Canada: Government Of Canada Consults On Tools To Address Corporate Wrongdoing

Possible Adoption of Deferred Prosecution Agreements and Expansion of Integrity Regime

Many jurisdictions around the world have implemented frameworks to deter and address the consequences of criminal and quasi-criminal business practices by corporations. In an effort to ensure that Canada has the right tools to address corporate crimes, on September 25, 2017, the Canadian government launched a public consultation on the potential adoption of a deferred prosecution agreement (DPA) regime (DPA Regime) and possible modifications to the Canadian integrity regime (Integrity Regime) which can disqualify businesses from federal government contracts. The consultation period ends on November 17, 2017.

The government has prepared discussion materials for each of the DPA Regime and Integrity Regime. These discussion papers provide background on the regimes, outline the use of these enforcement tools in other jurisdictions and highlight key questions and considerations.

DPA Regime

A DPA is a voluntary agreement between an accused corporation and the responsible prosecution authority. A DPA suspends criminal prosecution of the corporation for a defined period of time. Under a DPA, the prosecution agrees to grant the corporation amnesty in exchange for the corporation's agreement to adhere to certain terms and conditions, the fulfilment of which will result in charges being withdrawn (and no criminal conviction) upon expiry of the DPA. Some of the more common requirements of a DPA are an admission of guilt, payment of financial penalties and/or reparation, reform of corporate policies and practices, and full cooperation with the government's investigation. If the corporation does not comply with the terms of the DPA, the charges may be reinstated and the corporation may be prosecuted and ultimately convicted.

A DPA regime aims not only to sanction criminal conduct and deter wrongdoing, but also to incentivize corporations to self-disclose wrongdoing and to encourage remediation and compliance. Given that investigations of corporate crimes often require significant time and resources, DPAs provide an alternative to address such conduct in an efficient and timely manner. DPAs may also help mitigate unintended consequences for innocent parties, such as blameless employees, customers, suppliers, investors and other stakeholders. In addition, DPAs can avoid disqualification in jurisdictions that prohibit corporate entities and their affiliates from participating in public procurement processes if they have been convicted of, or in some cases even charged with, certain types of offences.

Guided in part by the differences in the use of DPAs in various jurisdictions, the federal government's consultation materials include both high-level questions relating to the merits of a DPA Regime in Canada and more detailed questions, such as the factors that should be considered in offering DPAs to companies, how to address non-compliance with DPAs and whether DPAs should be publicly available. Some of the more important issues on which the government is seeking comment are the following:

  • For which offences should DPAs be available? In the United States, DPAs are generally available for all federal crimes, whereas in the United Kingdom, DPAs are limited to specific economic crimes. The discussion paper references certain fraud, bribery and money laundering offences, but a broader range of offences under the Competition Act and certain tax statutes, for example, can provide grounds for debarment under the Canadian Integrity Regime.
  • What role should courts play with respect to DPAs? Although increased involvement by the courts in a DPA regime may enhance transparency and public confidence, it may also introduce uncertainty about whether a DPA will be approved. The U.S. DPA regime provides a limited role for courts (e.g., DPAs only have to be registered with, but not approved by, courts), whereas the U.K. regime requires court approval of DPAs.
  • What terms should be included in a DPA? As noted above, although certain terms are common to DPAs, others terms may need to be customized on a case-by-case basis. Further, the legal effect and consequences of DPAs will need to be clarified, including the use that can be made of a DPA in other proceedings.
  • Under what circumstances should victim compensation be included as a term of a DPA? In some jurisdictions, DPAs may require that the corporation compensate victims of the conduct or donate money to a charity or third party. The discussion paper invites comment on whether or under what circumstances DPAs in Canada should require victim compensation. This type of mechanism already exists in Canada in the context of conditional discharges under the Criminal Code for certain minor offences.

Read the full text of the DPA Regime discussion paper.

Integrity Regime

The Canadian Integrity Regime governs the qualification of suppliers to enter into procurement contracts and real property transactions with Public Services and Procurement Canada and a number of other federal departments and agencies. The Integrity Regime has been in place for just over five years and has already undergone several amendments since its inception in July 2012 (see our discussions of the April 2016 revisions to the Integrity Regime).

In its discussion paper, the government seeks comment on a number of possible enhancements and modifications to the Integrity Regime:

  • Should the duration of ineligibility and/or suspension be modified? Over the past few years, numerous stakeholders have criticized the non-discretionary 10-year ineligibility period for suppliers convicted of certain offences as punitive, disproportional and inconsistent with international best practices. The government therefore seeks input on whether the debarment periods should be reduced or made discretionary, depending on the circumstances of the offence.
  • Should additional offences be included in the Integrity Regime? Another possible change relates to the expansion of the regime to capture additional types of offences such as provincial offences, civil offences in foreign jurisdictions, and labour rights or environmental violations. Some jurisdictions consider certain conduct to be of a civil nature and, accordingly, offenders are not criminally punished. For example, in some European countries, bid-rigging can be treated as a civil offence (even though a supplier could be criminally punished in Canada for such conduct). The government is also considering extending the application of the Integrity Regime to include offences relating to social issues such as environmental infractions and labour rights violations. The prospect of extending the Integrity Regime to include such a broader range of additional offences raises significant issues, particularly if the mandatory debarment period is not simultaneously modified.
  • At what point should the government consider suspending a corporation for alleged wrongdoing? Perhaps most significant, however, is the government's consideration of debarring suppliers before, or in the absence of, either formal charges or a conviction. To support this suggestion, the government cites practices in other jurisdictions, but such an approach would seem to ignore the rules of natural justice and could be subject to constitutional challenges in Canada. For example, a supplier under criminal investigation has the constitutional right to refuse to provide assistance to investigators and prosecutors. Particularly where a corporation is highly dependent on government contracts, it may have to abandon such rights if – in order to attempt to avoid debarment – the corporation is forced to answer criminal allegations before the prosecution has made its case in a criminal court.

Read the full text of the Integrity Regime discussion paper.


It is apparent from the consultation documents that the potential adoption of a DPA Regime and possible modifications to the Integrity Regime are intertwined. More specifically, broader scope and limited flexibility in the Integrity Regime could lead to significantly greater self-disclosure of corporate wrongdoing with a view to entering into DPAs to avoid debarment. However, the consultation materials are unclear on whether entering into a DPA would necessarily save a corporation from debarment.

Interested stakeholders have an opportunity until November 17, 2017 to provide comments and seek to influence new or revised policies on DPAs and the Integrity Regime.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions