The Canadian government has announced the results of its public consultation on corporate criminal wrongdoing and enforcement, which received written submissions from businesses, individuals, NGOs, and law firms, including Baker McKenzie. The government revealed that a majority of participants in the consultation process favoured the implementation of a deferred prosecution agreement (DPA) option for Canadian prosecutors dealing with corporate criminal misconduct. As a result of the consultation, the government announced its intention to introduce a DPA system in Canada, which will bring us in line with key trading partners, including the U.S., U.K., and Australia as we move toward a globalized enforcement environment. As we have written since 2014 (here, here, and here), Canada is long overdue for a robust DPA system with appropriate judicial oversight, which, when employed in the right circumstances, will serve as a much needed tool in Canada’s efforts to combat corporate misconduct and to encourage self-reporting, compliance and good governance. The specifics of the DPA legislation are yet to be announced, however the government’s statement indicates that Canadian DPAs will be implemented, as we have advocated, with judicial supervision, similar to that of the U.K. regime. Stay tuned for more insights and analysis as the details of the DPA legislation begin to take shape. Baker McKenzie has been involved in the successful negotiation, implementation, and monitoring of DPAs in other jurisdictions resulting from multi-jurisdictional internal investigations. Please contact us if you have any questions.
Peter MacKay is a partner in the Baker McKenzie Toronto office. Prior to joining the Firm in 2016, Peter MacKay, PC, QC (Privy Council and Queen's Counsel), served in the Parliament of Canada for over 18 years and in a ministerial post in the Canadian government for almost ten years after the Conservative Party formed a government in 2006. Most recently, he served as Canada's Attorney General and Minister of Justice until November 2015, a position to which he was appointed in 2013. Prior to this post, Peter served as the Minister of National Defence for six years and held joint cabinet positions as Minister of Foreign Affairs and Minister for the Atlantic Canada Opportunities Agency for 18 months.
Henry Garfield is a senior associate in Baker McKenzie's Dispute Resolution department based in London. Henry's practice focuses on fraud, asset tracing, internal investigations and business crime. He also undertakes general commercial litigation. Henry has just completed an 11 month secondment to the Serious Fraud Office, during which he was the Case Lawyer on an investigation into a £60 million fraud. The investigation involved unravelling trust and company structures in several offshore jurisdictions and has recently resulted in two individuals being charged with fraud and forgery offences.
Brian Whisler is a member of Baker McKenzie’s Compliance and Investigations, Dispute Resolution and Global Pharmaceuticals Practice Groups. Prior to joining the Firm, Mr. Whisler served as the criminal chief assistant United States attorney in the Eastern District of Virginia, where he managed the criminal trial practice of the Richmond office which handled cases ranging from white collar crime, violent crime, public corruption and terrorism. Mr. Whisler focused his own trial practice on white collar prosecutions including health care fraud, securities fraud, money laundering, and tax fraud. He also served as an assistant United States attorney for the Western District of North Carolina where he focused on white collar prosecutions and served as chief of appeals and health care fraud coordinator.