Canadian Lawyer InHouse

MAY/JUNE 2019 34 INHOUSE "That's putting it mildly," says Norm Keith, a white collar defence expert with Fasken Martineau DuMoulin LLP in To- ronto. "This is the first experience [with a remediation agreement] and it's blown up in the government's face. These things begin with prosecutorial discretion and prosecu - tors may be hesitant to exercise their [fa- vourable] discretion," Keith says. "I think it's going to be hard, right now, to get a DPA," (deferred prosecution agreement, a term used in other jurisdictions for a re - mediation agreement). But he says he's con- fident any taint will eventually dissipate and companies will get the benefit of what he sees as a good law. Under the Criminal Code amendment (Part XXII.1) enacted Sept. 19, compan - ies charged with various acts of corruption can agree to a public statement of facts outlining illegal acts, undertake corpor- ate governance reforms and pay financial penalties rather than face trial and poten- tial conviction under the Criminal Code or the Corruption of Foreign Public Officials Act. Additionally, a company would be re- quired to turn over all available evidence supporting corruption charges against individual employees. Remediation agree- ments could also involve disgorging profits from corrupt acts, providing restitution to victims and undergoing supervision by an outside monitor. All of that, however, might be far bet - ter than a criminal conviction that would bar the offending company from bidding on government contracts in Canada, and in many other jurisdictions, for up to 10 years. In the case at issue, it's been widely speculated that a conviction could cause the failure of Montreal-based engineering giant SNC-Lavalin Group Inc., with dire consequences for investors, pensioners and 52,000 employees worldwide — or trigger a corporate takeover of a company the Que - bec government regards as "strategic." In order for a company to be eligible for a remediation agreement, a Crown prosecutor must first be convinced it's in the public inter- est. The attorney general must then sign off on allowing the negotiation of an agreement in lieu of prosecution. And the final terms of the deal must be approved or rejected by a judge to ensure the interests of justice. SNC's petition for a negotiated settle - ment fell at the first hurdle, when director of public prosecutions Kathleen Roussel re- fused to allow it. The company had sought to negotiate a remediation agreement to resolve allegations that had already seen several of its former executives go to trial — with mixed results. Charges against the company relate to alleged bribery of Libyan government officials totalling $47.7 million and alleged fraud against Libyan organ - izations reaching $129.8 million. Former SNC executives have also been charged in connection with corruption around the $1.3-billion Glen site of the Montreal University Health Centre and on the Pad - ma Bridge project in Bangladesh. After being charged by the RCMP on Feb. 19, 2015, SNC lobbied hard and contin- uously for Ottawa to enact legislation on re- mediation agreements — similar to deferred prosecution agreements already available to companies in the United States, the United Kingdom and France. Somehow, charges against SNC didn't reach court for some 42 months, during which time the federal government con - I n d u s t r y S p o t l i g h t

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