Joanna Harrington | Policy Options | 21 August 2019 |
Any financial penalties would be paid in Quebec. But prosecutors need to find a way to provide redress for the foreign victims of economic crime.
The SNC-Lavalin affair is about many things. It’s about conflict of interest, pressure from the prime minister and whether to split the roles of the attorney general and the minister of justice. It’s also about the collateral impact of a corporate prosecution on employees, pensioners and shareholders. And it’s about corporations lobbying to change the Criminal Code and retaining former judges whose star power gets them a chat with a minister’s officials. All of these themes can be found in the Ethics Commissioner’s report of August 14, 2019.
Several requests were received for the 2019 spring trimester. While thanking all applicants, CPIJ is glad to disclose the identity of recipients:
Azé Kerté Amoulgam, doctoral student in law at Université Laval: 1000$ to realize a 6-month internship at the International Criminal Court’s Office of Public Counsel for the Defence, in the Hague (the Netherlands);
Jeremy Pizzi, baccalaureate student at McGill University: 1000$ to complete a 15-week internship at International Criminal Court’s Trial Chambers section, in the Hague (Netherlands);
Sarah Douglas and Sophie Gagné, respectively doctoral student at Dalhousie University and master’s student at Université Laval: 250$ each to participate in the Reflections on Rwanda educational program on genocide, organized by SHOUT Canada from 17 May to 1st June 2019.
Applications were analyzed by CPIJ’s Committee Scholarship and Student Funding Committee, which meets on a quaterly basis. Find out the procedure and applicable delays to request CPIJ funding.
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.
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.
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.
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.
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.
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.
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?
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.
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.
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.
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.
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.
25 february 2019 – The Faculty of Law is pleased to announce that Professor Payam Akhavanand Professor Frédéric Mégrethave 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.”