LEXPERT MAGAZINE
|
APRIL 2019 23
CASE COMMENT FEATURES
nadian public has a proper understanding
yet of the "very real and heavy consequenc-
es, both financial and otherwise, of agree-
ing to a DPA."
e concern is aer the public blowout
over SNC, Canadian prosecutors may
be hesitant to use the new regime for fear
of controversy. In the US, where they've
been used since 1992, there were at least
24 agreements negotiated in 2018, with
$8.1 billion recovered by regulators, ac-
cording to Gibson Dunn & Crutcher LLP.
Levin warns if Canadian authorities
unduly limit their use and instead rely
upon criminal prosecutions — which are
slow-moving in Canada with prosecutors
challenged to win convictions — the objec-
tive of remediation will be frustrated and
Canada will pay the price.
"In an internationally competitive envi-
ronment where Canada wishes to attract
foreign investment, it is not helpful to have
a less attractive Canadian criminal law re-
gime than our major trading partners."
ings may be especially tough for re-
source companies, which are forced to do
business where the reserves are — oen
countries where bribery and "facilitation
fees" are the norm. But any breach of the
Corruption of Foreign Public Officials Act
may render the Canadian company ineli-
gible for consideration of a DPA.
"It really affects the mining industry
and international oil and gas industry in
particular," says Grant Zawalsky, a cor-
porate practitioner and managing part-
ner of Burnet Duckworth & Palmer LLP
in Vancouver.
"It's more important than ever that com-
panies that do business internationally
have strong controls in place that create a
strong audit trail. You have to be very, very
careful who you take as a local business
partner. You can't outsource bribery. Espe-
cially with this new DPA regime, if you go
out of bounds, the stakes are very serious."
Serious enough that SNC-Lavalin went
to the Federal Court of Canada apply for
judicial review of the decision not to offer
it a DPA.
In SNC-Lavalin Group Inc., SNC-La-
valin International Inc., and SNC-Lavalin
Construction v e Director of Public Prose-
cutions, handed down in January, the court
tossed out the application.
"e principle of independence requires
that the attorney general act independently
of political pressures from government and
sets the Crown's exercise of prosecutorial
discretion beyond the reach of judicial re-
view," wrote Justice Catherine Kane.
Robert Staley, a litigator at Bennett
Jones LLP, says the decision sends a clear
message that input from the government
in deciding whether to negotiate a specific
DPA is not welcome, despite the public-
interest component.
"e court says there's a high degree
of discretion in determining whether or
not to confer this," Staley says. "e deci-
sion also talks about the Constitutional
independence of the attorney general in
making these decisions and whether or
not to interfere. e case says basically it's
going to be very difficult to interfere with
the exercise of prosecutorial discretion in
these agreements.
"is was something a rebuke to anyone
who thought it was okay to interfere with
the attorney general's decision-making.
You can't read it and not conclude that the
court was sending a message that it's not
okay. Deferred prosecution agreements
should be free from political interference.
You really can't read it otherwise."
Sandra Rubin is a Toronto writer
and strategic consultant.
"It's more important
than ever that companies
that do business internationally
have strong controls in place
that create a strong audit
trail. You have to be very,
very careful … You can't outsource
bribery. Especially with this
new DPA regime, if you go
outof bounds, the stakes
are very serious."
GRANT ZAWALSKY
BURNET, DUCKWORTH
& PALMER LLP
