Remediation Agreements

Issue

On 19 September, 2018, Part XXII.1 of the Criminal Code came into force creating a new regime called “remediation agreements”, also known as deferred prosecution agreements, which will suspend the prosecution of a corporation for certain listed economic crimes in order to implement the terms of the agreement.

Considerations

The remediation agreements regime allows the prosecutor, with the consent of the Attorney General (the DPP) and under certain conditions, including whether it is in the public interest, to invite the corporation to negotiate a remediation agreement that will ultimately be approved by the court. The aim of the regime is to foster early self-disclosure by corporations and requires admission of wrongdoing and cooperation with the authorities to bring individuals to justice, as well as to pay penalties and restitution to victims, all the while avoiding the negative impact that a prosecution and conviction of the corporation might have on innocent stakeholders, such as loss of employment for example. Another important feature of these agreements, where appropriate, is the independent monitoring of the corporation to satisfy the prosecutor and the court that measures are put in place to prevent the corporation from re-offending. If no agreement is reached or the court finds that the corporation has breached a term of the agreement, the prosecution is recommenced.

PPSC prosecutors examine the appropriateness of a remediation agreement for corporations charged with listed offences (mostly corruption and fraud) and make a recommendation to the DPP when satisfied that the statutory conditions are met for sending an invitation to negotiate. [ Redacted   

 

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To date, no remediation agreement has been entered by the PPSC, but it is in the process of incorporating guidelines to the PPSC Deskbook for the administration of the remediation agreement regime. It is also deploying efforts to educate stakeholders on the features of the regime to incentivize interest and early self-disclosure of offences, which may otherwise go undetected.

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