Canadian Lawyer

www.canadianlawyermag.com 23 Although Canada has yet to offer a deferred prosecution agreement officially, corporate litigators tell Elizabeth Raymer why it should DPAs can draw companies in from cold LEGAL REPORT LITIGATION "Where there's a demonstration that there is no further public harm, and there is a level of deterrence … then I think the public is properly protected and at a much lower cost … than running a company to the ground." Lawrence Ritchie, Osler, Hoskin & Harcourt LLP THREE WINTERS ago, the daily news cycle was consumed with a political scandal involving a prominent Quebec construction company accused of bribing foreign offi- cials. The prime minister had spoken to his attorney general about offering the company a deferred prosecution agreement and was later found by the ethics commissioner to have improperly influenced her. She would resign from cabinet and later from politics. By the end of that year — 2019 — the company had neither gone to trial nor received a DPA. Instead, it agreed to pay a $280-million fine, in exchange for which federal prosecutors dropped the remaining charges against the company and allowed it to continue bidding on public contracts in Canada. L'affaire SNC-Lavalin may have begun with a bang but ended with a whimper. For all the brouhaha, the company ended up getting something "like a DPA, but through the back door," says Kenneth Jull, counsel at Gardiner Roberts LLP in Toronto and author of Profiting from Risk Management and Compliance. Jull gave evidence as an expert on reme- diation agreements before the House of Commons Standing Committee on Justice and Human Rights concerning the SNC-Lavalin affair. He has advocated for DPAs. But while the SNC-Lavalin affair raised the profile of deferred prosecutions, "they haven't been forthcoming," he says, even though Canada has had a regime in place since 2018. The United States continues to negotiate "huge DPAs," the most recent one being Goldman Sachs, which paid nearly $3 billion under the terms of a DPA for its role in the 1Malaysia Development Berhad scandal in 2016. "Compared to the United States, we lag," says Jull. And although Canada has yet to offer a DPA (officially), corporate litigators say they should be used more. "[DPAs are] an efficient way of resolving these kinds of cases, and perhaps another spin on plea bargaining, but it's the kind of arrangement that other jurisdictions certainly have had success with, and a model that would be very useful in Canada," says Linda Fuerst, a senior partner at Norton Rose Fulbright LLP in Toronto. "It's for the benefit of shareholders of publicly traded companies that are charged criminally that the company is able to enter into that kind of an agreement," she says, adding that she believes Canada may be waiting for "the right first case" to offer one. As Lawrence Ritchie and Sonja Pavic of Osler, Hoskin & Harcourt LLP outlined in their December 2020 article, "Canada's deferred prosecution agreements: Still waiting for takeoff," deferred prosecu- tion agreements were introduced under Canadian law in September 2018 as part of an effort by the federal government to fight corruption and other white-collar crime.

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