Dec 7, 2021
In a recent article in Canadian Lawyer, senior editor Elizabeth Raymer takes a close look at deferred prosecution agreements (DPAs) in Canada – and in particular how little they’ve been used. Despite the fact that Canada has had a DPA regime in effect since 2018, federal prosecutors have yet to officially offer a DPA to a company that is facing criminal charges. DPAs are voluntary agreements that are negotiated between the Crown and an accused with the goal of addressing corporate wrongdoing without having to resort to a lengthy, expensive trial. As explained in the article, “DPAs required co-operation with the relevant law enforcement authority and an admission of guilt, fines and governance reform.”
After a brief recap of the infamous SNC-Lavalin matter from several years ago, Raymer provides insight about DPAs from a number of corporate litigators – many of whom think they should be used more. One of the lawyers she turns to is Lawrence Ritchie, a partner in Osler’s Litigation Group and the key contact for the firm’s Securities Regulatory Enforcement and Broker-Dealer Practice, who suggests that DPAs will act as a deterrent – especially since a company’s reputation will be negatively affected by the admission of guilt that is often a condition of a DPA.
“[T]he company has to deal with the reputational fallout and the impact on stakeholders of admitting to the wrongdoing,” Lawrence explains.
“In the appropriate circumstances, where there’s a demonstration that there is no further public harm, and there is a level of deterrence that will have an impact on people who are in similar circumstances, then I think the public is properly protected,” he continues, “and at a much a lower cost to the affected stakeholders than running a company to the ground, where the shareholders – who are innocent and probably have been harmed – have no way out.
“I think [DPAs are] a very important tool, and I do think they’re underutilized. I find it surprising that the right circumstances haven’t arisen more in Canada.”
Read Elizabeth Raymer’s full article from December 7, 2021, “Deferred prosecution agreements can draw companies in from the cold in Canada,” on the Canadian Lawyer website.