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 didn91裸聊视频檛 matter what evidence his lawyer presented.
A judge in Quebec wrote in May that there was 91裸聊视频渘o possibility of adjudicating facts91裸聊视频� 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 91裸聊视频� the Canadian version of deferred prosecution deals 91裸聊视频� 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 Espino91裸聊视频檚 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 91裸聊视频渢o paint the best possible picture of one91裸聊视频檚 involvement,91裸聊视频� she said.
91裸聊视频淓ven if one acknowledges responsibility, usually there is an effort to spin as positively as possible.91裸聊视频�
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 deal91裸聊视频檚 91裸聊视频渁greed statement of facts.91裸聊视频�
The statement depicts Espino as a key player in the scheme that Ultra said 91裸聊视频渆armarked and promised91裸聊视频� 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 Ultra91裸聊视频檚 corrupt scheme, and didn91裸聊视频檛 provide bribes to the Puno brothers or anyone else.
In a series of emails to The Canadian Press, Espino said he wanted to 91裸聊视频渟alvage91裸聊视频� his reputation after being 91裸聊视频渄ragged through the muck91裸聊视频� during the court process of approving the remediation agreement.
91裸聊视频淭he court is not empowered to take any other information into consideration, no matter how compelling it may be,91裸聊视频� Espino wrote. 91裸聊视频淭his being just the second remediation agreement to be approved in Canada, there is still much to learn.91裸聊视频�
Espino said he wanted 91裸聊视频渁 chance to defend my name and reputation.91裸聊视频�
Quebec Superior Court Judge Marc David rejected Espino91裸聊视频檚 bid to have the accusations against him removed from the statement of agreed facts, in his decision to approve Ultra91裸聊视频檚 remediation agreement.
91裸聊视频淲hen presented with a remediation agreement, a court must accept the facts as exposed by the prosecutor and the accused organization,91裸聊视频� David wrote.
91裸聊视频淭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.91裸聊视频�
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 91裸聊视频渁lternative facts.91裸聊视频�
Espino91裸聊视频檚 lawyer, Philip Aspler, told the judge that the agreed statement of facts was defamatory and 91裸聊视频渇ull of inaccuracies, mistakes and outright lies.91裸聊视频�
91裸聊视频淥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,91裸聊视频� Aspler told the judge. 91裸聊视频淥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.91裸聊视频�
David, who called Espino91裸聊视频檚 claims a 91裸聊视频渃urveball91裸聊视频� 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 Canada91裸聊视频檚 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 service91裸聊视频檚 remediation agreement coordinator, declined to comment on the case but pointed to Crown submissions depicting Espino as an admitted 91裸聊视频減articipant91裸聊视频� 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, don91裸聊视频檛 require that 91裸聊视频渂ribes were actually paid.91裸聊视频�
91裸聊视频淭he fraud scheme was designed to inflate the price of the contracts and was facilitated through the receipt of (Espino91裸聊视频檚) commissions,91裸聊视频� the Crown91裸聊视频檚 submissions said.
They warned David that entertaining Espino91裸聊视频檚 claims could derail the process by requiring him to adjudicate facts, which the remediation agreement regime doesn91裸聊视频檛 allow.
Judge David ultimately agreed, finding he couldn91裸聊视频檛 reject the agreement because Concept Dynamics failed to demonstrate that the prosecutors or Ultra Electronics had 91裸聊视频渨ilfully91裸聊视频� misled the court.
91裸聊视频淲hen presented with a remediation agreement, a court must accept the facts as exposed by the prosecutor and the accused organization,91裸聊视频� David ruled. 91裸聊视频淭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.91裸聊视频�
He added that Concept Dynamics 91裸聊视频渃an seek redress in the civil court system91裸聊视频� if it felt aggrieved.
In an emailed statement, Ultra Electronics said Espino91裸聊视频檚 claims have 91裸聊视频渘o basis in fact.91裸聊视频�
91裸聊视频淭his matter has been thoroughly investigated at length by the Royal Canadian Mounted Police, with our full co-operation,91裸聊视频� the company said. 91裸聊视频淯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.91裸聊视频�
University of Ottawa law professor Quaid said the case involving Concept Dynamics is odd and 91裸聊视频渢ricky91裸聊视频� because the case dates back many years, and bribery schemes usually involve many parties with varying degrees of blameworthiness.
91裸聊视频淚 don91裸聊视频檛 objectively know where the truth is,91裸聊视频� she said. 91裸聊视频淣o one outside of the people who did the investigation and the parties themselves who were involved actually know the full extent of it.91裸聊视频�
But she said it91裸聊视频檚 highly likely that when the remediation agreement regime was devised, a scenario like this simply wasn91裸聊视频檛 contemplated.
Quaid said it91裸聊视频檚 possible that true victims could be overlooked, representing a 91裸聊视频済ap91裸聊视频� in a regime that is mandated to be victim-centric.
91裸聊视频淚t seems like that91裸聊视频檚 an oversight,91裸聊视频� she said.
Quaid said there91裸聊视频檚 a danger that investigations might miss things and it91裸聊视频檚 difficult to catch people in a lie if independent verification isn91裸聊视频檛 possible.
91裸聊视频淪o you need someone on the inside that says, 91裸聊视频榦h, I know what happened and I91裸聊视频檓 gonna tell you,91裸聊视频�91裸聊视频� she said. 91裸聊视频淏ut then there is a certain amount of faith afterwards.91裸聊视频�
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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