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Catherine Savard

CPIJ Members Contribute to National Inquiry into MMIWG’s Legal Analysis on genocide

By | News, Press Releases

5 June 2019 – On Monday, the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG) was made public at an official ceremony held in Ottawa. This report, which affirms that First Nations, Inuit and Metis are victims of genocide, is supported by a supplementary legal analysis produced to deal specifically with this issue.

The use of the term “genocide,” entailing far-reaching legal and political consequences, had a resounding impact within Canada and abroad. On Tuesday, Prime Minister Justin Trudeau accepted the use of the term “genocide” during the 2019 Women Deliver Conference in Vancouver. He had also pronounced that word the day before in his opening speech at this conference, but without officially accepting it.

The legal analysis supporting the MMIWG’s findings was elaborated in consultation with international legal scholars and lawyers with expertise on genocide and international crimes, including CPIJ members, namely Fannie Lafontaine (CPIJ Director), Amanda Ghahremani (Co-Researcher) and Catherine Savard (Assistant Coordinator).

The supplementary legal analysis on genocide contains the National Inquiry’s legal basis for determining that Canada has committed genocide against Indigenous Peoples. This analysis focuses on the responsibility of Canada as a state, and not on the responsibility of individuals. It explains that Canada’s genocide of Indigenous peoples was perpetrated through colonial structures and policies maintained by the Canadian state through centuries up until now. More precisely, it is the Canadian government’s actions and omissions, taken as a whole, that constitute this genocide. They imply the responsibility of the Canadian state under international law.

This MMIWG’s legal analysis insists on the fact that, contrary to the popular understanding, genocide encompasses both lethal and non-lethal acts, including acts of “slow death”, i.e., not leading to immediate death. In the Canadian colonial context, the intent to destroy Indigenous peoples was implemented gradually and intermittently through various policies targeting the distinct Indigenous communities. These policies compromised Indigenous peoples’ rights to life and security, as well as numerous economic, social and cultural rights. If such non-lethal acts differ from the traditional reductionist narrative on genocide, which is based on the Holocaust model, they are nonetheless included in the definition enshrined in Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide.

The MMIWG analysis concludes that the Canadian violation of international law will continue as long as genocidal acts continue to occur and that destructive policies are upheld by the Canadian government. Under international law, Canada has a duty to remedy the harm caused, but first, it must put an end to the persistent manifestations of violence and oppression of Indigenous peoples. Ending this genocide and providing appropriate remedies requires the implementation of an honest and dynamic process to decolonize and indigenize Canadian structures, institutions, laws and policies, thus involving the full and timely implementation of the MMIWG Calls for Justice.

The MMIWG is a National Commission of Inquiry set up in September 2016 and charged with the mandate to examine and report on the systemic causes of all forms of violence against Indigenous women and girls and 2SLGBTQQIA individuals in Canada. Its work led to the conclusion that Canada’s genocide of Indigenous peoples constitutes a root cause of the violence perpetrated against Indigenous women, girls and 2SLGBTQQIA individuals.

The supplementary legal analysis of genocide is available in English and French.

The MMIWG’s Final Report is available here:

* The acronym 2SLGBTQQIA refers to two-spirit, lesbian, gay, bisexual, transgender, queer, questioning, intersex and asexual persons.

101 experts including CPIJ members sign an open letter supporting Bill C-262

By | Communiqués de presse, News

May 8, 2019 – On Monday, a group of 101 experts including 15 members of the Canadian Partnership for International Justice (CPIJ) sent an open letter to the Senate to demonstrate their support to Bill C-262. This historic bill aims at ensuring that Canadian laws are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples. The adoption of this bill is likely to make Canada the first country to harmonize its national laws with this Declaration.

This letter, co-sponsored by CPIJ Co-Director Fannie Lafontaine, Beverly Jacobs (University of Windsor) and Bernard Duhaime (UQÀM), urges Senators to proceed swiftly with Bill C-262. It asks them to toss away any unfounded fears and doubts that would impede its swift examination by the Senate, so it can be passed and be part of Canadian law before the end of the current parliamentary session.

Bill C-262, a private member bill tabled by Romeo Saganash, was adopted by the House of Commons on May 30, 2018. This adoption was hailed as a victory for the human rights of Indigenous peoples in Canada. It is only eleven months later, on April 30, 2019, that the Senate finally announced the referral of the bill to the Standing Senate Committee on Aboriginal Peoples. The bill is currently scheduled for debate before this Committee on May 14.

The 15 CPIJ members who have signed the open letter are Fannie Lafontaine, Payam Akhavan, Amanda Ghahremani, Mark Kersten, François J. Larocque, Janine Lespérance, Valerie Oosterveld, Frederick John Packer, Pascal Paradis, Penelope Simons, James G. Stewart, Alain-Guy Tachou Sipowo et Jo-Anne Wemmers, as well as members of the coordination team Érick Sullivan and Catherine Savard.

Read the open letter here.

Open letter signed by 101 experts supporting Bill C-262

By | Uncategorized

Honourable Senators,

On May 30, 2018, the House of Commons passed Bill C-262. Indigenous peoples and individuals, leaders, and human rights experts hailed this historic event as a victory for the human rights of Indigenous peoples in Canada. We are 101 experts and academics who research and work in the fields of Indigenous, human rights, constitutional law and/or international law. We are glad that Bill C-262 has finally been referred to Committee, 11 months after its adoption by the House of Commons. We urge you to proceed swiftly so that it can be passed and become part of Canadian lawbefore the current session of Parliament ends.

Worldwide, Indigenous peoplesare amongst the world’s most disadvantaged and victimized peoples. Theysharecommon problems related to the protection of their rights as distinct peoples and suffer widespread discrimination at various levels.  On September 13, 2007, the United Nations General Assembly held a historic vote to adopt the United Nations Declaration on the Rights of Indigenous Peoples. Canada, as you are aware, was initially opposed to the Declaration; it based its arguments on extraordinary and erroneous claims, for which no credible legal rationale has been provided. We are concerned that similar misguided claims or apprehensions continue to be used by some Senators to justify opposition and slow the progress of the bill in the Senate.

Bill C-262’s full title is: “An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples”.  It is a basic, bottom-line piece of legislation that does notcreate new rights. It establishes a process for the government, in full partnership with Indigenous peoples, to achieve implementation of the Declaration in Canadian law. It does so in three ways.

  • First, Bill C-262 affirms the Declaration as a universal international human rights instrument with application in Canadian law. This is consistent with the fact that the UN Declaration already has legal effect in Canada and can be used by Canadian courts and tribunals to interpret Canadian laws.
  • Second, the Bill requires the government to work with Indigenous peoples to review existing laws and bring forward reforms to ensure their consistency with the Declaration.
  • Third, Bill C-262 creates a legislative framework for the federal government to collaborate with Indigenous peoples to establish a national action plan for the implementation of the Declaration.

Honourable Senators, the recognition of the human rights of Indigenous peoples works to strengthen human rights for everyone. The provisions in the UN Declaration were developed based on existing standards in international law. Many are already legally binding on Canada, either because they are part of customary international law, or because they are necessary to fulfil obligations under the human rights treaties that Canada has ratified.

The UN Declaration does not create a hierarchy of competing human rights claims. It is absolutely false, as some have claimed, that it gives Indigenous peoples a veto over, for example, development projects. It requires States to consult and cooperate in good faith with indigenous peoples in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them. Respect for free, prior and informed consent is an essential standard in international law and can already be used by Canadian courts and tribunals as a source of interpretation of Canadian laws, including the Constitution, where Indigenous rights are at stake. The UN Declaration provides for comprehensive balancing provisions. It reaffirms what international and Canadian law already acknowledge: the human rights and fundamental freedoms of all must be respected, but limitations may be necessary in a democratic society. Limitations are possible if they are non-discriminatory and strictly necessary for the purpose of securing due recognition and respect for the rights and freedoms of others. Bill C-262 only reinforces this essential attribute of human rights law.

The UN Declaration offers a framework to enhance harmonious and cooperative relations between theState and Indigenous peoples, “in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith”. These are the core principles and values of not only Canada’s Constitution, but also the international system that Canada has championed.

The Declaration is a universal human rights instrument. It is also a consensus instrument that has been reaffirmed seven times by the UN General Assembly. No State in the world formally objects to it. Bill C-262 provides a much-needed framework to ensure that Canada works in cooperation with Indigenous peoples to see it fully and effectively implemented.Honourable Senators, you have the power and privilege to make a crucial step in Canada’s pathway to reconciliation, but also to reaffirm Canada’s true commitment to human rights for all. We urge you to proceed swiftly with Bill-C-262.


Bernard Duhaime


Faculty of Political Science and Law, Université du Québec à Montréal (UQAM)


Beverly Jacobs

Assistant Professor

Windsor Law

Mohawk Nation of the Haudenosaunee (Iroquois) Confederacy, Bear Clan


Fannie Lafontaine

Full Professor

Faculty of Law, Université Laval

Canada Research Chair on International Criminal Justice and Human Rights



Payam Akhavan

Full Professor

McGill University


Merle Alexander


Miller Titerle Law Corporation

Board Member of University of Victoria


Reem Bahdi

Associate Professor

Windsor Law


Bev Baines


Faculty of Law, Queen’s University


Nicole A. Barrett

Director, International Justice and Human Rights Clinic

Executive Director, Allard Prize Initiatives

Peter A. Allard School of Law, The University of British Columbia


Stéphanie Bernstein


Département des sciences juridiques, Faculté de science politique et de droit, Université du Québec à Montréal


Amar Bhatia

Assistant Professor

Osgoode Hall Law School, York University


Andrée Boisselle

Associate Professor

Osgoode Hall Law School,York University


Dr. Robyn Bourgeois

Assistant Professor

Centre for Women’s and Gender Studies, Brock University


Bruce Broomhall


Department of Law, University of Quebec at Montreal


Julia Brown


Olthuis, Kleer, Townshend LLP


Ruth M. Buchanan


Osgoode Hall Law School


Michael Byers

Professor & Canada Research Chair in Global Politics and International Law

University of British Columbia


Pascal Calarco

University Librarian

University of Windsor


Angela Cameron, PhD

Associate Professor

Shirley Greenberg Professor of Women in the Legal Profession

Faculty of Law, University of Ottawa


Pascale Chapdelaine

Associate Professor

Faculty of Law, University of Windsor


Gordon Christie

Professor & Director of Indigenous Legal Studies

University of British Columbia


Lynda Collins

Full Professor

Faculty of Law, University of Ottawa


William E. Conklin

Professor of Law, F.R.S.C.

Windsor Law


Charles-Emmanuel Côté

Full Professor

Faculty of Law, Université Laval


François Crépeau

Full professor

McGill University

Hans & Tamar Oppenheimer Chair in Public International Law

Dr. Emma Cunliffe

Associate Professor

Peter A Allard School of Law, The University of British Columbia,


Annette L. Demers

Law Librarian

University of Windsor

Faculty of Law


Karen Drake

Associate Professor

Osgoode Hall Law School, York University


Mark Ebert


Semaganis Worme Lombard


Doris Farget


Département des sciences juridiques, Université du Québec à Montréal


Karine Gentelet

Associate Professor

Université du Québec en Outaouais


Leah George-Wilson


Miller Titerle Law Corporation

Chief of Tsleil-Waututh Nation


Amanda Ghahremani

International Lawyer & Consultant

Former Legal Director of the Canadian Centre for International Justice


Michael Heine

Director, International Centre for Olympic Studies

School of Kinesiology, Western University


Sakej Henderson

Research Fellow

Wiyasiwewin Mikiwahp

(Native Law Centre of Canada)


Jeffery Hewitt

Assistant Professor

Faculty of Law, University of Windsor


Felix Hoehn

Assistant Professor

College of Law, University of Saskatchewan


Shin Imai

Professor Emeritus

Osgoode Hall Law School


Mylène Jaccoud


École de criminologie, Université de Montréal


Paul Joffe



Julie Kaye

Assistant Professor of Sociology

University of Saskatchewan


N. Kate Kempton


Olthuis Kleer Townshend LLP


Mark Kersten


Munk School of Global Affairs and Public Policy


Nancy Kleer


Olthuis, Kleer, Townshend LLP


Jennifer Koshan


Faculty of Law, University of Calgary


Harry LaForme

Senior counsel

Olthuis Kleer Townshend, Toronto, Ontario

Anishinabe, Mississaugas of the Credit First Nation, Ontario


Marie Lamensch

Project Coordinator

Montreal Institute for Genocide and Human Rights Studies, Concordia University


Louis-Philippe Lampron

Full Professor

Faculty of Law, Université Laval


François J Larocque, PhD

Full Professor

University of Ottawa

Canadian Francophonie Research Chair in Language Rights


Yvan Guy Larocque


Miller Titerle Law Corporation


Nick Leeson




Janine Lespérance

Legal Counsel

Lawyer Without Borders Canada


Vicki Leung

Reference Librarian

University of Windsor


Anne Levesque

Assistant Professor (July 2019)

Faculty of Law – Common Law section, University of Ottawa


Dr. Grace Li Xiu Woo, LL.D

Author of Ghost Dancing with Colonialism


Ryan Liss

Assistant Professor

Faculty of Law, Western University


Constance MacIntosh

Viscount Bennett Professor of Law

Acting Associate Director, Dalhousie Health Law Institute

Associate Professor, Schulich School of Law, Dalhousie University


Jason MacLean

Assistant Professor

University of Saskatchewan College of Law


Dr. Kent McNeil

Distinguished Research Professor

Osgoode Hall Law School, York University, Toronto


Naiomi Metallic

Assistant Professor of Law; Chancellor’s Chair in Aboriginal Law and Policy

Schulich School of Law


Sarah Miller

Limited Term Librarian, Law

Diana M. Priestly Law Library, University of Victoria


Shaunna Mireau

Legal Information Specialist

Shaunna Mireau Consulting


Helen Mok

Supervisor, Library & Information Services

Blake, Cassels & Graydon LLP


Geneviève Motard

Associate Professor

Faculté de droit, Université Laval


Dr. Maureen Muldoon

Associate Professor

Faculty of Arts, Humanities and Social Sciences, University of Windsor


Tamara Napoleon


Miller Titerle Law Corporation


Val Napoleon


Faculty of Law, University of Victoria


Alex Neve

Secretary General

Amnesty International Canada (English branch)


Nicole O’Byrne, Ph.D.

Associate Professor

Faculty of Law, University of New Brunswick


Obiora Chinedu Okafor


Osgoode Hall Law School of York University, Toronto


Darlene R. Okemaysim-Sicotte

Co-Chair Iskwewuk Ewichiwitochik

Party With Standing with National Inquiry to Missing and Murdered Indigenous Women and Girls


John A Olthuis


Olthuis/ Kleer /Townshend, Barristers and Solicitors, Toronto


Valerie Oosterveld

Associate Professor

Faculty of Law, Western University


Frederick John Packer

Associate Professor of Law and Director, Human Rights Research and Education Centre

University of Ottawa


Me Pascal Paradis

Directeur général

Lawyers Without Borders Canada


Victoria Paraschak


Department of Kinesiology


Elisabeth Patterson


Dionne Schulze


Antoine Pellerin

Assistant Professor

Faculty of Law, Université Laval


Johanne Poirier


Faculty of Law, McGill University


Richard J. Preston

Professor Emeritus

McMaster University


Catherine Savard

Assistant coordinator

Canadian Partnership for International Justice


Tim Quigley

Professor of Law (Emeritus)

University of Saskatchewan


Dr Sara Ramshaw

Associate Professor

Faculty of Law, University of Victoria


Jean Roath

Administrative Assistant

Windsor University Faculty Association (WUFA)


Craig Scott

Professor of Law

Osgoode Hall Law School of York University


Dayna Nadine Scott

York Research Chair in Environmental Law & Justice in the Green Economy

Associate Professor, Osgoode Hall Law School and the Faculty of Environmental Studies, York University


Sara Seck

Associate Professor

Schulich School of Law, Dalhousie University


Elizabeth Sheehy, LLB, LLM, LLD (hons), F.R.S.C.

Professor Emerita of Law

University of Ottawa


Colleen Sheppard


Faculty of Law, McGill University


Penelope Simons

Associate Professor

Faculty of Law – Common Law section, University of Ottawa


James G. Stewart

Associate Professor

Allard Law School, University of British Columbia


Érick Sullivan

Lawyer, Deputy Director

International Criminal and Humanitarian Law Clinic, Law Faculty, Université Laval


Dr. Lina Sunseri

Associate Professor

Brescia University College


Marie-Eve Sylvestre

Full professor

Faculty of Law – Civil Law section, University of Ottawa


Alain-Guy Tachou Sipowo


McGill University, Université Laval, Université de Sherbrooke


Sophie Thériault

Full professor

University of Ottawa, Faculty of Law – Civil Law section


Marion Vacheret

Full Professor

École de criminologie, Université de Montréal


Lucinda A. Vandervort

Professor of Law

University of Saskatchewan


Christine Vézina

Assistant Professor

Université Laval


Christopher Waters

Dean and Professor

University of Windsor, Faculty of Law


Jo-Anne Wemmers


École de criminologie, Université de Montréal


Peter Zimmerman

Archives, Rare Books, and Special Collections Librarian

Leddy Library, University of Windsor

President, Windsor University Faculty Association

Three students receive funding to attend the Siracusa Institute Specialization Course in ICL

By | News, Student News

April 2019 – On 11 April 2019, CPIJ’s Scholarship and Student Funding Committee proceeded to the selection of three students who will receive funding to attend the Siracusa International Institute for Criminal Justice and Human Rights’ 19th Specialization Course in International Criminal Law for Young Penalists. This course will take place from 2 to 10 June 2019 in Siracusa (Italy).

While warmly thanking all applicants, the Partnership is glad to announce that the following students will benefit from CPIJ funding to attend the course:

This selection followed a widely shared call for applications which terminated on the 31st of March 2019. An extensive analysis of the numerous applications received led the Committee to select two students studying in Canada and one student from a developing or less developed country.

The Committee will meet again soon to analyze the applications related to the Assembly of State Parties (ASP) to the International Criminal Court (ICC). Learn more about CPIJ funding for student projects here.

Congratulations to the recipients!

The Partnership Chairs reappointed

By | News

April 2019 – On 11 April 2019, the Partnership’s Governance Committee held a regular meeting. At this occasion, Partnership’s co-researchers and current Axis Chairs – namely Valerie Oosterveld (Axis 1), Penelope Simons (Axis 2) and Joanna Harrington (Axis 3) – confirmed their desire to pursue their mandate on the Governance Committee for an additional year. Their new term will end on 31 March 2020. The Committee also officially welcomed a new associate on the Partnership’s coordination team, Mélanie Dufresne.

The Partnership is led by two Co-Directors Fannie Lafontaine and Jayne Stoyles. Its structure includes 26 co-researchers and collaborators, whose actions are organized within 3 research axis. Each axis also includes student-researchers and is spearheaded by a Chair who may rotate on a yearly basis. The Governance Committee is composed of the Co-Directors, the Chairs and a representative of a NGO partner, Pascal Paradis (Avocats sans frontières Canada). The coordination team provides support to the Committee’s work.

CPIJ welcomes Sharry Aiken and Joseph Rikhof

By | News, Press Releases

The Canadian Partnership for International Justice (CPIJ) is pleased to announce the addition of Profs. Sharry Aiken and Joseph Rikhof in its project team, respectively as a Co-Researcher and as a Collaborator.

Associate Professor at Queen’s Law University, Sharry Aiken has spent a great deal of her career advocating for human rights and social justice. Her outstanding expertise on immigration and refugee law has led her to appear before the Supreme Court of Canada in a number of precedent setting immigration cases, such as the Charkaoui, Harkat and Almrei cases. Past president of the Canadian Council for Refugees and former Co-Chair of the Board of Directors of the Canadian Center for International Justice (CCIJ), Prof. Aiken will undoubtedly be a valuable asset to Axis 3 of CPIJ Research Program.

Adjunct Professor at the University of Ottawa (Common Law Section), Prof. Rikhof has served as Senior Counsel and Manager of the Law with the Crimes against Humanity and War Crimes Section of the Department of Justice, Canada. His area of expertise includes the law related to organized crime, terrorism, genocide, war crimes and crimes against humanity, especially in the context of immigration and refugee law. Prof. Rikhof has collaborated regularly with CPIJ since its creation, having notably been involved in the expert meeting CPIJ organized on the collaboration between national prosecuting authorities (NPAs) and NGOs in the prosecution of international crimes, which took place in March 2018. He also collaborated with CCIJ and the Philippe Kirsch Institute on many occasions.

Welcome in the team!

Fannie Lafontaine and François Larocque publish a collective work in honor of Louise Arbour

By | News

CPIJ members Fannie Lafontaine (Université Laval) and François Larocque (Université d’Ottawa) publish a collective work in honour of Louise Arbour at Intersentia, titled “Doing Peace the Rights Way – Essays in International Law and Relations in Honour of Louise Arbour“.

Including a foreword of the former UN Secretary general Kofi Annan, this collective work addresses the most topical issues in the field of international law and relations. Authors are leading experts and renowned actors on the international scene or within national jurisdictions, who all maintained close contact with Louise Arbour through her career. Louise Arbour had an important impact on the development of international law and played an important role in international institutions, as Prosecutor of the International Criminal Tribunals for the Rwanda and the former Yugoslavia, UN High Commissioner for Human Rights, Executive Director of the International Crisis Group and Special Representative of the UN Secretary General on International Migrations. She also held the highest judicial function in Canada and has helped to shape Canadian law as an academic and as a judge, sitting on the Supreme Court of Canada. Louise Arbour is a leading expert in the fields of conflict prevention and resolution, criminal justice, human rights.

This unique collection of essays written by leading experts addresses fundamental issues such as the right to the truth, torture, immunities and women’s rights in the context of recent and current events. It also questions basic assumptions and sheds new light on crucial issues that are at the core of the world’s agenda. Interactions between justice and peace, human rights and conflicts, law and politics, both within the international or national context, are at the heart of each contribution.

Doing Peace the Rights Way brings together great minds, in the honor of a justice and human rights champion and ambassador, in the hope that their vision of the most topical and important issues of our time can help to bring closer ideals of peace and justice for all.

With contributions from Andrew Clapham, William Schabas, Tity Agbahey, Gilles Olakounlé Yabi, Alana Klein, Hina Jilani, J. Michael Spratt, Pablo Espiniella, James K. Stewart, Mona Rishmawi, Lisa N. Oldring, Fannie Lafontaine, Luc Côté, François Larocque, Tim McCormack, Fabrizio Hochschild, Philip Alston, Antonia Potter Prentice, Camille Marquis Bissonnette, Kim Pate and Natasha Bakht.

ICC Legal Tools Project

By | Uncategorized

At the Canadian level, CPIJ coordinates this project initiated by the International Criminal Court to provide users around the world with a comprehensive virtual database of information and analysis related to international criminal law and justice.

The Legal Tools Project is a collection of legal information, digests and software that will enable users to work with international criminal law from wherever they are. The Canadian partners for the project are CCIJ, La Clinique de droit international pénal et humanitaire de l’Université de Laval, the Human Rights Research and Education Centre at the University of Ottawa and the University of Ottawa Faculty of Law – Common Law Section.

Three Main Components

The Legal Tools Database is a free, fully searchable database of information related to international criminal law, including domestic legislation and case law.

The Case Matrix is an application that aims to provide a body of knowledge and expertise to help those in the legal community dealing with cases involving core international crimes.

It provides users with a source of legal reference and analysis; it incorporates relevant information from the Legal Tools Database and provides access to the Elements Digest, Proceedings Digest and Means of Proof Digest.

It also acts as a database to organize and present information and evidence in cases involving core international crimes, providing an overview of the evidentiary status of a case at various stages (investigation, trial, appeal, judicial review).

The Case Matrix further provides a “User’s Guide” on how to prove international crimes through various modes of liability.

Finally the Project aims to develop a Case Matrix Network, to accompany the Case Matrix, to strengthen the ability of national jurisdictions to investigate and prosecute international crimes.

For more information, please visit the ICC Legal Tools Project website.

SNC-Lavalin case shows why we should review foreign corruption laws

By | CPIJ in the Media, News

Joanna Harrington | The Conversation

26 February 2019 – The controversy in Canada involving Québec-based corporate giant SNC-Lavalin highlights the need for a parliamentary review of the legal scheme for fighting foreign corruption.

Underpinning the scandal is a corporate criminal prosecution for the alleged bribery of Libyan officials by SNC-Lavalin officials and the question of a plea deal. Since corporations cannot do jail time, a fine is the obvious punishment. But how large should the fine be, and with what consequences? Should SNC-Lavalin be barred from consideration for future government contracts?

The SNC-Lavalin headquarters in Montreal. THE CANADIAN PRESS/Paul Chiasson

It was only in 1999 — almost 20 years to the day of the Globe and Mail‘s report about allegations that Canada’s former attorney general felt pressured to help SNC-Lavalin — that the bribery of a foreign public official became a crime under Canadian law.

Until then, paying a bribe or kickback to secure a contract abroad was seen as the cost of doing business in a foreign land.

Pushed as a fast-tracked initiative, with all-party support, passage of the Corruption of Foreign Public Officials Act was a foregone conclusion. Introduced in the Senate in December 1998, the law received only two days of parliamentary consideration, before it was brought into force in February 1999.

Speedy passage, however, meant that Parliament had not set aside any time to consider the more delicate details, such as the role of plea deals to save court time. And parliamentarians had failed to consider the question of who are the victims of foreign corruption, because plea deals are likely to involve the payment of a victim surcharge to fund victims assistance programs.

Why was Canada so keen to rush this new law into place? The answer lies in international pressure.

The OECD Anti-Bribery Convention

In mid-1998, Canada and other G8 states made a commitment to ratify the Organisation for Economic Co-operation and Development’s (OECD) Anti-Bribery Convention before the year’s end. The OECD is the international club of countries with advanced economies.

It was this keenness to join that led Canadian parliamentarians to accept the Corruption of Foreign Public Officials Act, the legislation that put into motion the OECD convention’s terms. Those terms include a provision that the investigation and prosecution of foreign bribery “shall not be influenced by considerations of national economic interest, the potential effect upon relations with another State or the identity of the natural or legal persons involved.”

Canada also accepted the supply-side focus of the OECD’s approach — often called active bribery — as it focuses on the conduct of the one offering the bribes. But the demand side of foreign bribery isn’t always passive if an individual recipient encourages a corporate payment, and so the demand-side aspect is worthy of further parliamentary review in Canada.

Indeed, after a study in 2008, the Law Commission of England and Walesconcluded there should be two general offences of bribery, one for the conduct of the payer and the other for the conduct of the recipient.

Illegal to offer rewards to foreign officials

Corruption takes a variety of forms, with bribery being the standard offence for addressing corruption in the public sphere.

With the Canadian Corruption of Foreign Public Officials Act in place, it is illegal to offer undue rewards to foreign public officials to obtain improper advantages in the conduct of international business. The act has created work for business lawyers offering compliance advice.

There have been few convictions under Canada’s anti-rbribe. Shutterstock

But the act has also fostered disappointment. In 20 years, there have only been four convictions. Three convictions, secured by guilty pleas, have involved Alberta-based companies in the oil-and-gas sector, while the fourth concerned an Ottawa-based individual in the technology sector.

There’s rarely any mention of the tally of closed investigations, acquittals and stayed proceedings. That tally includes the 2017 acquittal of several people associated with SNC-Lavalin and a bridge development project in Bangladesh; the same bridge project that led to SNC-Lavalin’s negotiated acceptance of World Bank debarment in 2013.

Critiques lead to amendments

Criticism of Canada’s performance under the act has resulted in amendments in 2013. And in 2014, new transparency measures were imposed on the natural resources sector.

In 2017, the law’s reach was extended, at last, to cover all forms of bribes, and in 2018, a Canadian version of the deferred prosecution agreement, pioneered in the United States, was added to prosecutors’ toolboxes.

But Canada’s legislative scheme has not kept pace with the multi-jurisdictional realities of fighting foreign corruption.

In its 2018 annual report to Parliament, Global Affairs Canada continued to hail the $10.3 million fine paid by Griffiths Energy International as “the largest to date under the CFPOA.” But no mention is made of the English Court of Appeal’s assessment that this was a “relatively modest sum” given the surge in share value for the successor company in the United Kingdom.

Corruption violates integrity

It is often said that “corruption is not a victimless crime.”

And no less a body than the Supreme Court of Canada has opined that: “Corruption … undermines confidence in public institutions, diverts funds from those who are in great need of financial support, and violates business integrity.”

But more work is needed from Parliament on the definition of a victim. Past plea deals have included the payment of sizeable victim surcharge fees into provincial victims-of-crime funds.

But how do these funds offer assistance to the victims of foreign bribery in, say, Bangadesh or Chad, or to a company’s employees in Canada?

Lastly, there is the larger question, now ripe for review, about the hope placed on using criminal law to secure the often-stated goal of securing a level playing field for Canadian companies operating abroad.

CPIJ Co-Researchers Payam Akhavan and Frédéric Mégret promoted Full Professors

By | News

25 february 2019 – The Faculty of Law is pleased to announce that Professor Payam Akhavan and Professor Frédéric Mégret have been promoted to the rank of Full Professor, effective 1 March 2019.

Professor Akhavan teaches and researches on public international law, international dispute settlement, international criminal law, human rights, and cultural pluralism. He received the degrees of Doctor of Juridical Science (SJD) and a Master of Laws (LLM) from Harvard Law School after obtaining an LLB at Osgoode Hall Law School. Prior to joining McGill, he was a senior fellow at Yale Law School and a UN prosecutor at the International Criminal Tribunals for former Yugoslavia and Rwanda at the Hague, making significant contributions to their foundational jurisprudence. In 2017, he delivered the CBC Massey Lectures, In Search of a Better World: A Human Rights Odyssey, in five different Canadian cities. His companion book was a #1 bestseller (non-fiction) in Canada.

Professor Mégret’s interests lie in international criminal justice, international human rights law, the law of international organizations, transitional justice, and general international law. He was named a William Dawson Scholar by McGill University in March 2015 and held the Canada Research Chair (Tier 2) on the Law of Human Rights and Legal Pluralism from 2006 to 2015. He served as associate dean (research) at the Faculty of Law from 2012 to 2015. Before developing an interest in international criminal law and humanitarian law, he completed a stint as a member of the United Nations Protection Force deployed in Sarajevo. He holds a PhD from the Graduate Institute of International Studies (University of Geneva)/Université Panthéon-Sorbonne (Paris I), a Maîtrise de droit privé from Université de Paris I, and an LLB from King’s College, London.

“As acknowledged in glowing terms by the external experts consulted, Professor Akhavan and Professor Mégret have emerged as two of the world’s leading voices in international criminal law,” underscored Dean Robert Leckey on sharing the news. “Their careers are a vivid illustration of the capacity of imaginative legal research to change our ideas and actions. I look forward to their continued outstanding contributions to this field of pressing importance.”