Bruce McMeekin Law

Government Tables Enabling Legislation for Deferred Prosecution Agreements

A month after it announced as part of the federal budget that it intended to introduce deferred prosecution agreements, the government tabled Bill C-74 on March 26.

Through proposed amendments to the Criminal Code, the Bill introduces Remediation Agreements (“RA”), defined as an agreement between the Crown and an organization charged with an offence to stay any proceedings related thereto, so long as the organization complies with the terms of the agreement.

Presently, by Schedule, the Bill limits the availability of RAs to specific financial crimes and offences contrary to the Corruption of Foreign Public Officials Act. Going forward, eligible crimes and offences may be added or subtracted by regulation.

Subject to the following four conditions, the amendments provide the Crown with the discretion to invite an accused organization to enter into negotiations for an RA: (1) there is a reasonable prospect of convicting the accused in a trial; (2) the alleged offence did not cause death or serious bodily harm, or injury to national defence or security and was unrelated to organized crime or a terrorist group; (3) negotiating the RA is within the public interest; and, (4) the Attorney-General has consented to the negotiation.

In determining the public interest, the Crown is directed to consider nine specific factors, including: (1) the nature and gravity of the alleged crime and its impact on any victim; (2) the degree of involvement of the organization’s senior officers; (3) whether the organization has taken disciplinary or other action against its representatives involved in the alleged crime; and, (4) whether the organization has made “reparations” to remedy the harm caused by the alleged crime (reading like something more than mere restitution).

Importantly, self-reporting of the alleged crime by the organization is not included in the list. Rather, the Crown is required to consider the circumstances in which the alleged crime was brought to the attention of the police.

The Bill requires that RAs include a number of “Mandatory Contents” including a statement of fact and the organization’s admission of its responsibility for the act or omission that forms the basis of the offence. Forfeiture and reparation requirements are also included as are financial penalties, with no maximums included. A victim surcharge, 30 per cent of the assessed penalty, must also be included.

Optional contents include requiring the organization to establish, implement or enhance compliance measures and the appointment of an independent monitor to verify and report to the Crown on the organization’s progress. The organization may also be required to pay the Crown’s costs in administering the RA.

The RA must be approved by court order. Noteworthy, the discretion of a reviewing court is, potentially, quite wide. It must approve the RA, but only if it is satisfied that: (1) the organization is charged with an offence to which the agreement applies; (2) the agreement is in the public interest; and, (3) the terms of the agreement are fair, reasonable and proportionate to the gravity of the offence. Unusual in Canadian law, condition (2) puts the court in the position of having to review the exercise of Crown discretion.

The effect of the order is that the prosecution is stayed pending the completion of the RA. No other proceedings may be initiated against the organization while the RA remains the force. The running of the limitation period, if any, in respect of the alleged offence, is also suspended.

On the application of the Crown, a presiding court may vary the order so long as it satisfied that the three approval conditions are not compromised. But the court cannot vary the order on the motion of the organization. If the Crown applies for the termination of the RA, the court is required to terminate the RA if it is satisfied that the organization has breached one or more of its requirements. Presumably this means the court has no jurisdiction to entertain the organization’s cross-motion extending the time required for compliance.

If the RA terminates, the Crown is free to recommence the prosecution within a year of the termination, subject to the relevant limitation period, if any. If the prosecution is not re-commenced, it is deemed never to have been commenced.

RAs are intended to have a retrospective operation. They may be entered into if the subject offence is alleged to have been committed before the proposed amendments come into force.

A final observation about admissibility issues if the RA is not completed and a prosecution recommences. The Bill provides that admissions, confessions or statements made by the organization as a result of the agreement are not admissible against the interest of the organization in any civil or criminal proceeding related to the alleged crime. However, the Bill specifically exempts from this protection the statement of fact and the admission of responsibility that are mandatory contents of the RA.