The recommendations of the Charbonneau Commission report filed in November 2015 continue to resonate within the Quebec legislative landscape. An Act to increase the jurisdiction and independence of the Anti-Corruption Commissioner and the Bureau des enquêtes indépendantes and expand the power of the Director of Criminal and Penal Prosecutions to grant certain benefits to cooperating witnesses (Act), implementing several of the Charbonneau Commission’s recommendations, was passed in the Quebec National Assembly on February 14, 2018, and assented to on the same day.
As the name suggests, the new law mainly increases the independence and jurisdiction of the permanent anti-corruption unit (UPAC) and gives the director of criminal and penal prosecutions (DPCP) the power to offer cooperating witnesses certain incentives. The Act also introduces a new mechanism to appointment a UPAC commissioner, a significant aspect of the bill aimed at ensuring that the commissioner has greater independence.
PERMANENT ANTI-CORRUPTION UNIT
Henceforth, UPAC will be recognized under the Police Act as a “specialized police force” headed by the UPAC commissioner. The commissioner will focus on the prevention of, and the fight against, corruption in the entire public sector. While previously UPAC’s mission was to prevent and fight against certain public contract wrongdoings, it can now also investigate wrongdoings committed in connection with “the administration of justice or the granting of rights and privileges, such as an authorization, an appointment or a subsidy, by a body or a person belonging to the public sector.”
The various provincial police forces must now cooperate with UPAC in its mission. In accordance with the Act, the police forces of the province and the inspector general of the City of Montréal have to notify UPAC as soon as they have reason to believe that a wrongdoing that falls within UPAC’s mission has been committed.
DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS
Following the Charbonneau Commission’s recommendation, the Act now gives the DPCP discretionary power to terminate: civil proceedings instituted by a public body; the hearing of a complaint before the disciplinary council of a professional order; or measures taken for the purposes of a fiscal law against a cooperating witness in criminal or penal proceedings. The DPCP will be able to award such incentives to witnesses if “public interest allows it”.
This power will have to be exercised by the DPCP in the context of an agreement with the cooperating witness, which may be terminated by the DPCP for reasons provided for in the agreement and in relation to the witness’s testimony. If the agreement is terminated, civil, ethical or fiscal proceedings that were terminated using the DPCP’s discretionary power may be reinstated.
APPOINTMENT OF UPAC COMMISSIONER
The commissioner will be appointed for a non-renewable seven-year term. The appointment is similar to the DPCP’s, as recommended by the Charbonneau Commission owing to the appointment process protecting the DPCP’s independence. Before the Act came into force, the commissioner was appointed for a renewable five-year term and could be dismissed without notice.
UPAC’S INCREASED OVERSIGHT
The Act creates an oversight committee with the mandate to issue public opinions after auditing the administration of UPAC’s investigations, to follow up on the disclosures to UPAC and on the commissioner’s management. Oversight will be carried out in such a manner as not to interfere with UPAC’s investigations and any proceedings that may arise from them.
Since its creation in 2011, UPAC has participated in the enforcement of legislation against corruption and collusion schemes in Quebec. With the adoption of the Act, Quebec authorities will continue to actively investigate allegations of corruption or collusion in Quebec and commit to trial the individuals, civil servants and companies involved in the alleged schemes. For companies doing business in Quebec, especially in the public sector, the implementation of a code of ethics and an effective anti-corruption policy continue to be of paramount importance.