Remediation Agreements

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General Principles

Part XXII.1 describe the available system of Remediation Agreements for prosecutions against corporate persons.

This form of alternative resolution to criminal matters was introduced in December 2018 with 2018, c. 12.

Purpose

Purpose

715.31 The purpose of this Part is to establish a remediation agreement regime that is applicable to organizations alleged to have committed an offence and that has the following objectives:

(a) to denounce an organization’s wrongdoing and the harm that the wrongdoing has caused to victims or to the community;

(b) to hold the organization accountable for its wrongdoing through effective, proportionate and dissuasive penalties;

(c) to contribute to respect for the law by imposing an obligation on the organization to put in place corrective measures and promote a compliance culture;

(d) to encourage voluntary disclosure of the wrongdoing;

(e) to provide reparations for harm done to victims or to the community; and

(f) to reduce the negative consequences of the wrongdoing for persons — employees, customers, pensioners and others — who did not engage in the wrongdoing, while holding responsible those individuals who did engage in that wrongdoing.

2018, c. 12, s. 404.

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Conditions to Negotiation

Conditions for remediation agreement

715.32 (1) The prosecutor may enter into negotiations for a remediation agreement with an organization alleged to have committed an offence if the following conditions are met:

(a) the prosecutor is of the opinion that there is a reasonable prospect of conviction with respect to the offence;

(b) the prosecutor is of the opinion that the act or omission that forms the basis of the offence did not cause and was not likely to have caused serious bodily harm or death, or injury to national defence or national security, and was not committed for the benefit of, at the direction of, or in association with, a criminal organization or terrorist group;

(c) the prosecutor is of the opinion that negotiating the agreement is in the public interest and appropriate in the circumstances; and

(d) the Attorney General has consented to the negotiation of the agreement.

Factors to consider

(2) For the purposes of paragraph (1)(c), the prosecutor must consider the following factors:

(a) the circumstances in which the act or omission that forms the basis of the offence was brought to the attention of investigative authorities;

(b) the nature and gravity of the act or omission and its impact on any victim;

(c) the degree of involvement of senior officers of the organization in the act or omission;

(d) whether the organization has taken disciplinary action, including termination of employment, against any person who was involved in the act or omission;

(e) whether the organization has made reparations or taken other measures to remedy the harm caused by the act or omission and to prevent the commission of similar acts or omissions;

(f) whether the organization has identified or expressed a willingness to identify any person involved in wrongdoing related to the act or omission;

(g) whether the organization — or any of its representatives — was convicted of an offence or sanctioned by a regulatory body, or whether it entered into a previous remediation agreement or other settlement, in Canada or elsewhere, for similar acts or omissions;

(h) whether the organization — or any of its representatives — is alleged to have committed any other offences, including those not listed in the schedule to this Part; and

(i) any other factor that the prosecutor considers relevant.

Factors not to consider

(3) Despite paragraph (2)(i) [conditions for remediation agreement – misc factors], if the organization is alleged to have committed an offence under section 3 or 4 of the Corruption of Foreign Public Officials Act, the prosecutor must not 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.

2018, c. 12, s. 404.
[annotation(s) added]

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Notice to Negotiate

Notice to organization — invitation to negotiate

715.33 (1) If the prosecutor wishes to negotiate a remediation agreement, they must give the organization written notice of the offer to enter into negotiations and the notice must include

(a) a summary description of the offence to which the agreement would apply;

(b) an indication of the voluntary nature of the negotiation process;

(c) an indication of the legal effects of the agreement;

(d) an indication that, by agreeing to the terms of this notice, the organization explicitly waives the inclusion of the negotiation period and the period during which the agreement is in force in any assessment of the reasonableness of the delay between the day on which the charge is laid and the end of trial;

(e) an indication that negotiations must be carried out in good faith and that the organization must provide all information requested by the prosecutor that the organization is aware of or can obtain through reasonable efforts, including information enabling the identification of any person involved in the act or omission that forms the basis of the offence or any wrongdoing related to that act or omission;

(f) an indication of how the information disclosed by the organization during the negotiations may be used, subject to subsection (2) [admissions not admissible in evidence];

(g) a warning that knowingly making false or misleading statements or knowingly providing false or misleading information during the negotiations may lead to the recommencement of proceedings or prosecution for obstruction of justice;

(h) an indication that either party may withdraw from the negotiations by providing written notice to the other party;

(i) an indication that reasonable efforts must be made by both parties to identify any victim as soon as practicable; and

(j) a deadline to accept the offer to negotiate according to the terms of the notice.

Admissions not admissible in evidence

(2) No admission, confession or statement accepting responsibility for a given act or omission made by the organization during the negotiations is admissible in evidence against that organization in any civil or criminal proceedings related to that act or omission, except those contained in the statement of facts or admission of responsibility referred to in paragraphs 715.34(1)(a) [mandatory terms – statement of facts] and (b) [mandatory terms – admission of responsibility], if the parties reach an agreement and it is approved by the court.

2018, c. 12, s. 404.
[annotation(s) added]

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Terms of Agreement

Mandatory contents of agreement

715.34 (1) A remediation agreement must include

(a) a statement of facts related to the offence that the organization is alleged to have committed and an undertaking by the organization not to make or condone any public statement that contradicts those facts;

(b) the organization’s admission of responsibility for the act or omission that forms the basis of the offence;

(c) an indication of the obligation for the organization to provide any other information that will assist in identifying any person involved in the act or omission, or any wrongdoing related to that act or omission, that the organization becomes aware of, or can obtain through reasonable efforts, after the agreement has been entered into;

(d) an indication of the obligation for the organization to cooperate in any investigation, prosecution or other proceeding in Canada — or elsewhere if the prosecutor considers it appropriate — resulting from the act or omission, including by providing information or testimony;

(e) with respect to any property, benefit or advantage identified in the agreement that was obtained or derived directly or indirectly from the act or omission, an obligation for the organization to

(i) forfeit it to Her Majesty in right of Canada, to be disposed of in accordance with paragraph 4(1)(b.2) of the Seized Property Management Act,

(ii) forfeit it to Her Majesty in right of a province, to be disposed of as the Attorney General directs, or

(iii) otherwise deal with it, as the prosecutor directs;

(f) an indication of the obligation for the organization to pay a penalty to the Receiver General or to the treasurer of a province, as the case may be, for each offence to which the agreement applies, the amount to be paid and any other terms respecting payment;

(g) an indication of any reparations, including restitution consistent with paragraph 738(1)(a) or (b), that the organization is required to make to a victim or a statement by the prosecutor of the reasons why reparations to a victim are not appropriate in the circumstances and an indication of any measure required in lieu of reparations to a victim;

(h) an indication of the obligation for the organization to pay a victim surcharge for each offence to which the agreement applies, other than an offence under section 3 or 4 of the Corruption of Foreign Public Officials Act, the amount to be paid and any other terms respecting payment;

(i) an indication of the obligation for the organization to report to the prosecutor on the implementation of the agreement and an indication of the manner in which the report is to be made and any other terms respecting reporting;

(j) an indication of the legal effects of the agreement;

(k) an acknowledgement by the organization that the agreement has been made in good faith and that the information it has provided during the negotiation is accurate and complete and a commitment that it will continue to provide accurate and complete information while the agreement is in force;

(l) an indication of the use that can be made of information obtained as a result of the agreement, subject to subsection (2);

(m) a warning that the breach of any term of the agreement may lead to an application by the prosecutor for termination of the agreement and a recommencement of proceedings;

(n) an indication of the obligation for the organization not to deduct, for income tax purposes, the costs of any reparations or other measures referred to in paragraph (g) or any other costs incurred to fulfil the terms of the agreement;

(o) a notice of the prosecutor’s right to vary or terminate the agreement with the approval of the court; and

(p) an indication of the deadline by which the organization must meet the terms of the agreement.

Admissions not admissible in evidence

(2) No admission, confession or statement accepting responsibility for a given act or omission made by the organization as a result of the agreement is admissible in evidence against that organization in any civil or criminal proceedings related to that act or omission, except those contained in the statement of facts and admission of responsibility referred to in paragraphs (1)(a) and (b), if the agreement is approved by the court.

Optional content of agreement

(3) A remediation agreement may include, among other things,

(a) an indication of the obligation for the organization to establish, implement or enhance compliance measures to address any deficiencies in the organization’s policies, standards or procedures — including those related to internal control procedures and employee training — that may have allowed the act or omission;

(b) an indication of the obligation for the organization to reimburse the prosecutor for any costs identified in the agreement that are related to its administration and that have or will be incurred by the prosecutor; and

(c) an indication of the fact that an independent monitor has been appointed, as selected with the prosecutor’s approval, to verify and report to the prosecutor on the organization’s compliance with the obligation referred to in paragraph (a), or any other obligation in the agreement identified by the prosecutor, as well as an indication of the organization’s obligations with respect to that monitor, including the obligations to cooperate with the monitor and pay the monitor’s costs.

2018, c. 12, s. 404.

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Independent Monitor

Independent monitor — conflict of interest

715.35 A candidate for appointment as an independent monitor must notify the prosecutor in writing of any previous or ongoing relationship, in particular with the organization or any of its representatives, that may have a real or perceived impact on the candidate’s ability to provide an independent verification.

2018, c. 12, s. 404.

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Notice to Victim

Duty to inform victims

715.36 (1) After an organization has accepted the offer to negotiate according to the terms of the notice referred to in section 715.33, the prosecutor must take reasonable steps to inform any victim, or any third party that is acting on the victim’s behalf, that a remediation agreement may be entered into.

Interpretation

(2) The duty to inform any victim is to be construed and applied in a manner that is reasonable in the circumstances and not likely to interfere with the proper administration of justice, including by causing interference with prosecutorial discretion or compromising, hindering or causing excessive delay to the negotiation of an agreement or its conclusion.

Reasons

(3) If the prosecutor elects not to inform a victim or third party under subsection (1), they must provide the court, when applying for approval of the agreement, with a statement of the reasons why it was not appropriate to do so in the circumstances.

2018, c. 12, s. 404.

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Court Approval

Application for court approval

715.37 (1) When the prosecutor and the organization have agreed to the terms of a remediation agreement, the prosecutor must apply to the court in writing for an order approving the agreement.

Coming into force

(2) The coming into force of the agreement is subject to the approval of the court.

Consideration of victims

(3) To determine whether to approve the agreement, the court hearing an application must consider

(a) any reparations, statement and other measure referred to in paragraph 715.34(1)(g);

(b) any statement made by the prosecutor under subsection 715.36(3);

(c) any victim or community impact statement presented to the court; and

(d) any victim surcharge referred to in paragraph 715.34(1)(h).

Victim or community impact statement

(4) For the purpose of paragraph (3)(c), the rules provided for in sections 722 to 722.2 apply, other than subsection 722(6), with any necessary modifications and, in particular,

(a) a victim or community impact statement, or any other evidence concerning any victim, must be considered when determining whether to approve the agreement under subsection (6);

(b) the inquiry referred to in subsection 722(2) must be made at the hearing of the application; and

(c) the duty of the clerk under section 722.1 or subsection 722.2(5) is deemed to be the duty of the prosecutor to make reasonable efforts to provide a copy of the statement to the organization or counsel for the organization as soon as feasible after the prosecutor obtains it.

Victim surcharge

(5) For the purpose of paragraph 715.34(1)(h), the amount of the victim surcharge is 30% of any penalty referred to in paragraph 715.34(1)(f), or any other percentage that the prosecutor deems appropriate in the circumstances, and is payable to the treasurer of the province in which the application for approval referred to in section 715.37 is made.

Approval order

(6) The court must, by order, approve the agreement if it is satisfied that

(a) the organization is charged with an offence to which the agreement applies;

(b) the agreement is in the public interest; and

(c) the terms of the agreement are fair, reasonable and proportionate to the gravity of the offence.

Stay of proceedings

(7) As soon as practicable after the court approves the agreement, the prosecutor must direct the clerk or other proper officer of the court to make an entry on the record that the proceedings against the organization in respect of any offence to which the agreement applies are stayed by that direction and that entry must be made immediately, after which time the proceedings shall be stayed accordingly.

Other proceedings

(8) No other proceedings may be initiated against the organization for the same offence while the agreement is in force.

Limitation period

(9) The running of a limitation period in respect of any offence to which the agreement applies is suspended while the agreement is in force.

2018, c. 12, s. 404.

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Variation and Termination of Order

Variation order

715.38 On application by the prosecutor, the court must, by order, approve any modification to a remediation agreement if the court is satisfied that the agreement continues to meet the conditions set out in subsection 715.37(6). On approval, the modification is deemed to form part of the agreement.

2018, c. 12, s. 404.

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Termination order

715.39 (1) On application by the prosecutor, the court must, by order, terminate the agreement if it is satisfied that the organization has breached a term of the agreement.

Recommencement of proceedings

(2) As soon as the order is made, proceedings stayed in accordance with subsection 715.37(7) may be recommenced, without a new information or a new indictment, as the case may be, by the prosecutor giving notice of the recommencement to the clerk of the court in which the stay of the proceedings was entered.

Stay of proceedings

(3) If no notice is given within one year after the order is made under subsection (1), or before the expiry of the time within which the proceedings could have been commenced, whichever is earlier, the proceedings are deemed never to have been commenced.

2018, c. 12, s. 404.

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Order declaring successful completion

715.4 (1) On application by the prosecutor, the court must, by order, declare that the terms of the agreement were met if it is satisfied that the organization has complied with the agreement.

Stay of proceedings

(2) The order stays the proceedings against the organization for any offence to which the agreement applies, the proceedings are deemed never to have been commenced and no other proceedings may be initiated against the organization for the same offence.

2018, c. 12, s. 404.

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Deadline

715.41 (1) The prosecutor must, as soon as practicable after the deadline referred to in paragraph 715.34(1)(p), apply to the court in writing for a variation order under section 715.38, including to extend the deadline, an order terminating the agreement under section 715.39 or an order under section 715.4 declaring that its terms were met and the court may issue any of these orders as it deems appropriate.

Deeming

(2) The agreement is deemed to remain in force until a court issues an order terminating it or declaring that its terms were met.

2018, c. 12, s. 404.

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Publication

Publication

715.42 (1) Subject to subsection (2), the following must be published by the court as soon as practicable:

(a) the remediation agreement approved by the court;

(b) an order made under any of sections 715.37 to 715.41 and the reasons for that order or the reasons for the decision not to make that order; and

(c) a decision made under subsection (2) or (5) and the reasons for that decision.

Decision not to publish

(2) The court may decide not to publish the agreement or any order or reasons referred to in paragraph (1)(b), in whole or in part, if it is satisfied that the non-publication is necessary for the proper administration of justice.

Factors to be considered

(3) To decide whether the proper administration of justice requires making the decision referred to in subsection (2), the court must consider

(a) society’s interest in encouraging the reporting of offences and the participation of victims in the criminal justice process;

(b) whether it is necessary to protect the identity of any victims, any person not engaged in the wrongdoing and any person who brought the wrongdoing to the attention of investigative authorities;

(c) the prevention of any adverse effect to any ongoing investigation or prosecution;

(d) whether effective alternatives to the decision referred to in subsection (2) are available in the circumstances;

(e) the salutary and deleterious effects of making the decision referred to in subsection (2); and

(f) any other factor that the court considers relevant.

Conditions

(4) The court may make its decision subject to any conditions that it considers appropriate, including a condition related to the duration of non-publication.

Review of decision

(5) On application by any person, the court must review the decision made under subsection (2) to determine whether the non-publication continues to be necessary for the proper administration of justice. If the court is satisfied that the non-publication is no longer necessary, it must publish the agreement, order or reasons, as the case may be, in whole or in part, as soon as practicable.

2018, c. 12, s. 404, c. 27, s. 686.

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Regulations

Regulations

715.43 (1) On the recommendation of the Minister of Justice, the Governor in Council may make regulations generally for the purposes of carrying out this Part, including regulations respecting

(a) the form of the remediation agreement; and

(b) the verification of compliance by an independent monitor, including

(i) the qualifications for monitors,

(ii) the process to select a monitor,

(iii) the form and content of a conflict of interest notification, and

(iv) reporting requirements.

Amendment of schedule

(2) On the recommendation of the Minister of Justice, the Governor in Council may, by order, amend the schedule by adding or deleting any offence to which a remediation agreement may apply.

Deleting offence

(3) If the Governor in Council orders the deletion of an offence from the schedule to this Part, this Part continues to apply to an organization alleged to have committed that offence if a notice referred to in section 715.33 respecting that offence was sent to the organization before the day on which the order comes into force.

2018, c. 12, s. 404.

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Misc Terminology

Definitions

715.3 (1) The following definitions apply in this Part.
court means a superior court of criminal jurisdiction but does not include a court of appeal. (tribunal)
offence means any offence listed in the schedule to this Part. (infraction)
organization has the same meaning as in section 2 but does not include a public body, trade union or municipality. (organisation)
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. (accord de réparation)
victim has the same meaning as in section 2 but, with respect to an offence under section 3 or 4 of the Corruption of Foreign Public Officials Act, it includes any person outside Canada. (victime)

Acting on victim’s behalf

(2) For the purposes of this Part, a third party not referred to in section 2.2 may also act on a victim’s behalf when authorized to do so by the court, if the victim requests it or the prosecutor deems it appropriate.

2018, c. 12, s. 404.

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Applicable Offences

The Schedule to Part XXII.1 of the Criminal Code lists the applicable offences:

SCHEDULE TO PART XXII.1

(Section 715.3 and subsections 715.32(2) and 715.43(2) and (3))

Offences in respect of which a remediation agreement may be entered into

1 An offence under any of the following provisions of this Act:

(a) section 119 or 120 (bribery of officers);

(b) section 121 (frauds on the government);

(c) section 123 (municipal corruption);

(d) section 124 (selling or purchasing office);

(e) section 125 (influencing or negotiating appointments or dealing in offices);

(f) subsection 139(3) (obstructing justice);

(g) section 322 (theft);

(h) section 330 (theft by person required to account);

(i) section 332 (misappropriation of money held under direction);

(j) section 340 (destroying documents of title);

(k) section 341 (fraudulent concealment);

(l) section 354 (property obtained by crime);

(m) section 362 (false pretence or false statement);

(n) section 363 (obtaining execution of valuable security by fraud);

(o) section 366 (forgery);

(p) section 368 (use, trafficking or possession of forged document);

(q) section 375 (obtaining by instrument based on forged document);

(r) section 378 (offences in relation to registers);

(s) section 380 (fraud);

(t) section 382 (fraudulent manipulation of stock exchange transactions);

(u) section 382.1 (prohibited insider trading);

(v) section 383 (gaming in stocks or merchandise);

(w) section 389 (fraudulent disposal of goods on which money advanced);

(x) section 390 (fraudulent receipts under Bank Act);

(y) section 392 (disposal of property to defraud creditors);

(z) section 397 (books and documents);

(z.1) section 400 (false prospectus);

(z.2) section 418 (selling defective stores to Her Majesty); and

(z.3) section 426 (secret commissions).

(z.4) section 462.31 (laundering proceeds of crime).

2 An offence under any of the following provisions of the Corruption of Foreign Public Officials Act:

a) section 3 (bribing a foreign public official); and

b) section 4 (maintenance or destruction of books and records to facilitate or hide the bribing of a foreign public official).

3 A conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in section 1 or 2.

2018, c. 12, s. 405.

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See Also

• Deferred prosecution agreements (wikipedia)