On May 27, SNC told employees they have three months, between June 3 and Aug. 31, to confess their knowledge of bribes and frauds or other wrongdoing and promised not to fire or sue employees for damages. Executives will not be immune, and the office of the president won’t be eligible for the deal either.
The next day, interim Competition Bureau commissioner John Pecman told the Canadian Bar Association’s annual spring competition law conference the bureau was launching the Criminal Cartel Whistleblowing Initiative and the “Action Plan on Transparency,” which aims to promote “a more cost-effective, efficient, and responsive agency” with a goal to better educate the public about what it does.
It has committed to publishing additional guidance documents and providing information on the outcome of bureau inquiries. While it has historically been reluctant to provide details on its economic analysis during a review, the bureau says it will now aim to do so.
The Criminal Cartel Whistleblowing Initiative explains that under s. 66.1 of the Competition Act, anyone who has reasonable grounds to believe that a person has committed, or intends to commit, a criminal offence under the act can notify the bureau and request their identity be kept confidential. The bureau will protect the identity of anyone who has made such disclosure and to whom an assurance of confidentiality has been provided. However, depending on the circumstances, a whistleblower may be asked to testify in court but will not be required to do so.
While the provisions for the protection of whistleblowers have always been in the Competition Act, the whistleblower initiative provides added assurances the identity of a whistleblower would be kept confidential.
Chris Hersh, a competition lawyer with Cassels Brock & Blackwell LLP, says the sudden push may just be part of the bureau’s goal to remind the public of the protections available amid the ongoing controversy with SNC and “general morass going on in Quebec” with respect to bid rigging and corruption.
“It’s an acknowledgement, in a way, that some of the bureau’s most successful cases have been aided by information from whistleblowers,” says Hersh.
It may also signal Pecman is interested in keeping the job beyond the interim role.
“It puts on paper their commitment — something they can be held accountable to. Whereas previous commissioners talked about transparencies, now this is John Pecman trying to put his imprint on the bureau,” says Hersh.
While competition and anti-corruption lawyers may be well versed in the protections available to whistleblowers, the general public doesn’t necessarily understand what rights they have if they decide to go to the bureau with information.
“There’s a low level of sophistication out there and why would it be otherwise? The vast majority of people don’t know what’s in place. For years and years, the bureau has said it was going to get tough on criminal cartels and now they’re taking incremental steps to do that,” says Steve Szentesi of Steve Szentesi Law Corp. in Vancouver.
What Szentesi finds interesting about SNC’s offer of immunity to employees is that announcing a formal program should not have been necessary.
“If you have a credible compliance program you should already have whistleblowing provisions which say: ‘You can go to the bureau and we can’t retaliate against you.’ I suppose the unique dimension of SNC is most compliance programs say if you violate the [compliance] program we have the right to discipline you up to and including dismissal, so maybe it’s meant to encourage reporting and give employees comfort they’re not going to be axed,” says Szentesi.
Under s. 66.2 of the Competition Act, employers can’t dismiss, suspend, demote, discipline, harass or otherwise disadvantage an employee, or deny an employee a benefit of employment, as a result of providing information on reasonable belief and in good faith to the bureau under the whistleblower program.
Whistleblowers are also protected under the Criminal Code, which makes it an offence for an employer to take disciplinary measures against an employee, or to threaten to do so, because the employee has provided information to a person whose duties include the enforcement of federal law.