Remediation agreements in Canada | S3 EP1

Season 3 of Disputed starts with a look at Canada’s remediation agreement regime. In 2022, Canada saw its first court-approved remediation agreement under the “new” 2018 Criminal Code provisions – R c. SNC-Lavalin. Our guests, François Fontaine and Charles-Antoine Péladeau, negotiated that agreement and give us their insight into the practicalities of navigating this regime: what are the options for companies who suspect financial misconduct? How similar is Canada’s regime to the UK and US deferred prosecution systems? And with the RCMP now publicly encouraging companies to self-disclose, will we see more invitations to negotiate? 

François Fontaine is a senior litigation partner in our Montréal office who advises on cases involving corruption, corporate misconduct and white collar crime. Charles-Antoine Péladeau is of counsel in our Montréal office. His litigation practice involves internal investigations and advising clients on compliance.

For more information:
The remediation agreement for SNC is included in Lexpert’s Top 10 business decisions of 2021/2022.

CPD credits: This episode is accredited for 0.75 Substantive hours in Ontario and 0.75 Substantive hours in British Columbia. 

Transcript

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Transcript:
Andrew McCoomb 00:10
Welcome to Season 3 of Disputed, a Norton Rose Fulbright podcast. In our first episode this season, we're talking about deferred prosecution agreements, also known as remediation agreements. Yes, those agreements, the ones that are now synonymous with the considerable political scandal that came to light in 2019 regarding Canada's Prime Minister applying undue pressure to the Attorney General's office to work out a deferred prosecution agreement with a major international engineering firm based in Canada, or so set a report from the ethics Commissioner's Office. Deferred prosecution agreements are meant to encourage good corporate citizenship. They require companies accused of misconduct like bribery or corruption to commit to improving their practices, among other things, in exchange for avoiding a criminal prosecution. Given the public interest impacts of such a bargain, the process of negotiating a DPA is complex and delicate, with significant implications for future litigation. To help us wade through the policy and process behind the deferred prosecution agreement we have two guests who could not be better versed in the area. François Fontaine is a senior litigation partner in Norton Rose’s Montréal office. While François practices in all areas of commercial litigation, he has a particular specialty in cases involving corruption, corporate misconduct and white collar crime. His practice often engages bet-the-bank issues and corporate crisis management at the highest levels. Charles-Antoine Péladeau is of counsel in our Montréal office. His litigation practice involved internal investigations and advising clients on compliance with the corruption of Foreign Public Officials Act, The Competition Act, the Criminal Code and similar legislation. In relation to such matters he interacts with the RCMP and the Public Prosecution Service of Canada, as well as other enforcement authorities. And critically together, François and Charles-Antoine negotiated the first-ever deferred prosecution agreement in Canada. We greatly enjoyed our discussion with them, and we hope you will as well. Welcome to Season 3.

Ailsa Robertson 02:27
François, Charles-Antoine, thank you very much for joining us, and welcome to the podcast. 

François Fontaine 02:32
Thank you. 

Charles-Antoine Péladeau 02:32 
Thank you glad to be here. 
Ailsa Robertson 02:34
Okay, to start off with some basics. Can you explain the concept of a remediation agreement? And what is the regime intended to achieve? 

Charles-Antoine Péladeau 02:44
Essentially, a remediation agreement is an agreement between the Crown prosecutors and an accused corporation by which the prosecutor agree to stay the charges against an accused if certain conditions are met. The objective of the remediation agreement regime are provided for by the Criminal Code and they're essentially threefold. So, to hold corporations accountable for their actions, their reprehensible action, two, favour self-disclosure of wrongdoing. And the third one, to avoid or diminish negative impact on innocent third party, for example, shareholder, employee, pension plan, etc. 

Ailsa Robertson 03:47
And François, what is the difference between a remediation agreement and a company pleading guilty and reaching a resolution with the prosecutor through that guilty plea? 

François Fontaine 03:57
Well, when you get a remediation agreement, you will not plead guilty. The remediation agreement allows you to avoid conviction, because you are charged. The charges are stayed, or suspended until you demonstrate that you have fulfill all the obligation of the agreement, and once that is done then the charges are dropped. So, charges are laid, charges are stayed, charges are dropped. But you'd never plead guilty. You're never-- you're never convicted as a-- as a company. And you are-- you're not found guilty. So you're not a director of a company who was found guilty, you're not a company who was found guilty. That’s the difference, of course is if you plead guilty, you have a guilty plea registered on certain type of offenses and depending on the type of offenses, you can be prevented from bidding on public contracts, if you're-- if you-- if you have public contracts in your portfolio. So the remediation agreements is a tool to permit corporations to bid on public contracts, to get public contracts, in spite of past practices, which are no longer tolerated, no longer accepted, and which has been criminalized over-- over time. So essentially, it is a way to-- to clean yourself, it is a way to become compliant, to move forward with your journey without having a criminal conviction in your backyard. 

Ailsa Robertson 05:33
Just briefly, what can you tell us about the context of remediation agreements and the historical background in which the Canadian regime has developed? 

François Fontaine 05:45
Let's start saying that this tool available to prosecutors, exists in the United States for decades. And-- and was introduced in the UK in 2014, if I'm correct. So we're not the—it was introduced another jurisdiction or discussed in other jurisdictions, then probably 2010 onwards. So, it is a tool existing in the US for a long time. It is a tool that is being, now in the UK and discussed in other occidental jurisdictions, and of course, Canada is part of it, and went forward with the legislations in 2018? 

Charles-Antoine Péladeau 06:30
Yeah, it's in 2018 with the-- the modification to the Criminal Code were included in the Budget Implementation Act, and as of today, only one remediation agreement has been approved in Canada. It's the one in the SNC Lavalin case earlier this year. And currently, there's a another one that is before the Superior Court of Québec. It's the remediation agreement in the Ultra Forensic Electronics matter. But the as of today, no-- no decision to my knowledge was rendered on the approval of the remediation agreement in that specific matter. 

Ailsa Robertson 07:14
Okay, so Charles-Antoine, you mentioned that there's been just two decisions by the Canadian Courts concerning the remediation agreement regime since it became part of the Criminal Code in 2018. One of those is obviously the SNC Lavalin case, and I think the other you mentioned is called Ultra Electronics. We're just wondering, both of those decisions have been in the Québec Courts, has there been any instance that you're aware of-- of any of the other provinces, dealing with the, considering the remediation agreement regime? 

François Fontaine 07:44
We-- we don't-- we're not aware of all the existing investigation, of course, in the country about behaviour that would be captured by-- on the list of potential remediation agreement. Of course, what we know is that there were, in terms of, for example, corruption. We know that two cases were settled in Alberta. I don't remember exactly the dates 2011, 2010, or 2009. The NiCo Resources and Griffiths, and of course, in 2015, which is before the introduction of remediation agreement into legislation, SNC Lavalin was criminally charged as a company, before the Québec Courts for corruption and fraud in Libya. And-- and we know the story, they were denied a remediation agreement after the regime was implemented in the Criminal Code. So this is not the case that went on this year, and for which they obtained the remediation agreement. This one was settled in 2019, in December 2019. 

Andrew McCoomb 08:58
What can you tell us about the incentives for the prosecutors to enter into these types of agreements? What do they have in it that makes this worthwhile for them, other than maybe saving-- saving time and expense? 

François Fontaine 09:12
This is already a big, big--, big incentive - saving time and expenses. Because as you can imagine, fraud cases or, you know, financial cases, financial crimes, investigations are long, costly. Trials are long and costly also, it takes a lot of resources, expert witnesses, expert resources. So I think the incentive, of course is-- is to save money. The other incentive is to create this field where you have accountable companies who can do their own compliance. The hope is that when companies have-- are facing compliance issues, they will investigate them themselves. And whatever the result is, they will resolve the issue, they will bring the matter to the authorities and say we found this, we believe it's important. It is to promote self-disclosure, it's one of the goal of remediation agreement, it's to change the way of doing business and the culture that was existing in the past. So for the judicial system, it means less resources, less cases, more time to be devoted to other matters, etc. So I think that's where the-- the incentives, in my view for the prosecutors is a question of resources, and a question of having the assistance of the company and the investigation, essentially. 

Charles-Antoine Péladeau 10:43
Yeah, and if I can add to that, I think it's also important to consider the role of prosecutor in our judicial system. A prosecutor has to act towards achieving public interest and public interest is a big part of the remediation agreement regime. And in some cases, it's going to be in the public interest to negotiate a remediation agreement, because we want to avoid, as I mentioned earlier, negative consequences on innocent third party. 

Ailsa Robertson 11:15
So okay, so it's a huge expense, saving potentially for the prosecutor by entering into a remediation agreement. And as you mentioned, Charles-Antoine, there may be many instances where it is genuinely in the public interest to negotiate a remediation agreement, as opposed to go ahead with a full trial and securing a criminal conviction. And that notion of the public interest, and what constitutes the public interest is something that we do want to unpack a little later. But for the next question that we have, can you talk us through the steps of negotiating a remediation agreement. So a corporation suspects that financial misconduct has occurred, there is perhaps a willingness to self-disclose to the prosecutor or the RCMP, what steps does the prosecutor then follow to open negotiations for a remediation agreement? 

François Fontaine 12:10
Well, if you identify one way of approaching it, which is, it's not the RCMP or the authorities knocking at the door, if as a company, and I would say party to a public company, you have an allegation, sometimes it starts in the media, sometimes it starts with a whistleblower, you have something serious about a bad behaviour, being corruption, fraud, money laundering, or what have you. As a responsible company, normally you have to investigate those facts. And of course, your-- you might have an independent investigation, I would say generally done by-- by external counsel. And if the results are conclusive, or even when they are not conclusive, but you-- you see a certain number of red flags, for which you would need the assistance of the authorities powers to investigate further, then you self-disclose to the authorities. When you self-disclose, you have no guarantee that you will get the remediation agreement and that you will be invited to negotiate. And that's-- that's the problem. It's always the balancing between, am I shooting myself in the foot by self-disclosing, or am I on the contrary, securing a remediation agreement. And you have to balance between the two. We know that in 2022, the RCMP is kind of advertising self-disclosure, without guaranteeing and they cannot guarantee, but of course, the-- the message is quite clear that if you are proactive, if you self-disclose, if you cooperate with us, you're on the right path, to be invited to negotiate a remediation agreement, what the terms will be, of course, will vary from one case to another. And it's dependent that the negotiation and the terms will depend on the-- on the-- on the-- on the case itself. 

Ailsa Robertson 14:03
So there's no guarantee, if you self-disclose that you will be invited to negotiate, that's interesting. So it's entirely the prosecutors discretion, whether they invite you to negotiate or make a remediation agreement. So it's a very delicate risk assessment that you presumably are going to want experienced counsel to help you make that decision. And is there any scope at all for challenging any decision by the prosecutor not to invite a negotiation?

Charles-Antoine Péladeau 14:32
Yeah, it's not impossible to challenge but if you want to challenge it, the threshold is very, very high. And normally, it will be in case of bad faith on the part of the prosecution or as similar conduct.

François Fontaine 14:48
It's almost impossible to challenge, it's really unless the discretion is exercised in-- in bad faith, you have no chance of having a court for overruling a prosecutorial decision, I mean, it's, in my view, it's quite impossible.

Andrew McCoomb 15:08
And you run the risk of trying-- in trying that you're just going to draw a whole lot more attention to whatever it is that you've done or said to have done as a company, kind of fanned the flames of a story that’s sort of half the battle in these circumstances, right. I mean, a lot of this has to do with publicity about trying to turn a very bad story into an only so bad story. And making it about how the government isn't willing to negotiate a deal with you, kind of reframes the narrative in the wrong way, I would think it makes it a very risky challenge. 

François Fontaine 15:45
Yeah, and it can also play some pressure on the authorities. We saw that, again, as I said, with the first SNC case, the prosecutor denied, and it turned to be a political scandal, at the end of the day; we were not involved in that part. But you're right, but again, you know, it's not impossible to have unreasonable prosecutors or unreasonable counterpart on the other side. And it sounds cliché, but it takes two to tango. And if they don't want to dance on a music that makes sense, sometimes, you have no choice, not—not but the question is, you cannot, you should not be challenging the decision not to invite, but you should, probably in the context of your defense, when you-- when you get charged, explain that you have done whatever was necessary in order to resolve the matter quickly, to save costs to the-- to the government, etc. So you will have your day in court, and you will be able to tell the court, how bad the prosecutor or unreasonable they were. But challenging the prosecutorial decision, the threshold is so high that it's almost impossible. 

Ailsa Robertson 17:05
Okay, so if you self-disclose, and the prosecutor decides not to invite-- not to invite you to negotiate a remediation agreement, you don't challenge that decision in itself, necessarily, but you keep it in mind when it comes to the company's defense at trial. Charles-Antoine, you mentioned earlier that this decision by the prosecutor is based on what is in the public interest, whether it's in the public interest to negotiate a remediation agreement or pursue a prosecution. Can you outline for us what is meant by the public interest in that context?

Charles-Antoine Péladeau 17:43
So, public interest is it's very large, the Criminal Code provide for certain factor that prosecutor must consider when in order to determine if it's in the public interest to-- to invite a corporation to negotiate a remediation agreement, for example, the circumstances of the offense are one of the factors and natural gravity of the offense, are another one, whether or not the corporation already made reparation to the victim of the offense, is another one. So there's a list in the Criminal Code, but it's not an exhaustive list. So a lot of factor may be may be taken into consideration when it's time for the prosecutor to determine if it's in the public interest or not to invite a corporation to negotiate.

François Fontaine 18:38
Well, I would say of course, it's-- it's a very vague and at the same time, precise concept, you know, what is in public interest is maybe more difficult to define than it is to recognize. So sometimes, it will be clearly in the public interest to save jobs, it will be clearly in the public interest to appreciate the fact that the company is being investigated for actions that took place long ago, and that the company has evolved and has changed and it's known that the company is no longer the same. But on the contrary, on the-- on the other side, you can imagine a company completely denying any wrongdoing when it's obvious that there was some wrongdoing going on. And then the prosecutor may believe that it's not in the public interest to let the company continue on the same journey, without charging and without facing trial and conviction, but it should not be considered as it's too big to fail. We saw big companies falling down and deserving it. You know, when the company is and I will not give name you can remember in the past, the entire company is a fraud itself. Some sort of mining companies which existed in the past were totally fraudulent, because they pretended they had resources that they didn't have, you cannot let it go. You cannot let it continue if it's rotten to the end.

Ailsa Robertson 20:12
But at the same time, if a large company, perhaps does have certain questionable elements is still employs a lot of people, there is significant shareholders that could be affected by a conviction or there's key suppliers or other contracts in place, basically innocent third parties, then perhaps it is more in the public interest to negotiate something other than a criminal conviction, right? You did mention earlier that each agreement itself is going to be fact specific. But there are some mandatory elements that the Criminal Code requires are in a remediation agreement, can you talk us through what terms must be in a remediation agreement for the court to approve it?

Charles-Antoine Péladeau 20:55 
There are two main elements that are mandatory, the portion that touch on the statement of fact, and the acknowledgement of responsibility by the corporation for the wrongdoing. So those elements are mandatory element of a remediation agreement. And the other aspect are the financial elements. And there is four subtypes of financial element. First, there's a penalty, there's confiscation of any crime proceeds, there is the reparation to the victim. And finally, there's the victim surcharge, which is a mandatory charge provided for by the Criminal Code. So those are the main mandatory elements of remediation agreement.

Ailsa Robertson 21:56
Just to focus in on two of the mandatory elements that I think are really interesting there. So the statement of facts and the acknowledgement of responsibility. I'm wondering what liability risk is created, particularly by that acknowledgement? You know, when it comes to perhaps related civil proceedings, or even related criminal regulatory proceedings arising out of the same or similar facts, is there a liability risk presented by what is essentially a public acknowledgement of responsibility by the corporation?

Charles-Antoine Péladeau 22:32
Excellent question. With respect to civil proceeding, if civil proceedings are ongoing, and statute of limitation have not-- reached the point where the-- the action is time barred, the acknowledgement of responsibility can be used in civil proceeding if the remediation agreement was ultimately approved. If it's not approved, even though it may be-- it may be exist in the court record, it cannot be used in other criminal or civil or regulatory proceedings. The rule is, it's pretty clear once the remediation agreement is approved, the statement of fact and the admission it contained can be used in other proceeding.

François Fontaine 23:19
It’s in under code, yeah, it's-- it's in the Criminal Code, you cannot deny the fact that you have recognized in order to get the remediation agreement. So the facts are there, they are admitted, they are public. And they can be relied on by-- by anyone who needs to rely on it. So that's one aspect of you know, that is a consideration when you are discussing the statement of facts. And that's why sometimes choice of words, is very important. And it's so-- it is one aspect, one very important aspect of the discussion, when you negotiate the agreement, you must make sure as counsel for the company, that you are exposing the company elsewhere as less as possible, or not at all, if--if possible. But the fact is, that if you get to terms and you get a remediation agreement, the facts that are in the statement of facts, to be approved by the court are public and can be used against you.

Andrew McCoomb 24:23
And the likelihood that any case that's being-- any case that’s the subject of a negotiation of a deferred prosecution agreement is-- is very high likelihood that it's going to be linked to a class action for something. Because if it's a big enough company that it's drawn this kind of interest from a prosecutor then-- then other people are going to have an interest in it too. So it's obviously critical to make sure that clients know that that this is going to follow them potentially into the civil proceedings, notwithstanding the benefits that you're gonna get from-- from negotiating it here. 

Ailsa Robertson 25:03
So before we move on to the next stage in the process, which is when the prosecutor applies to the court for approval of a remediation agreement, I think this is just a good time to ask you about the contrast between Canada's regime and the different approaches that are taken in the UK and the US. Because the US, their concept of a deferred prosecution agreement, as it's known, that’s existed for several decades. And I think the UK equivalent was introduced in 2014. Now, the Canadian regime was based more on the UK model, but it kind of sits halfway between the US and the UK regimes. So François, what can you tell us about some of the key differences between these jurisdictions approach to remediation agreements?

François Fontaine 25:52
As you know, in the US, there is no court supervision. So it's really not only a prerogative of the prosecutor, but the prosecutor and the investigative team will decide, and they will investigate allegations. And in the context of the investigation, they will seek the cooperation of the company. And if the company cooperates and is in good standing of cooperation, the company can get to terms eventually with the prosecutor and with the Department of Justice about a deferred prosecution agreement, or a non-prosecution agreement. This is-- and there is no court scrutiny. It's purely, of course, they will apply the sentence guidelines, etc., but it's purely between the prosecutor and the company. And--, and they expect, of course, companies to self-disclose. But if there is no self-disclosure, you will be able to get a deferred prosecution agreement nonetheless, if you are in good-- corporation standing. In the UK, I think this started on the same foot as we did in Canada, expecting self-disclosure. And the first case that was decided, first DPA approved by the court in the UK is the Rolls Royce case. And then the Rolls Royce case, of course, there was no self-disclosure. But a company's shown what they describe as extraordinary cooperation, and that extraordinary cooperation, entitled them to get the deferred prosecution agreement, and the court approved the DPA of Rolls Royce. 

Ailsa Robertson 27:41
Okay, so what you're saying there is in the UK regime, there's no need to self-disclose extraordinary cooperation by the organization will assist in that process. So you mentioned earlier, Charles-Antoine mentioned earlier, that the SNC Lavalin case was the first decision by Canadian court to consider the Canadian remediation agreement regime, what can you tell us about the key points in that decision of Justice Downes in the SNC Lavalin case? 

François Fontaine 28:12
In Canada, with the SNC case that we the judgment we got this year, it's the same thing now, self-disclosure is what-- is one of the goal, but it's not because you did not self-disclose immediately, that you will be prevented from getting a remediation agreement. That's what Judge Downes is saying. And, of course, it will require a high level of cooperation with the investigation of the authorities. But it's not because you will not have self-disclosed in the first place, that you will be-- that we cannot be invited, and that it's unreasonable or not in public interest to invite you. Of course, if you self-disclose, public interest is even greater, or even greater, because you are yourself saying maybe we did something wrong. But if you did not self-disclose, you can still get a remediation agreement in Canada. The other aspect, in the US you have a prosecutor involved early on. In Canada, and from my experience in the UK, sometimes as well, you have the authorities investigating. And as you know, in our system, technically, as we say, you have to be charged in order to be invited. So how can you avoid being charged? Or how can you be charged and at the same time you're charged, come with a settlement if you have not been invited before? In our SNC case, we were charged. We had an invitation to negotiate the same day we were charged and we started negotiating from that point on. You see the difference, in the UK and the US, you start discussing with the prosecutor the first day the investigation is known. Or at least the prosecutor will get involved at an early stage. So you can come to the court with having discussed with the prosecutor already. In Canada, with the system in the Criminal Code, with our Criminal Code, it doesn't work. Because normally you should be invited after you're charged. And this-- these are these are real issues that the Criminal Code will have to address eventually, because the system is a bit tricky in that regard. 

Andrew McCoomb 30:32
Maybe you can take us through the next step, after you've got a prosecutor and a would-be defendant who've agreed on the terms for remediation agreement. They've got that agreement, those terms set between them, take us through the court approval process and what the concerns and considerations are. 

Charles-Antoine Péladeau 30:50
Yeah, so essentially, once there-- an agreement, that-- that is reached between the prosecutor and the corporation, that next step is for the prosecutor to file a motion for the approval of the remediation agreement with the court. And at that stage, the hearing on the approval of a remediation agreement is public. And the court will approve or not the remediation agreement, if it is of the opinion that, first of all, all the mandatory content is provided for the remediation agreement, that the agreement is in the public interest. So you see that public interest is considered at two stage. First of all, by the prosecutor when determining whether or not to invite a cooperation and then afterwards at the approval stage by the court. And third condition that the court will consider, is whether or not the term of the agreement are fair and proportionate to the gravity of the offense. And the-- the threshold of-- of review of the court at this stage is similar to the one when a joint recommendation is made on a sentence following a guilty plea. And Justice Downe in the SNC Lavalin matter, gave some guidance on this specific element and mentioned that while reviewing whether or not the conditions of the Criminal Code are met, the court must show deference to the agreement that was reached between the corporation and the accused. 

Ailsa Robertson 32:55
Okay, so if the court as you know, Charles-Antoine, if the court will show considerable deference to the remediation agreement that has been reached, to what extent is the court approval stage, simply a rubber stamping process? 

François Fontaine 33:11 
But you still have, it's still uncertain. I mean, and I would say the train can derail along the way up to the end. As we say, we never know what can happen. So I think the message to-- to the client and the message here is, the judge will show a lot of high level of deference to the-- to the agreement and to the parties. But if unknown facts come to light between the moment the motion is presented and the moment the motion is heard. That can be a game changer, completely. So, it's not 100% sure, and it's not rubber stamping, when you get to terms, normally, if the prosecutor and counsel for the company did their job, you should have a remediation agreement, which is in the interest of the public interest and serves justice etc. But again, at the end of the day, the judge may disagree or may see things differently, or have questions that will-- that will change the remediation agreement or that will change what is ready-- the court is ready to approve or not.

Ailsa Robertson 34:29
And that is a very interesting point actually to note when-- when contrasting with the UK regime where the court in the UK is involved from the very beginning. As you know, it's the first court hearing in the UK, if I understand correctly, that's done in camera or in private and the judge has the chance to ask questions about the proposed agreement. The parties can then address those questions before there is a public hearing on whether the agreement should be approved. I think this touches on an issue that is coming up now in-- in Canada, which is the extent to which the court approval process should be held in private. And the extent to which any documents produced or put on the court record in that process should be made confidential. So, do you think that we will see in camera orders or perhaps sealing orders being granted at the court approval stage in Canada? And if not, why do you think it's important that the court approval that the court hearing to approve the remediation agreement is public? 

François Fontaine 35:41
Well, as you know, I mean, sealing orders, confidentiality orders, in camera orders, are the exception. The right way to do it, is to have a procedural process in place with the court to explain to the court what will be going on, what is happening, what is be-- what will be discussed. To sensitize the court, to all-- all the process that was followed before, you know, all the negotiation with the prosecutor is covered by settlement privilege. You want to maintain that privilege, but you want the judge to understand what the parties went through. So I believe that portion needs to be done in camera. It's not the approval of the of the agreement, it's just the explanation around the process, what was followed, what was done, here's what we got. Now, the agreement itself, and the review of the agreement, and the approval of the agreement, clearly, is, must be public. And I can't see a court deciding of a remediation agreement in camera, I mean, of the remediation agreement itself, and appoint a monitor in camera without people knowing without, without people knowing how the charges are settled how the charges are decided or would be stayed. I mean, it's clearly it has to be done in-- in public. However, you have to, again, keep this balancing between the preservation of settlement privilege, and the process. Now, if you explain to the court, the process that was followed in camera, you are preserving the settlement discussions, you have an agreement, the agreement is presented in public for approval, all that process needs to be public so that the court, the court record will-- will contain all those representations made during that process? And again, I think your question was, why is it important? Well, it's important because even if the court is to refuse at the end of the day the approval, the only thing that will be public, is the agreement, you had reached with the prosecutor and why it's in public interest and why it should be approved, all the process in the middle or the process that led to that agreement will remain confidential as it should be. 

Charles-Antoine Péladeau 38:19
And Ailsa, to go back to the decision rendered in November of 2022, in the-- in the case of Ultra Forensic Electronics. That's essentially what the judgment is saying, Justice David is saying that, as a general practice, the hearing on the approval of a remediation agreement must take place in a public forum. However, it does not mean that some portion of the hearing cannot be subject to a sealing order, or even be in camera. So that's a-- that's confirmed also by the little jurisprudence that we have right now in Canada on this point.

Ailsa Robertson 39:00
Yeah. And just to clarify, for listeners benefit, Charles-Antoine, the case that you just referenced is the Ultra Forensic Electronic case that was heard in November by the Quebec Superior Court, and I think a -- particularly interesting comment in that decision as well, is that some aspects heard in that court approval stage could be subject to a sealing order, particularly where they may affect the right or the constitutional right of individuals to a fair trial, if those individuals are involved or named or identified in the process.

François Fontaine 39:34
Yeah, yeah. And you can have some portion of the agreement or some documents that are, you know, redacted in the-- in the court record in order to preserve a fair trial of individuals who may be charged in relation with what the company, sure - but there's a difference between having some portion redacted and a complete in camera hearing. 

Andrew McCoomb 40:01
So given everything that we've talked about and your experience looking at thinking about remediation agreements, I mean, do you think these are tools that are going to become more often used in Canada? And-- and how do you think the practice is going to evolve around using them looking-- looking into your crystal ball?

François Fontaine 40:22
My crystal ball, my crystal ball is guided by what's going on in other jurisdictions. So I think it's easy to predict, if the tool works well, and there are still some fine tuning to do. But if the tool works well, it will be certainly for public companies, it will be a very interesting and important tool to avoid conviction, to-- to show compliance, to upheld the compliance program existing, and to promote compliance, which is certainly in the interest of every public company. So yes, I-- and of course, given, although there will never be any guarantee that you will get a remediation agreement, no one will tell you, it's for sure you will get one. But given that the RCMP is, since they got the first one with SNC, is kind of advertising the remediation agreement as a tool to in order to promote self-disclosure, I think that what is requested, what they are asking us to do is - Come forward, we’ll treat you fairly, we will treat you correctly, and you will--, you will be able to continue on your journey and leave the past behind. I think this is clearly a promising tool for public companies and for boards who want to be compliant and promote compliance. 

Charles-Antoine Péladeau 41:59
It's also going to be interesting to see how the regime that is still pretty young, evolves in the coming year, for example, are we going to add some additional offenses that can be eligible to a remediation agreement? In Canada, the Canadian government announced earlier in 2022, that they were launching-- they were launching consultation to modify maybe the Competition Act. Will they consider adding offenses under the Competition Act eligible for remediation agreement. All these consideration are interesting element that will be-- that we’re going to have to look at in the future. And normally, antitrust offense are a big chunk of offenses that corporation are facing. So it's-- it's kind of odd that they're not included under the Canadian regime.

Andrew McCoomb 43:02
Okay, well with that we often end these conversations with a look forward. But oftentimes that just leads to an invitation to come back and tell us whether you were right about what you predicted in the future. And I think we'll probably have to do that sometime ahead of now but for now, thank you guys both so much. This has been extremely enlightening for us and for listeners who really appreciate it. Thanks for making time for us.

Ailsa Robertson 43:28
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