-Lavalin prosecutions, as well as the company itself, which indicated in 2015 that it will vigorously defend itself and plead not guilty to the charges against it.

In one non-SNC development, a Canadian man, Larry Kushniruk, was charged in late-2016 with allegedly conspiring to bribe foreign public officials in Thailand for the purpose of selling a commercial aircraft to Thai Airways.

To date, there has been little jurisprudence arising from Canada's Corruption of Foreign Public Officials Act. In the history of the Act, there have only been three substantial prosecutions under the Act. The prosecutions against Niko Resources Ltd. and Griffiths Energy resulted in fines of $9.5 million and $10.25 million, respectively. The prosecution against Nazir Karigar ultimately led to a sentence of three years imprisonment. In connection with the case against Nazir Karigar, the RCMP were seeking to prosecute three foreign nationals (two of U.S. citizenship, and one of U.K. citizenship) pursuant to its mandate to investigate allegations of international corruption. We are not aware of any recent developments in this prosecution.

The Extractive Sector Transparency Measures Act

2016 was the first full year where most companies involved in the extractive sector were required to comply with the new Extractive Sector Transparency Measures Act by internally tracking certain payments to governments and reporting those payments within 150 days from their fiscal year-end. The Extractive Sector Transparency Measures Act came into force on June 1, 2015.

Entities required to file within 150 days of their fiscal year-end must report payments made to any government in Canada or in a foreign state, or to a body that performs or is established to perform a government power, duty or function. All reports must be publically posted and Canadian parent companies are responsible for filing reports on behalf of their subsidiaries.

Entities that fail to comply with certain provisions of the Act, including the reporting and publication requirements, are guilty of an offence punishable on summary conviction and are liable to a fine of up to $250,000. Not surprisingly, there are not yet any reported prosecutions under this Act. 2017 will be an interesting year to watch and see if there are any prosecutions arising from this Act.

The Competition Act

The past year has had little impact on the progression of competition law in Canada. In contrast, 2015 was the year that will likely shape this area of law for some time to come. There were two large criminal conspiracy cases that ended in 2015 without a single conviction, despite many years and likely millions of dollars in resources being devoted to them.

Perhaps the biggest impact in 2016 arising from the failed prosecutions in 2015 relates to the Immunity and Leniency Programs of the Competition Bureau as a result of the R v Nestle Canada Inc. et al. decision. In the Nestle case, Justice Nordheimer concluded that settlement privilege did not extend to certain information that had been exchanged between the Crown and the co-operating immunity and leniency applicants prior to executing immunity and leniency agreements. Justice Nordheimer ordered disclosure to the accused of all factual information provided to the Crown by the co-operating parties.

The decision provided important clarification for all future co-operating parties. Claims of privilege will not protect factual information that must be provided under the immunity and leniency programs. Any factual information conveyed to the Crown, both prior and subsequent to the granting of immunity or leniency, including at the very earliest proffer stage, will have to be disclosed to any accused parties subsequently facing a criminal prosecution.

The R v Nestle Canada Inc. et al. decision has caused the Competition Bureau to review its immunity and leniency programs and consult with various industry stakeholders. In October 2016 John Pecman, the Commissioner of Competition, stated that he expects to release the proposed changes to the immunity and leniency programs this winter.

Securities Law

This past year saw the launch by the Ontario Securities Commission of its Office of the Whistleblower that will oversee a program designed to compensate and protect eligible whistleblowers who provide valuable information resulting in enforcement actions. Compensation of whistleblowers can be up to $5 million dollars under the new program. The program follows in the footsteps of a similar program instituted by the U.S. Securities and Exchange Commission ("SEC").

In Quebec the Autorité des marchés financiers launched their own program that will protect whistleblowers; however, after reviewing various whistleblower programs from around the world, it has chosen not to compensate whistleblowers.

There were a number of significant securities law decisions in 2016. In Ontario Securities Commission v Tiffin¹ the Ontario Securities Commission brought a quasi-criminal action against the accused for allegedly trading securities without being registered, trading without filing a prospectus, and trading while prohibited from doing so. The accused had entered into some private loan agreements and provided promissory notes in exchange. The Court found that the loan agreements did not meet the statutory definition of a "security". All charges against the accused were dismissed. In doing so, a broad interpretation of the term "security" sought by the Ontario Securities Commission was rejected in favour of a definition that took into consideration the statutory goals of the Ontario Securities Act, and the context of the particular transaction at issue.

In Beaudette v Alberta Securities Commission the Supreme Court of Canada rejected a leave application arising from a decision of the Alberta Court of Appeal that upheld certain provisions of the Alberta Securities Act. Mr. Beaudette alleged that s. 42 of the Act compelled him to provide evidence to the Alberta Securities Commission, which then had authority under s. 46 of the Act to provide that evidence to authorities in foreign jurisdictions. He alleged that this infringed his right against self-incrimination. The Court of Appeal found that these provisions did not violate the s. 7 Charter right to life, liberty, and security of the person as there was insufficient evidence to find a Charter infringement in the circumstances. A Charter infringement could not be found on the basis of mere speculation that the law could be applied in a Charter-abusive manner. Furthermore, the requirements of fundamental justice vary based on context and the Court characterized the intent of the Act as the valid regulation of the securities industry, rather than as a statute intended to secure evidence for criminal prosecutions. While Mr. Beaudette was unsuccessful in his appeal, the Court of Appeal left the door open to a future Charter challenge grounded in an evidentiary record that could more conclusively point to the use of compelled self-incriminatory evidence in a foreign prosecution.

A pair of much anticipated insider trading and tipping appeals were released late in 2016 by the Ontario Divisional Court. Both of those decisions demonstrated the deferential approach taken by the Divisional Court to Ontario Securities Commission enforcement decisions. The first of those Divisional Court decisions, released on October 26, 2016, was in the Fiorillo v Ontario Securities Commission matter.² The appellants were Henry Fiorillo, Dennis Wing, and Kimberley Stephany, all of whom were found by the Ontario Securities Commission to have received tips of material non-public information about certain reporting issuers from an administrative assistant at GMP Securities L.P., Eda Marie Agueci, and subsequently traded in those reporting issuers prior to the information becoming public. All three appeals were dismissed.

The second Divisional Court decision was released on December 2, 2016 in the Finkelstein et al. v Ontario (Securities Commission) matter. The Divisional Court found that the findings of liability against Mitchell Finkelstein, Paul Azeff, Korin Bobrow, and Howard Jeffrey Miller were reasonable. However, the findings against Man Kin Cheng were set aside.

These decisions demonstrate a recent record of success by the Ontario Securities Commission that has not been matched south of the border where the U.S. Court of Appeals for the Second Circuit, in the 2014 decision of United States v Newman, increased the burden for prosecutors in insider trading and tipping cases by refining the relevant "personal benefit" test. The Court in Newman reversed convictions on downstream tipees because, among other findings, the tipees did not possess knowledge of a personal benefit derived from the insider up the chain. On December 6, 2016, the U.S. Supreme Court in Salman v United States addressed one aspect of the "personal benefit" test (namely, the type of benefit required to satisfy the personal benefit test in the context of a tip by an insider to a friend or family member), but did not disturb the findings in Newman regarding the knowledge requirement of downstream tipees. The Salman decision is an important insider trading win for the SEC, however certain findings in Newman may continue to cause problems for the SEC in future tipping cases.

Panama Papers

International headlines were dominated in 2016 with stories about data leaks, but by far the most significant data leak was the leak that came to be known as the "Panama Papers". The leak occurred when the law firm of Mossack Fonseca was hacked in what has been described as the largest leak of data in history. Mossack Fonseca is headquartered in Panama and operates under the slogan of "wealth management as you deserve it". It operates across the world as an incorporation agent that is licensed in various tax havens to register companies. It is alleged to have assisted its clients in placing assets offshore, beyond the reach of tax authorities and other domestic regulators. The revelations have proved embarrassing for notable public figures, including Russian President Vladimir Putin and former Prime Minister of the United Kingdom David Cameron. The consequences were even career ending for the former Prime Minister of Iceland, Sigmundur Davíð Gunnlaugsson, who was forced to resign following the data leak.

Corruption Perceptions Rankings

Each year Transparency International releases its Corruption Perceptions Index. Relying on data provided by independent institutions, the Corruption Perceptions Index ranks a large proportion of the countries in the world based on the degree of corruption found in their public institutions. Canada consistently ranks high in the index, and 2016 was no exception. It came in as the 9^th least corrupt nation in the world, with a score of 82/100. In comparison, the world collectively received a failing grade with the average of all countries surveyed amounting to a score of 43/100.

International Corruption and Bribery Proceedings and Investigations

There have been a number of prosecutions and investigations in foreign jurisdictions for corruption and bribery offences. Those developments include the following:

• In December the largest combined global foreign bribery resolution of at least $3.5 billion was reached against construction conglomerate Odebrecht S.A. and its related (and majority-owned) petrochemical company Braskem S.A. The charges stemmed from allegations in the U.S., Brazil, and Switzerland of a sophisticated and extensive bribery scheme that persisted for more than a decade across the world, and resulted in the payment of hundreds of millions in bribes. The scheme was particularly egregious as it was run through a secretive off-book department in Odebrecht (which came to be known as the Department of Bribery by the authorities) which apparently reported up to the top of the Odebrecht hierarchy.
• Dmitrij Harder, a Russian citizen living in Pennsylvania, pleaded guilty to two counts of violating the U.S. Foreign Corrupt Practices Act ("FCPA"). Harder was charged with bribing an official with the European Bank for Reconstruction and Development. Sentencing was set for November 3, 2016 with the potential for a prison term of up to ten years.
• Biopharmaceutical company AstraZeneca PLC has reportedly settled charges brought against it by the SEC for alleged violations of the FCPA relating to deficiencies in its internal controls. The charges stemmed from payments that were allegedly made by its Chinese and Russian subsidiaries to health care providers in return for purchases of the company's drugs. In settling the charges, the company made no admission of liability and agreed to pay the SEC $4.325 million in disgorgement, $822,000 in prejudgment interest, and a penalty of $375,000.
• Global beverage behemoth Anheuser-Busch InBev settled charges against it that were brought by the SEC by paying $6 million. The SEC alleged that the company used third-party sales promoters to make improper payments to Indian government officials. The SEC also alleged that the company took certain actions that restricted the whistleblower who reported the misconduct.
• Ukrainian company Information Computer Systems was debarred for 22½ years for involvement in a plan to rig contracts worth approximately U.S. $43 million. The company's president and vice-president were debarred for 11½ years and 8½ years, respectively.
• The U.S. Department of Justice ("DOJ") and the SEC collected $397.6 million from VimpelCom Limited to settle allegations that the company and its subsidiary bribed a Uzbekistani government official between 2006 to 2012. VimpelCom was alleged to have conspired to violate the FCPA's books and records and anti-bribery provisions and to have violated the FCPA's internal control provisions. The company paid $230.1 million to the DOJ and $167.5 million in disgorgement and pre-judgment interest to the SEC.
• Dubai resident James McClung was sentenced to a year and a day in prison. The sentence comes after the former senior vice-president of Louis Berger International, a construction management company, was convicted under the FCPA of bribing officials over a period of ten years to win contracts in Vietnam, India, Indonesia, and Kuwait.
• Pharmaceutical giant Teva Pharmaceuticals Industries Ltd. agreed in December to pay hefty criminal and regulatory penalties for violations of the FCPA in Ukraine, Mexico, and Russia. The conduct involved bribery of government officials and failing to implement proper internal controls. The fines included a $283 million criminal fine and a $236 million disgorgement to the SEC. The company was given credit for certain remediating actions (including removing those in the company who were involved in the violatons) to ensure there is no reoccurrence of the offending conduct in the future.

While the U.S. continues to be active in white collar prosecutions, Canada appears to have taken a slight pause in 2016. Despite this slowdown in activity in Canada, various statements from Canadian regulators and enforcement agencies would suggest that 2017 will be a busy year, perhaps making up for the rather quiet year that was 2016.