You could argue that SNC situation was unique and so uniquely creative solution was required.
From legal perspective, deal was very cleverly done.
Of course, reading the decision may be a challenge. Though a public document, it is *still* not available through free database like @CanLII - maybe that will change
Plea by SLCI to fraud against Libya
Sentence:
1. $280 million fine, payable in equal instalments in 1st quarter of each year for 5 years, starting in 2020. So watch for $56 million to be paid before 31 Mar 2020.
2. 3 year probation.
snclavalin.com/en/media/press…
Crown says cooperation and guilty plea (late in process) - moderate weight
Defense says - cooperation from 2012 (even though no voluntary disclosure, info provided helped get search warrants) and plea - high weight
V. problematic. Our corp crim law based on imputation. So liability of corp always tied to individuals. Not a mitigating factor. (absent "fraud on corp" defence).
Plus Crown & defence refer to US guidelines, but use them differently.
Also no comments on victim surcharge - is it included, or not? (In other cases involving foreign bribes (albeit charges under #CFPOA ) victim surcharge of 15% was added.
Sanction imposed on the offender who pled guilty - that's SCLI.
Now one would expect that the Group implicitly guarantees the payment will be made (and they have every reason to do so).
But legally, obligation is on SLCI.
On probation order: the substantive content is, in my opinion, good. Imposes obligation to maintain existing compliance and control measures and enhance as required. Monitor oversees execution and reports on it.
This makes sense - message comes from top - send clear signal about corp culture & values
BUT, obligation to execute order is, legally speaking, one that is imposed on SLCI, because they pled guilty.
"SLCI shall *cause* SNC Group to"
So sub compels parent, or something like that.
No one I have talked to knows exactly what legal effect of words are.
(par 3 g of order, if you have a copy).
Ostensibly, having sub plead was to avoid debarment and issues for parent in future dealings.
But fraud charge to which SLCI pled does not trigger debarment.
Will letting a sub plead become the new normal?
This is another reason for @PPSC_SPPC and @JusticeCanadaEN to provide much more guidance.
Is there enough transparency about this deal in particular and about this kind of deal in general?
Should we think about a public website where relevant info & documents are catalogued & organized (& explained) so public can read it and understand it?
Question of how to mete out consequences on a corporate group composed of many separate legal entities is not new and hotly debated. But where *de facto* $ and control of compliance is w/parent, why engage in artifice of making a sub *de jure* answerable for sanction?