Discussions on the possible introduction of Deferred Prosecution Agreement (DPA) legislation in Canada began in February 2016. Prior to the DPA, Canada already had ”prosecutorial discretion” that ”allowed offending companies to negotiate a non-criminal sanction for an indictable offence.”  In June 2018, Canada issued a DPA under provisions of the C-74 Omnibus Budget Implementation Act, which amended the Criminal Code.   According to the Law Times, the DPA is changing the way Canadian courts prosecute white-collar crimes, including a reparation system where offenders can escape conviction if they ”cooperate with the Crown and the courts.”  The Times quoted Ottawa-based lawyer Patrick McCann as saying the DPA would ”align Canada with many other countries that have postponed law enforcement agreements, including the United States and the United Kingdom. and most other European countries.”  According to McCann, the DPA ”deals with the injustice of the situation when you have a large company that has a rogue executive” who has committed a crime, blaming the entire company.  McCann said the ODA is fair to investors in companies that are innocent of any wrongdoing.  In 2013, several requests for the publication of DPAs were submitted. Each time, our office asked the Attorney General to rule that the DPA was exempt from disclosure under paragraph 552.108(a)(2) (no conviction or deferred decision). In each case, the Attorney General decided that the HPA should be declassified, arguing that section 552.108(a)(2) was not applicable because it was possible that the criminal complaint could be resubmitted because the conditions of the DPAs had not yet expired. As a result, the District Attorney filed a lawsuit challenging these decisions.  Some of the newly filed cases resulted in conviction or deferred judgment.
The data protection authorities relating to these cases have been made available to the applicant. Deferred prosecution is one of the tools that a prosecutor`s office (including the Travis County District Attorney`s Office) uses to exercise broad discretion in determining which cases to prosecute. An DPA is an extrajudicial agreement between a person accused of a crime and the prosecutor to postpone the prosecution of a criminal complaint for an agreed period of time (usually 12 to 24 months) during which the defendant must meet certain conditions. B e.g. no contact with a victim, no counselling for a domestic offender of violence or drug treatment. After the signing of the DPA by the defendant and the prosecutor, the criminal proceedings are rejected with reservations. If the defendant meets all the conditions, the district attorney takes no further action (because the criminal case has been dismissed). However, if the defendant fails to comply with any of the terms of the agreement, the district attorney has the power to resubmit the indictment and proceed with the case. The terms of a DPA are negotiated between the defendant and the government.
For example, the agreement could require the defendant to admit wrongdoing, pay compensation, or take certain steps to prevent future misconduct. For example, a DPA might require a company to fire executives responsible for misconduct, implement a more robust compliance program, submit to an independent monitor to ensure upright behavior, or all of the above – and perhaps even more. On appeal, the Austin Court of Appeals ruled in favour of us and the Trial Court and ruled that DPAs made in cases where charges were not resubmitted and those made in cases where charges were resubmitted but subsequently dismissed are exempt from disclosure under section 551.108(a)(2), because these criminal investigations have resulted in something other than a conviction or a postponement of a decision.  The Attorney General stated that since it was possible that the charges could be re-laid while the DPA was still in effect, it could not be concluded that the investigation did not lead to a conviction or a deferred decision. However, the Court relied on its decision in The City of Carrollton v. Paxton stated, ”The dismissal of criminal charges, even conditional, constitutes the conclusion of an investigation by an act other than a conviction or a deferred decision.”  However, on July 12, 2016, another person (acting on behalf of the victim of the offence who submitted the April 11 application) made another application for the same DPA, as well as for all investigation reports, statements, testimony, court documents, court documents and all written documents of the investigation and criminal proceedings resolved by deferred prosecution. The District Attorney asked the Attorney General to decide that the information was exempt from disclosure under section 552.108(a)(1) and noted that the Attorney General had already decided that the DPA was exempt from disclosure.  Instead of following his earlier decision regarding this specific DPA and his decisions since 2013, the Attorney General has instead ruled that section 552.108(a)(1) does not exclude a DPA from disclosure. The Attorney General noted that since the prosecutor`s office provides the accused with a copy of the DPA, its publication to the general public would not interfere with the detection, investigation or prosecution of crimes. With respect to all other information requested, the Attorney General has determined that it is exempt from disclosure under paragraph 552.108(a)(1).
Our office often uses deferred prosecutions when prosecutors determine that it is possible for a jury to render a finding of not guilty. For example, in a case of bodily harm – domestic violence – the prosecutor may choose a deferred prosecution to ask the accused to resolve his or her problems in order to break the cycle of violence and protect the victim and society. While our office has always involved the victim in the preparation of a DPA, we have also always sought permission from the Attorney General not to disclose these agreements to the public in order to protect the purpose and integrity of the deferred prosecution, as these agreements often include confessions from the defendant and declaration agreements. All of these prosecutions have been settled and we have been allowed to refuse disclosure to DPAs, provided that in the future our office will only invoke exception § 552.108 (a) (2) (no conviction or deferred decision) if the ODA period had expired, and we would invoke exception § 552.108 (a) (1) (interfere with the detection, investigation or prosecution of criminal offences) only when the DPA was still in force. In return, the Attorney General would decide that DPAs are exempt from disclosure. It was the practice of our law firm and the Attorney General`s Office for about three years. By reviewing DPAs, organizations gain a more complete view of a court`s reasoning and investigators` approach, and can take new preventative steps to ensure that their own compliance policies meet standards that adapt quickly. Companies should keep abreast of legislative changes regarding this enforcement tactic and investigate new published NPAs and filed DPAs as they emerge, as they usually explicitly include recommendations to improve their own compliance program for businesses. A deferred prosecution agreement (DPA) is a mechanism for resolving a case against a company that is essentially an unofficial form of probation.
Although they are typically used to solve a criminal case, civil law enforcement agencies such as the SEC have also begun to use them. It remains to be seen whether DPAs obtained as rewards for robust and effective compliance programs will require review, monitoring and/or compliance reporting. In other words, now that full compliance efforts can qualify a company for a DPA, will compliance improvements continue to be required as a condition of the agreement? We don`t know yet and we need to analyze the future DPAs that will be allocated to companies with qualified compliance programs for companies to see how the department structures the DPAs that have been allocated for an already existing compliance program. The DoJ Antitrust Division recently announced a significant policy change — which we have discussed in detail here — that will give non-lenient businesses the opportunity to apply for a mitigation loan as part of a criminal antitrust investigation if the company had a strong and effective compliance program in place at the time of the misconduct. In a speech on the 11th. In July 2019, Deputy Attorney General Delrahim announced that the ministry will effectively authorize its prosecutors to remedy misconduct through a deferred prosecution agreement (”DPA”) if a company`s compliance program is reasonably designed to prevent, detect and remedy criminal misconduct by its employees, and if the company itself reports misconduct to the ministry. .