Page 24 - CCCA Magazine Summer 2015

{ Feature }

“Effective compliance
requires continual learning.
You can’t just wait for a
tive you act quickly to make sure you understand the truth of the In carrying out the court law to change and for an
matter so you can determine if you need to go and speak to the order, Niko hired lawyer Rob- infraction to happen.”
authorities,” advises corporate and regulatory lawyer Elisabeth ert McCrank in 2011 to fll a
Preston, founder of Ottawa-based Lex Aegis, a virtual in-house new post of Chief Compliance
counsel frm that specializes in compliance and transaction ser- Offcer. With no experience in
vices. It’s too late, she observes wryly, when the RCMP (the fed- anti-corruption matters, Mc-
eral agency responsible for investigations under the CFPOA), ar- Crank describes the learning
rives to conduct a dawn raid. curve for him and the com-
She urges in-house counsel, uniquely positioned to under- pany to develop a robust pro-
stand multiple perspectives, to work with counterparts in f- gram built on a compliance
nance, accounting and human resources trained to spot irregu- policy adopted in 2009: “It was
larities. “It takes a little village to get this done properly,” she says. a lot of work and it turned out
to be more than full time.”
Learn from Others’ Experience In fall 2011, McCrank and kasia BOgdanOwiCz
Publicity over convictions and recent charges have turned the Niko’s Chief Operating Offcer GC, GE Canada
spotlight on CFPOA enforcement. Earlier this year, the RCMP travelled to branch offces in
laid charges against SNC-Lavalin Group Inc. and two subsid- Trinidad, India and Indonesia
iaries for alleged corruption and fraud in an ongoing criminal to conduct a risk assessment, interview staff about interactions
investigation into business dealings of the Montreal engineer- with local government offcials and suppliers, and provide anti-
ing giant in Libya from 2001 to 2011. In the past two years, the corruption training. They discovered inconsistencies in con-
RCMP has laid charges in three separate fles under CFPOA, tract wording and inadequate due diligence to vet prospective
including bribery counts in 2012 and 2013 against three former contractors. “We came away with a whole agenda of work we
SNC-Lavalin offcials for alleged illegal activities during con- had to get done, and we set out to do it,” McCrank says.
struction of the Padma Multipurpose Bridge in Bangladesh. Within two months, Niko adopted enhanced anti-corruption
RCMP Sargent Pat Poitevin, Senior Investigator and Out- language in contracts, ordered branch offces to update existing
reach Coordinator for Sensitive and International Investiga- agreements, and assigned local compliance offcers to oversee
tions, concedes the CFPOA conviction rate so far is “not very procedures and assist with training.
high.” But, he contends “we are very active about it [the leg- Niko’s probation ended in 2014. Its current anti-corruption
islation], we are continuously investigating and it is not sim- program exceeds terms of the court order, according to
ply those companies we will charge that have a price to pay.” McCrank, but he warns that effective compliance requires con-
Companies that run afoul of laws here or abroad, he adds, risk stant renewal to abide by best practices.
debarment on procurement contracts from the World Bank
(as with SNC-Lavalin in 2013 for the Padma bridge project), Implement from Top Down
the loss of credit support from Canada’s Export Development As companies seek frst to prevent ethics breaches, lawyers
Corp., and possible cancellation of mergers and acquisitions. emphasize the need for tone from the top, with the chief execu-
For the few companies con- tive a visible advocate of best practices.
“general Counsel get it on a victed to date (and one case That’s key to an ethics strategy adopted by Saskatoon-based
general level, but the actual where an individual was jailed Cameco Inc., a global uranium producer with mines in Canada,
the U.S. and Kazakhstan (the latter rated high-risk by Transpar-
practice of compliance is for three years), rehabilitation ency International). In 2005, Cameco reviewed its vision, mis-
takes time, money and effort.
woefully unsophisticated and In 2011, Niko Resources Ltd. sion and values, including a reassessment of its code of ethics
lagging our American cousins.” of Calgary pleaded guilty to one and values. The exercise led to a revamped code in 2010 (since
count of bribery under CFPOA updated) with visual, reader-friendly content, simply-worded
related to two incidents in 2005: questions and answers on potential bribery situations and pho-
the gift of a $190,984 vehicle tographs and quotes from senior executives.
to the then energy minister of “The overall view was that if we are going to come up with
Bangladesh, and payment of his a comprehensive code of conduct, we needed to create a docu-
travel costs to attend an energy ment that walked the line between being aspirational and ac-
conference in Calgary and take a cessible and yet as crisp as you can make it,” says Sean Quinn,
personal trip to New York, valued Senior Vice-President, Chief Legal Offcer and Corporate Sec-
at $5,500. Along with a fne of retary. “People can pick it up and say, ‘I can do that, and no,
$9.4 million, the court imposed I can’t do that’ or ‘I’d better go get some help because I don’t
MilOs BarutCiski
Co-Chair, International a three-year probation with strict understand what is the right course of action.’”
Trade & Investment conditions on Niko to draft com- Cameco annually reviews and updates its code, with a deeper
Practice, Bennett Jones
prehensive anti-corruption rules. look every three years (including an external assessment) to

24 CCCA MAGAzinE | SuMMEr 2015 été