Michael Hlinka: Let's take the proper action on white collar crime
- January 12, 2009 2:30 PM |
- By Michael Hlinka
Money Talks is a daily business column from CBC radio.
By Michael Hlinka, CBC business columnist.
If I have one bone to pick with our criminal justice system, it’s the way it deals with white-collar crime in general, and securities violations in particular.
We have no difficulty – it seems – in throwing the book at teenaged kids from housing projects who steal with the tools available to them, guns and knives. At the same time, when corporate executives commit fraud, criminal charges are almost never brought in Canada. And if they are, convictions are exceedingly rare – you can pretty much count them on the fingers of both hands. Then if a transgressor is actually sent to jail, you can be sure that it’ll be a minimum-security facility that resembles camp for balding, pot-bellied involuntary vacationers.
So you’d think that the announcement this past Friday from the Ontario Securities Commission would make me happy. It just announced the largest fine in Canadian corporate history: $5 million against Biovail Corp. And the company must also pick up $1.5 million in Commission expenses. (If the name Biovail sounds familiar, it might be because of its founder, Eugene Melnyk. In addition to starting this country’s largest publicly traded pharmaceutical company, he owns the Ottawa Senators.)
Biovail is being fined for misleading investors. The company admitted that it provided something less than full, true, and plain disclosure in regulatory filings made from 2001 to 2003.
However, I’m anything but satisfied with the penalty and here’s the reason why.
Biovail’s transgressions occurred anywhere from six to eight years ago. Yet who has to pay the fine? Not the shareholders at the time who presumably benefited. No, it’s the folks who own the company now.
It’s the equivalent of being docked pay for the misdeeds of the person who previously did your job… it’s ridiculous, but unfortunately the options that the securities regulators have are limited.
Now, it’s true that Mr. Melnyk and three other former Biovail executives will have their own hearings on Feb. 2, so perhaps a more perfect form of justice will be achieved – but that won’t help Biovail’s current shareholders.
I don’t want to presume Mr. Melnyk’s guilt or innocence – or anyone else’s for that matter. What I’m talking about here is a general principle … and it goes something like this. If there are violations of securities laws, the focus should not be on prosecuting the company. Rather, the focus should be on going after the individuals responsible within the company, making them personally liable for damages suffered by investors, and deterring future crimes with long and harsh prison sentences.
Canada has been seen as a laggard when it comes to prosecuting white collar crime. If we started going after the executives responsible rather than the companies they work for, Canada would become a leader overnight in the fight against corporate fraud.
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