By Warren Everson, Senior Vice President, Policy – Canadian Chamber of Commerce
CANADA – Canada’s legal system has grown so expensive and slow that practitioners are increasingly looking for ways to resolve disputes outside the courtroom. If the majority of legal issues could be dealt with in a more efficient and pragmatic manner, [with less risk to the taxpayer], we would see a thick line of red tape peeled from the system. Exploring alternative approaches to administering legal services with greater speed and efficiency, could ultimately reduce costs and still fulfill the public’s expectations for justice.
In recent years, Deferred Prosecution Agreements (DPAs) have become an effective tool for prosecutors to address and help resolve criminal corporate behaviour rapidly and at less cost. While Canadian officials currently do not have this discretionary tool at their disposal other competitor nations such as the U.S. and U.K. are using it to deal with white collar offences.
DPAs don’t let companies “off the hook;” rather, it forces them onto a remedial path that minimizes the risk of future criminal activity, without harming innocent employees and suppliers. Since the voluntary agreement is established between a prosecutor and an accused party, the accused must cooperate with any investigation, pay fines and implement ethics reforms within the organization.
Such a model would closely align with regulatory protocols such as Public Works and Procurement Canada’s Integrity Framework. Typically it works this way: A company would enter into a contractual agreement with the government following the company’s acknowledgment of wrongdoing. The remediation process would begin immediately, and an independent, third party monitor would oversee the process.
The use of compliance monitors is prevalent in other jurisdictions where DPAs are regarded as a critical legal instrument in combating corporate criminality. Similar to the Integrity Framework’s third-party monitoring clause, DPAs can include rigorous compliance monitoring.
Speedy resolution without the cost of major litigation, followed by strict compliance oversight, is a positive outcome for the public. As the cost of combating crime in Canada mounts annually, it’s important that the government consider how DPAs can alleviate excessive economic burdens on the criminal justice system.
A comprehensive “public interest test” would also ensure that those victimized by wrongdoing are compensated appropriately and quickly.
It’s in the government’s interest to look closely at the experience of other jurisdictions to see what steps can be taken to develop a robust DPA regime. In some countries the mechanism has been in place for many years, so the track record is easily assessed.
The Canadian Chamber of Commerce is a staunch proponent of corporate responsibility, and takes criminal misconduct very seriously; it’s often our membership who is among the victims. This is why we are advocating an alternative and efficient tool that is available to the Crown to combat white collar crime. DPAs would benefit the government, business and consumers. At the dawn of a new government mandate, when alternative approaches are being considered in every area, it would make sense for the Minister of Justice to consider this reform as well.
