what punitive measures are available to the attorney general under canada's dpa regime

What are punitive damages in Canada?

Punitive or exemplary damages are generally only available in Canada where there is proof of malicious conduct on the part of the defendant. Canadian courts are generally careful in exercising their discretion to award these damages, which are an exception to the time-honored principle that civil damages seek to compensate the victim.

What are the requirements of a DPAs?

DPAs often require full co-operation with the relevant law enforcement authority and an admission of guilt, fines and governance reform.

What are the proposed changes to sentencing in Canada?

These proposed changes would reform sentencing measures for certain offences, including by repealing some of the mandatory minimum penalties of imprisonment (MMPs) that contribute to higher rates of imprisonment and disproportionately affect Indigenous peoples and Black Canadians.

Does Canada have a DPA?

And although Canada has yet to offer a DPA (officially), corporate litigators say they should be used more.

What is DPA legal?

A deferred prosecution agreement, or “DPA,” is a mechanism for resolving a case against a company that is, essentially, an unofficial form of probation. Although usually used to resolve a criminal case, civil enforcement agencies like the SEC have begun to use them as well.

What are the key components of a DPA?

Elements of a DPA Generally speaking, a DPA should include the scope and purpose of data processing, what data will be processed, how it will be protected, and the controller-processor relationship. GDPR data processing agreements must be particularly detailed.

When a company enters into a DPA which terms must it accept?

In the application, the prosecutor asks the Court for a declaration that (1) entering into a DPA with the Company is likely to be in the interests of justice, and (2) the proposed terms of the DPA are fair, reasonable and proportionate.

What is the purpose of a DPA?

A DPA or commissioned data processing clause is a legally binding document signed between the controller and the processor. It regulates the particularities of data processing, such as: The scope and purpose of the processing. The relationship between these actors.

Why is DPA needed?

The main purpose of a Data Processing Addendum (DPA) is to protect the user's data in compliance with the GDPR or any other Privacy Laws. For example, you have a business that operates through a website and collects the information of the visitors visiting your website.

Do I need a DPA?

Generally, you need a DPA whenever you rely on the qualifications and resources of third-party expertise to carry out your data processing. For comprehensive protection, the GDPR clearly defines the mandatory information for any DPA. Numerous aspects have to be covered.

What is a DPA DOJ?

A contractual arrangement between a US government agency (such as the Department of Justice (DOJ) or the Securities and Exchange Commission (SEC)) and a company or an individual facing a criminal or civil investigation.

What is the punishment for an MMP?

Under the current Criminal Code, an offence punishable by an MMP requires that the judge impose a sentence equal to or greater than the minimum term for that offence. This is true even in cases where the court finds that imprisonment is not appropriate under the facts of the case.

What is the government of Canada committed to?

The Government of Canada is committed to ensuring the criminal justice system keeps all Canadians, their families, and communities safe.

Why should MMPs be repealed?

Repeal MMPs for certain offences to address the disproportionate impact on Indigenous and Black offenders, as well as those struggling with substance use and addiction. This would restore the ability of a judge to impose appropriate sentences that respond to the facts of the case before them, including the individual’s experience with systemic racism and the risk they pose to public safety. This moves away from the one-size-fits-all approach, which has not deterred crime but has resulted in unfair outcomes and a less effective criminal justice system, as well as longer and more complex trials.

What are the Gladue Principles?

Gladue Principles oblige judges to take into account the background, intergenerational effects of colonialism, such as residential schools, and other systemic factors at sentencing. Gladue reports are prepared by court caseworkers to inform alternatives to imprisonment, which can include Indigenous-based alternatives.

Is it unacceptable that Indigenous peoples, Black Canadians, and underserved communities continue to be overrepresented?

It is unacceptable that Indigenous Peoples, Black Canadians, and underserved communities continue to be overrepresented as offenders and victims in the criminal justice system. The steps announced today will ensure a fairer justice system.

What is the DPA in Canada?

On March 27, 2018, PSPC issued a media release to announce an enhancement of the "government-wide Integrity Regime", which it described as a "made-in-Canada version of a deferred prosecution agreement (DPA) regime, to be known as a Remediation Agreement Regime". It also announced that amendments to the Criminal Code would be introduced ...

Which countries have DPA?

"The United States (US) and United Kingdom (UK) have DPA regimes in place. In November 2016, France adopted a DPA-like mechanism to resolve anti-corruption investigations. The Australian Ministry of Justice released a public discussion paper on DPAs in 2016 and, in May 2017, completed consultations on a draft law."

What is the new deferred prosecution law in Canada?

In 2018, the government of Prime Minister Justin Trudeau introduced legislation to provide for deferred prosecution agreements in Canada, as part of the omnibus Budget Implementation Act , 2018, No. 1. The new provisions would be added to the Criminal Code as Part XXII.1. The government explained that the provisions would be an enhancement ...

What is deferred prosecution?

PSPC described the potential deferred prosecution legislation as a means of ensuring "corporate criminal conduct is subject to effective, proportionate and dissuasive penalties" while mitigating "unintended consequences associated with a criminal conviction for blameless employees, customers, pensioners, suppliers and investors". PSPC also recognized that in some cases, a criminal conviction could lead to "job losses and wider negative implications to the economy." During the public consultation period, the government received 75 written submissions. PSPC also conducted meetings with approximately 350 interested parties and groups, such as industry associations, businesses, justice sector stakeholders (including law enforcement), non-governmental organizations, and academics.

Why is it important to publish the general terms of a deferred prosecution agreement?

Participants considered that publication of the general terms of a deferred prosecution agreement would be important for purposes of public transparency. The majority of the participants favoured the British model, with a strong supervisory role by the courts to ensure that a proposed agreement is in the public interest and that the terms of a particular agreement are "fair, reasonable, and proportionate".

What are the provisions of deferred prosecution agreements?

According to the Law Times, the provisions for deferred prosecution agreements change the way Canadian prosecutors can prosecute white-collar crime, by including a remediation system whereby offenders can avoid conviction if "they co-operate with the Crown and the courts". The Law Times cited Ottawa-based counsel Patrick McCann, who said that the deferred prosecution provisions would "bring Canada in line with many other countries that have deferred prosecution agreements, including the U.S., the U.K. and most other European countries". According to McCann, a deferred prosecution agreement "addresses the unfairness of the situation when you have a large company that has a rogue senior officer" who has committed a crime with the entire company getting blamed. McCann said that deferred prosecution agreements are fair to investors in companies who are innocent of any wrongdoing.

What is the integrity regime?

In 2015, the Public Services and Procurement Canada (PSPC) department of the government of Canada introduced the Integrity Regime, to "ensure the government does business only with ethical suppliers in Canada and abroad". Under the Integrity Regime, PSPC reviews cases of alleged corrupt business practices, to determine "whether a supplier is ineligible to do business with the government", usually in relation to "procurement and real property transactions over $10,000".

Why are punitive damages not covered by insurance?

Some states prohibit insurance of punitive damages on the grounds that spreading the risk of punishment for willful misconduct lessens the deterrent effect. Some policies specifically exclude coverage for punitive damages, while others rely on state laws. Punitive or exemplary damages are generally only available in Canada where there is proof ...

What is punitive damages?

Punitive damages. Damages awarded in a civil lawsuit in order to punish wrongdoing of a greater culpability than simple negligence, without regard to compensating the plaintiff’s actual loss. Punitive damages are intended as a deterrence. Some states prohibit insurance of punitive damages on the grounds that spreading the risk ...

What is a pecuniary insurance policy?

ordinarily be covered by a policy wording covering liability to pay compensation. Compensatory damages. Money awarded in a civil lawsuit to make an injured person whole, including recompense for damaged property, lost wages or profits, pain, bereavement, medical expenses, etc.; pecuniary. compensation for a person’s out-of-pocket losses ...

Is punitive damages available in Quebec?

Historically, punitive damages were not available in Quebec civil law but are now provided for in certain legislation. Aggravated damages, as distinguished from punitive. A court may order an amount, in addition to the regular damages, because the plaintiff’s feelings were hurt due to the defendant’s behavior.

What is a DPA in Canada?

Deferred prosecution agreements (DPAs) were introduced under Canadian law in September 2018 as part of a broader effort by the federal government to enhance its toolkit in the fight against corruption and other white-collar crime. DPAs are voluntary agreements that are negotiated between an accused and the Crown to resolve corporate wrongdoing as an alternative to long and costly prosecutions. The effect of a DPA is that the outstanding investigation or prosecution is suspended, in exchange for certain undertakings that the corporation must fulfil in order to have the charges dropped. DPAs often require full co-operation with the relevant law enforcement authority and an admission of guilt, fines and governance reform.

What are the factors that determine a DPA?

Factors for consideration: In determining whether a DPA is in the public interest, the prosecutor must consider several factors, including: (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; and (i) any other factor that the prosecutor considers relevant.

Why are DPAs important?

Most commentators and practitioners agree that DPAs and related arrangements are useful tools to meaningfully advance enforcement efforts and remediation in the face of “white-collar” wrongdoing allegations. Together with enhanced whistleblower protections, its long-sought introduction into the Canadian enforcement regime was considered a “game changer.”

What are the goals of the DPA?

The stated goals of the DPA regime include: (a) to denounce an organization’s wrongdoing and the harm caused by it ; (b) to hold the organization accountable for its wrongdoing; (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 to victims or the community; and (f) to reduce the negative consequences of the wrongdoing for innocent third parties  (e.g., employees, customers, pensioners and others), while holding responsible those individuals who did engage in the wrongdoing.

What is a mandatory content agreement?

Mandatory contents of agreement: A DPA must comply with the mandatory content requirements in the Criminal Code, including a statement of facts related to the offence and admission of responsibility for the offence. A DPA is subject to court approval.

What are the conditions for a DPA?

Conditions for DPAs: There are several conditions for the prosecutor to meet before entering into negotiations for a DPA, including that the offence does not relate to bodily harm or relate to a criminal organization, that negotiating the agreement is in the public interest and appropriate in the circumstances, and that the attorney general has consented to the negotiation of the agreement.

Is Canada a white collar country?

Although Canada has not been seen as an aggressive pursuer of white-collar criminal convictions, it is coming under increasing domestic and international pressure to enhance its enforcement efforts. This is especially the case in the context of offences relating to bribery, corruption, anti-money laundering and sanctions restrictions which often have international dimensions. Directors, officers, compliance and legal personnel in all organizations should carefully assess their compliance programs, or put in place compliance programs if none exist, to ensure that they have taken all reasonable steps to reduce the risk of legal violations and criminal convictions. The recent DPA regime underscores the importance for organizations to have such compliance programs.

Overview

Deferred prosecutions in other countries

Development of Canadian legislation

Enactment of legislation

Outline of the legislation

Reactions to the new provisions

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