The agreement is made between the Crown prosecutor and an organization alleged to have committed certain types of criminal offences, usually in the context of fraud or corruption, with the consent of the relevant Attorney General and under the supervision of a judge.
In 2018, the government of Prime Minister Justin Trudeau introduced legislation to provide for deferred prosecution agreements in Canada, as part of the omnibus Budget Implementation Act, 2018, No.
Allegations were made that members of the Trudeau government had put inappropriate pressure on then-Minister of Justice, Jody Wilson-Raybould, to authorize a deferred prosecution agreement for SNC-Lavalin.
[3][4] Unlike the American model, in Britain the courts have a role in approving proposed deferred prosecution agreements, adding to public transparency.
[9] According to a February 27, 2019 Financial Post article by Terence Corcoran, internationally, most countries used deferred or negotiated settlements as opposed to turning to the courts when dealing with corporate corruption which has resulted in the payment of billions of dollars in fines.
"[11] According to a 2008 NPR article, an FBI investigator said that Seimens' "actions were not an anomaly"...executives in corporations used bribery as a standard operating procedure and a "business strategy" to win contracts.
[12][13] In July 2017, Transparency International Canada, the Canadian branch of a global anti-corruption non-government coalition, released a detailed report on deferred prosecutions.
The report concluded that: "On balance, as a means of pursuing greater enforcement of and compliance with anti-corruption laws, we urge the Government of Canada to consider adopting a properly designed DPA mechanism".
[17][18] In September 2017, PSPC announced a public consultation on potential enhancements to the Integrity Regime, and "whether deferred prosecution agreements should be used in Canada".
PSPC also conducted meetings with approximately 350 interested parties and groups, such as industry associations, businesses, justice sector stakeholders (including law enforcement), non-governmental organizations, and academics.
[3] "The majority of participants stated that additional discretion and flexibility needed to be built into the Integrity Regime to take into account aggravating and mitigating factors in the determination of an appropriate period of debarment.
Factors that were identified included the seriousness of the offence, whether the individual or company was a repeat offender, self-reporting, cooperation with law enforcement, taking corrective actions, and efforts at restitution."
Pierre-Luc Dusseault, a New Democrat, said that he thought the provision was tucked into the budget bill to make the change quietly, without much opportunity to debate it.
[30][18][27][28] Part XXII.1 then sets out a lengthy list of factors which the Crown prosecutor must consider, such as the "nature and gravity" of the alleged offence, whether the organization has taken internal steps to prevent further misconduct, and whether it has cooperated with the authorities and made reparations for the harm it has caused.
In the case of charges under the Corruption of Foreign Public Officials Act, the prosecutor "must not consider the national economic interest, the potential effect on relations with a state other than Canada or the identity of the organization or individual involved.
[34] According to John Boscariol, except for a few cases in the early 2010s, Canada has been slow to enforce its anti-bribery law, partially because it lacked the tools, such as a deferred-prosecution agreement regime.
[18][27][28] According to Dalhousie University's Graham Steele — a Rhodes Scholar, lawyer and former provincial finance minister in Nova Scotia — "investigating and prosecuting ... transnational corruption cases can be incredibly difficult, time consuming and expensive".
[35] Criminal court cases take years to complete and it is very difficult for prosecutors to prove beyond a reasonable doubt that the defendant is guilty.
[36][37][38][39] The Economist reported on allegations in February 2019 that Trudeau and his officials had attempted to influence justice minister and attorney general, Jody Wilson-Raybould, to use the DPA instead of prosecuting SNC-Lavalin on bribery charges.
According to an iPolitico article, legal experts said that the dual role complicates the Shawcross doctrine—through which the "attorney general is supposed to act independently on any prosecutorial decisions".
[41] Trudeau said at an August 14 press conference that the McLellan report recommendations, that did not include separating the two offices, "would help the government address the issues identified in the SNC-Lavalin controversy and protect prosecutorial independence.
Even if Trudeau believed that Wilson-Raybould "did fail here somehow", [he] and his advisers would still be responsible for respecting the Shawcross doctrine, which protects the independence of the attorney general from political pressure."