Page 29 - CCCA Magazine Summer 2015

{ Feature }

deferred

Prosecution

agreements

in Anti-Corruption Enforcement

By Noah Arshinoff

in recent years, Canadian corporate culture has been shifting in
response to new and vigorous enforcement of the Corruption of
Foreign Public Offcials Act (CFPOA), with several high-profle
prosecutions demonstrating the costs of non-compliance. With
the stepped-up enforcement, companies are moving quickly to
implement anti-corruption policies and procedures.

owever, in the world of anti-corruption, the only enforce- fed that companies are not too-big-for-jail, a DPA enables a
ment tool currently available in Canada focuses on pun- company to demonstrate any rehabilitation efforts it may have
hishment—instead of prevention—of criminal acts. This is undertaken since the discovery of wrongdoing and make vol-
because Deferred Prosecution Agreements (DPAs) are not al- untary disclosures.
lowed as a prosecutorial instrument in Canada. With the strengthening of the CFPOA, it may be time to
A DPA is an agreement negotiated between the law-enforce- open the discussion about DPAs again. Here are some of the
ment agency and a company charged with wrongdoing—for benefts and drawbacks of DPAs from both corporate and pros-
our purposes, an offence under the CFPOA. Through a DPA, ecution perspectives.
the prosecution suspends criminal charges for a specifed pe-
riod of time during which the company in question must com- improved Business ethics
ply with probation-like terms and conditions. If the terms and According to proponents of DPAs in the U.S., such agreements
conditions are met within the time frame, the authorities drop enable prosecutors to reform corporations and instill ethical
the criminal charges against the corporate entity. behaviour. When entering into a DPA, a company often agrees
DPAs have been commonplace in the U.S. since the early to pay a hefty fne, provide an admission of guilt and cooperate
1990s and were introduced in the U.K. in 2014. with investigators.
So why aren’t they available in Canada? Most importantly, a DPA often mandates a change in cor-
While the debate has been going on for over a decade, it porate governance, including introducing new board members
is garnering more attention with recent headlines involving and management, updating or implementing robust compli-
large Canadian companies. While the public must be satis- ance programs, and agreeing to additional self-reporting mech-

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