Trudeau’s government on the wrong track with this one

Years ago, when I was first working in journalism, one of my editors impressed on me the need for always asking the “what if?” questions.

What if you’re misreading the paper trail? What if the interview subject that anchors your entire piece has an axe to grind and is actually lying? What can come out of the blue and sideswipe the entire story? Is there actually a completely different explanation than the one you’re working with? (The editor actually called the process “asking the GO Train question,” because while planning the structure of a major story and re-listening to an interview on headphones, he was almost hit by an Ontario commuter train.)

It’s an important test, because no one is free of bias, and there’s plenty of bad intentions in the world. Shining knights are few, and grey areas abound. Perhaps, right now, the Trudeau government should be asking a few “what if?” questions of its own about a quiet change it’s making in the federal budget, one that would allow companies to avoid criminal convictions through a process known as “deferred prosecution agreements.”

Essentially, corporate crime could be dealt with by a company agreeing to pay a fine and address the criminal conduct, so that convictions would never be registered against the offender.

It’s bad enough that, in Canadian commercial law, companies are treated as “persons,” right down to having rights that normally would only extend to living, breathing people. Having a separate standard in criminal law — the ability to buy their way out of prison with fines and promises of improvements — may make sense if your goal is to speed up the judicial process and to find novel ways to address internal company issues. But if you can’t see how easily such a regime could be abused to help a government’s corporate friends, then you are being wilfully blind.

If the rules were followed to a T, avoiding criminal charges would allow a firm to continue bidding on government contracts, even if it had been caught in acts like insider trading, municipal corruption or fraud.

Why? Because the criminal charge against it would be stayed if the company lived up to its side of the agreement: “The order stays the proceedings against the organization for any offence to which the agreement applies, the proceedings are deemed never to have been commenced and no other proceedings may be initiated against the organization for the same offence,” the proposed legislation says.

Special treatment indeed. The change is tucked into the government’s 582-page budget document, at Division 20, near the very end.

MPs are now arguing that that the change is significant enough, and so divorced from the actual budget, that it should be taken out of the budget and dealt with as separate legislation — and even Liberal MPs are troubled by the clause. The Trudeau government, so far, is refusing to take the clause out of the budget, essentially guaranteeing its passage without full and careful debate. The MPs who are troubled by this are right to be.

Why should a corporation be allowed to buy a get-out-of-jailfree card? If criminal acts can be dealt with by simply fessing up, cutting a cheque and promising that you’ll do better, is there really any meaningful deterrence on the table? That’s just making the commission of a crime into a business decision, balanced on the scale of profit and loss, rather than right and wrong.

Refusing to take that section out of the current act so it can be reviewed more closely?

Either extreme hubris, or real ignorance that the GO Train could be right around the corner.