www.lexpert.ca/usguide | LEXPERT • June 2019 | 9
reasonable prospect of conviction and that
a DPA is in the public interest.
at public interest consideration
– which does not exist in the US regime –
ignited a massive firestorm in Parliament,
Canada's Capitol Hill, in the public's
introduction to the new regime.
e kerfuffle centered on engineering
giant SNC-Lavalin Group Inc., which
was charged with fraud and corruption
in 2015 over allegations it allegedly paid
$47.7 million in bribes in Libya between
2001 and 2011. e company employs
about 8,000 people in Canada and 50,000
people worldwide.
It has been widely reported that behind
the scenes, Quebec-based SNC-Lavalin
had lobbied the Liberal government –
elected in 2015 – to adopt a deferred
prosecution regime, and that before the
bill had even passed it had contacted
Public Prosecution Service lawyers to
ensure they had all the necessary informa-
tion for a possible invitation to negotiate
a DPA.
In response to requests from prosecu-
tors, it was also reported the company
provided detailed information it consid-
ered key to the decision throughout the
spring of 2018.
In September, SNC was informed
it would not be invited to negotiate
a deferred prosecution agreement, or
remediation agreement as they're called
in Canada.
It exploded into the headlines three
weeks later, shortly aer Jody Wilson-
Raybould, the attorney general of
Canada, had been moved out of her
position in a cabinet shuffle. It surfaced
that she believed she was moved because
she had refused to cave in to pressure to
offer SNC-Lavalin a DPA because of the
jobs at stake, and the impact on both
the Quebec and Canadian economy.
She complained she had been constantly
pressured from the prime minister's aides
and senior ministers.
As attorney general, Wilson-Raybould
could overrule the prosecution service
recommendation but she had consis-
tently refused.
She quit cabinet a month later — but
the political firestorm raged for months.
e key questions, says Hansell, are
whether the provision that says the prose-
cutor must consider a DPA to be in the
"national interest" can be separated from
the provision stating Canada's economic
interests cannot be taken into consider-
ation — and whether the government
has any place making national-interest
arguments with the attorney general.
"Minister Wilson-Raybould, as she
then was, has noted that she doesn't think
there were any breaches of criminal law,"
says Hansell. "What that means is she
must have concluded that the issue of jobs
was something that was fair game for the
government to talk about. e fact that
she rejected it doesn't mean it was wrong
of them to be discussing it."
From the public and media debate
that followed, it appears many Canadi-
ans seem to think granting a DPA is
allowing a corporation to get away with
something. "It's not a free pass," says
Hansell. "Nothing could be further from
the truth."
e UK and several European countries
already have DPA regimes, and Singa-
pore, France, Argentina and Australia are
looking at or are in the process of imple-
menting them.
e reason is they provide enforcement
with a way to clean up companies but
punish just the law-breakers, says Wendy
Berman, the head of the securities litiga-
tion and white collar crime and regulatory
response groups at Cassels Brock & Black-
well LLP.
"Typically a DPA would come in only
where you've had a lot of change within
the corporation so a whole bunch of stake-
