Talk like a criminal law researcher

Charge – the accusation made against someone, claiming they violated the law

Corruption – dishonest conduct by those in power, usually involving bribery

Economic crime – illegal acts committed to obtain a financial advantage

Enforcement – ensuring compliance with a law or rule

Prosecution – conducting legal proceedings against someone following the charge

Remediation agreement (RA) – in Canadian law, an agreement between an accused organisation and a prosecutor to not pursue criminal charges if the accused fulfils certain terms. (RAs are similar to other non-trial resolution mechanisms in other countries, such as a deferred prosecution agreement, or DPA, in the UK and a convention judiciaire d’intérêt public in France.)

An economic crime is any illegal behaviour done with the intention of financial gain. “Such crimes may include fraud, corruption, bribery, bid-rigging, money laundering, tax evasion, forgery and theft,” says Dr Jennifer Quaid, a professor in the University of Ottawa’s Faculty of Law. “It’s a broad term!” The tactics used by economic criminals also vary hugely – beyond simple theft, they may employ deception, manipulation, abuse of trust or power, and other sophisticated strategies. “Many of these strategies make it hard to spot what is really happening,” says Jennifer. “Victims may include individuals, organisations, governments or society at large.”

Because many economic crimes are complex and well-disguised, many victims may not immediately realise they have been targeted. “Economic crimes committed by businesses are more challenging to bring to justice because the evidence can be buried within mountains of documents and private transactions,” explains Jennifer. “Unlike other types of crime, there’s no specific event that signals that a crime has happened, so investigators are always playing catch-up.” This lack of a single or obvious criminal incident does not make economic crimes any less serious – often, quite the opposite. “There are often consequences beyond simple financial loss,” says Jennifer. “Economic crimes may involve violence, human rights violations, environmental damage, or threats to democracy itself.”

Corruption in Canada

One particular aspect of economic crime is especially damaging for a democratic society: corruption. “At its most basic, corruption occurs when one party gives an unfair advantage to another party in exchange for something of value, often money,” explains Jennifer. “A good example is when a public official accepts a bribe in exchange for selecting a certain supplier for a government contract.” Corruption undermines public confidence in the government and encourages injustice. “Our understanding of democracy is underpinned by the idea of equality,” says Jennifer. “Corruption damages this – imperilling democracy and, sometimes, ushering in or maintaining authoritarian regimes.”

Laws are highly specific to individual countries. “Canada has not brought a lot of prosecutions in corruption matters,” says Jennifer. “Some say this indicates that Canada is weak on enforcement – but the number of prosecutions is not necessarily the best measure of good enforcement.” This prosecution rate is low for varied reasons, one being that Canada’s legislation dictates that it has to be demonstrated that the people involved in the corruption case did it knowingly, which is not always easy. “Many experts believe that Canada should create a different kind of offence that focuses on lack of diligence more than active criminal guilt,” says Jennifer. “The case would become more regulatory, rather than a truly criminal matter.”

Remediation agreements

A significant issue with economic crime is an organisation’s willingness to address it through the law. If a company realises they are at risk of corruption, or even have staff committing corruption, harsh laws may incentivise them to hide it rather than take action. Criminal convictions for economic crimes can doom a company, in particular by massively restricting its ability to apply for public contracts.

Beyond the business itself, it is also important to consider the innocent people that may depend on it, such as employees, shareholders, communities, creditors and governments. A criminal conviction within the business could damage these innocent parties through financial and livelihood losses – a punishment that they have done nothing to deserve.

To address this, Canada recently introduced a new type of legislation, called a remediation agreement (RA). “An RA is similar to a plea deal,” says Jennifer. “It allows settlements of charges for a business’s economic crimes without the need for criminal conviction.” Under an RA, the accused organisation has to publicly admit engagement in economic crimes, and fulfil certain terms – financial penalties, independent monitoring or victim compensation, for instance – typically within three years.

A shaky start

Despite vocal support from businesses when RAs were first considered, they have not been widely used since they were rolled out in 2018. “The new RA regime got off to a bad start due to disagreements between prosecutors and a big Canadian multinational organisation over its use, which culminated in politicians improperly pressuring the country’s Attorney General to intervene,” explains Jennifer. “This generated a major political scandal which cast a shadow on RAs for years.”

Improvements to the RA regime might help rebuild its reputation. “There is still limited information about how the negotiation process works, so setting this out more clearly would help,” says Jennifer. “RAs also need to be more transparent and made public once approved.” Additionally, non-government organisations and civil society groups are lobbying for more established benefits for victims, including those who have been victims of corruption in other countries due to the actions of Canadian organisations.

The future of economic crimefighting

RAs do not cover all economic crimes – far from it. “Right now, there’s a lot of attention on economic crimes connected to large criminal organisations and terrorist groups,” says Jennifer. “These would never be eligible for an RA but are an important enforcement priority for Canadian law to focus on.”

The Canadian federal government has announced an array of new measures to tackle the most serious economic crimes. “This includes a National Anti-Fraud Strategy, which will increase capacity to address mass market fraud, including how criminals use data and algorithms to deceive and defraud,” says Jennifer. “Canada is also creating a Financial Crimes Agency, which will support expertise in dealing with sophisticated financial crimes such as major money laundering schemes and cyber-attacks.”

© Mary Ellen Cavett

Dr Jennifer Quaid

Professor, Civil Law Section, Faculty of Law, University of Ottawa, Canada

Fields of research: Criminal law; economic crime; corporate criminal law; competition law; business regulation; AI governance

Research project: Studying the effectiveness of a new tool (the remediation agreement) added to Canada’s Criminal Code on economic crime and corruption enforcement, including comparing Canada’s approach to those used in France and Switzerland

Funders: Social Sciences and Humanities Research Council of Canada (SSHRC); Civil Law Section, University of Ottawa; Foundation for Legal Research; Quebec Bar Foundation

About criminal law

The field of criminal law is wide and often varies a lot between countries. “Law is a dynamic field,” Jennifer says. “As the world changes, so must the law. Every year there is new legislation, new cases and new policy.” As the ‘world order’ appears to be reshaping, this may create a more unpredictable global environment, and we will need good legal experts to navigate it. “We’ll be needed as new rules are developed, especially if we move to a system of multiple alliances. For example, if different countries worked together under new trade agreements, laws would be affected,” says Jennifer.

Jennifer is a legal researcher, which means she spends a lot of time analysing legal sources. “This includes documents, laws, regulations and court decisions,” she says. “I also read articles and books by other legal researchers.” Much of Jennifer’s research involves watching how real-world cases use and challenge legal rules. She also spends a lot of time in conversation with different people. “Journalists ask for my opinion on stories related to my areas of research,” she says. “This also gives me some great ideas for new research questions.” Additionally, Jennifer talks to people involved in law enforcement and in legal cases. She also collaborates with researchers from different countries to share insights and research tools.