The Globe and Mail - 30.07.2019

TUESDAY,JULY30,2019 | THEGLOBEANDMAIL O A

OPINION

NEWS |

I

n the United States, a troubling
narrative drives white-collar
crime enforcement. It says that
to prosecute a large, publicly trad-
ed company is to unleash such
catastrophic economic conse-
quences – the loss of jobs, harm
to innocent investors and the
possible breakdown of portions
of the economy – that prosecu-
tion has practically no place in
the criminal justice system. In-
stead, it must be avoided at all
costs, namely through negotiated
settlements such as deferred
prosecution agreements.
The problem: This narrative is
not based on sound policy or

vigorous economic science – but

on a single, troubling myth, one

unsupported by empirical evi-

dence. Yet, it persists because of

fear and effective corporate lob-

bying. The consequence of this

myth-making is that prosecutors

in the United States have hardly

put a publicly traded corporation

on trial in nearly two decades –

and the costs of protecting cor-

rupt companies at the expense of

the rule of law are now incalcula-

ble, for the economy, for society

and for corporate innovation

itself.

It was this same fearful myth

that SNC-Lavalin unsuccessfully

pushed for years at the highest

levels of government, effectively

hoping to work its way toward a

controversially lenient settle-

ment, as The Globe and Mail’s re-

porting on the firm’s extensive

lobbying shows. SNC-Lavalin

warned at one point that thou-

sands of jobs would be lost if the

company were prosecuted. With-

out a settlement deal, it would be

subject to a hostile takeover, it

warned at another – all meant to

signal that prosecution equals

economic doom.

It is alarming not only that the

company chose such a tack, but

that its efforts were so persuasive.

Many of Canada’s top civil ser-

vants came to echo the same

twisted logic: that safeguarding

the economic well-being of an

allegedly corrupt company is

somehow more important than

holding it to account and, by ex-

tension, upholding the rule of

law.

The result is that Canada’s

newly minted remediation law is

already on unstable ground: In

policy, it clearly states that prose-

cutors cannot be lenient toward

corrupt companies in order to

safeguard the national economic

interest. Yet clearly in practice,

the judgment of those overseeing

this policy is already deeply

clouded – thanks in large part to

SNC’s lobbying – by the myth that

corporate prosecution, because it

automatically equals ruin, has no

little or no place in Canada’s crim-

inal justice system.

Canada’s remediation law

should not be held hostage to

such ideas. First of all because the

myth of corporate demise, which

began in 2002 with the trial of

Arthur Andersen, the large U.S.

accounting firm – for its role in

the Enron scandal – has been

shown by repeated scholarship to

be unfounded. It is true that Ar-

thur Andersen collapsed and that

28,000 people lost their jobs. But

Arthur Andersen was a unique

case: As part of a prior criminal

settlement, the company was

permanently enjoined from vio-

lating U.S. securities law, meaning

its conviction at trial triggered

particular consequences that

would not be true of other firms.

Simply because Arthur Ander-

sen crumbled after its prosecu-

tion does not mean that all firms

will. Indeed, empirical analysis

supports the opposite conclu-

sion. In 2013, Gabriel Markoff ana-

lyzed all corporate convictions in

the United States between 2001

and 2010, focusing specifically on

large publicly traded companies.

He found that in no case did con-

viction itself – either at trial or in

the form of a guilty plea – result in

a company’s demise.

Corporations survive prosecu-

tion. But more importantly,

whether they do or not should

not form the basis upon which

prosecutors charge them. Crimi-

nal justice should not ask what

price an economy will pay – in the

form of lost jobs or harmed inves-

tors – for prosecuting a compa-

ny’s systemic, decades-long illicit

behaviour. That is the wrong

question. It should ask what price

a society overall pays for not pros-

ecuting heinous behaviour.

It should ask what price the

country pays when corporations,

because of weak enforcement

and leniency, are not compelled

to innovate behind corrupt busi-

ness practices that, as increasing

research shows, damage their

profits, weaken their sustainabil-

ity and destroy their employee’s

morale – all while tarnishing the

country’s reputation and em-

broiling its politics in scandal.

Surely those costs are incalcula-

ble.

Canada’s prosecution service

should be commended for its re-

solve. By refusing to grant SNC a

deferred prosecution agreement,

it sets a critical benchmark that

corrupt behaviour should not be

treated with leniency. Instead, it

is criminal activity that should be

prosecuted – and that such prose-

cution has a rightful place in Can-

ada’s criminal justice system, re-

gardless of the consequences

(real or imagined). That is a wel-

come message in a world where

prosecuting corporations has be-

come, because of myths and

fears, too frightening to imagine.

Canadashattersmythsofwhite-collarcrime

Byrefusingto

grantSNC-Lavalin

adeferredprosecution

agreement,itsets

acriticalbenchmark

DAVIDMONTERO

OPINION

AuthorofKickback:Exposingthe
GlobalCorporateBriberyNetwork

O

n Sunday, U.S. Senator
Bernie Sanders travelled
to Windsor, Ont., accom-
panying a group of American
patients with Type 1 diabetes who
crossed the border to purchase
insulin.
The presidential hopeful used
the occasion to denounce the
“greed” of Big Pharma and pro-
mote the idea that Americans
should import “cheap” drugs
from Canada, an idea he has been
touting for two decades.
Since Mr. Sanders first took a
busload of Vermont seniors to
Montreal in 1999 to fill their pre-
scriptions at a fraction of the
price they would pay at home,
this cross-border idea has gained
momentum.
There are now 27 different leg-
islative initiatives in the U.S. Con-
gress and state legislatures that
would allow the importation of
prescription drugs from Canada.
At least 10 states, as well as U.S.
President Donald Trump, have
embraced the approach.
But let’s be clear. It’s a ridicu-
lously simplistic idea that is un-
tenable both politically and prac-
tically; it needs to be killed and
buried, and quickly.
There is one reason that Cana-
da’s drug prices are lower than
those in the U.S.: Canada (like
almost every developed country)
regulates and caps prices, while
the United States has a free mar-
ket free-for-all that encourages
price gouging.
If Americans want lower drug
prices, their politicians need to
put on their big boy pants and
regulate, not try to shamelessly
raid and pillage the neighbour’s
medicine cabinet.
The politicians and advocates
who have embraced the idea that
Canada is an easy source of cheap
drugs are fooling themselves.
They clearly do not understand

either the complexity of the glob-

al drug market, or U.S. or Cana-

dian law.

Very few prescription drugs are

actually manufactured in Cana-

da. Our drug supply is largely im-

ported from the United States,

Europe and Asia.

Prices of brand-name drugs

here are set by the Patented Med-

icine Prices Review Board; they

examine prices in seven compar-

ator countries – Italy, France,

Germany, Sweden, Switzerland,

Britain and the U.S. to ensure the

Canadian list price of drugs are

not “excessive.” (The PMPRB

does not regulate the price of

generics.)

The result is that our prescrip-

tion drug prices are the second

highest in the world, after only

the U.S., of course.

Manufacturers whose drugs

are approved for sale in Canada

have a “duty to supply” the mar-

ket. The quid pro quo is that we

forbid re-export, although per-

haps the law is not as explicit as it

should be on this point.

The U.S. also bans the importa-

tion of medications, a rule the

proposed laws would like to

circumvent.

Both Canada and the U.S.,

however, tolerate the export-

import of small quantities of

drugs for personal use. Techni-

cally, Americans need to pur-

chase these drugs in person, and

can carry a 90-day supply, except

for narcotics and biologics.

In recent months, caravans of

parents of children with Type 1

diabetes have been advertising

their trip to Canada to purchase

insulin, largely to pressure U.S.

manufacturers to lower prices.

But they are sensible enough to

realize buying lifesaving medica-

tion in Canada is not a long-term

solution.

But let’s not forget that insulin

is not a prescription drug in Cana-

da.

For Americans to purchase pre-

scription drugs in Canada, they

would require a prescription

from a Canadian physician.

There are currently a small

number of physicians in Canada

who hold dual provincial-state

licences to cater to cross-border

shoppers.

But what the U.S. legislative

initiatives seem to suggest is that

Americans should be able to buy

Canadian drugs online, presum-

ably with a U.S. prescription, or

no prescription.

If you know your history, you

know that’s not going to happen.

(And, as an aside, if the U.S. truly

wants cheap drugs, why doesn’t it

import from Mexico or India?)

The U.S. Food and Drug Ad-

ministration has spent more than

a decade prosecuting and shut-

ting down online pharmacies, in-

cluding those based in Canada

(or pretending to be based in Can-

ada), because they are a haven for

counterfeit and unsafe drugs.

Finally, exporting prescription

drugs from Canada to the U.S.

would harm Canadian patients

because it would almost certainly

result in more drug shortages.

(However, the causes of drug

shortages are complex.)

As a coalition of pharmacists,

physicians, nurses and patient

groups said in a letter to federal

Health Minister Ginette Petitpas

Taylor, pharmacies in Canada

“are not equipped to support the

needs of a country 10 times its

size without creating important

access and quality issues.”

As self-deluding excitement

builds in the U.S. around plans to

import cheap Canadian drugs,

Ottawa has to stand up and une-

quivocally throw cold water on

this half-baked idea.

CheaperU.S.drugpricesshouldn’tinvolveraidingoursupply

ANDRÉ
PICARD

OPINION

Presidentialcandidate

andU.S.SenatorBernie

Sanderspromotesthe

ideaoftheU.S.importing

cheaperdrugsfromCanada

duringatriptoWindsor,

Ont.,onSunday.

SCOTTEISEN/GETTYIMAGES

W

omen’s lacrosse is one of
the fastest-growing
sports around the world,
but for the Haudenosaunee wom-
en’s team, the road to lacrosse has
been slow. In 1999, the women’s
Haudenosaunee National team
was disbanded in response to op-
position from clan mothers (tra-
ditional Haudenosaunee matriar-
chs). The opposition stemmed
from teachings that say lacrosse is
a medicine game given only to
men to play.

The women’s game continued

to grow without official involve-

ment from the Haudenosaunee

Nationals and more teams en-

tered the World Cup tournament.

It was not until 2009 that a formal

team was created again.

Now in 2019, the U19 Women’s

Haudenosaunee Nationals will

compete once more at an interna-

tional level. They are one of 22

teams playing for gold in this

year’s U19 Women’s World La-

crosse Championship, held by

Trent University.

As a member of Trent Universi-

ty’s women’s lacrosse team, and a

former member and coach of the

Haudenosaunee Nationals senior

women’s team, I admit to having a

biased view of women’s involve-

ment in the game.

But the decision to play rests

with each individual. Every Onk-

wehonwe woman who picks up a

stick makes her peace with that

decision. I’ve heard many stories

over the years from women of

how lacrosse has affected their

lives. It saved them from suicide,

it created opportunities to travel

and receive an education, or it al-

lowed them to experience life in a

different way.

When I hear these stories and I

think of my own experiences, I

am grateful for the growth of the

women’s game.

Over the years, lacrosse be-

came my way to connect to what-

ever community I was in and

build relationships with people.

Despite being told women aren’t

supposed to play lacrosse, the

game has allowed me to connect

more to my home community of

Akwesasne and my culture be-

cause of those relationships that

were built.

I came to understand that the

traditional view of women and

the game does not mean we are

less important; it is more a matter

of understanding the different

roles that men and women have

in ceremony and understanding

how each person’s responsibili-

ties can be met. Since lacrosse is

seen as a medicine game given by

the Creator, it is traditionally a

ceremony in itself. I have also

learned that our way of life is not

static and roles and responsibili-

ties shift to meet the needs of the

people.

Every player, Onkwehonwe or

not, man or woman, needs to play

the game with an understanding

and embodiment of a “good

mind” which encompasses the

concepts of discipline, respect

(for yourself and your opponent)

and responsibility.

Every aspect of the game is con-

nected to having a good mind, so I

urge every lacrosse player, parent

and spectator to continue to learn

about the origins of the game and

share that knowledge as a form of

reciprocity to the game itself for

everything we receive from it.

Begin by recognizing the tradi-

tional territories of the people

whose game has been shared with

you, the Indigenous peoples of

Turtle Island. Learn to pronounce

our names for this game:Tewa:a-

rathon(day-wah-al-a-doon) (Mo-

hawk), Tehontsi’kwaeks (day-

hoon-gee-gwah-eks) (Ononda-

ga), Baggataway (bah-gad-ah-

way) (Ojibway) to list a few.

Continue this learning journey

by building relationships with

people who can share their teach-

ings about the game. Don’t leave

all of your learning to a few arti-

cles in the newspaper. In sharing

the roots of the game, you honour

it and help it to grow.

Indigenouswomenmustdecideforourselvesifwewanttoplaylacrosse

ELISHAIESHONTENHAWEKING

OPINION

FromAkwesasne,aMohawk
community.Sheisamaster’s
studentatTrentUniversityanda
memberoftheTrentwomen’s
lacrosseteam.