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Tuesday
Feb122019

Canada’s new DPA regime comes into focus

Canada has joined a global trend in white collar and corporate crime law enforcement with the introduction of a Deferred Prosecution Agreement (DPA) regime.

In September 2017, the Government of Canada launched a public consultation to seek input on a possible Canadian DPA regime. Following the public consultation, the Canadian government introduced its own version of a DPA regime in the Budget Implementation Act, 2018, called a Remediation Agreement Regime (RAR). The RAR came into force on September 19, 2018.

Much like other DPA regimes, a remediation agreement is a voluntary agreement between a prosecutor and an organization accused of committing an offense. Agreements would set out an end date, that is a deadline by which the terms of the agreement must be met by the organization, and would need to be presented to a judge for approval. Before approving a remediation agreement, the judge would need to be satisfied that the agreement is in the public interest and the terms of the agreement are fair, reasonable and proportionate.

When the statutory criteria are met, the judge would issue a judicial order approving the remediation agreement. While an agreement is in force, any criminal prosecution for conduct that is covered by the agreement would be put on hold. If the accused organization complies with the terms and conditions set out in the agreement, the prosecutor would apply to a judge for an order of successful completion when the agreement expires. The charges would then be stayed and no criminal conviction would result. If the accused did not comply, the charges could be revived (Criminal Code, R.S.C., 1985, c. C-45, s. 715.39(1)-(2)) and the accused could be prosecuted and potentially convicted.

To be eligible for a remediation agreement, the accused would have to be an organization other than a public body, a trade union or a municipality. A remediation agreement can only be used for economic crimes listed in the Criminal Code, such as corruption, fraud and bribery. It cannot be used for offenses that have caused death or serious bodily harm or that have injured national defense or national security.

When deciding whether or not to publish the RAR, the following factors must be taken into account:

(a) society’s interest in encouraging the reporting of offenses and the participation of victims in the criminal justice process

(b) whether it is necessary to protect the identity of any victims, any person not engaged in the wrongdoing and any person who brought the wrongdoing to the attention of the investigative authorities

(c) the prevention of any adverse effect to any ongoing investigation or prosecution

(d) whether effective alternatives to non-publication are available in the circumstances

(e) the beneficial and deleterious effects of non-publication, and

(f) any other factor that the court considers relevant.

Canada has implemented a regime with a degree of judicial oversight, more in line with the deferred prosecution regimes in the United Kingdom and France, rather than the United States. 

Canada requires judicial approval once whereas the United Kingdom requires judicial approval at two stages, once at the commencement of negotiations between the prosecutor and the accused organization. The UK system may also facilitate increased judicial involvement in the terms of the agreement itself, as Canadian courts, after being presented with a remediation agreement fait accompli.

____

Norm Keith, pictured above, is a 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 nkeith@fasken.com.