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Criminal - Remediation Agreements. Peters v. SNC-Lavalin Group Inc.
In Peters v. SNC-Lavalin Group Inc. (Ont CA, 2023) the Court of Appeal considered new CCC 'remediation agreement' provisions, here as to whether their involvement in a case constituted a disclosable "material change" under the Securities Act [SS: on first impression these strike me as 'formalized plea bargains' for criminally-charged organizations (which includes corporations)]:[3] The motion judge dismissed Mr. Peters’s motions. The “change” Mr. Peters alleged SNC had an obligation to disclose was the content of a telephone call on September 4, 2018, when the Department of Public Prosecutions Services of Canada (the “PPSC”) advised SNC that it would not be invited to negotiate a remediation agreement under Part XXII.1 of the Criminal Code, R.S.C. 1985, c. C-46, which would have resolved a pending prosecution against SNC for fraud and corruption.
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(3) Amendments to the Criminal Code allowing remediation agreements
[24] Remediation agreements, which are also referred to as “deferred prosecution agreements”, refer to a regime for resolving criminal prosecutions against organizations, including corporations. Typically, remediation agreements allow the organization to continue operating while requiring the organization to abide by certain conditions.
[25] At the time the charges were laid against SNC, the Criminal Code did not allow for remediation agreements. After the charges were laid, starting in February 2016, SNC engaged in active lobbying efforts to encourage the Federal government to amend the Criminal Code to allow for remediation agreements.
[26] On February 22, 2018, the Federal government announced that it intended to introduce amendments to the Criminal Code that would enact a remediation agreement regime. Bill C-74, which introduced the amendments, received royal assent on June 21, 2018 and came into force on September 19, 2018.
[27] Part XXII.1 of the Criminal Code sets out the remediation agreement regime. The relevant provisions allow a prosecutor to negotiate a remediation agreement with an organization facing criminal charges under certain circumstances. The effect of a remediation agreement is that the criminal prosecution is suspended in exchange for the organization agreeing to abide by specified conditions.
[28] Section 715.3(1) defines a remediation agreement as follows:remediation agreement means an agreement, between an organization accused of having committed an offence and a prosecutor, to stay any proceedings related to that offence if the organization complies with the terms of the agreement. [29] Section 715.31 of the Criminal Code sets out the purposes of the remediation agreement regime. These include denouncing an organization’s wrongdoing and holding the organization accountable, while reducing the negative consequences of the wrongdoing for people who did not engage in the criminal behaviour, such as employees and pensioners.
[30] Section 715.32(1) of the Criminal Code sets out the conditions that must be met for a prosecutor to enter into negotiations of a remediation agreement with an organization facing criminal prosecution. The conditions include a requirement that the prosecutor is of the opinion that there is a reasonable prospect of conviction and that “negotiating the agreement is in the public interest and appropriate in the circumstances”. The Attorney General must also consent to negotiation of the agreement.
[31] Section 715.32(2) specifies the factors a prosecutor must consider when deciding whether it is in the public interest and appropriate in the circumstances to negotiate a remediation agreement. These factors include the gravity of the alleged offences, whether the allegations involve senior officials of the organization and the degree of their involvement, any disciplinary steps the organization has taken to deal with the conduct and any reparations the organization has made. Section 715.32(3) specifies that, when considering whether it is in the public interest and appropriate to negotiate a remediation agreement involving allegations that an organization committed an offence under ss. 2 or 3 of the Corruption of Foreign Public Officials Act, the prosecutor is not to 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”.
[32] Finally, s. 715.33(1) of the Criminal Code provides that a prosecutor who wishes to negotiate a remediation agreement must give written notice, that includes specified information, to the organization.
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