A seat at the table: integrating victims and victim concerns into the negotiation of non-trial settlements

• In Event: Regulating harm: States, corporations, and the social harms resulting from the failures of law and regulation

Abstract

The plight of victims of corporate crime is often used as a rallying cry for legislative reform, from workers injured or killed on the job to those who suffer under authoritarian regimes propped up by corruption and bribery. This was certainly the case when Canada introduced a new non-trial settlement mechanism (called a remediation agreement (RA), but equivalent to deferred-prosecution agreements (DPAs) used elsewhere) in 2018. Intended as a supplement to existing enforcement methods, particularly for cases of foreign corruption, RAs were touted as a means of encouraging self-reporting and thus increasing accountability for these hard-to-detect crimes that can have serious repercussions for vulnerable groups, especially citizens of emerging economies and/or fragile democracies. In this presentation I examine the approval decisions of the first two Canadian RAs, one involving domestic corruption (2022, SNC-Lavalin), the other foreign bribery (2023 Ultra Electronics) against the promised potential benefits for victims the regime purported to offer, namely: a greater voice for victims in the approval process and the prospect of concrete remedial or compensatory measures aimed at addressing the dispersed but widespread harm these crimes tend to cause, harms which often include violations of human rights. The assessment paints a disappointing picture, where evidentiary and practical challenges prevail over consideration of victims. This aligns with my previous research on organizational sentencing where the ostensible goals of corporate accountability are interpreted – and constrained – by dominant views about the appropriate balance between regulation of business activity and the unfettered pursuit of private economic interests. I contend that the Canadian criminal justice system’s struggles to address the harm to victims in a meaningful way are tied to the fundamentally economic lens that frames the parameters of state action in response to blameworthy conduct by business entities.

Author

• Jennifer Quaid, University of Ottawa