IV. Critical Review of the Canadian Remediation Regime

A. Main Criticism of the agreements

Despite their recognized benefits in the fight against economic crime, remediation agreements nevertheless attract significant criticism.

One of the most frequent criticisms levelled at these mechanisms is that they allow corporations to buy their way out of the criminal justice system.⁹ These agreements thus offer corporations a way to circumvent the rules that apply to ordinary defendants accused of offences that are not white-collar crimes – as if some crimes were perceived as less serious than others. A major concern is the risk of making too concrete the maxim “too big to fail” or “too big to prosecute”.¹⁰

Similarly, some criticize these mechanisms for imposing financial penalties that will never be high enough to force corporations to change their culture. According to these critics, only the threat of imprisonment, directly targeting the executives and directors responsible, can truly have the desired deterrent effect.¹¹

Furthermore, in some jurisdictions, entering into such agreements appears to reduce the likelihood that criminal charges will be brought against the individuals responsible, such as executives, directors or employees. These agreements could therefore allow the real decision-makers to get away scot-free. The aforementioned HSBC case is a good illustration of this.¹² The Canadian system, however, does not currently suffer from this apparent flaw, because the individuals involved in the SNC-Lavalin and UEFTI cases have also been charged and some have been convicted.

Another important criticism concerns the possibility that these agreements undermine public confidence in the judicial system. Some argue that the essential role of criminal law is to blame and harshly punish those who break it, and to encourage the choices of those who comply with it.¹³ The threat of criminal prosecution against a corporation, and the conviction that may result, is an important deterrent.¹⁴ When we see that some corporations have entered into several consecutive agreements for similar offences, we may question the deterrent effect of these agreements.¹⁵

This criticism is more or less applicable to the Canadian system: the objective of Canadian criminal law is not to impose the harshest penalty in order to achieve the "maximum" deterrent effect, but rather to achieve an appropriate level of deterrence.¹⁶ The procedure set up in Canada for remediation agreements was designed to meet the broader objectives of the Criminal Code, particularly those at the sentencing stage, which emphasize rehabilitation, remediation and prevention.¹⁷

The disproportionate power that these agreement regimes can confer on prosecutors may also raise concerns about overzealousness on their part.¹⁸ However, in this regard, the Canadian system provides for much stricter judicial oversight than the oversight in place in the United States. Not only does the Criminal Code regulate negotiations, but it also defines the mandatory parameters of a remediation agreement and provides for a robust judicial approval process.¹⁹

However, the Canadian model is not without its critics.

On the one hand, some point out that, despite the absence of a conviction, the significance of judicial oversight also entails a certain level of stigma for corporations that enter into a publicly disclosed remediation agreement.²⁰

On the other hand, during negotiations, the Canadian model places the prosecutor in the dual role of judge and jury. The prosecutor alone has the power to invite the corporation to enter into discussions regarding a remediation agreement.²¹ The prosecutor's decision must then be submitted for approval to the attorney general responsible for the case.²² The decisions of both the prosecutor and the attorney general are discretionary, as long as the conditions set out in section 715.32(1) of the Criminal Code are met.²³ However, the attorney general's exercise of discretionary power in matters of prosecution is not subject to judicial review, except in cases of abuse of process.²⁴ A corporation wishing to enter into discussions is therefore dependent on the prosecutor's willingness to do so.

Furthermore, attorneys general are appointed by the state and therefore are political actors who are members of the executive branch, which raises concerns about the real possibility of state interference in the decision whether to pursue or not pursue negotiations.²⁵ This concern was vividly illustrated in the wake of allegations of corruption and fraud against SNC-Lavalin International Inc., SNC-Lavalin Construction Inc. and SNC-Lavalin Group Inc. in connection with payments made to the son of the then Libyan president, Muammar Gaddafi, in particular to facilitate the awarding of public contracts.²⁶

In February 2015, SNC-Lavalin entities were charged in connection with acts committed in Libya. At the beginning of former Prime Minister Justin Trudeau's first term, SNC-Lavalin entities began lobbying for the adoption of a remediation agreement regime in Canada.²⁷ Two years later, the regime was adopted.²⁸

Shortly thereafter, the Public Prosecution Service of Canada began its analysis of the SNC-Lavalin entities' case to determine whether an invitation to negotiate a remediation agreement was appropriate. At the conclusion of that analysis, the Director of Public Prosecutions informed the Attorney General of Canada, Jody Wilson-Raybould,²⁹ that she would not invite the SNC-Lavalin entities to negotiate a remediation agreement. The attorney general endorsed this recommendation and informed the Prime Minister's Office.

Shortly after the announcement of this decision, Ms. Wilson-Raybould was reportedly pressured by the government, particularly by the Prime Minister's Office, to issue an invitation to enter into an agreement. The Prime Minister reportedly mentioned that, without a remediation agreement, the SNC-Lavalin group would "leave Montreal and a large number of jobs would be lost."³⁰ Some media outlets also reported that the Prime Minister of Canada, as a Quebec Member of Parliament, had an interest in reaching a remediation agreement with the Quebec-based organization, particularly in the context of the upcoming federal elections.³¹

Ms. Wilson-Raybould was subsequently removed from her position as Minister of Justice and attorney general. In his August 2019 report, the Conflict of Interest and Ethics Commissioner concluded that the Prime Minister had used his position of authority over Ms. Wilson-Raybould to attempt to influence her decision.³²

Ultimately, a guilty plea was negotiated by SNC-Lavalin Construction Inc., a subsidiary of SNC-Lavalin Group Inc. that was no longer in business.³³ No remediation agreement was reached.

Although the Canadian government denied any interference in the exercise of the attorney general's discretion, this event raised concerns about the possible weaponization of remediation agreements for political purposes and highlighted the issues arising from the dual role of Minister of Justice and attorney general being held by one and the same person.³⁴

Concerns have also been raised in other jurisdictions about the risk that the opportunity to participate in such negotiations may be reserved for large companies, particularly domestic ones, to the detriment of small or foreign organizations.³⁵ Following public consultations in Australia, for example, it was suggested that this risk could be mitigated by requiring prosecutors to publish the reasons for any decision to enter or not enter into negotiations for a remediation agreement.³⁶ Such a measure would ensure transparency and prevent any form of discrimination in the application of this mechanism.

Finally, some believe that a proliferation of this type of agreement could, in the long run, impoverish the body of case law on economic crimes.³⁷ In addition to affecting how the law develops in this area, it could also reduce the ability of organizations and their advisers to draw on the lessons learned from the courts to adjust their practices and strengthen their internal policies to better prevent wrongdoing.

Ultimately, remediation agreements are not a panacea, but they are a valuable tool in the arsenal for combating economic crimes. Criticisms levelled at them, however legitimate they may be, militate more in favour of perfecting the mechanism than abandoning it.

B. Towards a More Ambitious Canadian Reparations Agreement Scheme

Drawing on American and European experience, Canada did not want a more transactional approach, but opted for a rigorous, transparent restitution agreement scheme designed to serve the public interest and strengthen confidence in the administration of justice. However, years after the incorporation of Part XXII.1 into the Criminal Code, the results remain mixed; this mechanism continues to occupy a marginal place in the Canadian judicial landscape.

Meanwhile, in the United States, deferred prosecution agreements have become increasingly common. The considerable resources that the DOJ has historically devoted to its investigations have prompted many corporations to take the initiative and show their cards rather than risk a conviction and its far more severe consequences at the end of a trial. The appeal of the American model is certainly amplified by its relative discretion, particularly due to more ceremonial judicial oversight.

However, too great an imbalance between the effectiveness of the Canadian and US systems could compromise multilateral efforts to combat corruption, where remediation agreements now play a central role.³⁸ If the Canadian system continues to be underutilized, the country risks losing control over the sanctions imposed on its corporations, as demonstrated by the Alstom case in France and the HSBC case in the United Kingdom.

More fundamentally, the Canadian regime struggles to stimulate self-reporting and encourage improved corporate governance. In their current form, remediation agreements are not an optimal alternative to trial for the state, which has limited specialized resources to conduct complex investigations through to the filing of charges. On the other hand, organizations do not have sufficient incentive to voluntarily report their wrongdoing: voluntary disclosure does not guarantee immunity from prosecution nor even an invitation to negotiate an agreement, unlike in the United Kingdom.

Ultimately, Canada has designed a robust and transparent regime, but one that is largely neglected. Reforms seem inevitable if it is to reach its full potential. The creation of an agency specializing in the fight against financial crime would centralize the necessary expertise, optimize the implementation of measures to improve corporate compliance and promote best practices in governance.

Furthermore, the introduction of a regulated self-reporting scheme that offers good faith corporations that are guaranteed access to negotiations for a remediation agreement would introduce the incentive that is currently lacking.

Such reforms would breathe new life into Canada's remediation agreement scheme and enable it to become a more effective tool in the fight against economic crime, while allowing Canada to realize its ambitions in the areas of criminal justice, transparency and corporate accountability.

1 Department of Finance Canada, Canada Strong: Budget 2025, Ottawa, 2025 at 192.
2 Department of Finance Canada, "Combatting financial fraud, protecting Canadians against scams and abuse," October 20, 2025, website: <canada.ca>.
3 Canada ranks 16^th in the Index: "CPI 2024 for the Americas: Corruption Fuels Environmental Crime and Impunity Across the Region" (February 11, 2025), website: Transparency International <transparency.org>; "Corruption Perceptions Index 2024," website: Transparency International <transparency.org>.
4 Part XXII.1 (sections 715.3 to 715.43) of the Criminal Code, RSC 1985, c. C-46 (the "Criminal Code").
5 Patrick Sakowski, "A Bargain with Justice? A Perspective on Canada's New Remediation Agreements" (2019) 42:3 Man LJ 365 at 367.
6 R. v. SNC-Lavalin Inc., 2022 QCSC 1967.
7 R. v. Ultra Electronics Forensic Technology Inc (UEFTI) (February 28, 2023), Montreal 500-36-010389, QCSC.
8 Gibson Dunn, "Corporate Resolutions 2025 Year-End Update" (February 3, 2026), website: <gibsondunn.com>.
9 Amissi Melchiade Manirabona, "Avons-nous besoin des deferred prosecution agreements au Canada ? " (2016) 50:3 RJTUM 651 at 665.
10 David M Uhlmann, "Deferred Prosecution and Non-Prosecution Agreements and the Erosion of Corporate Criminal Liability" (2013) 72:4 Md L Rev 1295 at 1341.
11 Ibid.at 1298–99.
12 Perez, supra note 18 at 15.
13 Uhlmann, "The Pendulum Swings," supra note 101 at 1242–43.
14 Henning, supra note 38 at 1420.
15 Sakowski, supra note 5 at 374. The article refers to the case of Pfizer H.C.P. Corporation, which entered into a myriad of remediation agreements in the United States. On this subject, see: Yuan Zhou, "Raising the Deterrent Effect of the U.S. Deferred Prosecution Agreement: New Perspectives on the U.S. from the U.K. and Jersey," (2025) 10 J Econ Criminology.
16 Connor Bildfell, "Justice Deferred? Why and How Canada Should Embrace Deferred Prosecution Agreements in Corporate Criminal Cases" (2016) 20 Can Crim L Rev 161 at 168–69.
17 Section 718 of the Criminal Code; R. v. JW, 2025 SCC 16.
18 Manirabona, supra note 136 at 685–86.
19 Norm Keith and Justine Reisler, "The New Canadian DPA Regime: An International Comparative Analysis" (2019) 67:3 Crim LQ 306 at 334.
20 Bildfell, supra note 143 at 168.
21 Section 715.32(1) of the Criminal Code.
22 Section 715.32(1)(d) of the Criminal Code.
23 Darcy L MacPherson, "An Organization that is Criminal, but not Really: A Review of the Canadian Remediation Agreement Regime in the Context of the SNC-Lavalin Affair" (2024) 46:7 Man LJ 135 at 42ff.
24 SNC-Lavalin Group Inc. v. Canada (Public Prosecution Service), 2019 FC 282 confirming that the decision whether to invite an organization to negotiate a remediation agreement is within the discretion of the prosecutor. The principle of prosecutorial discretion is established in Krieger v. Law Society of Alberta, 2002 SCC 65 at 3, 32 and in R. v. Nixon, 2011 SCC 34.
25 Manirabona, supra note 136 at 667.
26 R. v. SNC-Lavalin International Inc., 2019 QCCQ 7778 at 2, 3.
27 In 2017, the CEO of SNC-Lavalin sent a letter to the Minister of Public Services and Procurement to stress the urgency of implementing a regime of remediation agreements to "catch up" Canada's lag in the fight against economic crime: The Canadian Press, "SNC-Lavalin CEO Urged Ottawa to Change Anti-Corruption Rules," CBC News (March 5, 2019), website: <cbc.ca>.
28 Mario Dion, Trudeau II Report, Office of the Conflict of Interest and Ethics Commissioner, August 2019, at 21–50.
29 Ibid. at 55–85.
30 Ibid. at 97.
31 MacPherson, supra note 150 at 160–61.
32 Dion, supra note 155.
33 R. v. SNC-Lavalin Construction Inc. (Socodec Inc.), 2019 QCCQ 18961; Amissi M Manirabona and Flavie Masson, "La face cachée des plaidoyers de culpabilité négociés par des organisations : l’exemple de l’affaire R c SNC-Lavalin" (2022) 52:2 RGD 391 at 393.
34 MacPherson, supra note 150 at 165–67.
35 Manirabona, supra note 136 at 668; Bildfell, supra note 143 at 182.
36 Simon Bronitt, "Submission to the Attorney-General's Department: Improving Enforcement for Serious Corporate Crime: A Proposed Model for a Deferred Prosecution Agreement (DPA) Scheme in Australia" (2017) at 2–3.
37 Norm Keith, "Will DPAs Lead to Better White Collar Compliance" (2017) 64:1-2 Crim LQ, 225 at 227.
38 OECD report, supra note 15.

Remediation Agreements in Canada: Reviving a Neglected Tool

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