, April 9 2015 Via email: [email protected] e e e , , Th eHonourabl e,Dian eFinley , PC MP Minister of Public Works and Government Services Plac du ,Portag Phas III Room 18A1 11 Laurier Street Gatineau QC K1A 0S5 Re:Dear MinisterPWGSCFinle Integrityy: Framework e e alf f e m t e f W writ on. behe o th Canadian e Bar Association’s Anti -Corruption Tea (CBA -ACT) eto commen onouth department o o Public Works and Government h Services Canada’s (PWGSC) Integrity Framework W understand th Integrity Framework is currently under review and w ask that y take isint considerational our concerns f wit the current policy. , , a e e e e f e. a The CBAe f a nation association e ea of 36,000 lawyers, QuébecTnotaries s students and law teachers with mandats tompromot improvementsal, in th, law and th administration o justic Building on over decad o CBA’s work in th ar o anti - corruption, CBAell- AC ei a joint committee comprisede el of member fro o tthe Intern ation Business Charities & Not-for-Profit, Competition, Criminal Justice and Construction and Infrastructure law sections as w as th Canadian Corporat Couns Association f he CBA. n s . e e We support the government’s e objectives i seeking and promoting the integrity of it suppliers t as well as providing a estrong deterrente to corrupt practices le W encourag e lepublic f consultation e on any proposed changes to th Integrity Framework and offer some recommendations to ensure tha its operation and scope meet thos important goalsc whi respecting th ru o law and du processss . e e s s A debarment regims should balances the publi interest of preventing a corruption with fairne to thos whoe are subject to debarment e a well a maintaining a competitivet e supplier base for thef provision of good and service to ethe government e . In addition,y government policy . intended to influenc th behaviour of privat entities should take into accoun th leniency programs o other governmente e departments e to ensur objectives ar aeffectivel mete government wide. W hav examined th Integrity Framework with focus on thes particular areas 500-865 Carling Avenue, Ottawa, ON, Canada K1S 5S8 tel/tél. : 613.237.2925 | toll free/sans frais : 1.800.267.8860 | fax/téléc. : 613.237.0185 | www.cba.org Membership/Adhésion : [email protected] | PD/DP : [email protected] | Sections : [email protected] | General/Générale : [email protected] 2 Rule of Law, Due Process and Transparency y e e e f al e le f s s The Integrit Frame worke must align withe the rule of law ande due process. Thes values ar th cornerstones o Canada’s e leg system. Th ru o law establishey the principle that law should govern societye and thos subject to th law should not fac arbitrary decisionss by government entities.al Currently, t.th Integrity Framework applies onl to suppliers of PWGSC and departments that hav signed an MOU. Debarment should apply to either all or no supplier contracting with the feder governmen f a n ny n y a a e The consequence s o violateio of a debarment offence identified. e i the Integrit Framework is the same for person convicted with lower sentenc as for someone e convicted with a much higher sentence. Both receiv an automatic 10-year debarment Th Integrityf Framework applies similar treatment, to epotentially e very differing circumstances. e Th afactors that determined e sentencing Competitionshould also Actapply awhen eldetermining e the length or, terms a o debarment. We question, for example whether th sam debarment period is appropriat for misleading advertising offenc undere the as cart offenc under thatmAct or government s bribery offence.s y y n y Thlea,Integrity e Framework does not contain a mechanis allow ing e supplier to. appeal it outcomes, which ma violate due process. Although debarment is onl imposed after a convictio or guilt p th Integrity Framework doess not offer an opportunity to b reinstated A penalty as serious as automatic 10-year debarment should consider whether a supplier has implemented appropriate mitigatione or acompliance measure to avoid future violations. e a e o Ther is also need forn greatern transparency with adoption and implementation c of the Integrity Framework. e Th process for f creatinge fair f debarment regim thate responds t the goal of e, eradicating corruptio e e i governmente f procurement should include publi consultation to help avoid th arbitrary nature o th length o debarment. To promot education and deterrenc the publicle should b mad a awarl o lany investigati on. , e le Whi debarment is usefu too to combat corruption it should b used in an equitab manner Policytaking intovs. Statutoryaccount the Instrumentseverity of the conviction or guilty plea and any mitigating circumstances. y e f e The Integrits Framework is currently a PWGSC policy.c The process e for adopting or modifying a departmental e policy lack s th transparency f and safeguards o th regulatoryy and statutory icprocess and doe not necessarily take into account the publi interest.tW recommend th at supplierp o debarment b enshrined e eitherle f as ,an act o parliament, or a sstatutor instrument ss with publ consultational . As an act of parliament or a statutory instrumen the regime would hel to respond t our concerns about th ru o law transparency an appeal and review proce and respecting f r t e e y gener sentencing principles. e e . An act o parliament o a statutory instrumen would ensur is that amendments to thy Integritny Framework ar mad through open parliamentary debates and public consultation A legislative foundation would ensure that such an important regime subject to parliamentar scruti and f t e the views of all stakeholders, including those of the general public, could be heard and recorded. a le f l An act oe parliament ore statutorye instrumen, t t also has th advantage, of bringing all federal contractsy under sing. set o integrity measures rather than various departmenta policies. All suppliers would b subject to th sam rules no jus suppliers of PWGSC as with the current Integrit Framework 3 Debarment s is s s ss is m PWGSC’ statedle purpose, fore thef Integrity Framework e “protecting e the integrity of it procurement”. To ensure that thee government’ f e procurement proce protected fro disreputab business som o our members believ that th following factors should be considered when determining a th elength a o th debarment term: o a) whether it is first offenc or repeat offence; e b) the seniority of the individuals responsible for the offence or wh authorized or acquiesced e, e f e in th offence; e el f e e c) the natur severity and magnitud o th offence; e ; d) th lev o procedures and controls th company already had in plac to address anti- e corruption or th relevant offence e e e e) whether th company self-reported; f) the extent to which th company cooperated with authorities after th offenc had been al e discovered; and g) remedi measures taken by th company. n e , s s The inf lexibility of the 10-year ba differs from th approach taken by most other countries and organizationss including the World Bank, which use discretionarys and criteria -guided policie when determining debarment lengths. Since the Integritye Framework does not consider mitigatinge . factor it does not provide much incenti ve for companie to self-report. This is contrary to the approach taken by many regulators (including th Ontario Securities Commission and th U.S Departmente f of Justice) in formalizing credit for cooperation policies. t t e Som o our members, in addition to the consideration of the criteria listed above, sugges tha a debarment• regims should provide: s • e e f e a proces and discretion to determine whether debarment i justified in the circumstances; • a e e e flexibility regarding th natur and length o th debarment; • , e e a procedure e to challengy th debarment terms; and under certain circumstances th ability to hav the debarment lifted following period wher th entit has demonstrated rehabilitation and a strong record of compliance. e , a e To protect the integrity of PWGSC’s procurement process debarments regim must provides strong disincentive to corrupte behaviour while ensuring the public interesty is properlyy served. A proportionat debarment regime would advance the objective of encouraging companie to implement effectiv anti-corruption policies and deal promptl and openl with instances of Retrospectivitycorruption, including cooperating with authorities. s s s e e e f, e . The Integrity Framework retrospectively attache additional penaltie to conviction and guilty please that predatle th alcoming into forc o or amendments to, th Integrity Framework . e e l e e e Th princip, that pen laws should generally operate only prospectively is a fundamental e aspecte of thee rule of law People should not b punished for acts which wer lawfu e at th tim they wer committed and punishment for unlawful acts should not exceed that provided for at th tim they wer committed. Debarring a supplier for conduct that occurred before th Integrity Framework 4 r o e a , e a (o amendments) came int force should only b justified following determination pursuant to th criteri nlisted above, that it is necessary to protect PWGSC procurement.s s ss s aApplying a automatic, non-discretionary debarment to past conviction denie due proce to those companie who may have responded differently had they known a guilty plea would result in mandatory 10 -year debarment.