Canadian Lawyer

24 www.canadianlawyermag.com LEGAL REPORT LITIGATION CANADA'S DPA REGIME TIMEFRAME These voluntary agreements, negotiated between an accused and the Crown to resolve corporate wrongdoing, are "an alternative to long and costly prosecutions," and have the effect of suspending the outstanding investi- gation or prosecution in exchange for certain undertakings that the corporation must fulfil to have the charges dropped. DPAs require co-operation with the relevant law enforce- ment authority and an admission of guilt, fines and governance reform. Following consultations, the federal government established a DPA regime, or "remediation agreements," through amend- ments to the Criminal Code; s. 7 15.31 outlines an agreement's objectives. The amendments emphasized robust compli- ance programs to mitigate the risk of crim- inal convictions for organizations and the requirement for DPAs to be in the public interest as determined by a judge. The U.S. has been using DPAs to address corporate crime since the 1990s, and the United Kingdom and France have commonly used them since 2014. The legislative amendments are not without detractors, and Vancouver litigator Joven Narwal finds that the remediation agreements don't offer many reputational incentives. "I think the concern still exists that a corporate entity in particular, who decides to self-report, will still have to weigh the reality that in this particular climate that self-report may still result in a very public prosecution," he says. "The solution to that is the development of … deferred prosecu- tion agreements outside of formal remedia- tion agreements under the Criminal Code." Coming in from the cold Deferred prosecution agreements can offer an incentive to companies to come forward after discovering bribery and kick- back schemes under their roofs, says Jull. Outside of a DPA, he can only promise clients that they may get a reduced sentence after disclosing to authorities; there would still be a conviction, and the client would be debarred from federal tendering for contracts. A DPA offers a haven though not a free pass, notes Jull; there will be significant fines to pay and possibly monitors, but "it's a better incentive to come in from the cold." DPAs will also continue to act as a deter- rent, says Osler's Ritchie. That's because reputational aspects will still factor in, including making admissions — which are March 27, 2018: Bill C-74 receives first reading June 21, 2018: Amendments to Criminal Code, RSC 1985, c. C-46, Part XXII.1, "Remediation Agreements" receives royal assent September 19, 2018: Revised legislation comes into effect

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