Non-Prosecution Agreements, Deferred Prosecution Agreements, and Remediation Agreements

David Debenham, McMillan LLP

A Non-prosecution agreement (“NPA”) , a Deferred prosecution agreement (“DPA”) and a Remediation Agreement (“RA”) are voluntary arrangements between a criminal prosecutor and usually a corporate accused facing white collar criminal charges, in which the accused receives a conditional amnesty on certain terms and conditions instead of going to trial on charges of criminal misconduct.  Fulfillment of the conditions results in dismissal of the charges, whereas breach of the conditions results in an automatic guilty plea.  Under the NPA, charges are threatened, but not filed, under the DPA charges are filed, but do not proceed.  Since there is no court filing, there is no need for an NPA to become public, although it is common practice to publish them on government websites. Common terms in such agreements include full disclosure of the particulars of the offence, payment of a fine, paying restitution to any victims of the criminal activity, waiver of any limitation periods, and the implementation of a remediation and ongoing compliance program to ensure no repetition of criminal behavior in the future. 

While such agreements are common in the United Kingdom and the United States, Canada was not receptive to such agreements because of the strict compartmentalization of law enforcement officials and Crown prosecutors, that made negotiations untenable.  For example, full disclosure to the police provided no assurance of an agreement being entered into, as the Crown prosecutors had to take a fresh, independent look at the matter, at which time they might decide to prosecute with all of the accused admissions in hand.  Also problematic, was the fact that there was no mechanism to bind the police and the prosecution to any arrangement other than a “gentlemen’s agreement” that could be undone at any time for any reason, as there is no statute of limitations in Canada, and Charter protections only come into effect once charges are laid.  Once charges are laid, control of the prosecution is out of the hands of the police, and under the control of the Crown Prosecutors, who are far more comfortable with suspended sentences than stays of proceeding and dismissal of charges involving complex compliance monitoring.

With the attitude toward white collar crime moving away from trials and punishment to one of creating a culture of ongoing corporate compliance, Canada chose to implement its own form of DPA, called a “remediation agreement”.  As a result, PART XXII.I of the Criminal Code was enacted to provide for “an agreement between an organization accused of having committed an offense and a prosecutor, to stay any proceedings related to that offense if the organization complies with the terns of the agreement.  Under s. 715.32 a prosecutor may enter into a remediation agreement if there is (a) a reasonable prospect of conviction, (b) the offense was not committed by a criminal or terrorist organization and did not result in serious bodily harm or injure the national security, (c)   the prosecutor believes that such an agreement is in the public interest, and (d) the Attorney General has consented to the negotiation of a remediation agreement.  In considering the public interest, the prosecutor must consider (a) the circumstances under which the offence was brought to the attention of the investigative authorities (e.g. was there voluntary disclosure by the offender?), (b) the nature and gravity of the offence, including its effects on any victims, (c)whether the offender has made reparations and taken steps to avoid further occurrences (d) whether the organization has disciplined those involved in the offence, (e) the degree of involvement of senior officers of the organization, (f) whether the organization has fully disclosed those involved, and their degree of involvement, (g) the organization’s previous criminal and regulatory record, and any previous remediation agreements, any other factor the prosecutor deems relevant.

Notwithstanding the above, s. 715.32(3) of the Criminal Code confirms that in charges involving bribery of foreign government officials, the prosecutor shall not consider the the national economic interest or the reputation of the organization and individuals involved.  This specific provision was required by Canada’s obligations under Article 5 of the OECD Convention on Bribery of Foreign Public Officials in International Business Transactions, which states that “Investigation and prosecution of the bribery of a foreign public official shall … not be influenced by considerations of national economic interest…or the identity of the natural or legal persons involved”.   The treaty and the Criminal Code provision therefore prevents a “beggar thy neighbor” approach where organizations corrupt foreign government officials in order to secure and enhance domestic employment. 

Where a remediation agreement has been entered into, it must be approved by the court that would otherwise have been the venue for the criminal trial.  If approved, the terms of the agreement are published, unless the court orders otherwise.  

The prosecutor’s decision as to whether or not to enter into negotiations for a remediation agreement is purely an act of prosecutorial discretion and is not reviewable by any court.[1]

The Director of Public Prosecutions (“DPP”) is the Deputy Attorney General of Canada. (DPPA is the enabling statute. The Public Prosecution Service of Canada is the relevant government department.  The Attorney-General has the power to assume control over a prosecution under s. 15 of the DPPA.  Under the Shawcross doctrine the Attorney General can never take into account personal or partisan political considerations, but may consider matters of public policy.  In considering public policy, the Attorney General may, but is not obliged to, consult with cabinet colleagues to ensure a knowledge of all relevant facts, and those colleagues must not put pressure on the Attorney General in the matter.  The Attorney – General must apply “his judicial mind” as to considerations of “public morale and order,”[2] and is to be the sole judge of whether to intervene under s. 15 of the DPPA based on whether there is a reasonable prospect of success and matters of public morale and order (“the Shawcross Doctrine”).  Given the provision in s.715.32(3) of the Criminal Code about the irrelevance of the national economic interest in cases involving the alleged bribery of foreign public officials, the Attorney General’s “judicial mind” should exclude such considerations in these particular class of cases.[3]

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[1] SNC-Lavalin Group Inc. v. Canada [2019] FC 282: Krieger v. Law Society of Alberta [2002] SCC 65Miazga v. Kvello [2009] SCC 51, at para 46-47

[2] S.O. 2006, c.9,s121

[3] Gravel c. Epiciers Unis Metro Richelieu Inc. [1999] CanLii 7046 (QCCS)

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David Debenham

David Debenham

David, CPA, CMA, is the co-chair of the Fraud Law Group of the law firm of McMillan LLP