The RA guideline also states that the discretion to negotiate an RSe is exercised only when it is in the public interest to do so and not through criminal prosecution. In 2018, Prime Minister Justin Trudeau`s government introduced legislation to provide for deferred policing agreements in Canada as part of the omnibus Budget Implementation Act, 2018, No. 1. The new provisions would be introduced into the penal code as Part XXII.1. The government stated that the provisions would be an improvement on the existing federal integrity system. The aim of the legislation would be to provide prosecutors with additional tools to deal with allegations of economic crime. The Parliament of Canada passed Part XXII.1 in June 2018. Combined with the implementation of THE ARs, the Canadian government is committed to changing and improving the integrity regime that governs federal real estate contracts and agreements. While the final form of these changes is not currently known, the Government of Canada has indicated that changes related to the blocking of the integrity regime in relation to the RAs will be made to ensure that businesses are encouraged to report themselves. In addition, the current integrity regime provides for a mandatory freeze, but the proposed amendments should remove this requirement for formal notice for some SARs. The context also pointed out that only certain types of organizations could be eligible for a deferred policing agreement. Governments, unions and municipalities would not be eligible.
Similarly, crimes would not be committed by criminal or terrorist organizations or on the instruction of criminal organizations. In addition, only certain types of economic crime could be considered for future prosecutions, such as fraud or corruption. Offences resulting in death or serious injury or harm to national defence or national security would not be eligible.  Offences that may enforce a deferred prosecution agreement are expressly listed in a calendar of the penal code.  Currently, the redress agreement consists only of the legislation of a new section of the penal code. Unlike other comparison mechanisms in Canada, including the immunity and leniency program for competition-related offences or the U.K. Deferred Enforcement Agreement that inspired Canada, no accompanying policy or policy has been adopted to assist prosecutors and accused companies through the fundamental process described in the legislation. About a year ago, the SNC-Lavalin controversy led Canadians to a new type of criminal complaint resolution – the reparation agreement. As we have already seen, there are aspects of the Canadian RA regime that could be problematic for a company, depending on the position of the prosecutor in a particular case. In particular, the penal code requires that an RA include a reference to the company`s obligation to participate in investigations, prosecutions or other proceedings in Canada or elsewhere, if the prosecutor deems it appropriate. The ability of a Canadian prosecutor to insist that a company cooperate with foreign authorities could discourage self-reporting or destabilize RA negotiations, depending on the circumstances. Canadian organizations and prosecutors are still waiting to see how Canada`s deferred repressive regime will unfold (see our July 2018 bulletin for an overview of the legislation).
Although Canada has not yet reached an agreement on adjourned prosecutions (“DP”), we compared in previous bulletins the French and Canadian approaches of data protection authorities (September 2019 bulletin) and highlighted the relative lack of guidelines from Canadian authorities regarding the Canadian regime (February 2020 Bulletin). We also discussed Canada`s legal prohibition on examining the “national economic interest” in foreign corruption offences (June 2019 newsletter) and highlighted an inherent tension that ultimately highlights the success of Canada`s CCA regime.