3.21 Remediation Agreements

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

January 23, 2020

Table of Contents

1. Introduction

Part XXII.1 of the Criminal Code (Code) provides a regime under which the Attorney General (AG) may approve the negotiation of a Remediation Agreement (RA) between a prosecutor and an organization accused of a scheduled offence. Under an RA, the accused would agree to take specified actions in return for the charges against the accused organization being stayed.

Known more widely as "Deferred Prosecution Agreements" in other jurisdictions, agreements of this nature are used in appropriate cases as an alternative to prosecution and serve as a means to hold organizations accountable while putting in place measures to mitigate the risk of future offences and harm to third parties, such as employees, victims and investors.

This guideline outlines the criteria applied by the Director of Public Prosecutions (DPP) in his or her capacity as Deputy Attorney General of Canada when determining whether to consent to the negotiation of an agreement pursuant to section 715.32(1)(d) of the Code. It also describes the procedure for Crown counsel and agents to follow when making a recommendation for an RA as well as the process for the negotiation of an agreement.

2. Statement of Policy

Before an RA can be considered, the threshold of reasonable prospect of conviction must be met. An RA is an alternative to a traditional prosecution but should only be applied in cases where a prosecution is viable. Once the threshold test is met and where Crown counsel recommend that an invitation to negotiate an RA should be made, the discretion vested in the Attorney General under section 715.32 of the Code will be exercised only in circumstances where it is in the public interest to issue an invitation to negotiate an RA rather than proceeding with a traditional prosecution.

Factors that must be considered in determining the public interest are set out in subsection 715.32(2) of the Code:

  1. the circumstances in which the act or omission that forms the basis of the offence was brought to the attention of investigative authorities;
  2. the nature and gravity of the act or omission and its impact on any victim;
  3. the degree of involvement of senior officers of the organization in the act or omission;
  4. whether the organization has taken disciplinary action, including termination of employment, against any person who was involved in the act or omission;
  5. 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;
  6. whether the organization has identified or expressed a willingness to identify any person involved in wrongdoing related to the act or omission;
  7. 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;
  8. 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
  9. any other factor that the Crown counsel considers relevant.

While all of the listed factors must be considered, the weight given to each will be case specific. Note that if the organization is accused of an offence pursuant to the Corruption of Foreign Public Officials Act, consideration must not be given to the national economic interest, the potential effect on relations with a foreign state or the identity of the organization or any individual involved.

3. Procedure

As set out in subsection 715.32(1) of the Code, an RA may only be considered in relation to a listed offence where there is a reasonable prospect of conviction. In order to evaluate whether this threshold has been met, a full law enforcement investigation must be undertaken. The RA regime does not alter the manner in which criminal offences are to be investigated. Internal or private investigations by the organization are not a substitute for the independent determination of law enforcement whether to conduct an investigation and their assessment of the results of any investigation of the offence even when it results from a voluntary disclosure.

There are a number of circumstances in which Crown counsel may be asked about the likelihood of negotiating an RA. These include:

In all cases, Crown counsel should refrain from offering any view on the likelihood of an invitation to negotiate an RA being issued. In situations involving potential disclosure of offences, Crown counsel shall refer organizations or their counsel to the appropriate law enforcement agency. In all cases, Crown counsel must avoid any comment on an invitation to negotiate an RA being issued until such time as a final decision is made pursuant to the procedure set out in this guideline.

3.1. Regional Offices

Once an investigation has been conducted by law enforcement and once Crown counsel is satisfied that there is a reasonable prospect of conviction involving a scheduled offence and an organization as an accused, Crown counsel shall consider the possible application of the RA regime pursuant to this guideline.

3.1.1. Seeking AG Consent

Following a review of the investigation and having concluded that there is a reasonable prospect of conviction, if Crown counsel is of the view that an invitation to negotiate an RA should be considered, Crown counsel shall recommend to the Chief Federal Prosecutor (CFP) that consent of the AG should be sought.

If the CFP is also of the view that the negotiation of a remediation agreement is in the public interest, he or she shall advise the appropriate Deputy Director of Public Prosecutions (Deputy DPP) of the intention to seek the approval of the Attorney General to issue an invitation to negotiate a remediation agreement and provide a legal memorandum containing a concise description and analysis of the available evidence, demonstrating how that evidence results in a reasonable prospect of conviction with respect to the accused on each count, and addressing how the public interest is met by negotiating a remediation agreement rather than conducting a prosecution.

The memorandum should explain the reasons for requesting the RA with direct reference to the considerations set out in the Code and should include a reasoned and objective assessment of the factors weighing both for and against pursuing an agreement.

3.1.2. Where AG Consent is not Sought

Following a review of the investigation and having concluded that there is a reasonable prospect of conviction, if Crown counsel is of the view that an invitation to negotiate an RA is not appropriate, Crown counsel shall notify the CFP in writing, who will in turn notify the Deputy DPP by providing a basic overview of the case and the reasons why an RA is not recommended.

3.2. Headquarters

If the CFP recommends that the negotiation of an RA is appropriate, the Deputy DPP conducts an objective assessment of the request to determine whether the negotiation of an RA will be recommended. In this role, the Deputy DPP exercises a challenge function.

If the Deputy DPP agrees that an invitation to negotiate an RA should be issued, the recommendation will be forwarded to the DPP who, on behalf of the AG, will make a final decision on whether to consent to the issuance of an invitation to negotiate an RA.

If the Deputy DPP concludes that an RA is not appropriate in the circumstances, the Deputy DPP will advise the CFP that no recommendation will be made to the DPP.

Where approval to initiate the negotiation of an RA is given, the procedure set out in the section below is to be followed. Where approval to negotiate an RA is denied the prosecution will proceed in the normal manner pursuant to applicable guidelines and directives.

4. Conduct and Implementation of Negotiations

Where the approval of the DPP is given, the negotiation of the RA shall be conducted by Crown counsel designated by the DPP for this purpose (designated counsel).

Designated counsel shall review the file and issue a written invitation to negotiate to the accused organization pursuant to section 715.33 of the Code. Negotiations with the accused organization shall be conducted by designated counsel in the role of "prosecutor" as set out in Part XXII.1 of the Code.

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