The Canadian Government has announced that it will be moving forward, albeit slowly, with a Deferred Prosecution Agreement (DPA) system.
Perhaps it is the cold, lingering winter north of the border, but observers and concerned stakeholders continue to be frustrated with the very slow and opaque process and pace of this policy and legislative development. The recent announcement from the Government of Canada came on March 27, 2018, in a “Backgrounder” under the heading “Remediation Agreements and orders to Address Corporate Crime.”
The Canadian version of DPAs will be known as the Remediation Agreement Regime (“RAR”). The federal government’s long awaited move towards DPA’s have several specific but not unique features.
First, a RAR would be a voluntary agreement between a prosecutor and an organization accused of committing a criminal offence. A corporation cannot be force into. RARs would set out an end date and would need to be presented to a judge for review and approval.
Second, before approving the remediation agreement, the judge would need to be satisfied of the following:
1. The agreement is in the public interest; and
2. The terms of the agreement are fair, reasonable and proportionate.
Third, when these criteria are met, the judge would issue a judicial order approving the RAR. While an agreement is in force, any criminal prosecution for conduct that is covered by the agreement would be suspended. If the accused organization complied with terms and conditions set out in the RAR, the prosecutor would apply to a judge for an order of successful completion when the agreement expires.
The legislation is proposed to have the following terms and conditions: the corporation has accepted responsibility for, and stop, their alleged wrongdoing; it has agreed to pay a financial penalty; it has been disgorged of any benefit gained from the wrongdoing; it has enhanced its compliance measures; and has made restitution to any victims, including overseas victims, as deemed appropriate in the circumstances.
Fourth, the criminal charges would then be stayed in Court at the request of the prosecutor, and no criminal trial or conviction would follow. The stated purposes of the RAR include the following:
“a. To denounce an organization’s wrongdoing and the harms that such wrongdoing has caused to victims or to the community;
b. To hold the organization accountable for the wrongdoing;
c. To require the organization to put measures in place to correct the problem and prevent similar problems in the future;
d. To reduce harm that a criminal conviction of an organization could have for employees, shareholders and other third parties who did not take part in the offence; and
e. To help repair harm done to victims or to the community, including through reparations and restitution.”
Fifth, however, if the accused did not comply with all of the RAR, the criminal charges would be revived and the accused could be prosecuted and potentially convicted. In other words, all bets are off and the corporation will be prosecuted to the fullest extent of the law.
Sixth and finally, the RAR program will come into effect 90 days after the Budge Implementation Act, is passed into law and given Royal Assent (yes, the Queen’s representative still have to approval all Government of Canada’s new laws. Strangely, the RAR legislation is already being considered by Parliament as part of the Budget approval process, internally and without public hearings.
We anticipate do a further post once Canada’s long, slow move towards a credible DPA regime becomes law.
This proposal will not likely take place until other priorities, including the legalization of recreation cannabis, takes place in the Great White North.
Norm Keith, pictured above, is partner with Fasken, in its Toronto office, practicing regulatory, employment and white collar defence litigation and government investigations. He is the author of Canadian Anti-Corruption Law & Compliance (Lexis Nexis, 2nd, , 2017). He can be reached at 416-868-7824 or at [email protected].