When Philippines businessman Rizalino Espino was named as a participant in a bribery scandal involving a Canadian company, he assumed his day in court meant that a judge would hear him out and weigh his version of the facts.
Instead, it didnB次元官网网址檛 matter what evidence his lawyer presented.
A judge in Quebec wrote in May that there was B次元官网网址渘o possibility of adjudicating factsB次元官网网址� in the case, in which the court approved a remediation agreement between federal prosecutors and a Quebec forensic technology firm that did business for years in the Philippines.
Remediation agreements B次元官网网址� the Canadian version of deferred prosecution deals B次元官网网址� are a new part of the legal landscape, that were supposed to make it easier to bring corrupt companies to justice, while allowing them to avoid prosecution.
But EspinoB次元官网网址檚 experience highlights a potential flaw in the process: the judges who decide whether to approve the deals are unable to consider whether the agreed facts that underpin the agreements are true. Those agreed facts are decided upon solely by the accused company and prosecutors.
University of Ottawa law professor Jennifer Quaid said the remediation agreement regime in Canada relies on voluntary disclosure by people involved in wrongdoing, who are likely B次元官网网址渢o paint the best possible picture of oneB次元官网网址檚 involvement,B次元官网网址� she said.
B次元官网网址淓ven if one acknowledges responsibility, usually there is an effort to spin as positively as possible.B次元官网网址�
In the case that entangled Espino, the remediation agreement was struck by Quebec-based Ultra Electronics Forensic Technology. It admitted years of wrongdoing and agreed to pay a $10 million fine for a bribery scheme to sell its flagship ballistics identification system to the Philippines National Police.
Espino was not charged with a crime. But he and his company Concept Dynamics Enterprises went to court in Canada to clear their names after discovering they had been named as participants in the bribery scheme in the remediation dealB次元官网网址檚 B次元官网网址渁greed statement of facts.B次元官网网址�
The statement depicts Espino as a key player in the scheme that Ultra said B次元官网网址渆armarked and promisedB次元官网网址� bribes for top officials including then Philippines interior secretary Ronaldo Puno and his brother. The company admitted using the corrupt scheme to help it secure $17 million in contracts with Philippines police.
But Espino said he was a victim and a whistleblower who put an end to UltraB次元官网网址檚 corrupt scheme, and didnB次元官网网址檛 provide bribes to the Puno brothers or anyone else.
In a series of emails to The Canadian Press, Espino said he wanted to B次元官网网址渟alvageB次元官网网址� his reputation after being B次元官网网址渄ragged through the muckB次元官网网址� during the court process of approving the remediation agreement.
B次元官网网址淭he court is not empowered to take any other information into consideration, no matter how compelling it may be,B次元官网网址� Espino wrote. B次元官网网址淭his being just the second remediation agreement to be approved in Canada, there is still much to learn.B次元官网网址�
Espino said he wanted B次元官网网址渁 chance to defend my name and reputation.B次元官网网址�
Quebec Superior Court Judge Marc David rejected EspinoB次元官网网址檚 bid to have the accusations against him removed from the statement of agreed facts, in his decision to approve UltraB次元官网网址檚 remediation agreement.
B次元官网网址淲hen presented with a remediation agreement, a court must accept the facts as exposed by the prosecutor and the accused organization,B次元官网网址� David wrote.
B次元官网网址淭he procedure is bipartite. There is no possibility of adjudicating facts. In principle, an agreed statement of facts cannot be unsettled based on the possible existence of contradictory evidence.B次元官网网址�
Third parties like Espino and Concept Dynamics are left with no immediate recourse to head off a remediation agreement even if they present what David called B次元官网网址渁lternative facts.B次元官网网址�
EspinoB次元官网网址檚 lawyer, Philip Aspler, told the judge that the agreed statement of facts was defamatory and B次元官网网址渇ull of inaccuracies, mistakes and outright lies.B次元官网网址�
B次元官网网址淥ne cannot help wonder if the prosecutor ever even bothered to check the facts or just swallowed, hook, line and sinker, everything that the defendant did,B次元官网网址� Aspler told the judge. B次元官网网址淥ne of the issues is, did the Crown actually bother to get all sides of the story, and I respectfully submit that it did not.B次元官网网址�
David, who called EspinoB次元官网网址檚 claims a B次元官网网址渃urveballB次元官网网址� in the December 2022 hearing, is only the second judge tasked with approving a remediation agreement since they were added to the Criminal Code in 2018.
The first involved SNC-Lavalin, which last year admitted corruption related to the refurbishment of the Jacques Cartier Bridge in Montreal.
But the remediation process had been put in the public eye in 2019, in a separate case involving SNC-Lavalin. Former attorney general Jody Wilson-Raybould claimed Prime Minister Justin Trudeau inappropriately pushed her to cut a deal with SNC-Lavalin over its corrupt dealings in Libya. She refused, and instead of remediation, the company ended up pleading guilty to fraud.
With CanadaB次元官网网址檚 deferred prosecution regime still in its infancy, David remarked that his ruling in the Ultra case would likely impact future remediation agreements.
St茅phane Hould, the prosecution serviceB次元官网网址檚 remediation agreement coordinator, declined to comment on the case but pointed to Crown submissions depicting Espino as an admitted B次元官网网址減articipantB次元官网网址� in the bribery scheme, which ran from 2006 to 2018.
In court, Crown prosecutors stood behind the agreed statement of facts. Fraud and offences under the Corruption of Foreign Public Officials Act, prosecutors told the court, donB次元官网网址檛 require that B次元官网网址渂ribes were actually paid.B次元官网网址�
B次元官网网址淭he fraud scheme was designed to inflate the price of the contracts and was facilitated through the receipt of (EspinoB次元官网网址檚) commissions,B次元官网网址� the CrownB次元官网网址檚 submissions said.
They warned David that entertaining EspinoB次元官网网址檚 claims could derail the process by requiring him to adjudicate facts, which the remediation agreement regime doesnB次元官网网址檛 allow.
Judge David ultimately agreed, finding he couldnB次元官网网址檛 reject the agreement because Concept Dynamics failed to demonstrate that the prosecutors or Ultra Electronics had B次元官网网址渨ilfullyB次元官网网址� misled the court.
B次元官网网址淲hen presented with a remediation agreement, a court must accept the facts as exposed by the prosecutor and the accused organization,B次元官网网址� David ruled. B次元官网网址淭here is no possibility of adjudicating facts. In principle, an agreed statement of facts cannot be unsettled based on the possible existence of contradictory evidence.B次元官网网址�
He added that Concept Dynamics B次元官网网址渃an seek redress in the civil court systemB次元官网网址� if it felt aggrieved.
In an emailed statement, Ultra Electronics said EspinoB次元官网网址檚 claims have B次元官网网址渘o basis in fact.B次元官网网址�
B次元官网网址淭his matter has been thoroughly investigated at length by the Royal Canadian Mounted Police, with our full co-operation,B次元官网网址� the company said. B次元官网网址淯ltra Forensic Technology no longer uses any intermediaries in the Philippines. This includes Mr. Espino, who is implicated as an accomplice, in the historical misconduct as described by the agreed statement of facts executed by the PPSC and the company.B次元官网网址�
University of Ottawa law professor Quaid said the case involving Concept Dynamics is odd and B次元官网网址渢rickyB次元官网网址� because the case dates back many years, and bribery schemes usually involve many parties with varying degrees of blameworthiness.
B次元官网网址淚 donB次元官网网址檛 objectively know where the truth is,B次元官网网址� she said. B次元官网网址淣o one outside of the people who did the investigation and the parties themselves who were involved actually know the full extent of it.B次元官网网址�
But she said itB次元官网网址檚 highly likely that when the remediation agreement regime was devised, a scenario like this simply wasnB次元官网网址檛 contemplated.
Quaid said itB次元官网网址檚 possible that true victims could be overlooked, representing a B次元官网网址済apB次元官网网址� in a regime that is mandated to be victim-centric.
B次元官网网址淚t seems like thatB次元官网网址檚 an oversight,B次元官网网址� she said.
Quaid said thereB次元官网网址檚 a danger that investigations might miss things and itB次元官网网址檚 difficult to catch people in a lie if independent verification isnB次元官网网址檛 possible.
B次元官网网址淪o you need someone on the inside that says, B次元官网网址榦h, I know what happened and IB次元官网网址檓 gonna tell you,B次元官网网址橞次元官网网址� she said. B次元官网网址淏ut then there is a certain amount of faith afterwards.B次元官网网址�
Ultra Electronics was ultimately penalized $10 million under its remediation agreement, and foreign bribery and fraud charges are still pending against former employees Robert Walsh, Timothy Heaney, Ren茅 B茅langer and Michael McLean.
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