After public consultations and largely at the urging of the corporate sector, the federal government introduced an ODA regime – referred to in the act as “remediation agreements” – through amendments to the Canadian Criminal Code. The changes were generally consistent with the results of the consultation process, including the emphasis on the importance of rigorous compliance programs to mitigate the risk of criminal convictions for organizations and the requirement that DSAs be in the public interest, as determined by a judge. The NPA has a three-year term, which can be extended up to one year if D.Vt. determines that Schneider Electric has breached the agreement.  The MPA provides for the criminal forfeiture of $1,630,700.  In addition, a separate civil settlement agreement with the Civil Division of the DOJ and D. Vt. (on behalf of the Department of the Navy, Department of Homeland Security, General Services Administration, Department of Agriculture, and Department of Veterans Affairs), Schneider Electric agreed to pay a civil fine of $9,369,000, including $4,625,546.44 (nearly half) in repayment and interest.  Schneider Electric is required to report to the government on the annual compliance reviews conducted during the three-year agreement.  Deferred Prosecution Agreements (DSAs) were introduced under Canadian law in September 2018 as part of a broader effort by the federal government to improve its tools to combat corruption and other white-collar crimes. DPAs are voluntary agreements negotiated between a defendant and the Crown to address corporate misconduct as an alternative to lengthy and costly lawsuits. The effect of a DPA is to suspend the ongoing investigation or prosecution in exchange for certain obligations that the company must fulfill to drop the charges.
Data protection authorities often require full cooperation with the competent law enforcement authority and an admission of guilt, fines and governance reform. Reorganization agreements will only be available for a mandatory list of offenses and will include, for example, white-collar crimes such as corruption, fraud, theft, counterfeiting and money laundering, as well as certain offenses under the Corruption of Foreign Public Officials Act. Interestingly, competition-related offences, such as those that apply under the Competition Act, are not currently covered as prescribed offences and would therefore not be subject to reorganization agreements. Essentra FZE also entered into a settlement agreement with the Treasury Department`s Office of Foreign Assets Control (“OFAC”) in connection with these violations and was fined $665,112.  OFAC credited Essentra FZE`s DOJ penalty, so its obligation to pay OFAC was considered fulfilled.  In 2018, Prime Minister Justin Trudeau`s government introduced legislation under the Budget No. 1 Omnibus Implementation Act, 2018, which provides for deferred prosecution agreements in Canada. The new provisions would be incorporated into the Criminal Code as Part XXII.1. The government has stated that the provisions would represent an improvement over the current federal integrity regime. The purpose of the law would be to provide prosecutors with additional tools to deal with allegations of economic crime.
The Canadian Parliament passed Part XXII.1 in June 2018. The backgrounder also noted that only certain types of organizations could be eligible for a deferred prosecution agreement. Government agencies, unions and municipalities would not be eligible to participate. Nor crimes committed by or against the leadership of criminal or terrorist organizations. In addition, only certain types of white-collar crimes could be subject to deferred prosecution, such as fraud or corruption. Corruption Act.  ASL, as described in the agreement, hired an agent to obtain orders from airlines, who was also appointed by Deutsche Lufthansa AG as project manager for the evaluation of the bids received. Between 2011 and 2013, the agent assisted ASL in submitting three successful bids to Lufthansa by sharing CONFIDENTIAL information about the tendering process with ASL. ASL itself reported the conduct to the FSO in July 2015, but the FSO did not announce its investigation until the ODA was concluded in October 2020.  The introduction of reorganization agreements in Canada is an important step in the fight against corporate crime. However, current Canadian legislation is not without its problems.
The wording of the law is sometimes unclear, which can lead to confusion and hesitation among companies that might otherwise participate in the negotiations. For example, given that competition-related infringements have been excluded from the scheme, it is not certain that undertakings negotiating reorganisation agreements for certain infringements can still be charged with a competition infringement for the same conduct. If this is the case, it can significantly reduce the incentive for organizations to come forward. Ultimately, only time will tell whether Canada`s current approach to combating corporate crime will be successful or whether changes to the remediation agreement will be necessary in the future. Non-prosecuted measures have also been used to address non-compliance with the terms of an ODA. In the United States, data protection authorities have been expanded to give companies a second (and in one case, a third) chance to comply. United Kingdom law provides for a procedure under which the Public Prosecutor`s Office may request a judicial decision on the existence of non-compliance. In the event of non-compliance, the court will ask the parties to propose a change to the terms of the DPA or terminate the agreement.
The termination of the contract triggers the resumption of proceedings. The parties can negotiate a deviation on their own initiative and then obtain judicial approval of the new terms. In the coming year, we can also expect Congress to become more involved in monitoring the DOJ`s use of NPAs and DPAs, at least in some areas of corporate law enforcement. .