Françoise Bertrand is president and CEO of the Fédération des chambres de commerce du Québec. Alan O'Dette is president and CEO of the Ontario Chamber of Commerce.
Ethical conduct has become an issue of considerable importance to businesses in many sectors, and rightly so. In recent years, the corporate world has developed greater awareness in this area, and many companies have introduced measures to improve self-discipline and control in an effort to ensure exemplary behaviour.
It is in everyone's interest to ensure that our businesses are committed to respecting the rule of law. It is a public and consumer trust issue, but also a question of reputation of our companies and, by extension, our reputation internationally.
No company is immune to illegal acts on the part of its executives and employees – illegal acts that may have serious consequences, especially for their employees, shareholders and, ultimately, the community. We recognize that such acts, when they occur, must be denounced and corrected. We are also of the opinion that anyone who commits illegal acts must answer for them, in accordance with the judicial procedures in their jurisdiction.
On the other hand, it seems unfortunate that the actions of a few individuals should tarnish the reputation of an entire organization. We believe that the impact on the public, employees and shareholders should be limited.
We can still recall certain cases where businesses were hit very hard by the reprehensible behaviour of executives or employees. These companies were taken to court and lost their reputation and their contracts, and many were even forced into bankruptcy. The communities where they operated lost economic activity, quality jobs and, in some cases, head offices.
We believe there is a better solution. In our opinion, it's possible to punish businesses by imposing strict conditions and forcing them to adopt appropriate corrective measures, pay fines and reimburse what they owe, while at the same time – so long as they respect the negotiated conditions – avoiding the scourge of legal proceedings.
Several countries, including the United States and Britain, have adopted a mechanism known as a deferred prosecution agreement (DPA). This is a tool Crown prosecutors can use to negotiate agreements with businesses to settle certain cases in which employees or executives have committed illegal acts.
Let us be clear: This does not absolve companies from fulfilling their obligations. If they fail to respect the negotiated terms, Crown prosecutors still have the option of initiating legal action.
A DPA offers a way forward that lets everyone win. It forces the offending company to acknowledge its wrongdoing, to collaborate with competent authorities in good faith and to implement corrective measures that are fair and equitable. The company is forced onto a remedial path that minimizes the risk of future criminal activity, without harming innocent employees and shareholders. Another positive aspect of a DPA is that it reduces negative fallout, such as job losses, and saves time and money for taxpayers and the legal system.
On the international scene, there is a growing consensus that DPAs and similar approaches are the best way of dealing with certain wrongful acts of an ethical, economic or governance-related nature. Countries such as the United States and Britain use DPAs to deal with business-related offences in an efficient manner. Others, such as France, Australia and Ireland, intend to introduce similar measures. And the Organization for Economic Co-operation and Development has been invited to set out best practices to follow.
DPAs and similar mechanisms are now part of the business environment in a growing number of countries. In Canada, we lag far behind as one of the only developed countries without them. We believe governments should adopt DPA-style measures if we want to ensure that our businesses remain truly competitive, here and abroad.