Deferred Prosecution Agreements (DPA), also known as Remediation Agreements, are nothing new in the legal world, but they are new to Canada. They have been used successfully in the United Kingdom and United States of America for years but only came into effect in the Canadian Criminal Code in September 2018. How to acquire a deferred prosecution agreement in Canada is what everyone wants to know.
What Is A Deferred Prosecution Agreement in Canada?
In Canada, a deferred prosecution agreement is called a Remediation Agreement. A remediation agreement is a voluntary agreement between an organization and the Prosecution. The organization agrees to follow set actions to avoid prosecution.
A remediation agreement is somewhat similar to a Diversion but for an organization rather than an individual. The agreement diverts away from the traditional court process, allowing an alternative solution to satisfy the Prosecution. Some have commented that it appears deferred prosecution agreements are primarily used when large corporations and organizations commit white collar crimes.
What Is The Purpose Of A Remediation Agreement?
A remediation agreement serves several functions which are mutually beneficial for the organization, the Prosecution, and the public. There are multiple reasons why the Prosecution may opt for a DPA.
For one, it helps to expedite the process. Large organizations have access to large teams of lawyers. Which sometimes means that trials can be long and expensive if going through traditional methods. Where appropriate, a remediation agreement is a much faster way to come to a resolution.
A remediation agreement also helps to encourage voluntary disclosure. By providing an alternative to traditional sentencing it incentivizes organizations to cooperate and can lead to better corporate governance.
As well, processes like deferred prosecution agreements don’t just address an existing or past problem. They help to force companies to change their practices in order to prevent future incidents.
Also, a reason that DOJ often will agree to a deferred prosecution agreement is avoid innocent third parties from being harmed. The prosecution is often aware that severe penalties for some corporation or organizations could have dire consequences for innocent third parties such as employees, customers, pensioners and other small businesses and communities. A DPA allows the DOJ to keep organization and the members within the organization responsible while sparing negative consequence for innocent parties.
How To Acquire A Deferred Prosecution Agreement in Canada
Not just anyone can attempt to get a remediation agreement. They need to meet certain criteria, and each case is looked at individually. The basic requirements are that the situation needs to:
- Be an organization
- Face charges for one of the applicable crimes
- Accept responsibility
- Must be in the public interest
Be an Organization or a Corporation
An individual is unable to benefit from a remediation agreement. It’s intended to be used for large organizations and corporations. There must also be a public interest in ensure that the organization is allowed to continue operating.
The Charges Must Receive Court Approval
Not all crimes are eligible for remediation. Serious violent crimes, such as homicide, cannot receive this treatment. Instead, this option is usually used for economic crimes like bribery, corruption, and fraud charges.
These charges are also intended for legitimate organizations like business and charities. Rather than for gangs and other criminal organizations. Also, the charges and the DPA must receive court approval to move forward with any agreement.
Further, DPAs often require the cooperation from the relevant law enforcement agencies. The law enforcement agencies are often responsible for investigation and laying the charges, and they will ultimately be responsible to enforce or monitor any agreement that is negotiated. The will be responsible to monitor and ensure the compliance program is be adhered to by all involved parties.
To be eligible for remediation the organization must agree to accept responsibility. This is not the same as admitting guilt or being convicted. However, it does keep them accountable. As well, they must cooperate with the Prosecution and forfeit any benefit resulting form the crime.
In addition to this forfeiture, the organization may have to pay a penalty or fine. And they often need to agree to a supervision plan to ensure they follow the agreement.
If they fail to follow all the requirements of the remediation agreement, they can still face prosecution.
How Does The Prosecution Determine Eligibility?
It’s up to the Prosecution to decide whether or no to pursue a remediation agreement. Some of the factors they consider include:
Public Interest – Essential Element to Any DPA
The role of the justice system is to serve the public. So if they determine that following a remediation agreement is the best course to serve public interests, they are more likely to pursue it.
For example, if the Toronto Transit Commission were facing charges that could result in shutting down their services, that would have a direct negative impact on the public. So the Prosecution would prefer to find an alternative.
On the flip side, if the actions of an organization jeopardize the health or safety of the public remediation is less likely.
Impact On The Innocent
A large corporation may employ tens to hundreds of thousands of Canadians. Often, the criminal activity is limited to just a few people and is unknown by the vast majority.
If pursuing charges through conventional methods could lead to bankruptcy, thousands of innocent people could be out of work. In this case, a remediation agreement offers a better solution.
Resources For Trial
Getting a conviction against a large corporation is resource-heavy. It’s slow, time-consuming, and expensive. If the potential outcome isn’t worth the resources it’ll take to achieve it, they may consider an alternative sentencing option like a DPA.
Reasonable Prospect Of Conviction
A remediation agreement isn’t a way to get a win when getting a conviction in court seems unlikely. The Prosecution needs to believe that there is a reasonable prospect of conviction on the offence.
The goal or a remediation agreement is not to make things easier on themselves, but to better serve the public.
Toronto Criminal Defence Lawyer
For more information about DPAs and if your organization would qualify please contact William Jaksa to schedule a consultation.