Canadian officers and directors should take note of shifting criminal enforcement priorities in the US. In recent addresses to the ABA’s 37th National Institute on White Collar Crime, US AG Merrick Garland and Assistant AG Kenneth Polite Jr. confirmed that in prosecuting corporate crime, the US DOJ’s “first priority” is the individuals responsible for the misconduct. The reasoning? Corporations can only act through individuals, and the prospect of personal liability – including jail time – is seen as the best deterrent to corporate crime.
These speeches follow an earlier address by Deputy AG Lisa Monaco announcing policy measures designed to ensure individual accountability for corporate crimes. These measures include reinstating the requirement that to be eligible for any cooperation credits corporations must identify all individuals involved in or responsible for the misconduct, regardless of their position, status or seniority, and report that information to the DOJ.
In Canada, corporate criminal liability requires a senior officer of the company to have knowledge of or involvement in the wrongdoing. This differs from the US’s broader theory of respondeat superior, pursuant to which a corporation can be liable for the unlawful acts of employees who are acting within the scope of their employment with an intent to benefit the corporation.
However, with cross-border prosecutions at an all-time high, DOJ’s increased scrutiny on individual wrongdoers will not just be felt in the US. Employees, officers and directors located outside the US – including in Canada – should also take note of DOJ’s enforcement priorities, as US prosecutors regularly charge and seek to extradite foreign nationals for violations of US law.
For example, in 2019, Roger Ng, a Malaysian national and former managing director of Goldman Sachs, was arrested in Malaysia and extradited to the US. Mr. Ng was recently convicted in the US of conspiring to commit bribery, circumvent internal accounting controls, and commit money laundering in connection with a corruption scheme involving high-level foreign officials in Malaysia and the United Arab Emirates.
In Canada, the RCMP is less transparent about its enforcement priorities. However, it has not shied away from pursuing individuals for bribery and corruption offences. Most recently in November 2020, the RCMP announced it had laid charges against a former executive from IMEX Systems Inc., a Canadian company, in connection with allegations of bribery involving a public official from Botswana. The investigation was initiated after the company’s new management self-reported the allegations to the RCMP.
Finally, AG Garland and Assistant AG Polite’s remarks make it clear that DOJ’s focus on individual accountability doesn’t stop at those who were actually involved in the wrongdoing.
According to Assistant AG Polite, cooperating companies will be expected to consider whether a change in their leadership is necessary as part of their remedial efforts. These comments serve as an important reminder to directors and officers to take corporate compliance seriously, or risk getting caught in the crossfire as cooperating companies work to demonstrate they’ve taken appropriate remedial action.
 U.S. Department of Justice, “Attorney General Merrick B. Garland Delivers Remarks to the ABA Institute on White Collar Crime” (March 3, 2022). Available online: https://www.justice.gov/opa/speech/attorney-general-merrick-b-garland-delivers-remarks-aba-institute-white-collar-crime, and U.S. Department of Justice “Assistant Attorney General Kenneth A. Polite Jr. Delivers Justice Department Keynote at the ABA Institute on White Collar Crime” (March 3, 2022). Available online: https://www.justice.gov/opa/speech/assistant-attorney-general-kenneth-polite-jr-delivers-justice-department-keynote-aba
 U.S. Department of Justice, “Deputy Attorney General Lisa O. Monaco Gives Keynote Address at ABA’s 36th National Institute on White Collar Crime” (October 28, 2021). Available online: https://www.justice.gov/opa/speech/deputy-attorney-general-lisa-o-monaco-gives-keynote-address-abas-36th-national-institute
 Criminal Code, RSC, 1985, c-46, ss 22.1 and 22.2.
 U.S. Department of Justice, “Former Banker Extradited From Malaysia to United States to Face Charges in Multi-Billion Dollar Money Laundering And Bribery Scheme Relating to the 1MDB Fund” (May 9, 2019). Available online: https://www.justice.gov/usao-edny/pr/former-banker-extradited-malaysia-united-states-face-charges-multi-billion-dollar-money
 U. S. Department of Justice, “Former Goldman Sachs Investment Banker Convicted in Massive Bribery and Money Laundering Scheme” (April 8, 2022). Available online: https://www.justice.gov/opa/pr/former-goldman-sachs-investment-banker-convicted-massive-bribery-and-money-laundering-scheme
 RCMP, “RCMP lays charges under the Corruption of Foreign Public Officials Act” (November 12, 2020). Available online: https://www.rcmp-grc.gc.ca/en/news/2020/rcmp-lays-charges-the-corruption-foreign-public-officials-act
 U.S. Department of Justice “Assistant Attorney General Kenneth A. Polite Jr. Delivers Justice Department Keynote at the ABA Institute on White Collar Crime” (March 3, 2022). Available online: https://www.justice.gov/opa/speech/assistant-attorney-general-kenneth-polite-jr-delivers-justice-department-keynote-aba